When I was boy in Oklahoma, my neighbors were Cherokees. Despite a US Supreme Court ruling that it would be unconstitutional, the federal government drove their ancestors from their land in Appalachia.

Something similar is happening to rural landowners in Kitsap County and elsewhere. Call it rural cleansing. Landowners are being denied the use of their land by regulations that are as unconstitutional as expelling the Cherokees.

Nuisance ordinances prohibit landowners from doing anything on their land that harms their neighbors, a proper use of government authority. Some government actions indirectly influence property values, also. The Constitution doesn’t apply in such cases. But when property is specified, “within (or outside of) the boundary,” “waterfront,” or “habitat” in regulations that limit the owners use of property for the public’s benefit, that’s different.

The Fifth Amendment of the Constitution forbids government from making individuals bear burdens that rightly ought to be borne by the public as a whole (Armstrong v. The United States). The High Court has rendered a profusion of decisions affirming this principle, but as the Cherokees learned, the Constitution doesn’t defend itself.

Despite the High Court’s ruling that black kids could attend previously all-white schools in Little Rock, Arkansas, they couldn’t until the 101st Airborne Division arrived. The airborne never came for the Cherokees, and they never even received compensation.

Compensation is part of the process required by the Constitution for government to make property owners provide a benefit for the public. Unless the owner willingly surrenders his right(s), the government must go to court, prove that the right(s) sought is needed by the public and pay a fair price. Those rights include the free and unfettered use and enjoyment of property so long as nobody else is harmed.

The National Marine Fisheries Service designated half of Kitsap County (22 watersheds) as critical habitat under the Endangered Species Act (a designation since rescinded and under review) but neither the County implementation plan nor anything else would have compensated landowners for their land’s loss in value. Yet a unanimous decision by the High Court (Bennett v. Shields) noted that economic impact is an explicit concern of the ESA and ordered payment.

For the public’s benefit, Kitsap County changed its zoning a few years ago so that only one or two houses instead of four could be built on 10 acres. It sure wasn’t for the benefit of 10-acre parcel owners. The value of 10-acre parcels dropped, but the owners weren’t compensated. They should have been. Some argue that paying landowners would cost too much, that more land could be set aside for nature without compensating landowners for their property rights.

It’s true. If nobody stops you, you can steal more than you can buy. But stealing landowners’ property has the same result as any successful theft. It encourages more of the same. Anything desirable that can be taken without risk or cost will always be taken until it is all gone.

Because we value justice, we spend millions of dollars on the trial of a criminal even though evidence of his guilt is overwhelming. Landowners deserve justice, too. And we never have to spend more than we can afford on landowner rights because we can refrain from taking them unless we can afford it.

The artificial shortage resulting from land theft by government makes land cost more, makes low-cost housing less available and forces more people to live in multiple-family high-rises instead of where they want to, which is in single family homes. Less affordable land is also a deterrent to industry and jobs.

Despite their claims, few eco-socialists — who prefer to be called conservationists — give a tinker’s dam about jobs. A great many of them are financially secure. Most are so self-absorbed that they cheerfully ruin other people’s lives to get their preference in scenery or to indulge outdoor hobbies. Allowing people to retain title to land but dictating the use of it is simply another form of the commune. The commune has been tried again and again in history. It always falls short of private property — socially, economically and environmentally.

Buying easements from landowners to preserve nature and “rural character,” prevent “sprawl” (suburbs), etc., is one solution. That avoids government owning land that it demonstrably can’t manage as well as private owners. And in the long run, it’s cheaper than defending unconstitutional regulations in court and losing.
Our Constitution protects minorities, even the smallest minority, the individual. That is arguably the main reason that people in this country are the richest, most powerful and freest people who ever were free. You start defending that by defending your neighbor’s rights as well as your own, not by stealing his woodsy parcel.

Edwin G Davis
Bremerton.