Land in the American West: Private Claims and the Common Good

Private Property and the Public Interest: Land in the American Idea

23 Private Property and the Public Interest Land in the American Idea daniel w. bromley R ecent incidents indicate that private land-use practices are increasingly seen as important by the general public. After the inaugural Earth Day in 1970, environmental concerns tended to focus on air and water pollution. More recently, however, as the concern for endangered species has intensified, the general public’s attention and scrutiny has shifted to land-use practices. Controversies over endangered species—northern spotted owls, red-cockaded woodpeckers, and other plants and animals—illustrate just how central land-use debates have become . The U.S. Supreme Court’s 1995 decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon brought this issue close to those who own land.1 In other words, over the years the locus of contention in environmental policy has shifted. The first generation of environmentalism focused on dirty industries, automobile emissions, and the runoff of topsoil and agricultural chemicals . In the second generation, however, behaviors on private land are suddenly in the public glare. This scrutiny has not been pleasant for the parties involved. Small wonder: The roots of the sanctity of private land run both deep and wide in America. The dominant issue in contemporary environmental policy concerns the collective interest in private land. Some may regard this idea as a contradiction in terms; therein lie the seeds of much current discontent. The problem may be rephrased as being a conflict of private and public values with respect to land and how the land is used. daniel w. bromley 24 On the one hand, there are those who believe that the owner is the ultimate source of authority with respect to private land use. Adherents to this position cite the “takings” clause of the Fifth Amendment to the U.S. Constitution in which “just compensation” is required for taking private property for public use or benefit. On the other hand, there are those who believe that landowners may sustain the current extent of their property interest in land only at the forbearance of others in the polity. Adherents to this position cite a series of U.S. Supreme Court decisions in which the determination of the extent of the property interest resides with the general public; that is, collective determination of acceptable behavior on private land indeed finds support under the Constitution. Both sides of this debate have recently engaged in some spirited skirmishes , one manifestation being the introduction of a “property rights” clause in the Congressional Republican’s “Contract with America” in 1994. Although this particular legislative initiative failed to gain much support at the national level, several states passed laws mandating compensation to private landowners when public action reduces property values by a specified amount. But these regulatory actions cannot constitute a “takings” under the Constitution.2 Therefore, when regulations—for whatever reason—constrain a landowner from committing antisocial acts, there is no Constitutional basis upon which the government must be made to compensate the party so constrained. This view is evident in the Babbitt v. Sweet Home decision, which shows that the U.S. Supreme Court holds a similar opinion.3 Other cases reveal a similar perspective about the collective interest in private property.4 Not surprisingly, several cases have resulted in decisions showing the other side of this matter.5 For those who believe that they know precisely the content of property rights in land, this seeming inconsistency by the courts is the source of much consternation. They lament, How can something that is so obvious be viewed so differently by the courts? There are two possible explanations : The first is that judges are incompetent; the second is that the content of property rights in land is not at all clear, so successive courts must sift through conflicting claims and, Solomon-like, determine precisely where the controlling property interest lies. As one cannot easily regard judges as incompetent, the second explanation is more likely. As one thinks about private property in land—particularly in the American experience—the subject must be approached rather pragmati- Land in the American Idea 25 cally. One must ask, What is the American idea of land that allows one to understand different outcomes for the sanctity of private property over the past century? The answer, quite simply, is that the empirical content of private property—that is, the essence of private property—is discovered as the courts struggle with conflicting claims. Although some people believe that property...