MESSAGE FROM MYRON EBELL, NATIONAL POLICY DIRECTOR, FRONTIERS OF FREEDOM INSTITUTE founded by former Senator Malcolm Wallop (www.ff.org)

Subject: Land trust bill update: Young press conference and letter to Young
Date: Tue, 9 Feb 1999 13:11:19 -0500

Comrades,

The House Resources Committee has announced that the new version of the Conservation and Re-investment Act will be introduced tomorrow and that a press conference will be held in 1324 Longworth at 12:30 PM to discuss it. Reps. Don Young, John Dingell, Billy Tauzin, and Chris John will be there. Mike Henry, the committee staffer in charge of the bill, is holding a briefing for members' personal staff at 3 PM this afternoon on the changes they have made from H. R. 4717. They are still trying to recruit original co-sponsors.

Here follows a copy of the letter I sent to Young:

8th February 1999

The Hon. Mr. Don Young Chairman
Committee on Resources
U. S. House of Representatives
Washington, D. C. 20515

Dear Chairman Young:

Thank you for inviting Frontiers of Freedom to comment on your bill, H. R. 4717, which you introduced on 7th October 1998. I hope that our comments may be useful to you and your committee's staff as you prepare a new version for introduction in the 106th Congress. I also hope that you will invite Frontiers of Freedom and other property rights advocacy organizations to testify at any hearings you may hold on your bill. Staff members for several Members of Congress who co-sponsored H. R. 4717, apparently at the instigation of one of your committee staff members, have complained that we and others in the property rights movement should have made our objections to your bill privately before it was introduced. I learned from one of these staff members that your bill was circulated in discussion draft form as long ago as June of last year. Undoubtedly, we would have made our objections much earlier if we had known anything about your bill. I have talked to a number of people in the property rights movement, but have yet to find a single person on our side who knew anything about it or was consulted before the bill was introduced. But of course there was no need to consult with opponents of government land acquisition in order to learn whether they would oppose legislation to increase government land acquisition; and so they were not consulted.

As you know, we have worked on the same side of property rights and natural resource production issues for a number of years. I have admired your principled defense of property rights and consistent opposition to more government land acquisitions. That you are now proposing to reverse course and promote socialization of private property on a massive scale is saddening, but that is clearly your decision to make. I respect it and am trying to understand it. On the other hand, I hope you will understand and respect the motives and intentions of those of us who will oppose your bill with as much vigor as we opposed Chairman Morris Udall's similar American Heritage Trust Act a decade ago. From our standpoint, to do anything less would be to betray our belief that private property ownership is the foundation of our liberties and system of limited government.

Our specific comments and recommendations on each title follow below. It should be noted that even if every recommended improvement is made, Frontiers of Freedom will still oppose the bill if it creates a dedicated fund, not subject to congressional appropriation, for the acquisition of private land by any level of government. No added safeguards can, in our view, adequately protect private property ownership from the long-term danger posed by such a fund.

Title I.

We believe that OCS revenues should be shared with the States that have oil and gas production off their coasts in the same way that federal revenues from on- shore oil and gas production on federal lands are shared with the States. We urge you to introduce a bill that would do that in a straightforward way and would support your efforts to pass such a bill. Earmarking 27% of OCS revenues for the 34 States defined as coastal States is much less satisfactory because it will result in much less money going to the six OCS States that should be receiving 50% of federal royalties and because the funds distributed will be earmarked for a specific purpose rather than going into the general treasury.

We understand, however, that you have put these provisions together in order to gain enough political support to send at least a little money to OCS States. That is your call, but we doubt whether it will be worth the effort required. We doubt even more whether it will be worth the price of enacting Title II.

As we understand it, it is not the intent of Title I to provide funds to state and local governments for the purpose of buying land. But as there is no provision that prohibits land acquisition, we suspect that that is where much of the money will end up. The experience of the Exxon Valdez settlement is instructive here. While the billion- dollar fund was supposed to be used for environmental restoration and protection, in the end $380 million was used to purchase over 700,000 acres of land in Alaska. We therefore recommend that language be added to prohibit state and local governments from using any Title I funds for acquiring real property. Insofar as money is fungible, this restriction can easily be evaded, but at least it expresses the sense of Congress that government land acquisition does not constitute an environmental benefit or improvement.

Title II.

Insofar as you have been a sincere, determined, outspoken, and long-time opponent of government land acquisition, we can only conclude that you have added this title merely in order to gain political support from some of the preservationist pressure groups, such as the Wilderness Society, the National Wildlife Federation, the Nature Conservancy, the Trust for Public Lands, and Defenders of Wildlife. Undoubtedly, the preservationists will support such a massive increase in government land acquisitions, but we also expect that they will do everything they can to strip out the provisions of Title I. The introductions of your bill and the similar bill in the Senate have already had the unfortunate effect of causing the Clinton-Gore Administration to propose a similar program, the Lands Legacy Initiative, in their FY 2000 budget. Some defenders of Title II have claimed that its purpose is not really to expand government land acquisition (even though that is what it does) but is being offered defensively in order to prevent some worse piece of legislation, such as the Lands Legacy Initiative, from being passed. It is inevitable, so this reasoning goes, that Congress will vote to buy a lot more land; therefore we should try to pre-empt the proponents with something not quite as bad. There are three problems with this argument. First, the preservationists did not try to convince Interior Secretary Babbitt to devise a similar program until after your bill was introduced last October. Second, it is not clear to us that the Lands Legacy Initiative is worse than what you are proposing. And third, no piece of legislation is inevitable. The American Heritage Trust Act of the late 1980s, which is very similar to Title II, had over two hundred co-sponsors in the House, yet it failed because of the intense opposition generated throughout rural America by a coalition of trade associations and grassroots membership groups. If you are opposed to the socialization of private property, then you are in an ideal position as the Chairman of the House Resources Committee to stop it.

