Stealing land in the Atchafalaya and Immokalee

Published September 1, 2002

An American citizen whose land has been condemned by a federal agency or by any governmental entity, especially those receiving federal monies, has significant rights under the Fifth and Fourteenth Amendments of the U.S. Constitution and Public Law 91-646 (The Uniform Relocation Assistance and Real Property Acquisition Policies of 1970).

Moreover, important statutes contained in the Code of Federal Regulations and the United States Code protect citizens’ property rights. These laws contain literally hundreds of safeguards that keep condemning agencies on a stringent, expensive, and protracted path.

In a highly questionable action, the U.S. Army Corps of Engineers has moved to usurp traditional private property protections in Louisiana’s Atchafalaya Basin. In doing so, the Corps has made an end run around the stringent requirements of condemnation by virtue of a “conservation easement.”

An end run around property rights

Citing Congressional authority (but unable to produce substantiating documents) and the threat of lawsuits from the environmental community, the Corps has forced conservation easements on the properties of an untold number of homeowners, farmers, timber producers, and sportsmen in a 338,000 acre area.

Attorney Tom Dowell, a Corps contract land appraisal agent, stood at the International Right of Way Association (IRWA) podium on June 19 in Mobile, Alabama to explain the method his team used to arrive at a “fair market value” for the involuntary conservation easements. Dowell did not refer to them as conservation easements, but rather “Flowage Development Control and Environmental Protection Easements.”

Dowell’s math was interesting and certainly a delight to the Corps. Instead of having to pay the full price for land taken by outright condemnation, the Corps was able to control the encumbered land by paying a fraction of the land value.

As an illustration, Dowell used land and resources worth $1,000 an acre. By applying a complex formula based on before and after values, he noted the Corps would have to pay landowners only $125 an acre for the easement.

Dowell’s definition of “fair market value” rapidly crumbled when a member of the audience pointed out his formula did not take into account the diminished loan value of the property. Internal Revenue Service (IRS) regulations prohibit lending institutions from lending money on property encumbered by an easement unless the lender will take a second position to the agency or organization that owns the easement. Dowell was also unfamiliar with other IRS regulations affecting easement-encumbered property. He admitted the easements were “robbing” future generations of the ability to use the land as loan collateral.

According to Corps handouts at the IRWA meeting, “flowage” easements prohibit the construction of new structures and prohibit conversion or development of land from existing uses. The easements restrict timber harvest by imposing unworkable regulations subject to activity that “promotes fish and wildlife preservation.” While flowage easements allow some timber removal by the property owner, that activity is subject to prior approval by the Corps.

Property owners subjected to flowage easements retain oil, gas, and mineral rights. However, the extraction of those natural resources, along with the necessary accompanying construction, requires obtaining permits from the Corps.

The apparent advantage to the Corps is absolute control of the encumbered private property for pennies on the dollar. The Fifth Amendment is absolutely circumvented and the landowners stripped of civil rights and protections provided under public law.

Agencies can, and do, contend they have not employed their powers of condemnation when they use easements to take property. Thus, they avoid the necessity of complying with laws that protect property owners and relocated persons. Those laws require a costly array of services on the part of the property-taking agency: relocation assistance payments; mandatory negotiation; advisory services; litigation, moving, and related expenses; and even replacement housing. In short, condemnation by easement is cheap and fast.

Following the Corps’ lead

Alarmingly, other agencies empowered with condemnation authority have been watching the Corps and learning.

Recently, Commissioners in Collier County, Florida (again under pressure from environmentalists and the threat of lawsuits) placed mandatory easements on land in the 22,600-acre Immokalee area, vastly diminishing the ability of property owners to develop their property and expand agriculture. The owners received no compensation for the drastically reduced value of their land.

Unless the practice of condemnation by conservation easement is checked, property rights nationwide will be destroyed. It will render mute the solemn words of the Fifth Amendment: “nor shall private property be taken for public use without just compensation.”

J. Zane Walley is an editor for the Paragon Foundation News Service.