Land Letter
October 28, 2004
By Allison A. Freeman
Land Letter reporter
Four years ago, Terry Anderson saw great potential for an improved environment and property rights under the Bush administration. But now, Anderson, director of the free-market Property and Environment Research Center (PERC) in Bozeman, Mont., says he has probably seen more lost opportunity than anything else.
"I had super high expectations," Anderson said. "When Gale Norton called me the night before she was appointed and said she would be the secretary of Interior, I said, ‘Holy cow, this is really going some place!’"
But those expectations have not been met, according to many property rights groups across the country. From nonprofits like Anderson’s to small ranchers and grassroots advocates, many conservatives claim they have not seen appreciable change in land rights in this administration from the last.
Their disappointment falls in contrast with environmentalists, who have also complained of feeling shut out by an administration that they see as having done more to roll back environmental regulations and public lands protections than any other in recent memory.
The property-rights groups had rallied for the Bush administration four years ago, fighting against what they saw as an expanding federal estate under the Clinton administration. But many land rights advocates now say they have been nonplussed with the current administration’s results in the land and natural resource arena.
Their chagrin is not likely to lead any land rights advocates as far as the camp of Democratic presidential nominee John Kerry. Nevertheless, some analysts say that waning enthusiasm in the rural West could lead to lower voter turnout, which could potentially pose a problem for President Bush in swing states.
Bush won states like Nevada, where most of the population is concentrated in an urban area, four years ago by mobilizing larger than average turnout from voters in the vast rural areas of the state. Lobbyists doubt those voters would cast a ballot in favor of Kerry, but they could leave a gap if they do not come out in numbers as large as they did four years ago in favor of Bush.
Administration gets passing grade
The feeling of many property rights groups can be summed up in the passing, though not stellar, grade that PERC gave the Bush administration for its environmental policies in a "report card" the group released last week.
The report card gave the administration an overall grade of "C+" for its term. The grades were issued on the basis of creating policy that adheres to "free market environmentalism," which includes respect for property rights, market trading and decentralization. The grade was better than the "C-" the administration received in the same report card in January 2003.
"It’s an improvement … but not the kind of grade that deserves a certificate from the dean," said Bruce Yandle, a PERC senior fellow and interim dean of Clemson University’s College of Business and Behavioral Science.
In land and natural resource issues, the administration’s grades all hovered at the average mark, with a "C" for endangered species and a "C+" for both grazing and public lands management.
Analysts from PERC and a variety of other free-market think tanks contributed to the report. Representatives from those groups who spoke at the report’s release last week at the National Press Club said their grades reflected, in part, displeasure compared to what they thought they would see in this administration.
"Coming in four years ago, our expectations were much higher," said Dana Gattuso, a senior fellow with the National Center for Public Policy Research, a conservative think-tank in Washington, D.C.
Gattuso, who was responsible for the report’s grade on the administration’s activities related to the Endangered Species Act, said she had hoped to see the administration back substantial reform of the act, a move that Bush had supported on the campaign trail four years ago. Instead, she said, no real changes have been made and incentive programs have only been used marginally, with expansion of Clinton-era programs like Candidate Conservation Agreements with Assurances and Safe Harbor.
"Rather than a carrot, it is just a softer stick," Gattuso said. "It doesn’t change the fact that when an endangered species is on someone’s property, it is a net liability, not a net value, until there is real change to the act."
Property rights advocates have backed overhauling ESA to throw out many of its regulations, replacing its command and control elements with incentives to encourage voluntary stewardship.
There have been no moves in Congress to completely revamp the act, though the House Resources Committee did successfully pass a "sound science" bill and a critical habitat reform measure in July.
Gattuso faulted the administration for not speaking out in favor of the critical habitat bill, which would alter critical habitat’s deadlines, exclude land involved in other habitat conservation plans and give more weight to landowners and state and local governments in the decisionmaking process.
Environmental groups have protested the critical habitat bill and other attempts to change the act, arguing that more stringent regulations are necessary to provide protections for species.
Landowners feel overlooked
Meanwhile, some small landowner groups have said they feel the administration has not gone far enough to protect them and has been too willing to negotiate with environmental and industry groups.
"By and large, the folks in rural America who have dealings with the federal government on land use issues are largely disappointed with the hesitance and meekness of the Bush administration," said Myron Ebell, a policy analyst for the Competitive Enterprise Institute who has also worked on land rights issues for several different conservative groups over the years.
Rachel Thomas, who was raised on a ranch, is one of those disappointed landowners. Thomas, a retired Defense Department employee and landowner in southeast Arizona, researches federal involvement in land and natural resource issues and distributes information on the grassroots level to resource users.
Thomas said her feelings about the Bush administration are "mixed." She applauded Bush’s executive orders directing agencies to encourage more local involvement, but said that does not always seem to translate into action on the ground, noting that some agency officials "have an all-out war against the resource users."
Thomas was particularly concerned with a growing number of ESA critical habitat designations and agreements with environmental groups, a majority of which the administration has issued under duress after successful lawsuits from environmentalists. Thomas and others in her network feel environmentalists can more easily get a seat at the table — even if by elbowing and suing their way in — than small landowners under the current rules.
"It is very hard for landowners to get their concerns heard," she said. "At the Department of Interior, I cannot tell any difference in the actions under Gale Norton than I could with Bruce Babbitt."
