Congress considers property rights protections, wise use plans

Published June 1, 2001

The early days of the 107th Congress are shaping up as far more friendly to property rights advocates than the past several years. Several members of Congress have introduced, or plan to introduce, bills that will help property owners and promote wise use of federal lands. Here are five examples.

Limiting federal land ownership

On February 14, Senator Craig Thomas (R-Wyoming) introduced S. 322, the No Net Loss of Private Land Act, which proposes to limit federal land acquisition in all states in which 25 percent or more of the land is already owned by the federal government. Senators Larry Craig (R-Idaho), Jesse Helms (R-North Carolina), Michael Enzi (R-Wyoming), and Ted Stevens (R-Alaska) have joined as cosponsors.

The bill provides that the federal government “may acquire an interest in 100 or more acres of land” within a state in which the federal government already owns 25 percent or more of the land “only if, before any such acquisition, the United States disposes of the surface estate to land in that State in accordance with subsection (b).”

Subsection (b) provides the disposition of the surface estate qualifies if “the value of the surface estate of the land disposed of by the United States is approximately equal to the value of the interest in land subject to this section that is to be acquired by the United States. . .”

The bill awaits action by the Senate Committee on Energy and Natural Resources.

For more information . . .

The full text of S. 322 can be found on the Internet at

Endangered Species Act

On March 20, Congressman Richard Pombo (R-California) reintroduced a bill that would amend the Endangered Species Act (ESA) to make it easier for individual property owners and local, state, and federal government agencies to prevent natural flood disaster.

The bill, referred to the House Committee on Resources, had attracted 19 cosponsors by late April.

Pombo’s bill would allow flood control districts and other entities to maintain and repair existing levees without having to pay “mitigation” fees to environmental groups or government agencies.

The bill, H.R. 1100, provides that the “consultation and conferencing” requirements of the ESA do not apply, and an activity is not considered a “taking” of an endangered species, if the activity

“(A) consists of reconstruction or repair of a Federal or non-Federal levee structure

(i) to address a critical, imminent threat to public health or safety; or

(ii) to address a catastrophic natural event; or

(B) consists of maintaining the structural integrity of a Federal or non-Federal levee structure.”

Pombo first introduced the bill after flooding killed three people in California in early 1997. Levee repairs had been halted because the area was determined to be potential habitat for the endangered elderberry beetle. No beetles had been seen in the area.

Before levee repairs could proceed, the federal government demanded “mitigation” fees be paid, because the beetles might be disturbed if they ever decided to live in the area.

For more information . . .

The full text of H.R. 1100 is available in Adobe Acrobat’s PDF format on the Internet at

ESA, Take 2

On February 6, Congressman George Radanovich (R-California) introduced H.R. 472, a bill similar to Pombo’s, which aims to exempt routine maintenance and operations from ESA provisions. Radanovich’s bill is driven not by concerns in his home state of California, but in his workplace: Washington, DC.

The Woodrow Wilson Bridge–which crosses the Potomac River as part of Interstate 95 and is a major artery for commuter traffic to and from the city–is sorely in need of repair. But there are endangered sturgeon in the river, and endangered eagles in the trees.

Environmental groups demanded that before the bridge repairs took place, mitigation money should be paid to repair damaged habitat. That mitigation demand would make bridge repair too expensive to undertake. So the Maryland and Virginia congressmen representing the area sought an exemption from the ESA for the Wilson Bridge repair.

Those six Washington, DC-area congressmen, seeking the ESA exemption for their project, voted against granting an exemption to save lives in California by allowing levee repair.

Radanovich’s H.R. 472 will allow limited ESA exemptions for the Wilson Bridge and similar projects across the country. To date, the bill has attracted no cosponsors–including the six congressmen from the DC area.

For more information . . .

The full text of H.R. 472 is available in Adobe Acrobat’s PDF format on the Internet at

Hunting in Craters of the Moon

On February 13, Representative Mike Simpson (R-Idaho) introduced H.R. 601, which will restore hunting access to roughly 60 percent of land made off-limits to hunting by former President Bill Clinton in his Presidential Proclamation 7373 on November 9, 2000.

Clinton’s action had added over 660,000 acres to the Craters of the Moon National Monument; Simpson’s bill, as amended by the House Resources Committee, would restore hunting on 410,000 acres.

Representatives John Duncan Jr. (R-Tennessee) and C.L. “Butch” Otter joined the bill has cosponsors on March 20. The bill was heard in Subcommittee on National Parks, Recreation and Public Lands, reported out to the full Resources Committee on March 22, and reported out of that Committee on April 3.

While the bill Simpson introduced would have restored hunting access to all 660,000 acres of the expanded Craters Monument, the amended bill applies only to 410,000 acres, which the bill redesignates the “Craters of the Moon National Preserve.” The amended bill also gives the Secretary of the Interior, in consultation with the State of Idaho, authority to designate no-hunting zones and seasons.

Simpson did not appear to object to the amendments. When the measure cleared the Resources Committee, he said “I’m thrilled my colleagues on the House Resources Committee have unanimously supported my effort to ensure promises made to the people of Idaho are promises kept.”

For more information . . .

The full text of H.R. 601, as amended, is available on the Internet at

Land and Water Conservation Fund

Congressman William “Mac” Thornberry (R-Texas) is putting together a bill to make sure private property rights are protected when land acquisition funds are spent from the Land and Water Conservation Fund (LWCF). At this writing, he was expected to introduce the proposal in May.

Monies from the LWCF have made it possible for communities to fund such local recreation opportunities as swing sets and swimming pools. However, the land acquisition elements of the program have been used by federal and state governments as a tool to threaten land owners with condemnation, and then, in conjunction with endangered species listings, to buy private land for a fraction of its value.

To ensure LWCF sticks to its traditional role of promoting recreation projects and is not hijacked by land-hungry government agencies, Thornberry’s legislation would add tough property rights protections to the program:

  • Protection of inholders of private property located adjacent to federal lands.
  • Prohibitions against restricting use of private land just because it is located adjacent to federal lands. Government agencies have been proclaiming “buffer zones” around federal lands, prohibiting use of private property in those buffer zones. Thornberry would eliminate that practice.
  • A ban on using LWCF funds to condemn private property.

The Thornberry proposal contains other good provisions as well, such as requiring notification to affected areas, encouragement of land exchanges, and other alternatives to private property acquisition.