Who Owns America?

By Floy Lilley, J.D.

‘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 has 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 watermark, 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.

At the time this article was written, Floy Lilley was Program Manager at the Murchison Chair of Free Enterprise at the University of Texas at Austin. She is Vice Chair of Sovereignty International. This article is based upon her remarks made to Southern Hardwood Forest Research Group, February 17, 2000, Stoneville, MS.