And property-rights advocates are no more pleased with the administration’s actions inside the courtroom. Jim Burling, an attorney on property rights cases for the free-market Pacific Legal Foundation, expressed disappointment with the administration’s approach to property rights in the legal sphere.
Burling has come head-to-head with the administration in two takings cases that made it to the Supreme Court — Palazzolo v. State of Rhode Island in 2001 and Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency in 2002. Both cases argued against state or regional authorities encroaching on the development rights of property owners. Palazzolo prevailed in the first case, with a divided court deciding that a property owner who acquired title to the land after it was subject to wetlands regulations can still bring a takings claim under the Fifth Amendment; in the Tahoe case, the court held that a moratorium on development imposed during the process of devising a comprehensive land-use plan did not constitute a taking of the landowners’ property.
The Bush administration pitted itself against PLF in the Supreme Court, even though the federal government was not a defendant in the case, filing an amicus brief and sending a top attorney to present oral arguments opposing the group.
"I have not seen any appreciable change from the Clinton administration in how takings are treated in the courts," Burling said.
High expectations
If property rights enthusiasts have experienced dissatisfaction with the Bush administration, it is due in part to their expectations four years ago.
Many Western landholders, resource users and property rights enthusiasts felt burned by the Clinton administration, in which Interior Secretary Bruce Babbitt oversaw the creation of new national monuments and a significant expansion of the federal estate. So when President Bush — who mentioned ESA reform and water rights on the 2000 campaign trail — was elected, it was like a breath of fresh air for property rights enthusiasts.
Land rights advocates thought they would see real progress with the appointment of Gale Norton as secretary of Interior. Prior to her stint as Colorado attorney general, she had worked at the Mountain States Legal Foundation, a nonprofit law firm dedicated to individual liberty, property rights, limited government and free enterprise.
However, lobbyists for property rights groups who have worked with Norton in the past said she has not stuck by those beliefs, making little progress in what they see as the right direction. "If I were Gale Norton, I couldn’t look at myself in the mirror, because I know what she believes in," one said.
Better than other options
But while many property rights groups have been upset that the administration has not done more to advance their agenda, several also noted that it has also not done much to work against them.
"They have not done a lot that is positively bad," Ebell said. "There is very little to point to as an achievement. … They’ve disappointed a lot of people in the rural West, but not made very many of them angry."
PERC’s Yandle expressed a similar sentiment, saying the authors of the report card may have been harder graders by taking into account what they were hoping to see. "At the end of the day, you have outcomes and actions, and we can’t evaluate massive efforts that might have been made so something worse didn’t happen," Yandle said.
And Chuck Cushman, director of the American Land Rights Association, said that while he would like to see landowners incentives in ESA and a tighter rein on the Park Service, he thinks the administration is overall moving in the right direction.
"We’re dealing with a bureaucracy, so there is a certain sort of mindless monolith that rolls along," Cushman said. "It can crush people or [the administration can] move it slightly and limit that damage, [and they have] tried to do that."
And while some landowners and property rights advocates have been critical of the Bush administration, they would not go so far as to contend a Kerry administration would be better.
An organizer who has worked to set up meetings between administration officials and landowners said that while small landowners across the country have been disappointed with the Bush administration, many of the people he works with were hesitant to speak ill of the administration now, for fear of doing anything that could help usher Kerry and his running partner John Edwards into office, which they see as a worse option for their concerns. However, he said that if a Democratic administration did come into play, one might see Republicans on the Hill and across the country more active in fighting proposals they questioned.
The pendulum swings
Anderson describes environmental policy as having been caught up in movements like those of a swinging pendulum.
On one side of the swing is the more environmentalist approach, with stricter regulations, more public lands and fewer options of what one can do on those lands. Anderson described the pendulum as swinging in that direction during the Clinton years.
On the other side of the swing is the more industry-friendly approach with fewer regulations and less public lands. "In many ways, the Bush administration let the pendulum swing back to the other side," he said.
But Anderson thinks there is a place in the middle, where incentives and balance could break down gridlock and bring "sensible policy."
He offers grazing as an example, where environmentalists have argued against letting livestock on public lands and ranchers have lobbied for more access and fewer restrictions. But PERC has advocated for making grazing permits transferable, where environmental groups could buy them from ranchers that are willing sellers, then retire or sell them.
The PERC report gave the administration a "C-" for grazing, saying it should have issued a rule to allow the Bureau of Land Management or Forest Service to allow non-grazers to hold permits and reduce or in some cases exclude livestock grazing.
The group has also said permittees — whether environmental groups or ranchers — should post a bond and be accountable for the environmental consequences of their actions.
Anderson said this was one area in particular where he expected to see change, since some ranchers and environmental groups were on board, as well. "I thought it was a no-brainer," Anderson said.
But any time Interior officials tried to push forward the issue, Anderson said, they would get a call from higher-ups saying that too many ranchers did not want environmentalists to get involved.
For Anderson’s part, he is hoping that such market approaches to environmental issues can come into play, regardless of who is in the White House.
"We don’t have a clue of what to expect in terms of what Kerry and Edwards would really do with the environment," Anderson said. "It’s not an issue either party is willing to put up front.
"It may well be that a Democratic administration comes along and hears things, and there will be an impetus for stopping the swing of the pendulum, for improving environmental quality at less cost to the economy," Anderson said. "I’m not predicting it for Kerry/Edwards, but it might be."