• a simplified wetlands identification program, and increased certainty for permit applicants;

• simplified procedures by which landowners can affect up to one-half acre of nontidal wetlands for construction of single-family homes without applying for individual Section 404 permits;

• simplified procedures for adding to existing structures on wetlands properties; • a streamlined Section 404 permit process;

• increased State, local, and Tribal roles in protecting wetlands resources;

• a simplified wetlands mitigation banking process, to allow property owners to more easily offset certain wetlands losses by restoring or enhancing other wetlands.

The Department of the Interior has instituted a number of reforms to the Endangered Species Act (ESA), and has made legislative recommendations that would further improve the Act and its implementation. These include:

• exemptions for small landowners from rules relating to threatened species; • increased State roles in ESA implementation;

• exemptions for designated small timber interests from certain ESA regulations relating to the Northern Spotted Owl;

• a "no surprises" policy for previously-approved Habitat Conservation Plans. Under this policy, property owners who agree to help protect endangered species on their property will be assured that their obligations will not be changed if new species are designated in the future;

• multispecies recovery plans.

Again, I urge this Administration to continue along this course. We need to find new ways to make certain Federal programs work better-more flexibly, more fairly. S. 605, however, represents an inappropriate approach to protecting the rights of property owners, and I urge my colleagues to vote against this bill.

PREPARED STATEMENT OF SENATOR CONRAD BURNS

Mr. Chairman, I am pleased that your Committee is having this hearing today. The 104th Congress needs to take a serious look at private property rights. The Judiciary Committee plays an important role in this debate because environmental laws and regulations often are embroiled in this issue.

For too long, Washington has disregarded the Fifth Amendment to our Constitution. Laws, regulations and other actions have allowed the rights of private property owners to be abused. Now we have the opportunity to provide a consistent federal policy to encourage, support, and promote the private ownership of property and to ensure the constitutional and legal rights of private property owners.

I believe Congress should enact legislation which reaffirms our private property rights. Compensation for a loss of property value when the federal government takes actions affecting property is essential. In addition, I believe that a takings impact analysis should be conducted prior to promulgating regulations. If these actions result in a loss of value of the property, some compensation should be required.

Montanans believe that protecting private property is of utmost importance. And Congress should reinforce the government's responsibility to protect property rights. We need to help get the federal government off the backs of Montana's working men

and women.

Mr. Chairman, I am pleased your Committee is holding this hearing and I look forward to working with you on this matter in the future.

I am surely but one more in a long chain of property rights activists who will beseech your committee with plaintive or should I say plaintiff cries for assistance as you wend your way towards passage of S-605 the property rights protection bill currently under your tutelage. I am, perhaps, uni in that I will likely be the sole Rhode Islander who would make comments on behalf of property owners supporting the concepts of S-605 and offering some brief constructive criticism long with my less efficie prose on in response to arguments for or against the concepts embodied in S-605.

People in Washington often joke that I am the only property rights activist in Rhode Island, sims ( most consistently participate in the debate at a national level. Our state is relatively small and admittedly prone to the elevation of other problems over property rights, which has made it quite easy for me to claim the mantle of the state's property rights advocate with little competition. In so doing. I have faced bring labeled by other participants in this debate. Most often I am called an anti-environmentalist, some I am a front for developers, a recent internet mailing list publication asserted that I am a front group for Chuck Cushman who runs the American Land Rights network out of Battle Ground. Washington. While I can comment at length about what I am, and what I am not. I would ask in large you direct your attention on that matter to the attached article entitle "Activist with an attitude". Publi on September 10 of this year by our major newspaper, The Providence Journal, it encapsulates much of my philosophy, activism and the underlying motivations and incidents which lead me to be a state and Rational advocate on these issues.

Suffice it to say, that regardless of what you believe I am now. 6 years ago I was just a buck to nature yuppie minding his own business and largely ignorant of this debate. My last significant role as activist was in fighting the Vietnam War and my political tradition was decidedly liberal. Conspiracy theorists who wish to believe that I have become a mind numbed robot answering to industrial ters must still ask themselves: "How did such an independent cuss become a corporate toady in such a n time, and make such a complete about face in his outwardly apparent politics. Actually, it only took on

trip down to the bureaucracy store to change my perceptions of government and its role forever, and in such a compelling way that I can no longer be satisfied by a day I have lived unless I have driven another nail into the coffin of our country's bureaucracies.

