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Thursday, February 1, 1996

Land Rights: The 1990s Property Rights Rebellion

The First Reference Book for the Property Rights Movement

Richard and Nancy Delene intended to create their own little wildlife reserve in Michigan’s Upper Peninsula. They purchased over 100 acres of duck ponds and wildlife habitat and sought to improve upon it, making it a more attractive home for indigenous species. The Michigan Department of Natural Resources had other ideas. The Delenes were ordered to cease their activities and were threatened with well over $1 million in fines for not having the proper government permits to shift dirt on their own land.

The Delenes are not alone. Indeed, across the nation individuals and families are discovering that the lands they thought were their own are only thews in trust. To make use of the land requires obtaining permission from federal, state, or local authorities, and sometimes all three. The right to make private use of private land can be taken by the government, and rarely does the state have to make the owner whole. It is as if the land is actually owned by the state, and not those who possess it. It is the modern equivalent of feudalism.

Americans are increasingly unhappy with this state of affairs, and hence this book. There is a growing rebellion against the wanton violation of property rights, and Bruce Yandle has put together a valuable volume to chronicle its development and explain its roots. Land Rights is the first reference book for the property rights movement.

The book has nine chapters, each by a different author. The contributions cover the legal history of property rights litigation, important Supreme Court cases, and political developments at the state and local level. A chapter each is devoted to the Endangered Species Act and the wetlands provisions of the Clean Water Act—the two laws under which the greatest property rights violations occur. There is even a chapter that explains how current environmental laws have come to approximate federal land-use planning of the sort explicitly rejected in the 1970s. Land Rights covers the gamut of issues relating to the property rights rebellion, and explains why property rights have become such an important political issue.

Most federal affronts to private property are the result of environmental legislation. Environmental laws, such as the two mentioned above, are premised on the idea that only government agencies can act in defense of environmental quality. Fortunately Yandle has included a chapter by Roger Meiners that spells out a property-based alternative that is grounded in the common law tradition. As Meiners points out, what is now often considered environmental protection was once considered the protection of private property from outside assaults. Rights were vindicated not due to the watchful eye of agency bureaucrats. Rather property rights enable individuals, families, and communities to vindicate their cases in court. So long as courts upheld this approach, potential polluters were forewarned about the economic repercussions of violating the property rights of others. It was a superior system that has fallen out of favor.

Americans believe in private property; majorities polled want them to receive far more protection. Land Rights helps one understand why property rights are an issue, and why they are so important. In the words of Noah Webster, “Let the people have property and they will have power that will forever be exerted to prevent the restriction of the press, the abolition of trial by jury, or the abridgement of any other privilege.”

Jonathan Adler is director of environmental studies at the Competitive Enterprise Institute in Washington, D.C., and the author of Environmentalism at the Crossroads: Green Activism in America (Capital Research Center).

  • Bruce Yandle is dean emeritus of Clemson University's College of Business & Behavioral Science and alumni distinguished professor of economics emeritus at Clemson. He is a distinguished adjunct professor of economics at the Mercatus Center, a faculty member with George Mason University's Capitol Hill Campus, and a senior fellow emeritus with the Property and Environment Research Center (PERC).

  • Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western University School of Law. He teaches teaches constitutional, administrative, and environmental law.