THE Fifth Amendment to the United States Constitution seems clear enough: ``... nor shall private property be taken for public use without just compensation.''
But with the growth of environmental regulations in recent years, government ``taking'' of private property has assumed new meaning. Farmers, land developers, and others have found themselves constrained in what they can do with their property. An active ``property rights'' movement has emerged, and it has found some powerful champions in Congress and statehouses.
With the election of Bill Clinton and the appointment of Interior Secretary Bruce Babbitt and other environmental activists to high posts, head-butting between environmentalists and private-property defenders has become more intense.
The issue is key in the debate over reauthorization of the Endangered Species Act and the rewriting of federal wetlands-protection regulations. In parts of the flooded Midwest, farmers are concerned that what had been considered farmland may be viewed differently once it is drained and levied.
What Mr. Babbitt calls ``my top priority as secretary of the Interior'' - creation of a National Biological Survey - is meeting opposition on grounds that it will allow government scientists (bureaucrats and ``green'' political appointees) to ignore ``No Trespassing'' signs as they look for endangered species.
He assured congressmen last week: ``I have no intention of abrogating private property and trespass laws.''
``This thing was supposed to be a love-in months ago,'' says one congressional source, referring to the hearing on a biological survey that lasted for nearly six hours and played to a packed house of environmentalists and industry representatives. ``But, now, all sorts of red flags are being raised.''
Among those raising such flags are 500 to 600 activists from natural-resource-dependent communities, who this week are holding a ``Fly-In for Freedom'' in Washington to lobby lawmakers on private-property rights, among other issues.
Among those friendly to their cause is Sen. Malcolm Wallop (R) of Wyoming, who notes the rising number of claims for federal compensation for the ``taking'' of private property. ``This year alone, there are between 100 and 150 takings cases before the Court of Federal Claims,'' he says. ``That is up from 69 last year, and 52 the year before.'' Others say that for every landowner able to take a case to court, there are many more who can't afford to fight Uncle Sam.
In the Senate, Robert Dole (R) of Kansas is author of a proposed ``Private Property Rights Act.'' The bill directs agencies to review regulations for possible financial impact on private property and reduce such takings; it also would require the US attorney general to certify that this had been done.
``The bottom line is it underlies the importance of protecting the American property owner from overzealous government agencies,'' Mr. Dole says. A similar bill by Rep. Gary Condit (D) of California has drawn 100-plus backers. There are more than a half-dozen related bills, including one sponsored by Rep. Bob Smith (R) of Oregon requiring government compensation.
The administration opposes such measures. Attorney General Janet Reno has written that the Dole bill ``represents an unnecessary incursion upon the executive authority of the president.'' Sen. Max Baucus (D) of Montana, who chairs the Senate Environment and Public Works Committee, notes that the bill would lock into law a 1988 executive order of President Reagan that required federal agencies to review regulations for ``takings'' impact. (The administration has been ignoring the Reagan order, but has yet to formally rescind it.) ``This debate is not a debate about private-property rights,'' Mr. Baucus says. ``It is a debate about politics, about tying the president's hands, and about denying him the opportunity to put his own program in place.''
It's a hot issue at the state level, as well. ``There's been an incredible amount of activity this year, and I'm expecting the same next year,'' says Tracey Pribble, a policy analyst for the American Legislative Exchange Council. Private-property-protection bills have been introduced in 32 states. While some have been sidelined or vetoed, Arizona, Delaware, Indiana, Utah, and Washington have enacted such laws. Meanwhile, several public-interest law groups have been formed to defend landowners against economic loss due to government taking.
Environmental groups say this is part of the ``wise use'' movement, or what the National Wildlife Federation calls ``the front line of the new environmental-destruction coalition.'' Speaking at last week's hearing on Babbitt's proposed National Biological Survey, Wilderness Society representative Darrell Knuffke said: ``The so-called property-rights issue has almost nothing to do with property rights. But it has everything to do with private profit and public risk. As such, the issue will be dragged like a particularly ripe red herring across the trail of every measure you consider that touches on regulation for public health and safety, human rights, and environmental quality.''
Environmentalists say there is a strong grass-roots component to the property-rights movement, and they are not taking that movement for granted. In Arizona, they have gathered enough signatures to put the state's new law to a ballot test next year.