DEBATE OF '98- responsibilities of forest land owners

Don Baccus dhogaza at
Thu Apr 23 15:10:28 EST 1998

In article <6hncff$r4m$1 at>,  <mcour at> wrote:
>In article <353e394b.0 at>,

>I never argued that the federal government has to compensate when laws
>restrict property use in order to protect government-owned assets.

Well, when you say things like this:

>> >However, property rights are granted by the US Constitution and should only
>> >infringed upon in the manner setforth therein (just compensation).

it appears to me that you are saying so.  You've added no qualifier to
indicate that you believe just compensation isn't required if the
infringment is imposed in order to protect public assests.  You've
made an absolute, no-compromise statement.  Maybe that's not what you
believe, but it's what you've *said*.

>government has the right to own property also, so if the use of my property
>infringes on public property rights or the property rights of another private
>property owner, then government regulation is reasonable.

I agree with this, obviously.

>> There's really not much point in trying to debate constitutional law in
>> a forestry newsgroup.  The reality is that foresters and private landowners
>> must operate within the legal framework that exists, whether they like it
>> or not.

>Not really.  The existing legal framework can be changed through court cases.

Which is one way of working within the existing legal framework, which 
obviously includes the right to go to court.

>Laws are overturned every year and new claims are forced each year based on
>5th amendment claims to property rights.  The existing framework can also be
>changed through legislation.  Have you forgotten that the people are the
>highest authority in the United States?  Congress, the President, and the
>Supreme Court all work for me (and every other citizen) and we can change

Actually, we can only change them within the framework of the Constitution,
so our right to change law is thereby limited.  Of course, we also have
the right to change the Constitution itself, via amendment, but that's
a far more difficult thing.  And believe me, it's a good thing it is.
I live in a state where the Constitution can be amended by initiative
exactly as a law can be passed by initiative (50%+1 vote), which in
makes our State Constitution worthless as a large percentage of 
controversial measures are simply put on the ballot as amendments
in order to avoid any constitutionality questions.

>> I'm sure there are plenty of newsgroups where you can find lots of people
>> who will slap you on the back and congratulate you for your beliefs,
>> why clutter this group with irrelevant discussion?

>Why aren't you rebuking Mr. Zorin for his off topic post berating the
>"worship" of private property rights?  Or do you only rebuke people for off
>topic posts that you disagree with?  In any case, a discussion of property
>rights is not off topic in a thread entitled, "responsibilities of forest land

Talking about property rights as they're actually implemented in this
country makes sense in this thread.  I just didn't see any point to
getting into a discussion about extreme property rights views that
have no hope of being implemented in the near future.  However, you
don't seem to be as extreme as your first post implied.

>Consider the local ordinance of a nearby city that wants to annex some
>property that I own.  This ordinance states that I cannot cut down any tree
>with a diameter greater than 12".  Their motivation behind this law is that
>the city wants large trees to be there to beautify the city and maintain its
>reputation for having pretty trees.  In my opinion, this is the taking of
>private property for public use because landowners in the city cannot sell
>their trees.  The timber value of the trees is reduced to zero.  But I suppose
>you'd say that this is all irrelevant to a forestry newsgroup.

No, this is a specific situtation and involves timber, so I'd say
it makes some sense here.  

These kind of issues are more complicated than many folks want to
admit, though.  For instance, the motivation behind beautification
may very well be a desire to maintain high property prices.  It may
actually increase rather than diminish the value of the property.
People who argue that the situation represents a "takings" sometimes
get unhappy when they're asked to prove a net, rather than gross,

>> We don't have to change the constitution because there's a large body of law
>> that delineates a "takings".  Congress has taken up the issue of potentially
>> passing "takings" laws precisely because the Constitution does not support
>> the theory of the absolute supremacy of private property rights.


Right.  I'm speaking of recent efforts to pass laws to compensate owners
on a very broad definition of "takings", not all laws dealing with
private property rights and the federal government.  In other words,
I'm speaking about a specific set of laws based on a specific theory
that private property rights should be supreme and that government
regulation to protect public assests - in particular environmental
law - must compensate owners.  It was one of the things the Newtie
Revolution wanted to accomplish.  "takings" legislation has a pretty
particular definition in the current political lingo.

>Most of the laws congress has passed are designed to keep the feds
>from suffering too great a liability by fith-amendment based court awards to
>private parties for federal takings for public use.  Few laws that I know of
>actually broaden the scope of "takings" that require just compensation.

Conservatives have failed in their attempts to pass such laws.

>the contrary, most of the regulation is geared toward preventing the
>government from inadvertently doing things that the courts might later rule as
>public takings and award compensation based on the fifth amendment.

