What Part Of "Mine" Don't You Understand?
Marcia H. Arsmtrong, Siskiyou County Farm Bureau
July 12, 2002

Recent rhetoric about the Klamath Basin Crisis highlights a reality that "environmental" regulation has a subtle economic dimension.

According to Zeke Grader of the Pacific Coast Federation of Fishermen’s Associations in his testimony to the House Resources Committee:

"…Sufficient water must be reserved for salmon production for our industries and our families as well, both for sound biological as well as sound economic reasons….Water left in the river has just as much economic value to coastal Oregon and Northern California ports as it does used on the ground for Klamath Falls agriculture. A fishermen's job is no less valuable than a farmers, a fishermen's family no less deserving."

As stated by Felice Pace of the Klamath Forest Alliance in a commentary entitled "Let’s Get Real":

"Whether or not the Bush Administration decides to make the Klamath Basin a poster child for its dislike of the Endangered Species Act, the reallocation of water among upland, river canyon and coastal communities will continue."

Grader acknowledges that the resource, (water,) has an economic value. Pace acknowledges that a reallocation of this valuable resource is being made by government through regulation. All the unfortunate farmers of the Upper Klamath Basin know is that they awakened on April 6 with their ditches empty and their pockets picked clean. Viewing things from this perspective, it is difficult to ignore that a transfer of wealth has just taken place.

The right of control IS the essence of ownership. Under private ownership, control means that the owner has the right to use and enjoy the resource to the exclusion of all others. It is what we mean when we say: "This is mine - not yours!" Exclusivity of the right to control is a large component of the value of private property ownership

One dimension to "control" is physical command of the resource. Under our system of Western property law, physical control or "possession" of the resource by a human being was a prerequisite to establishing a property right to its continued use. This requirement is why farmers have established property in the right to use water and fishermen have not

In considering "ownership," another dimension of "control" is the exclusive right to make decisions regarding the use and disposal of a resource. Organically, this exclusive freedom to use is constrained by the basic rule "Sic utere tuo ut alienum non laedas," (each one must so use his own as not to injure his neighbor.) This prohibition from "nuisance" use that is substantially dangerous or injurious to others forms the basis of regulation. On the public level, this same prohibition is embodied in the so-called "police powers" of government - to protect human health, safety, peace and morals from substantial injury.

Traditionally, three tests of have been established to ensure the "legitimacy" of regulations imposed as a constraint on the use of private property:

a) Whether the regulation has a legitimate relationship to the protection of human peace, good order, health, safety and morals from substantially noxious, dangerous or injurious uses of property;

b) Whether the regulation serves the interests of the general public and not some individual or class of interests; and

c) Whether the regulation is reasonably necessary and not unduly oppressive upon individuals.

A private owner takes ownership of his property subject to the prohibition against injurious use embodied in legitimate regulation. For this, no compensation is due him. It is also recognized that governments function to promote the mutual benefit or general interest of the People. This function may require forced public acquisition of private property through eminent domain. In such instances, the Constitution prohibits the state from "taking" the private property for its public purpose without due process and the payment of just compensation.

In summary, what we have is a traditional system that establishes limitations on government's right to regulate the use of private property. The system establishes what is legitimate regulation and what is not. The system also provides a method by which the public may acquire private property for its legitimate mutual benefit and use, while ensuring that the private owner is made whole for his economic loss. This balance maintains the integrity of the meaning of private property.

The Constitution absolutely prohibits the government from taking private property for public use with just compensation

What we are now witnessing is a corruption of the purpose of regulation to coerce use of private property to serve the public benefit, or to comply with some sort of community or democratic majority preference, without payment of just compensation. New community "values" have been added to the organic police powers so that we now protect such things as species habitats, ecosystems, viewsheds and aesthetics from injury.

The rubric of "Public Trust Resources" has been transmuted from the pages of old English law to create the illusion of a history to the claim of an underlying common or joint public ownership of all resources. In reality, the "commons," were very limited properties. They were jointly owned municipal lands such as public squares, or tidal sovereign lands along navigable rivers called "fisheries" to which a reserved common public right to fish attached. It is to these "commons" that the term "public trust" pertains.

The great body of "wild" resources were considered free or for use by all in "public domain" until subjected to property ownership through possession. There were not "commons." The state controlled the conservation of these resources up-front by establishing what resources could be privately owned and how they could be privately acquired. As an example, this is the purpose of fishing and hunting regulations.

The regulations justified under the misnomer of "Public Trust," assert control over private use decisions, requiring that resources be managed to comply with "vision standards" of "healthy, proper, desirable and natural" conditions. There can be no doubt that such "regulation" is a public assertion of control over private resources. It is an encroachment upon the exclusivity of private control, as well as the economic value of that exclusivity. Protection of the minority right of private ownership against majority or "special" economic interest is precisely why the limits exist in the first place and wherein lies the economic value of private property.

Examining the dynamics behind this new breed of "regulation," we often find that it is driven by economic motive. Commonly, one group wishes to wrest control over a resource from existing property owners with established vested rights. Their purpose is to command use or "protection" of the resource in such a manner that it benefits the group to the economic detriment of the owner. For example, neighbors to a private forest may seek to "regulate" forest use so that valuable ancillary aesthetic benefits enjoyed by them are "preserved."

Under the current corruption of the system, these neighbors are recognized as "stakeholders" in the "community of interests" that have acquired a "seat at the table" where decisions are made concerning how private property will be used.

What has occurred is a subtle transference of "public benefit values" from the 5th Amendment compensatory column over to the police powers column. The actual transference of the portion of valuable control is to the regulating government. This exposes the establishment of policy or choice over the use of the resource to public opinion. The perception of the public and legislators may then be manipulated by special interests through the media and political processes. Or to assist in the "democratizing" process, a consensus statement of stakeholders as to appropriate use is often facilitated both to legitimize entitlement and to justify the need to regulate.

When viewed from this perspective, it can be clearly seen how these trends in regulation subvert the integrity of private property ownership and facilitate the gradual socialization of all private property.

The Klamath farmers and ranchers own valuable property in the private right to use water. Under the traditional police powers, legitimate regulation can prohibit uses substantially injurious to human health, safety, peace or morals. Requiring private property to benefit a particular species, (and as a by-product a particular economic group,) is clearly not a legitimate regulation exempted from just compensation under our Constitution. What part of "mine" don’t you understand?

Marcia H. Arsmtrong
Exec. Director
Siskiyou County Farm Bureau
809 S. Fourth St.
Yreka, CA 96097

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.