The Glasgow Courier - Serving Proudly As The Voice Of Valley County Since 1913

By Ron Stoneberg
Managing Management 

Private Property Rights

 

December 20, 2017



I was dismayed to recently read that when a California resident who bought a ranch, that had previously been farmed, attempted to return it to grain crops; he was visited by an Environmental Protection Agency (EPA) bureaucrat who ordered him to cease and desist. Apparently, this over zealous bureaucrat decided the isolated, intermittent, puddles in the middle of the field fell under the protection of the waters of the U.S. (WOTUS) rules. When the landowner pled guilty (to avoid horrendous legal costs) he was fined the incredible amount of $300,000 (I hope this was a misprint in the article I read - but it probably wasn’t). In addition, he was assessed mitigation fees of over $700,000. That adds up to one million dollars for plowing a puddle! This should be a major wake up call to all landowners.

Here is a classic example of federal agency rulemaking and the subsequent enforcement going off the deep end. Hopefully, the Trump administration will rein in some of these out-of-control bureaucracies. In the meantime, there is something we can do to help ourselves.

That brilliant Nevada rancher, Wayne Hage, gave us the solution. All we have to do is follow his example. He strongly advised against going to the Federal District Court. Instead he recommended taking your case to the U.S. Court of Claims. In this court you must establish your ownership of the property through a chain of title and other documents. Once your ownership has been determined and it can be proved the government is taking your property then Amendment V of the U.S. Constitution kicks in and just compensation is awarded.

I used to be like most people and considered property to be tangible entities (such as land, water, minerals, etc.) and did not think of activities as being property. The federal government often successfully argued that restricting use was not considered a taking of the physical property. This all changed when the non government organizations (NGO’s) and federal bureaucrats hatched the scheme to control land uses through the purchase of conservation easements. Suddenly, Wayne’s idea that property rights were like a bundle of sticks, each stick representing a specific right, became clearer. Conservation easements formally established that activities (i.e. plowing, subdividing, fencing, etc.) were property rights that could be bought and sold and therefore had a value.

Now, let’s take a look at a landowner selling his subdivision rights and compare that to the same landowner selling his mineral rights. The mineral rights issue is pretty clear. Once you sell them you or your successors can never explore or develop minerals on or under your property. You still own the property, just not the minerals. However, the holder of the mineral rights has a legal right to explore and develop the minerals on or under your property. Does this same scenario apply to subdivision rights? In other words, neither you nor your successors in ownership can subdivide the land. However, can the entity that holds your subdivision rights subdivide your land? Remember, the holders of these rights can sell them at any time. Hopefully, the property rights legal beagles will clarify this issue before more landowners are duped into signing away their property rights for pennies on the dollar!

Since conservation easements have established that each activity performed by a landowner on his vested private land is a separate property right, then the next time federal bureaucrats issue a cease and desist order tell them to bring their checkbook to the U.S. Court of Claims. Remember, the government can restrict or prevent you from performing an activity on your private property but they have to provide ‘just compensation’ to you for their ‘taking.’ Had the gentleman from California taken his case to the Claims Court he may have received a government check rather than a bill for one million dollars!

 

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