No disagreement here, I was speaking of "takings" legislation in the
specific sense that the issue has been raised by conservative,
anti-conservation forces in recent Congresses.

>> "taken for public use" is not equivalent to saying "restrictions on use".

>Wrong again.  When "restrictions" on use reduce the property value essentially
>to zero, courts recognize the restrictions as a defacto "taking for public
>use" and award compensation.

In other words, "restrictions on use" is not equivalent to "taken for
public use", just as I said.  When restrictions become overly restrictive,
then the courts say, yeah, that's defacto taking.  In other words, it's
no longer a restriction but a confiscation.  A 10% reduction in value
due to a restriction is not a taking.  So, restrictions aren't equivalent
to takings, and that is not the issue the court deals with.  The
court asks, "when is a restriction no longer a mere restriction, but
in actuality a confiscation?"

>When the restrictions reduce the value by some
>small amount, the courts usually do not recognize the restriction as a taking.

So in other words, restrictions are not equivalent to takings, just as
I said.  Restrictions can be transformed into confiscation by virtue of
being overly restrictive, though.  Which I knew when I made my statement,
of course.

>In between small reductions in value and complete loss of value, there is a
>grey area that is currently being battled for in the courts and which some
>legislation seeks to address.

Which is what I said, no?  The extremist view that all reduction most
be compensated for has long since been dismissed by the courts.  There
are those who argue, though, that any reduction in value must be
compensated for.  The "takings" legislation proposed after the Newtie
Revolution took hold argued that 10% be the threshold, for environmental
regulations only.

>> And, yes, if you don't like it, take the high road and try and change the
>> constiution.  My bet is that you'd probably like to get rid of the part
>> that says the Supreme Court, not you or I, is the final arbiter of the
>> constitutionality of a law.

>Almost every public official is sworn to uphold the Constitution.  Thus every
>public official that enacts or enforces a "public taking" that is later
>awarded "just compensation" by the courts has broken his oath of office.

Interesting idea.  I don't recall reading the founding fathers claiming
that the Supreme Court's overturning of a law meant that those who
passed it had broken their oath of offics.  Indeed, the whole point 
with the process is that reasonable people can disagree over the meaning
of the document and that a process is needed to make a final decision.

You're arguing that the loser in a disagreement over a constitutional
issue has broken their oath of office?

I don't think so.

>Furthermore, our government is "of the people."  I am higher on the authority
>chain than the Supreme Court, though this authority is shared wih every other
>citizen.  The people have the power to change the makeup of the Supreme Court
>if we disagree with the manner in which they interpret the constitution.

Now you are going far afield.  The founding fathers made Supreme Court
appointments have lifetime tenure *precisely* to guard against 
the kind of thinking you demonstrate here.

>> Of course it isn't.  That's why the Supreme Court does rule in favor of
>> landowners in some cases, just as it rules in favor of government in
>> other cases.  The property rights amendment is quite narrowly written.

>And I suppose you would argue that the second amendment is also narrowly
>written, even though it is clearly quite broad.

What part of "well-regulated militia" do you not understand?

>When the government tells me I can't fill in a wetland and farm on it because
>they need it to act as a big water filter for the "publically owned water" how
>is this not a taking of private property for public use?

If you fill in the wetland why should you not be forced to compensate
the public for the loss of quality of its water, the loss of habitat
for the wildlife it owns, etc?

>When the city tells
>me I can't cut down my trees for timber because they want my trees to make
>their city pretty, how is this not a taking of private property for public

Your right to private property is balanced by government powers granted
in the constitution to promote the public good, etc.  You'll note the
5th amendment didn't strike any such clauses...

>How is it that the "interstate commerce clause" gives the feds the right to
>regulate how close a gun can come to a school or how long a jar of jelly can
>spend in a hot water bath even if none of these things ever goes near a state

Can we both agree, at least, that this has nothing to do with forestry?

I knew we'd end up here, which is why I protested against your starting
this discussion in the first place.

>It seems to me that the constitution's granting congress the right to
>"regulate interstate commerce" is quite narrow and has nothing to do with
>items that are never bought and sold across state lines.

You mean Smith and Wesson have gun factories in all 50 states?  Strange,
I thought they manufactured the guns and shipped them to stores, over
state lines.  Isn't Glock overseas?  How does Glock manage to get
its guns into stores without crossing state lines?

>Yet we can interpret
>this broadly.  Yet when the constitution spells out the rights of the people,
>we need to insist on the narrowest interpretation possible?  Get a life.

Don't need one.  I have a constitution and a broad body of case law to
back me up.


- Don Baccus, Portland OR <dhogaza at>
  Nature photos, on-line guides, at

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