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Who owns the land? A fierce controversy surrounds attempts to balance private rights and public good.

A fierce controversy surrounds attempts to balance private rights and public good.

A man's home may be his castle, but what is his land? The answer depends in part on where he lives and where he grew up. The right to own and use land and the limits over those rights are not fixed; they are fluid, subject to intense debate - both philosophical and pragmatic - and they change with both time and place.

"Property rights" is a hot-button issue, a topic for discussion all the way from the counter at the local doughnut shop to the bench of the U.S. Supreme Court. It is also a potent membership and fund-raising tool for the Wise Use Movement, one of the few that plays as well Down East as it does out West.

I grew up on the land, tending cows on a small farm in Connecticut. I know land the way a farmer knows land, as something to hold and squeeze to see whether it balls or crumbles. I know the smell of the earth. I know to this day every rock in every stone wall that held back the woods encroaching on our fields.

There were other stone walls, too. Woven through the woods, they told of other farmers who had owned this land and relinquished it to nature. Ownership, I came to realize, is temporal: the land belongs to none of us.

One stone wall was anchored at the roadside by a granite post - NY on one side, CONN on the other - marking the state line. The farmer on the NY side sold the right to mine gravel from his pasture, and for a year a steam shovel gouged a hole in the landscape that endures even today. "No zoning over there," my father groused. "Next thing you know, they'll put up a trader camp. " Our town had zoning, and I learned that restrictions can be set on land use, limits to protect the public interest.

As I explored the woods, I would occasionally run into a fisherman or a hunter or a trapper. We owned the land, but others had the right to use it. And then gradually, as city-slicker hunters mistook more and more cows for deer, the farmland was posted, and trespassers were barred. The right to use land can be changed, can be lost through abuse.

Before you condemn me as an Easterner incapable of understanding the Western land culture, let me remind you that the East was once the West. Free land enticed families to cross the ocean in small boats centuries before the Homestead Act launched fleets of prairie schooners across the plains. In fact, to understand how deeply rooted property rights are in the American psyche, it is helpful to visit England. Read the real estate ads in London; house listings speak of the number of years left on the land lease. The average English citizen may own the house, but to this day the local lord owns the land that house is built on. Our ancestors fled this leaseholder system, and the right to own land became a cornerstone of American culture.

The King's land grants in colonial America were part of British public policy, just as the Homestead Act was part of American public policy. In different centuries, both countries saw the need to encourage settlement of far western lands. Political leaders of the 19th century believed in the inevitable coast-to-coast expansion of the United States. And so Manifest Destiny used public property, which involved giving free land to the railroads and grazing, mining, and timber rights to developers, to further the national interest.

We are only now coming to the end of that era. Surprisingly, just seven years ago the Homestead Act finally passed into history. We no longer need to encourage people to move West. We are running out of land. Public policy is shifting to, reflect this, and with it, the rights of ownership and use, setting up the fight over property rights.

The issue in the West is the use of public land. Both the economy and the national interest are turning against the ranchers, foresters, and miners. The anachronistic legislation that encouraged development and exploitation is doomed. President Clinton may have bowed to Western politics this time around, but the topic has not died.

In the crowded East, the issue is the use of private land. As the Atlantic Ocean inexorably chews away at dune systems and the mega-buck summer homes that violate them, we are learning that keeping development back from the dune line is in the national interest. We have learned - the hard way - the value of breathing room, for nature as well as for people.

We are learning, but it is a fight. It is a fight not just against the Wise Use Movement and its offspring, The Property Rights Movement, but against the belief that property is one of those inalienable rights endowed to us by our Creator through the Declaration of Independence. We may know in our minds that to shape our destiny, land use must be controlled, but in our guts, we still equate private property with personal freedom.

The Wise Use Movement understands this dichotomy and plays it both subtly and blatantly. Its message is simple: government is trying to take away an inalienable right. With lies and distortion, Wise Users have exploited fear and ignorance to destroy efforts to gain Wild and Scenic River status for the Pemigewasset in New Hampshire and the Farmington in Massachusetts. In Maine, the Washington County Alliance killed efforts to identify the Cutler Coast as a National Natural Landmark. The group, operating as the Maine Conservation Rights Institute, is now challenging Park Service initiatives throughout the Northeast.

Park Service employee Edie Shean-Hammond, whose regional office has dealt with the Maine group, says property rights advocates are costing time, money, and, ominously, the public trust. The threat of the Wise Use Movement was one of the top five issues covered by the Park Service in briefing papers prepared for the new administration.

The fights until now, however, have been mere skirmishes. The property rights people are mounting a campaign in the courts and in Congress that could bankrupt conservationism and make prohibitive any public effort to control land use. They call it the "takings" issue. Simply stated, property rights advocates argue that if the government "takes away" a land use, the government must compensate the landowner.

They carried the issue to Capitol Hill, where they tried to get legislation passed that would block any Environmental Protection Agency regulations that involved a "taking" - a determination that would be left to the Department of Justice. And they brought the issue to the Supreme Court, where developer David Lucas wanted more than $1 million from South Carolina because the state said his beachfront property is too close to the ocean to support a building. (Ironically, Lucas is willing to allow the government to subsidize the flood hazard insurance that gives value to his and all other beachfront property.) [Note: Although the Supreme Court did not rule the South Carolina action to be a taking, the state eventually paid Lucas.] In fact, the concept of "private property taking" has been carried to such an extreme that a Nevada rancher has sued for damages because the Forest Service stopped him from grazing cattle on public land, and Alaska's governor has sued the U.S. government for $29 billion for depriving the state of mineral revenue bound up in more than 100 million acres of national parkland, wildlife refuges, and wilderness areas.

The catch in the "takings" argument is that nothing is being taken. From the first tenuous settlements that included village greens and commons, land use in America has historically been determined by, and in, the public interest. The right to do this or that on any given parcel of land is not inalienable; it has been given by the community, and it can be taken away by the community. Like the farm I grew up on, land does not stop at the property line, and neither do the effects of how the land is used. It is the developers and exploiters who have been doing the taking. It is time to set the record straight.

Postscript: The farm I grew up on is gone. I moved on, my parents passed on, and so did the land. Two houses stand in the alfalfa meadow now, one on the blackberry hill and another in the night-pasture. But most of the land - the cornfields where we waged war with 'coons, the swamp where I once accidentally set cattails on fire, the outcropping where I would show off glacial scratches - most of the land was sold to the Park Service. Now you can walk it, too; it carries the Appalachian Trail north from New York into Connecticut. It is no one's land today; it is everyone's land. And it is still my land.
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Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Author:Stapleton, Richard M.
Publication:National Parks
Date:Sep 1, 1993
Words:1493
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