I have purposefully taken the name which environmentalists believe best describes only those interested in so called "western" issues, because I wish to demonstrate that "Wise Use" is not a western concept, but one which should apply nationwide. The question of whether we should engage in a policy of sustainable use or abject protectionism is at issue whether the specific manifestation is found in a debate over logging in the Pacific Northwest or David Lucas' plans to build two houses on a beach in South Carolina.

Despite comments to the contrary made by my opponents in the environmental community. I do not perceive environmentalism or environmentalists as a conspiracy. "Wise Use", above all else, represents change from the current status quo and it will be attacked, not by a conspiracy, but by the natural tendency of society to resist change. Elements in society do not need to band together to resist change. It is not conspiratorial coincidence, but uncreative copycatism that spreads a similar vernacular amongst the opponents of "Wise Use". Of course they may capitalize on weaknesses inflicted by one another, just aš vultures wait to feed on others' kills. But vultures are not conspirators, they are opportunists.

On the other hand environmentalists are quick to the draw alleging that “WiseUse” is a conspiracy. Allegations that I am in some satanic alliance with Chuck Cushman for instance sound a bit paranoid to me. My knowledge and acquaintance with such national figures has actually been fostered by the environmental communities continued complete rejection of my own point of view and their spurious allegations that it isn't my point of view, but that I serve as a mouthpiece for others. I realized early on that I would be lumped in the same group with anyone environmentalist did not like, so I deterinined in meet as many of them as possible and understand their point of view. I have respect for the advocacy of Chuck Cushman. I have discussed the issues of “Wise Use" with Ron Arnold perhaps its most recognized mentor. Ironically. I have found these gentlemen because it was asserted that I must be in league with them due to the nature of my rhetoric. I certainly have a working relationship with some of the nationally renown grassroots leaders in the fight for property rights, but I don't come to you as their spokesinan, but as a simple Rhode Islander who has walked over the coals of regulation, environmental doomsaying, and sacred cow legislation to bring you my own assessment of the situation.

I append to this testimony, as well as the article on my own situation and activism, pieces on 2 other Rhode Islanders who are poster children of our struggle here in Rhode Island. The article detailing our movement in Rhode Island questions whether I have a developed constituency, in other words, for whom might you presume that I speak. I have served in some capacity as a voluntary ombudsman and support network for individuals in the state for 4 years now. While I have participated in bringing public scrutiny of the 2 debacles described in the accompanying articles, I have participated as an volunteer adviser in numerous other regulatory matters. My self appointed duties range from offering a shoulder to cry on to recoinmending legal counsel and in some cases assisting in the formulation of legal, political and PR strategy for those involved in such battles.

It is not entirely unfair to depict me, as reporter Peter Lord did, as a constituency of one in that the vad majority of people I deal with have no desire to come out of the closet - as it were. I am unusual

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because I wear proudly the badge of "violator” and “anti-environmentalist”. I have reviewed my conduct and believe it to be beyond reproach. The need that some people have to call me names for attacking environmentalism's sacred cows is more comical than credible. On the other hand, most people are reticent to even discuss their problems with environmental bureaucrats in a public setting, nevermind take signs and march on the state house, or perhaps even more socially challenging to take signs and march on the Newport Mansions when they host environmentalist fetes. Therefore, you will not always see me surrounded by throngs when I make these evident and public outcries, but after the "Activist with and Attitude" article appeared in the paper I received numerous calls from people I did not know burgeoning my contact list in Rhode Island to several hundred individuals. Perhaps the most heartening of these was one caller who said to me "You may be a constituency of one, but you are not alone".

While I will doubtless be the only Rhode Islander testifying in favor of S-605. I will not be the lone Rhode Islander from whom you hear. Another of my statesmen is scheduled to testify before you today. For the benefit of the committee I wish to provide assistance in translating “Yankee” into "English". This is better accomplished through anecdote than dictionary. My mother often retold this story of my grandfather, a Rhode Islander who also spent the better part of his life running a summer camp in Sweden. Maine. He had ordered a timber of such heft to replace a rotted post in his home there, that it required a couple of men just to lift it. Yet when my grandfather arrived at the sawmill to pick it up. the purveyor looked casually up from his roaring saw and gestured to a helper, saying. “Mr. Jeffers is here for his stick".

