THE Fifth Amendment to the United States Constitution seems
clear enough: "... nor shall private property be taken for public
use without just compensation."
But with the growth of environmental regulations in recent
years, government "taking" of private property has assumed new
meaning. Farmers, land developers, and others have found themselves
constrained in what they can do with their property. An active
"property rights" movement has emerged, and it has found some
powerful champions in Congress and statehouses.
With the election of Bill Clinton and the appointment of
Interior Secretary Bruce Babbitt and other environmental activists
to high posts, head-butting between environmentalists and
private-property defenders has become more intense.
The issue is key in the debate over reauthorization of the
Endangered Species Act and the rewriting of federal
wetlands-protection regulations. In parts of the flooded Midwest,
farmers are concerned that what had been considered farmland may be
viewed differently once it is drained and levied.
What Mr. Babbitt calls "my top priority as secretary of the
Interior" - creation of a National Biological Survey - is meeting
opposition on grounds that it will allow government scientists
(bureaucrats and "green" political appointees) to ignore "No
Trespassing" signs as they look for endangered species.
He assured congressmen last week: "I have no intention of
abrogating private property and trespass laws."
"This thing was supposed to be a love-in months ago," says one
congressional source, referring to the hearing on a biological
survey that lasted for nearly six hours and played to a packed
house of environmentalists and industry representatives. "But,
now, all sorts of red flags are being raised."
Among those raising such flags are 500 to 600 activists from
natural-resource-dependent communities, who this week are holding
a "Fly-In for Freedom" in Washington to lobby lawmakers on
private-property rights, among other issues.
Among those friendly to their cause is Sen. Malcolm Wallop (R)
of Wyoming, who notes the rising number of claims for federal
compensation for the "taking" of private property. "This year
alone, there are between 100 and 150 takings cases before the Court
of Federal Claims," he says. "That is up from 69 last year, and
52 the year before." Others say that for every landowner able to
take a case to court, there are many more who can't afford to fight
In the Senate, Robert Dole (R) of Kansas is author of a proposed
"Private Property Rights Act." The bill directs agencies to
review regulations for possible financial impact on private
property and reduce such takings; it also would require the US
attorney general to certify that this had been done. …