Property embraces everything to which a man may attach value and have a right.

-  James Madison, 4th U.S. President

Cattlemen Ready to Defend Property Rights

by Paul Hitch

In its efforts to represent cattlemen, the National Cattlemen’s Beef Association has always made protecting private property rights a top priority. So NCBA is very concerned about the U.S. Supreme Court’s potential bomb on the rights of private property owners from its recent session.

Kelo vs. City of New London trampled the rights of private property owners by upholding the use of eminent domain by the New London (Conn.) Development Corporation to condemn and remove homes that the owners were unwilling to sell. The Supreme Court found that the disposition of this property for economic development purposes qualifies as “public use” under the Takings Clause of Fifth Amendment of the U.S. Constitution.

Most people understand that eminent domain is a necessary last resort for acquiring property for roads, bridges, sewer systems and other elements of the public infrastructure. We also have come to expect that property that is blighted, neglected or misused may be condemned for the betterment of the community.

But the troubling thing about the New London case is that none of these conditions apply. The city freely acknowledged that these homes were neither blighted nor neglected. One of the residents was born in her home in 1918, and has lived there her entire life. Others moved into the area recently, and made significant improvements to the property.

Their property is being acquired to accommodate a private development that the New London Development Corporation feels will bring more commerce and – oh, by the way – generate more tax revenue. In a very articulate dissent, retiring Justice Sandra Day O’Conner writes:

“…nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted positive side effects are enough to render transfer from one private party to another constitutional, then the words ‘for public use’ do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.”   

Cattlemen, and anyone involved in production agriculture, should take Justice O’Connor’s warning very seriously. Agriculture already fights a land-use war on two fronts – with environmental activists that want ag land to produce nothing, and with local governments that want ag land to produce more tax revenue.

As farmers and ranchers, we need to understand that the value our society has placed on maintaining agricultural land is not a “given.” As time goes on, fewer community leaders have family connections to farms and ranches, and may not view agriculture as a priority. As city and county governments compete fiercely for developments that will create commerce, jobs and tax revenue, agriculture could quickly find itself without a seat at the table. If these governing bodies see Kelo vs. New London as a green light for acquiring property that it feels is “underutilized,” agriculture could be in real trouble.

The late justice Robert Jackson once said that the Supreme Court does have the last word because it is infallible, it is infallible because it has the last word! Fortunately, Kelo vs. New London likely will not be the last word. The decision does not appear to give an inherent right to exercise eminent domain. Rather, the opinion gives very broad deference to state and federal laws governing the use of eminent domain. So while I would prefer that the Constitution protect my ranch rather than just a statute, at least there is a chance for this situation to be effectively addressed through legislation.

Congress appears to be taking this issue very seriously. Republican or Democrat, liberal or conservative, it has many members of Congress up in arms. On September 7, the House Agriculture Committee held a hearing to examine this issue from an agricultural perspective. Both the witness testimony and comments from committee members indicate strong support for moving forward with legislation to protect property owners from the misuse of eminent domain. Hearings are also being held by the Senate Judiciary Committee and a subcommittee of the House Energy and Commerce Committee. NCBA must review all proposed legislation to determine the best solution, but applauds all sponsors and co-sponsors of these bills for taking decisive action in support of private property rights. 

Ultimately, legislation at the state level may be needed to address this situation, because states play a large role in determining the authority of local governments. Many state legislatures begin their next session in January 2006. But the next few months are critical for researching and preparing legislation, and lining up bill sponsors and support. So now is the time to lay the groundwork necessary for protecting private property rights at the state level. Local government associations put tremendous resources into statehouse lobbying, so we must not take this battle lightly.

NCBA will do its part on the federal level to support a legislative solution that protects cattlemen’s property rights, and stands ready to assist any state cattlemen’s association or agricultural organization in preparing or researching state legislation to address the issue.

America was built on the principles of free enterprise and individual rights. Fighting for these principles requires much time and energy, but it is critically important. If you are concerned about the erosion of private property rights, we need your help.  Join NCBA and work with other cattle producers to protect property for agricultural use. And, make it a point to speak with your members of Congress and state representatives to let your voice be heard.

Paul Hitch is a cattleman from Guymon, Oklahoma, and chairman of the Policy Division of the National Cattlemen’s Beef Association.