Governor's Advisory Committee on Chip Mills

Final Report
August 1, 2000

F. LANDOWNER RIGHTS and RESPONSIBILITIES

As with virtually all matters of public policy, the possibility of actions that will effectively enhance sustainably managed forests in Missouri rests upon the need to reconcile the personal motivations and objectives of private forestland owners with the interests of the public. Landowners manage their forests for a wide array of purposes. The public also has objectives related to sustaining forests and other natural resources for the good of society, among which is the goal of protecting the public from adverse effects of improper land use practices. This latter goal is most commonly expressed through the enactment of environmental laws and other property-related regulations. In this light, there is an inherent tension between landowners who use the natural resources they own and the public who may want to preserve certain resources on private property as part of a larger societal heritage.

This tension is as old as the country itself. Ownership and use of private property have been essential components of America's society and economy since colonial times. At the same time, colonial courts also enforced the English Common Law concept of nuisance -- an unreasonable interference in the use and enjoyment of an interest in land -- a concept still enforced today (National Research Council 1998). Nuisance laws reflect the fact that property rights have always been subject to the power of the courts to limit uses to protect the interests of other landowners. All citizens enjoy both the freedom and potential of private property and the benefits of government programs. The issue is how to balance the property rights of individuals and protect the health, safety, and welfare of the public.

In a real sense, therefore, this question extends well beyond the 'chip mill issue' in Missouri. It does surface as part of that issue, since it underlies all of the subjects discussed thus far in its thematic background (see figure in the introduction to Section II). This relationship between individual goals and the public interest is linked to the fundamental question of freedom of choice for individuals in a democratic society. It is also manifest in the current discussions about property rights in the United States. With respect to the individual, a central tenet in this country's political heritage has always been to protect freedom of choice : the question concerns how we define and interpret freedom.

The critical need for a balance between private property rights and state imposition of responsibilities on the use of private property is a reflection of the fact that important public goals for Missouri's forest resources often cannot be achieved without affecting the actions of private forestland owners and placing responsibilities on how they manage and use their property. It also touches on matters embedded in the U.S. Constitution, because of the Fifth Amendment prohibition against taking private property for public use without compensation. For the individual forestland owner, this balance between property rights and societal expectations is experienced as a personal balance between rights and responsibilities.

Two perspectives of this balance of landowner rights and responsibilities may be found in Table 19. One was formulated by the National Research Council's (NRC) Committee on the Prospects and Opportunities for Sustainable Management of America's Nonfederal Forests. The other embodies the perspective of the National Woodland Owner's Association. The NRC highlights the rights of forest and other landowners to access their property and exclude others; as well as the freedom of choice to define their goals for managing their lands, make economic use of those lands, sell them freely, and enjoy their property without excessive outside interference. In return, landowners have social responsibilities that include paying taxes, complying with land use and environmental laws, and taking into account how their land use decisions will affect their neighbors, surrounding communities, and the broader general public.

The National Woodland Owners Association frames many of the topics discussed in this report in the context of landowner rights and responsibilities. The Association recognizes the importance of environmental sustainability by pledging to show concern for nontimber resources such as wildlife, soil and water, and natural beauty. It pledges to use certified loggers and ensure that best management practices are employed when harvesting timber from member lands. In return, the group expects fair taxes and respect for private property rights, the availability of professional forestry advice and educational opportunities, and that loggers live up to professional standards for timber harvesting and mill owners assume social responsibility, accompanied by self-monitoring, to ensure they do not create markets that encourage improperly harvested wood.

Property rights have never been unlimited. They have always been subject to judicial limits imposed to limit uses to protect the interests of other landowners, which is the basis of nuisance law. On a broader scale, property rights have always been subject to the power of government to enact reasonable restrictions designed to protect the public health, safety, and welfare. This is the basis for laws to protect soil, water, and other natural resources from pollution and/or wasteful exploitation. The most common form of societal restrictions placed on landowners through government actions is the variety of regulatory standards that establish responsibilities, such as requiring permits before certain actions or prohibiting some types of conduct (Ellefson et al 1995). In many ways, establishment of these responsibilities for private resource management has been the way society has defined stewardship.

At the same time, it is possible for a level of government to exceed its constitutional authority in obtaining public benefits by confiscating or restricting the use of private property. The purpose of the "taking" clause of the Fifth Amendment is to prohibit the confiscation of private property without just compensation. When property is physically occupied by the public, this clearly constitutes a taking and, therefore, requires owner compensation. The issue is more complicated in situations where land is not physically taken, but the use is restricted or the value is reduced, as is possible with many environmental or land use laws. If a regulation is too restrictive or constraining in that sense, it can be recognized as a taking.

