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Third, there is a need to develop ways to expedite judicial proceedings in takings cases to make them more efficient and less costly. Consideration should be given to alternative dispute mechanisms, including arbitration, the use of Ombudsmen, and speedier permit processing, thereby reducing the reliance on litigation in takings disputes. In situations when a takings claim is made, the goal should be to speed up the process of resolution and compensation when warranted. Our society in general relies too often on litigation to resolve problems. Litigation is an expensive process, particularly for small property owners. The goal is to make the system fairer and limit the cost of the claims procedures for all parties involved. In this regard, some elements of Title III, Alternative Dispute Resolution, of S. 605 deserve serious consideration.
In closing, we want to stress the need for taking the time to truly promote a larger civic dialogue about the kind of environmental and other goals and protections this nation wants to support in pursuit of the common good. Without doing this, we risk the danger of a further polarization of society between narrower private interests and larger public concerns. Avoiding a new public debate and consensus over these matters and adopting too rapidly an expansion of private property rights could undermine both respect for private property and the common good.
Our hope is that the takings issue can serve as a way to begin a broader debate to look more closely, as a society, at how we can continue to promote both private property and the environment as matters of the common good and not create a house divided against itself.
As advocates of both private property and the common good, we urge you to think deeply, to consult broadly and to weigh carefully before you act decisively to reorder the relationship between private interests and public goals. We believe there are more modest and common sense approaches which will disappoint the extremes on these issues, but can serve better the nation and promote the common good.
Senator LEAHY. I think this morning gives us an opportunity to debate the fundamental issues regarding the relationship of citizens to their own communities. I was not old enough to vote for John Kennedy when he ran for president, but I do well remember him saying, "Ask not what your country can do for you, ask what you can do for your country.
But, later, after President Kennedy's term, I did become old enough to vote, and I do remember in the 1960's, another very different motto, which was "do your own thing." This kind of a doyour-own-thing approach led in many ways, I believe, and I was a prosecutor at that time, to the drug culture. “It's my brain,” they claimed. “I can do anything I want with it."
I think these mottos exemplify a basic issue in our political lives, the balance between individual rights and community responsibility and the community responsibility that President Kennedy spoke of but sometimes the overextension of individual rights that those in the drug culture speak of.
What is the balance between our rights as individuals or our responsibilities to our neighbors? Do we have a right to take any drugs we want? Do we have a right to use our property in a way that hurts our neighbors? There are some who claim any time the community asks a person to limit the use of his or her property it is a taking under the fifth amendment.
I have no sense of defensiveness in this. The Vermont State constitution has the strongest private property protection provision of any State constitution in the country.
I remember in 1981, when Senator Paul Laxalt and I joined to pass a regulatory reform bill. The Laxalt-Leahy bill addressed this issue very well, and it passed the Senate almost unanimously.
In the 1990 Farm bill, I wrote the wetlands provision for farm programs so that no longer would a farmer lose all his benefits if he or she made a good-faith mistake. It gave farmers the flexibility to change farming practices. It was the kind of user-friendly item that Senator Chafee just referred to. In fact, I wish the last administration had told farmers more about the flexibility that the law contains.
But, as a member of the Judiciary Committee, let's talk about the Anglo-Saxon provisions here. Also, I want to speak as a citizen of one of the most rural States in the Nation and a member of the Senate Agriculture Committee.
As Americans, we share certain basic community values. We have this basic one that, “Your freedom ends where my nose begins.” I think that common value is now being challenged. Takings bills assume that property owners have a right to use their property in a way that harms their neighbors. That is not the American way. Nobody has ever had an unfettered right to use their property in a way that hurts their neighbors.
Before the American Revolution, our values were reflected in the common law. Under the common law, nuisance was a legal expression of the maxim, “Your freedom ends where my nose begins.
As one commentator says, “The beauty of a simple nuisance case is that it reduces that case to terms a lay person can understand: You dumped it, it hurt me or my property, and you should pay.
Indeed, in the landmark Lucas case, Chief Justice Rehnquist noted that, if the South Carolina law had its basis in historic nuisance law, it would have violated the fifth amendment.
In a sense, most modern environmental, labor and safety laws grow out of the same moral assumptions. The Clean Air law says that a polluter cannot use his property to cause a child to get asthma.