It is perhaps unnecessary to regal the members of this August (actually October at this point) hody with anecdotes of Yankee understatement which are both legion and legend, but seldom has a better practitioner of the art appeared before the committee than my own Senator John Chaffee who testifies today on the issue property rights. Few are more eloquent than he at understating the loss of property rights in this country which has occurred in the last score of years.

In fact, today, you and Senator Chaffee will trade repartee on a fagot of sticks, that is the metaphorical bundle of rights associated with property. With polite but firm understaternent Senator Chaffee will assure you that it is alright if someone clubs a fellow over the head and grabs half his sticks, because the same thief took half his neighbor's sticks as well. He will, no doubt, suavely assure you that rather than being disheartened that the thief in this case is actually the government, you should celebrate the fact that such brave actions make you, as co-conspirators, the Robin Hoods of the environment. In fact, the impact of the Senator's testimony upon you boils down to whether his talent for understatement will add heightened credibility to his juxtaposed overstated arguments that S-605 will surely make the sky fall, or whether such a contention will seem, instead, all the more patently ridiculous.

Judging from Senator Chaffee's treatises as delivered prior to the hearings he held in the Environment and Public Works committee on this issue, he already believes the matter to be well settled in court precedent and essentially outside the interests of the legislative branch. The job he apparently envisions for Congress is to make more assaults on property rights and see if the courts uphold them or not. Attributing the same degree of understatement to our historic struggles over civil rights, the token 'separate but equal' education in Boston could have been dealt with simply by passing out subway tokens Following the logic of Senator Chaffee's comments to his own committee, the decision of Brown v5. Department of Education was all that was necessary to rectify any inequities in our schools.

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Mr. Chaffee ruminates upon granting a great deal of respect to the history of this problem before the courts and in essence recommends at the outset that existing remedy at law appears sufficient. If one would place all their faith in the administration of law, one might as readily say that nuisance law is sufficient to prevent pollution since a tort remedy is available to anyone aggrieved by an environmentally degrading action of another. I agree that if we did away with bureaucracy altogether, there would be a significantly lessened nexus for a bill such as S-605.

Congress has, however, already failed to even begin that process in the form of the Regulatory Relief Act this session. Further, it is not the Providence of congress to administrate law, but to write it. It is not at all the job of Congress to simply codify the opinions of the Court, but to compare them, in a political context, to the realities of the day. Congress must lead, not follow.

It is not that I lack respect or a certain studious affinity for the legal framework which now exists relative to Property Rights, but significant precedents do not generally end the congressional debate. hut begin it. Decisions such as Brown were the precedent for major civil rights legislation. They made the need obvious rather than obviated.

I have discussed recent precedent with John Chaffee's office during the last several years, and they claim on his behalf to be supportive of the high court's decisions in Lucas and Dolan. One cannot support these decisions without acknowledging that the import of them is far from being realized in the real world. Most scholars agree that Lucus was an open and shut case to begin with. It should disturb Congress and Mr. Chaffee greatly that David Lucas had to fight all the way to the Supreme Court for the relief he was owed. Despite the theoretical precedent inherent in Lucas and Dolan, the decision of the count effects no front line penalty to discourage government bureaucracies at local, state or federal level from undertaking just the kind of action which aggrieved David Lucas and Florence Dolan. These important precedents no more guarantee property rights than Brown guaranteed a fair social compact on education.

Environmental bureaucrats have simply honed that old saw, “So, sue me". On the environmental side we have created roadblocks to the future of our country through citizen suit provisions which allow people with no standing to enter disputes and force the government to pay their legal bills. Those on the property rights side of the equation who are often directly harned find their own standing dependent on their ability to pay. This holds true despite the institution of so-called 'administrative appeals” in many state regulatory processes.

A fair property rights act must provide for ombudsmanship in this process and must absent administrative decision makers from the regulatory body. In Rhode Island, administrative hearing officers are employees of the agency whose decisions they rule on. This has created a quasi-judicial farce which one is ill-advised to enter without an attomey and proves, almost to a fault, to be simply a stepping stone to the courthouse or worse an impediment to swift relief in the courts (in as much as such is not an oxymoronic concept when taken in the context of jurisprudence).

As one may ascertain from reading the attached article on my activities in Senator Chaffee's home state. I am a lay activist on these issues, but I can walk with him right down the aisle of precedence on these issues. For, I do agree that a grounded understanding of the court interpretations is helpful in the construction of a congressional remedy for the evident transgressions of property rights which continue around the clock while this legislation is debated. (See also the attached article on my fellow Rhode

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