Table 19. Two perspectives on landowner rights and responsibilities. (Source : NRC 1998)

Landowner Rights and Responsibilities: A Range of Elements

One aspect of the discussion about stewardship and the relation to private property concerns the rights and responsibilities of the owners of private property. The following elements are commonly accepted "rights and responsibilities" of property owners:

Rights:

Responsibilities:

Private Property Responsibility Initiative of the National Woodland Owners Association

In 1994 the National-Woodland Owners Association linked private property rights directly with responsible land stewardship through the "Private Property Responsibility Initiative." The heart of the campaign is a 12-point "Woodland Responsibility Code" as follows:

As Woodland Owners-We Agree to:

In Retum, We (Woodland Owners) Expect:

Source: National Woodland Owners Association 1995

This latter situation may arise, for example, with respect to laws prohibiting clearcutting or a zoning ordinances preserving forestland (and hence prohibiting its conversion to other uses, e.g., development for housing). Could these be construed as takings of property? Each case is likely to depend on the facts and the nature of the restrictions. Courts consider many factors when deciding a property claim : the nature of the restrictions and whether they promote a legitimate state interest; the impact on the property value and the owner's reasonable expectations to use the property; and the nature of the public benefit that is being protected or the harm that is being prevented by imposing responsibilities on the private landowner (National Research Council 1998). As a general rule, courts will find restrictions valid if they are reasonably related to promoting a public interest and the landowner is left with some economically viable use of the property. With respect to the use of zoning as a collective practice utilized to try and add some order to what is frequently a random process of land-use change, a similar logic is usually applied. If a particular governmental body determines that zoning a tract of land a certain way is an appropriate course of action, then the courts generally do not attempt to second guess what that governmental body decides; unless there appears to be no reasonable basis for that body's decision.

Defining how far a law or regulation can go in restricting the use of private property before it is considered a taking has always presented formidable challenges for legal interpretation. Even the U.S. Supreme Court has commented on its own inability to develop a set formula for determining when economic injuries from public actions must be compensated.

In discussions of the 'chip mill issue' by the Governor's Advisory Committee, the question of respect for private property rights invariably surfaced (at least implicitly) whenever the possibility of instituting any kind of regulatory measure affecting the actions of private forestland owners was raised. As noted earlier, the Committee frequently expressed its desire to emphasize the use of education and technical assistance approaches and positive incentives -- e.g., fiscal measures such as cost-sharing, tax credits, etc. -- as tools to influence landowner behavior towards their forests; in preference to regulatory mechanisms that invariably impose restrictions of some kind on landowner actions. The regulatory option in turn invariably surfaces in response to the question " What if the positive incentives and related approaches don't work, either because landowners are not sufficiently motivated by them or there is simply not enough financial resources available to fund an effective educational and/or incentive program?" When the regulatory option is then raised, the above kinds of questions related to property are often concurrently raised as well (explicitly or implicitly). Frequently discussions reach an impasse at that point, and this tended to be the case throughout the series of meetings held by the Committee

An important lesson from the above is that any discussion about government approaches to implementing policies related to natural resource and the environment -- whether it pertains to maintaining ecosystem integrity, soil conservation, protecting water quality, or sustainable forest management -- inevitably raises a concurrent discussion about the implications of the proposed approaches on property rights. This will be as true of future discussions on chip mills and other natural resource issues in Missouri -- which will surely be both stimulated by this report and arise in the natural course of future events -- as it has been during the discussions of the Governor's Advisory Committee. The potential benefit to be gained from this experience, if we wish to avoid spinning the same wheel again the next time such discussions arise, is that of recognizing the logic and dynamic through which the above pattern of discussion seems inevitably to arise; make that pattern the explicit focus of future discussions on chip mills and other natural resource issues; and recognize points where positions have to be taken or choices made, all the while respecting the diverse viewpoints of individuals and groups reflecting different interests in the status and management of Missouri forests.

The above exemplifies a more general lesson to be learned from the pattern of discussion that emerged in Committee debates involving private property rights and societal expectations for responsible forestland stewardship. As the National Research Council (1998) concludes :

In light of all of the above, the Governor's Advisory Committee expresses strong support for respecting the property rights of private forestland owners, while calling on them to exercise the responsibilities inherent in those rights. In this light, the Committee also interprets the notion of 'freedom of choice' as follows. Recognizing that no freedom is absolute, and that all rights entail social responsibilities with them, the Committee encourages creating an environment for choices towards enhancing the long-term sustainability of Missouri forests in which forestland owners and others will make the right choices voluntarily on the basis of knowledge of the value of their lands for a variety of economic ends and ecological functions, without having to feel imposed upon by society to do so. This recognizes that government has a moral obligation both to respect individual rights and to protect societal resources; and that landowners have a similar obligation in pursuing their individual interests to engage in responsible stewardship of their lands as valuable assets of Missouri's forest landscape.

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