The occupational health statutes say that an employer does not have a right to use his property in a way that injures or kills his employees.
The labor laws say that an employer does not have the right to use his property to exploit children. Incidently, if you go back in history, the opponents of child labor laws claim they interfered with the private property of the mill owners. They said that they should be allowed to hire 8-, 9- and 10-year-olds in terrible conditions because otherwise you interfere with their property rights.
Wetland laws say you cannot use your land to flood my land or lower the water table and dry out your neighbors.
A lot of people of the so-called property rights bills, the people in support of, disagree with this premise of our legal heritage. They claim a citizen has to be paid not to use his property in a way that might injure his neighbor.
I am sure that Midwest utilities would not resolve a clean air issue in a nuisance action brought on behalf of an asthmatic child in a Caledonia County Vermont courtroom.
That brings me to my second point. Rural Americans have always understood there has to be a balance between individual rights and community responsibility.
In fact, on board the Mayflower, the Pilgrims' leaders were frightened by the boasts of a few unruly passengers, and they came up with the Mayflower Compact to protect the common good against an unruly minority.
Our Constitution was written to both protect the general welfare, but also to secure the blessings of liberties.
When the wagon trains started West, there was never any doubt, as Daniel Boorstin said, “that any hint or a doubt that final control on all matters rested with the majority.”
When you look, for example, at our community institutions that limit property rights for the general good, take the 19th Century, milk was not a major commercial product because it carried diseases such as tuberculosis. Legal standards were imposed which required farmers to spend large sums upgrading their facilities to ensure milk safety. Thus, farmers' compromised their right to produce milk as they saw fit, but they created a market that benefited most dairy farmers.
Another example is wetlands. Farmers have joined together to form drainage districts to carry away unwanted water. To jointly drain these lands for their mutual benefit, each farmer gave up some control over his land. Every farmer was, and still is, required to pay an assessment for maintenance of the drainage system. Drainage districts build ditches across farmers' fields, even against their will, to benefit all farmers.
There are a whole lot of other examples of how rural Americans joined together. In the West, weeds that damage grazing lands, called noxious weeds, can reduce the value of ranchers' lands. They have to be controlled in all lands. In States like Nebraska, if the county weed supervisor identifies a noxious weed infestation on private land, the supervisor may order the landowner to treat the infested land. If he refuses to destroy the weeds, then the county destroys the weeds on private property, and the cost is added back to the landowner, and he has to pay an extra 10 percent charge for the treatment costs.
In South Carolina, as the distinguished Chairman is well aware as we talk about takings abandoned fruit trees harbor pests. South Carolina has given the State Crop Pest Commission power to destroy abandoned ards if the trees are a menace to the fruitgrowing industry. They go even further in South Carolina. The State has the authority to put a lean on the property until the landowner pays to destroy the trees, his own trees on his own property. Now that is something South Carolina-a very conservative State, I think the Chairman would agree—has done to protect the common good.
There are 25 states that have similar weed or pest control statutes. Delaware does, Utah does, Colorado, Florida, Iowa, Illinois, Kansas, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, South Carolina, Tennessee, Washington, Wisconsin, Wyoming. A lot of States-nine other states have similar weed or pest control statutes, but require a court order.
Every State has a comprehensive statute to control animal diseases. Some give the power to prevent the movement of diseased cattle. We know cattle prices go up or down. Are we going to say that the State tells somebody, "You have got the possibility of brucellosis in your herd. You can't move it.” And they say, “Wait a minute. You have got to pay me for the cattle prices that went down during that month they were quarantined.” We are not going to do that. We can't control our livestock otherwise.
These laws restrict private property rights, but the benefiting of protecting the community from negligent landowners outweighs the costs incurred by the individual.
Some feel that property rights of the individual should override the well-being of the community. That is not the American tradition. It is not rural American tradition. Both our traditional American values and the value of our rural land are at stake in this debate. Each landowner has rights, but also has responsibility to their neighbors.
Senator LEAHY. Mr. Chairman, as you know, the Ruby Ridge hearings are starting up, and I am a member of that panel, and I would ask if I might be excused to go to that.
