Who Owns America?

By Floy Lilley, J.D.
Paragon Powerhouse

4/30/2000

'Who owns America' is both the title of a current book by Harvey Jacobs
and a good question to ask.

Exact ownership figures are difficult to come by. Landownership changes
constantly and dramatically. It does not sit still to be counted. There
are over fifty-eight thousand governments in our country. Not all data are
maintained, or recorded in the same manner, or made available. The best
acreage counts come from the Department of Agriculture, but, of course,
their numbers do not include non-farm numbers. So, no certainties are
possible, but approximations will suffice.

Best tallies place about forty to forty-four percent of the land area of
these United States in the public column. That counts local, state and
federal government land. What can be said about the remaining fifty-six to
sixty percent that falls in the private column? Jacobs, referencing a 1993
study by Geisler, writes that seventy-five percent of all of that private
acreage is in the hands of the top 5% of landowners. Those are "people"
like Champion International Paper who counts one million acres of Texas
within its total holdings.

The stunning figure is that 78% of all landowners hold title to a mere
three percent of the private acres. As Jacobs has put it, "Despite the
perception of widespread landownership among America's peoples, the 1980
study found private land in the United States in the hands of only 34
million owners. Nothing in the last two decades suggests that this pattern
of private landownership is changing for the better."

If five percent of thirty-four million people hold title to the bulk of
private real property, only 1.7 million people own most of America.
That's who owns America.

It gets messier for us advocates of private property rights.

Private ownership advocates, alert to regulatory takings, appear lulled
And beguiled by a modern ritual of property hara-kari known as conservation
easement. This freshest destruction of the fundamental stick in our bundle
of real property rights is, like hara-kari, self-inflicted. Willingly,
voluntarily and deliberately, landowners -- large in numbers and small in
holdings -- are signing away the basic stick that is owner choice of land
use and disposition.
There would certainly exist no building on a University of Texas campus
from which I write if our great-great grandfathers had snarled up land use
in proscriptive and perpetual conservation easements. There would exist no
University of Texas campus. Which of your homes and offices could have
Been built?
Are conservation easements the coin of land trusts or the coin of land
agents? Bruce Yandle of Clemson University argues that they are too close
to the government. The Nature Conservancy's (TNC) record of offering a tax
benefit to owners who sell at a loss and then TNC gaining a "profit" when
that land is resold to the federal government has prompted some, including
this author, to refer to the Nature Conservancy as "pimps for the feds."
Just show me the records. Show me how many pieces of private land began
with a conservation easement, transferred to land trusts, and finally
transferred to the federal government. TNC earns $10 million per year from
sales of such property to the feds. Are there any heirs out there who
won't eventually just get tired of paying taxes on land they can't use for
future development? Their land will end up federal land. We all know how
beautifully managed it will be then.

But, before it eventually becomes federal land, land under conservation
easements is still counted categorically as private. "Some 17 million
acres of U.S. land is now controlled by land trusts. That's a lot of habitat,
farmland, and open space, an amount close to the size of South Carolina,"
Yandle concludes in a December 1999 PERC Report. Those acres are private
In name only. The right of land use choice is forever, in perpetuity, denied
to any future owner.

Proponents of conservation easements point to Ducks Unlimited as the best
performer in this politically correct field. Although Ducks Unlimited have
not always been good friends of water rights, I will call them good guys
until they begin to stop hunting rights. That litmus test will show that
they, too, have crossed the line.
This piecemeal nationalizing of America has picked up pace. "Prior to 1950
there were fewer than 40 land trusts in the United States. There are now
more than 1200 land trusts operating across the 50 states and U.S.
territories (Land Trust Alliance)," Yandle's research reveals. If the
chief driver behind this rush from rights is our death tax, repeal the death tax.
Show me what happens to the value of land with a perpetual cloud upon its
title. Will its income stream rise? Will it be more valuable? Or, will
your conservation easement mark you as an easy future picking for the feds?
It gets messier.

Clear pictures of even more clouded titles loom. Clouds will form from
these five major elements:

1. The Conservation and Reinvestment Act of 1999. The land grab bill
called CARA is a hot pork plate about to be accepted or rejected. Chuck Cushman
Of American Land Rights Association documents daily CARA's unintended impacts
upon private landowners.

2. New funds for acquiring wetlands. Millions in matching funds are
already in existence for wetlands.

3. Fresh funds for transportation enhancements like bike trails. The 1998
Transportation Equity Act provides $630 million for greenways and other
open spaces.

4. Potential designation of Kyoto Lands to sequester carbon dioxide. The
6th Conference of the Parties of the United Nations Convention on Climate
Change will present the implementation facts about land use rules for
sequestering carbon dioxide to the member dignitaries this November at the
Hague.

5. Newly proposed Forest Service Land Use Planning Regulations with their
potential to guide even land use planning on private land nationwide. The
Forest Service's new management plan is a NO MANAGEMENT plan.
The fifth cloud formation deserves a few extra notes. If the forest
regulations are permitted to wrap themselves around the proposed core idea
of "ecological sustainability," then "good" forestry practices will mean
"no" forestry practices.
All of the fine skills that forest service agents have in their tool kits
will be disallowed.

"Keep Human Hands Off" is the mantra of ecological sustainability. Rot
away, blow down and burn up will be the forest practice across the land.

"Keep Out" is the regulatory sign even today within 150 feet of streams.
In hilly terrain, this Best Management Practice restricts much land. Wetland
issues prohibit any logging within any high water mark, but exactly what
elevation gets you above that shoreline? For any potential upland wildlife
and bird habitat anti-logging rules already constrict management skills on
much acreage.

According to Dr. Kent Adair, retired Forestry faculty member of Stephen F.
Austin State University in Nacogdoches, TX, politics is driving the newest
harassment of human forest management. Adair reports that the federal
agency OSHA has been entering east Texas forests after logging operations
and measuring hinge wood visible on stumps to ascertain if the length of
the hinge wood reflects that the tree was felled in an occupationally safe
fashion. Unexpected fines are then levied on companies. When asked why
OSHA felt inspired to start up this new inspection, Adair speculates that
environmentalists desire a stack of sins, like dramatic fines, that could
create the picture of a poor environmental performance record for Texas
Governor Bush as he challenges Vice President Gore.
Perhaps the better question to have asked is not "Who owns America," but
"Why does owning America matter?"

Adam Smith took for granted that everyone understood why private ownership
matters. Private ownership of intellectual property today is propelling
the greatest wealth creation engine the world has ever seen. Private ownership of
personal property, like our money, is an intellectual issue that is bound to be revisited
and affirmed in the near future. But, the present state of real property ownership (land)
in America says we have lost this understanding as it entails real property.

A fundamental principle operates for all three types of property. That
principle is that unless a man can keep what he produces, he is unwilling
to work hard. As long as governments take the fruits of his labor, man
knows his life is no better than that of a slave. As long as other men can
whimsically and arbitrarily claim his efforts as their rights, no human
has the longer time horizon necessary to make his own efforts worthwhile.
Private property is the key to human dignity.

Floy Lilley is Program Manager at the Murchison Chair of Free Enterprise
At the University of Texas at Austin, and Vice Chair of Sovereignty
International. This aticle is based upon her remarks made to Southern
Hardwood Forest Research Group, Feb.17, 2000, Stoneville, MS.