Our major recommendation for Title II is to remove the words, "without further appropriation", from Section 202, page 18, lines 4-5. If you do that, then Title II becomes merely advice to Congress on how Land and Water Conservation Fund monies should be appropriated, which each Congress in its wisdom may or may not follow. Although there have been many problems with congressional LWCF appropriations over the years, congressional appropriation is still far superior to a dedicated fund. Because acquisitions have had to compete with other budget priorities for funding, Congress has usually appropriated far less money for acquisition than the authorized level of $900 million per year. If the money were deposited automatically into land acquisition accounts, then federal, state, and local agencies would be able to develop long-term strategies to use environmental regulations and other land-use controls to coerce landowners into selling their land. Of course, federal agencies are doing this now, but not very effectively because they cannot count on the acquisition money being appropriated by Congress.

A further advantage of congressional appropriation over a dedicated fund is congressional oversight. Landowners with complaints can take them to their Representatives and be heard. Trying to get a bureaucrat with regulatory power and an acquisition budget to listen is not going to be easy, particularly for small landowners. This is why we see little value in the provision in your bill to require that all federal acquisitions over $1 million be specifically approved by the House and Senate authorizing committees. Big landowners can usually handle their own problems. It is the small landowners that are usually unable to defend themselves against regulatory terrorism. We would therefore suggest specific congressional authorization for all acquisitions.

The willing seller provision in your bill is welcome, but you need to be aware that the protection it affords landowners, and particularly small landowners, is inadequate. Federal land agencies and state and local land use authorities have perfected a variety of coercive techniques for turning unwilling sellers into willing sellers.

If you go ahead with a dedicated trust fund for land acquisition, then we would recommend the following changes.

First, the LWCF should be amended to fully fund the Payment in Lieu of Taxes Program each year before any funds are spent on buying private land. This will partially compensate for the harm done by government land ownership to local communities by shrinking their tax bases. This harm is generally felt most by local schoolchildren because in most States property taxes provide the largest share of school funding.

Second, the Land and Water Conservation Fund should be amended so that funds can be spent on the four federal land agencies' maintenance and rehabilitation backlog. Only after this multi-billion dollar backlog is cleared up could funds be spent on federal, state, and local land acquisitions.

Third, the bill should be amended to require the approval of the local elected government for any proposed federal, state, or local land acquisitions within its jurisdiction. This would replace some of the accountability of elected officials that you are removing by creating a fund not subject to congressional appropriation.

Fourth, the Tauzin amendment to the California Desert bill should be added. This amendment, which was adopted by a large majority in the 103rd Congress, would prohibit using environmental regulations, such as the Endangered Species Act, when making fair market appraisals of property to be acquired.

Fifth, the LWCF should be amended so that funds can be spent on working with private landowners as an alternative to acquisition. A wide variety of innovative conservation programs that involve co-operation between private landowners and conservation agencies have been developed over the years. The only thing most of them lack is funding.

Sixth, the LWCF should be amended to lower the annual authorized level from $900 million down to the average historic level of actual congressional appropriations. This would be in the $250-300 million range.

Seventh, the bill should be amended to require no net loss of private property. In order to spend LWCF funds the Secretary of the Interior would first have to certify to Congress that the federal government owned no more land this year than it did last year. This raises the problem of how much land the federal government actually owns. The Public Lands Annual is not reliable. Thus we would suggest that before Title II could go into effect, the federal government would have to complete a new and accurate inventory. This inventory could also include an inventory of all lands that Congress has at one time or another authorized for acquisition, but which have never been acquired. Similarly, the first disbursement of funds to the States should be used for inventories of lands owned by States, counties, and municipalities. These inventories would be a very useful starting point in considering just how much of the land in the United States should be owned by government.

Title III.

The exemption from the Federal Advisory Committee Act needs to be narrowed in our view. The provision allowing funds to be used for law enforcement and public relations is highly objectionable and will provide the resources for bureaucrat- activists to do a great deal of mischief. We recommend removing this provision. A provision prohibiting using these funds for land acquisition should be added. Although perhaps not strictly necessary, it serves a useful symbolic function.

Thank you for your attention to our concerns. Although it is likely that we will end up on opposite sides of this battle, Frontiers of Freedom looks forward to continuing to work with you on a number of your initiatives that we support, particularly your American Lands Sovereignty Protection Act. Frontiers of Freedom has been a leader in supporting that bill. As you will recall, I testified in favor of it at the first hearing you held on it in the 104th Congress, and Frontiers of Freedom Chairman Malcolm Wallop spoke at the press conference when you introduced it in the 105th Congress. I find it ironic, but not particularly amusing, that you continue to be concerned about the potential threat to private property ownership in this country posed by the United Nations, but are now proposing in the Conservation and Re-investment Act a much more serious, tangible, and immediate threat to private property ownership in this country. Given your long and distinguished record as a defender of property rights, we still hope that you will reconsider your support for this unfortunate relic from the era of command-and-control environmentalism.

Yours sincerely,

Myron Ebell Policy Director
Frontiers of Freedom Foundation