Property rights movement
The Property Rights Movement is a grassroots initiative in the United States aimed at affirming the rights of landowners against government regulations, particularly those that arise in the context of environmental protection. This movement has gained traction in courts, academia, and legislative bodies, significantly influencing U.S. environmental policies. It highlights a complex relationship between private property rights and government regulations, where advocates often challenge what they perceive as inconsistent treatment of similar land parcels by regulatory frameworks. While the movement strongly supports the constitutional right to private property, it acknowledges that certain governmental limitations exist for the public good.
Originating in the 1980s and experiencing a resurgence in the 1990s, the movement has mobilized many property owners—particularly farmers, ranchers, and those with long-standing family ties to their land—who may be unaware of federal laws affecting their development plans. This has initiated a national conversation about balancing individual rights to land use with the government's responsibility to manage environmental concerns, such as pollution and biodiversity preservation. Legal interpretations surrounding property rights have evolved, particularly regarding the Fifth Amendment's "takings" clause, which mandates compensation for landowners when their land use is restricted by federal policies. Despite ongoing debates, the Property Rights Movement remains a significant force in shaping discussions about land ownership and governance in the U.S.
Property rights movement
IDENTIFICATION: Grassroots movement that seeks to reaffirm property rights of landowners against governmental regulations or intrusions in the name of environmental protection
The property rights movement has achieved substantial affirmation in the courts, academia, and legislatures and has had a significant impact on the US government’s environmental policies.
The apparent paradox that the property rights movement brings to light is worth pondering: The strongest property rights movement in the world has emerged and developed in the United States, the country that has arguably the world’s most vigorous protection and defense of private rights and private property. The groups most closely identified with the movement oppose most federal regulations and intrusions on land that is privately owned and held, especially in cases where involvement of the federal government comes in the form of environmental laws or regulations that limit the owners’ full or partial use of land for development. Despite the fact that these groups unequivocally uphold the constitutionally enshrined idea of private property, they generally recognize and accept that there are and will always be limits set by government to the use of privately owned land in the name of the public good. The basis of their discontent is arguably about the ways in which similar plots of land are treated differently, because land-use rules and regulations are usually formulated and enforced after substantial and at times excessive development has already taken place.
Basis of the Movement
While the movement’s position has some initial plausibility, and may even seem to be underwritten by the equal protection clause of the US Constitution, it is based on a particular conception of property rights viewed in space rather than in time. Thus, one may raise the following question: Is the issue at stake whether similar plots (in space) are treated similarly, or is it rather about whether circumstances affecting land use and development have changed over time, and whether these new circumstances subsequently warrant that some limitations be placed on the use of privately owned land? If it is the latter, then it is easy to understand how the courts may be compelled to consider the validity and legality of a time-sensitive argument in support of limits, laws, and regulations of the use of private land for development purposes for the sake of a greater public good, namely, environmental protection or conservation of biodiversity. Some supporters of this movement have even sought to cast the issue in broader political terms by making it about the role and obligations of government in the balancing act between private and public good.
Although those involved in the property rights movement can be said to be among numerous individuals, groups, and organizations that fall under the classification of “environmental opposition,” the movement must be distinguished from the so-called wise-use movement, which grew out of the Sagebrush Rebellion of the mid-1970s and during which state legislators in western US states sought to transfer federal public lands to state control. Advocates of wise use support an antigovernmental regulatory agenda related to the use of public land and resources. In contrast, the property rights movement is about the use of privately owned and held lands.
Impacts
The property rights movement achieved significant impacts on the nation’s environmental policy agenda in the 1980s during the presidency of Ronald Reagan and then gained even more ground in the 1990s when it resurfaced with the rebellion of local grassroots organizations comprising individuals seeking to develop their own property, usually by building homes, clearing out trees or brush, or draining wetlands. Many property owners did not know about federal regulations and laws that could thwart their projects, such as provisions of the Clean Water Act and the Endangered Species Act. After being prohibited from developing their property by the federal government, they often joined other frustrated property owners in their areas who had similarly been prohibited from doing what they wanted with their land. Typically, they shared their respective grievances against the government based on their individual disputes.
These individuals were and continue to be most active in eastern and southern states, where titles to land owned have often been in the names of the owners’ families for many generations. The assumption has been historically that the right to control land belongs to the title holder, regardless of changes in the law or public policy. Many of the individuals who have been active in the property rights movement have been farmers, ranchers, and owners of rural or beachfront property who did not know much about the ecological value of their land until they decided to develop it. This gave rise to a nationwide debate about competing land-related interests—that is, the compelling rights of property owners to use their land as they see fit versus the government’s compelling interest in controlling pollution, protecting biodiversity, preserving and their habitats, and managing ecosystems or even other landowners’ property.
Interpretations of Property Rights
From a historical point of view, property rights are based on English common law and the Magna Carta. However, there has been an evolution in legal interpretation of these rights since the 1920s. Most of the legal cases since the late twentieth century have dealt with the concept of federalism and, more specifically, with the Fifth Amendment to the Constitution. One of its clauses refers to “takings,” a requirement that the government cannot take privately owned land for public use without compensating the owner for the adjusted value of the land. By properly placing the takings clause in the context of wilderness designations, endangered species, and protections, one could provide an intellectual and legal basis for the claimants of the property rights movement against the government.
Private property owners have often invoked the takings clause in seeking compensation from the government by filing lawsuits before the US Court of Federal Claims or the US Supreme Court. Since 1987 the courts have generally ruled that the government must compensate property owners for the loss of the use of their land when that loss is the result of federal regulations, such as the Clean Water Act, that deny the owner the economically viable use of the land. President Reagan further expanded the rights of property owners by executive order and supported the enactment of regulations requiring government agencies to evaluate the of unanticipated takings. Since 1988, the government has even been required to budget funds for takings impact analyses that protect the constitutional rights of property owners.
Although the law on these issues is bound to evolve and change over time as activists on both sides continue to press for their respective agendas, it is unlikely that the property rights movement will wither and disappear altogether from the scene. Those in favor of stronger and more stringent environmental protections will have to contend with this fact for the foreseeable future.
Bibliography
Dana, David A., and Thomas W. Merrill. Property: Takings. New York: Foundation Press, 2002.
Davis, Charles, ed. Western Public Lands and Environmental Politics. 2d ed. Boulder, Colo.: Westview Press, 2001.
Eagle, Steven J. “The Birth of the Property Rights Movement.” Policy Analysis 404 (June 26, 2001): 1-40.
Epstein, Richard. Takings: Private Property and the Power of Eminent Domain. 1985. Reprint. Cambridge, Mass.: Harvard University Press, 1998.
Freyfogle, Eric. The Land We Share: Private Property and the Common Good. Washington, D.C.: Island Press, 2003.
Pilon Roger. "Property Rights and the Constitution." CATO Handbook for Policymakers, CATO Institute, 2022, www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-9th-edition-2022/property-rights-constitution. Accessed 22 July 2024.
Rosenberger, Tim. "Property Rights in the Balance." City Journal, 25 Sept. 2023, www.city-journal.org/article/property-rights-in-the-balance. Accessed 22 July 2024.
Yandle, Bruce, ed. Land Rights: The 1990s Property Rights Rebellion. Lanham, Md.: Rowman & Littlefield. 1995.