Thursday, September 23, 2010

The Bank of Eminent Domain

From the 27 September 2010 Greater Niagara Newspapers

By Bob Confer

Eminent domain is a power of the government that is tacitly recognized in the Fifth Amendment of the US Constitution which reads, “…nor shall private property be taken for public use without just compensation.” Over the course of our nation’s history that ability to force the sale of land for common good has been abused. It’s not uncommon to hear horror stories of municipalities basically stealing homes for corporate, not public, benefit, and the federal government taking away precious ranchland and transforming it into an idled preserve.

Sometimes, the only thing that prevents the government from further abusing this power is money. If it doesn’t have it the supposed fair trade for land cannot take place. Congress, though, is trying to change that by creating a perpetually well-funded Land and Water Conservation Fund (LWCF).

The LWCF was created in 1964 and is the primary source of funding for federal land acquisition for the purpose of conservation and/or recreation. It also provides grants to state and local governments for the same. Using a variety of funding methods (taxes on fuels, for example) its annual authorization has been set at $900 million since 1977. But, that cap has been met only twice during the program’s history because it’s not a true trust fund in the sense that the $900 million in taxes collected do not have to be given to LWCF. The funds are typically diverted by Congress for other purposes. Over the past decade LWCF has received an average of $313 million per year.

Congress is looking is looking to overcome that budgetary obstacle with, of course, new means of taxation. In July the House of Representatives passed HR.3534, the CLEAR Act (an acronym for the Consolidated Land, Energy and Aquatic Resources Act), which was in response to the British Petroleum oil leak and places all sorts of new taxes on onshore and offshore drilling alike, forces federal takeover of states’ waters, and creates new regulatory functions. Among the new revenue streams is a $2 per barrel surcharge on oil drilling that will be used to, as the Act demands, fully-fund LWCF every single year. That means the government will have nearly-limitless reserves to buy up land that it sees as being necessary to the betterment of the environment or the advancement of outdoor pursuits.

It should be noted, though, that government is already the primary stakeholder of land in our country. The federal government owns in excess of 700 million acres while state and local governments own another 197 million acres, equating in total to about 40 percent of the nation’s landmass.

Despite such earthly possessions, the government wants more. That’s because the control of the masses is most-easily attained through public ownership of property. Think about your frustrations as a homeowner whose property rights have been tempered with onerous building codes and property taxes. Now, imagine that heartache and stress magnified a thousandfold by being a one-time property owner who was forced out of possession of land through eminent domain. Just ask anyone who has lost land in such a manner to the government; the monetary “rewards” of the mandatory sale (which are often below market value) never make you whole.

With the green movement as mainstream as it is and a good percentage of the population willing to abandon human progress for the perceived benefit of Mother Nature, environmental concerns, rather than the ages-old reasons for eminent domain (like roads, municipal complexes, urban renewal), will dominate the reasoning for federal and state land grabs. That said, rural landowners will now be in the crosshairs as it is they who have the lands and habitats (forests, grasslands, waterways) that are so prized by the environmentalists. This will have a major impact on economic activities like logging, farming, and ranching, just as it will on folks who want to enjoy personal liberty on their own lands.

There is still some time, though, to stop LWCF from growing out of control. The Senate has yet to take up their version of the CLEAR Act which is S.3663, the Clean Energy and Oil Company Accountability Act of 2010. Make an effort to write your Senator and ask that he or she vote against the Act entirely or at least push for the dismissal of the LWCF component. If not, you’re putting your land rights and those of the productive sectors of our economy at risk.

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