Senator THURMOND. Thank you very much, Senator, for your appearance.
Senator LEAHY. Thank you.
Senator THURMOND. If any of the Senators on the committee have any questions, obviously, you may indicate to me, and we will give you the opportunity. Otherwise we will just get statements from the Senators who are testifying and then move on to the witnesses.
We will now move to our second panel, Senator Richard C. Shelby. We are very pleased to have you with us. STATEMENT OF HON. RICHARD C. SHELBY, A U.S. SENATOR
FROM THE STATE OF ALABAMA Senator SHELBY. Thank you, Mr. Chairman. I am pleased to be before the Judiciary Committee this morning. After this, I am scheduled to testify over on the House side on another matter. I would like to respond to some questions. If you have any, any of you, including Senator Biden or Senator Simon or Senator DeWine, the Chairman, himself, we will do our best to answer them.
Mr. Chairman, I believe that this is an opportunity to speak about title V of the Omnibus Property Rights Act. That is why I am here. While there have been some criticisms of this section, just a few minutes ago, I feel confident the criticisms are unfounded and based on a fundamental lack of understanding of property rights.
Some have suggested title V amends the Endangered Species Act and the Clean Water Act and, therefore, should be addressed in the Environment and Public Works Committee and not this Committee. I believe this is not correct. Title V does not attempt to change the laudable goals of those Acts. Instead, title V is about property rights and the Government regulations that infringe on those rights. We do not, Mr. Chairman, attempt to change any goals of these statutes, but merely seek, yes, merely seek, to change the administration of the laws with respect to property rights.
Although the goals of the Endangered Species Act are commendable, the means by which the act chooses to achieve the goals, I believe, are simply misguided, ineffective and doomed for failure.
Instead of treating endangered species as the assets that they truly are, the Endangered Species Act has caused endangered species to be a tremendous liability borne by very few specific property owners.
To illustrate, assume the Federal Government passed a regulation that said, "Any house that is found with a Vincent van Gogh painting must be vacated and no individual may live in that house because van Gogh is dead, the paintings are in short support and they are highly valued.” We all know that.
Now suppose that a family living in a home that has been in the family for generations finds a van Gogh painting in the attic or in the wall. The incentives the family faces are simple: report the finding to the Government, who will throw them out of their home, without compensation, or destroy the picture in order to hide it from the Government so they can continue to live in their home.
This is what the Endangered Species Act does. Landowners are very familiar with the phrase, "shoot, shovel and shut-up.” In essence, if a property-owner finds an endangered species on his or her land, he has, under the act, the incentive to shoot it, shovel it away and not tell anyone he found it. This adversarial relationship exists because the ESA currently does nothing to encourage the conservation of endangered species.
In the United States, 895 species are currently listed as endangered or threatened. After more than 20 years, only two species have been delisted because of the success of the act. Of the 23 species that have been delisted, 13 were from data errors that is, they should not have been listed in the first place, and seven have become extinct. That is a very poor record, I believe. These numbers validate the assertion that the Endangered Species Act has not achieved the purposes it was set out to achieve.
Another criticism of title V is that it costs too much money. That may be convenient, but the more important question is, “How much is the Endangered Species costing us in its present form?” This is not an easy question to answer. First of all, the Fish and Wildlife Service is not forthcoming with estimates. Although they are required by law to report the Federal expenditures used in regards to the ESA, the data remains largely unpublished and seems to be attained only through the Freedom of Information Act.
However, based on information from the Inspector General, estimates suggest that Federal expenditures on the Endangered Species Act run between $9 and $13 billion a year. This figure does not include State and local expenditures, the reduction in tax revenues due to the reduced business activity, land devaluation and lost jobs. Some critics claim that the Endangered Species Act and Wetlands regulation do not physically take land away from individuals and, thus, should not be considered a taking. That claim is missing the fundamental principle of property rights.
Property rights are not simply rights of ownership, but a bundle of rights that include the right to utilize property as one chooses. As such, a regulatory taking is a de facto taking and, therefore, a violation, I would submit, of the fifth amendment.
Title V simply requires notice and consent from property owners before Federal agencies and their agents can enter a private property owner's land for purposes of the Endangered Species Act or Wetlands laws.