In Their Own Back Yard: Property Rights

California isn’t the only Western state serving as a harbinger of political attitudes. Washington state, for example, can claim credit for kicking off the three-strikes-and-you’re-out anti-crime craze.

Now, Washington is home to a growing and increasingly assertive property rights movement looking payback against environmentalists and rallying against what it calls the Clinton administration’s “War on the West.”

For the environmental apparat in Washington state, a winter of discontent has arrived: In early December the state’s new Republican-dominated congressional delegation, six freshmen and Rep. Jennifer Dunn, said property rights ought to be part of the equation in any rewrite of the Endangered Species Act.

As Robert T. Nelson of The Seattle Times reported, “If environmentalists, who were disappointed with their lack of success in passing key legislation with the Democrats controlling the White House and Congress, need a poster child to energize their movement, the group portrait of the state’s congressional delegation may be it.”

In a state where environmentalists can with a straight face claim that “Cows kill salmon,” Endangered Species Act reform and property rights are code words for further rape of Mother Earth.

But it’s doubtful that, even if energized, the state’s Greens can do much about the congressional delegation’s intent, for Washington state’s eco-culture soon enough will have to fight tooth and nail in their own back yard a property rights movement active at every level of government.

“For every action, there’s an equal and opposite reaction,” says Chuck Cushman, executive director of the American Land Rights Association (formerly the National Inholders Association), located in Battle Ground in southern Washington. “As the environmentalists dig deeper, go for the throat on private property, especially wetlands and endangered species, at some point a critical mass would be achieved.”

That’s an understatement.

At the local level in Washington, property rights groups are petitioning county governments to give themselves greater say over state and federal environmental regulations, testifying to the drawing power of New Mexico’s seminal Catron County ordinances.

Washington’s Catron-like movement is pressing its demands with the help of attorney and one-time legislator Jeanette Burrage, until recently with the Northwest Legal Foundation. She gives them legal know-how and in return develops a political following. Not a bad trade for a property rights activist who ran a fairly strong campaign for the Supreme Court last year.

Burrage’s 43 percent of the vote was, in fact, astonishing considering that in her first run for statewide office she was outspent two-to-one by a veteran state senator who gained statewide name recognition in a previous run for attorney general. Burrage was also portrayed as a threat to other sectors of the progressive coalition, a nifty way of deflecting debate over property rights, her main issue.

Not only was Burrage not endorsed by Washington Women Lawyers, but, as The Seattle Times reported, “Representatives of the National Abortion Rights Action League, National Organization for Women, and Business and Professional Women said Burrage’s politics meant her election would be a step back for women.”

Never mind that women who own property are just as likely to be targets for bureaucrats as are male property owners. Or as Burrage says of why property rights have finally become a front-page issue in Washington, “It’s not somebody else’s problem anymore. … If the government is encouraged to take some property now, they’ll take more in the future.”

Activists working at the statewide level are likewise gaining political experience through their setbacks.

Dan Wood, a former deli and miniature-golf course manager, is the state coordinator for Initiative 164, the Private Property Regulatory Fairness Act, essentially the same legislation as a state Senate bill that last year gained widespread support from legislators of both parties. Wood points out the bill also had the support of state House and Senate caucus chairs from both parties but what ended up killing it off were delays in committees headed by Seattle legislators.

Like the bill, the initiative proposes that the state government articulate the reason for and identify the full economic impact of proposed land use regulations.

The initiative would also have the state government consider alternatives and then choose the lease burdensome to accomplish its land-use objectives, and compensate landowners for lost property.

Now the Republicans from east of the Cascades running the House, and with Senate Democrats more tuned in to populist rumblings, Olympia will be an even more inviting place for property rights legislation even if the necessary valid signatures needed to make the legislature take up the initiative are not gathered.

For his part, Democratic Gov. Mike Lowry says he wants voters to decide the issue, which means he wouldn’t have to see initiative-turned-legislative cross his desk. But new House Speaker Clyde Ballard says property rights will be a priority for the Legislature with or without Initiative 164.

Wood, however, was optimistic the initiative was on track even before getting a late December infusion of $200,000 from timber, real estate, and home-building interests to gather 230,000 signatures. But should the signature drive fall short, the initiative may simply result in a blueprint for other legislation from sympathetic lawmakers—from both parties.

“What we’re doing is creating a mechanism that prevents government from creating a taking,” Wood says of the populist pitch. “More important than compensation are the other aspects of the initiative.”

Just as important as legislation limiting the reach of government, activists now see themselves as having no choice but to organize against existing policies, especially federal ones. For instance, in a December letter to The Seattle Times, Marv Chastian of the Port Angeles-based group, Rescue Elwha Area Lakes, summed up the fury in rural areas this way:

“Clinton’s selection of Al Gore for a running mate and his appointment of a huge roster of super-ecocentrists … to run nearly all the departments of government which deal with federal land, wildlife, air, and water, amounted to a declaration of war on Rural America … The election was only Rural America’s opening counterattack … In the next two years, Clinton will be shot down more by technology in the hands of angry timber workers, farmers, fishermen, miners, ranchers, landowners, builders, and those of us who truly love the environment and the country way of life than by Newt Gingrich and Bob Dole. That’s the real story.”

According to Cushman, average property rights activists may not follow the ins and outs of specific pieces of legislation, but they know how to spot key issues, like Interior Secretary Bruce Babbitt’s proposed National Biological Survey, which invited volunteers to do field work.

“If you have a Sierra Club activist coming on your property trying to find an endangered species, what do you think he’ll find?” says Cushman. “When you have a hammer to make a policy, everything looks like a nail.”

In other words, property owners just can’t be played for chumps so easily any longer by the federal government.

Property owners anger isn’t, however, just limited to the state’s more conservative rural areas. It will, for instance, soon be spreading along the state’s considerable Puget Sound coastline, always considered the most politically progressive area of the state.

In December in Los Angeles, U. S. District Court Judge Edward Rafeedie decided a case in favor of 15 western Washington Indian tribes that would give them rights to harvest shellfish on public and private tidelands, essentially giving the Indians access, if they choose to exercise it, to about 60,000 lots of private coastal property.

An indignant United Property Owners of Washington is vowing to fight Rafeedie’s decision, without seeking compromise.

“They want land-use decisions from the Cascades down to the waterfront,” says Barbara Lindsay, the group’s executive director, of the tribes. “You can’t call it anything less than a power grab.”

The group’s attorney, Jim Johnson, sees the issue potentially working to radicalize existing property rights activists.

“The same treaty article that speaks of fishing also speaks of hunting. We haven’t had a hunting case, but I assume that will follow,” Johnson says of potential tribal litigation. “If it gets into hunting, you get into species protection and you go off into another never-never land of analysis.”

The judge said landowners should petition Congress to reform Indian treaties if they didn’t like his decision. While that may not sit well with landowners (and to judge by opinions expressed on regional radio talk-shows, it most certainly didn’t), the suggestion indeed would dovetail nicely with the state’s GOP delegation’s declared intent to reform the Endangered Species Act to take property rights into consideration.

And one can only assume that in a mid-January, private briefing for freshman Republican Rick White, who lives on Bainbridge Island a half-hour ferry ride from Seattle, Lindsay and company drew the parallel for the young congressman.

Washington’s Republican delegation could do worse than to take the House Floor and argue what the Sacramento-based Pacific Legal Foundation, the grandfather of conservative public interest litigation firms (which keeps a satellite office in Washington), has been saying these many years about property rights.

As Wood, echoing PLF and summarizing the centrality of property rights, says, “It’s far more fundamental than how Joe Citizen can use his property. … It’s a constitutional and civil rights issue.”