Property Rights Becomes Hot Battle

House begins debate on `takings' bill to compensate property owners for the loss of lands

FOR John and Josephine Bronczyk, the cattail marsh that seeps over part of their Minnesota farm is a measure of the times. During the dustbowl days of the Great Depression, the bog was so dry they could cut hay on it.

Nowadays, the brother and sister let pheasants and water fowl nest in their fields and rushes. But, true to the modern age, the marsh has also drawn a less welcome praire home companion: the state Department of Natural Resources.

State officials have designated more than half of the Bronczyk's 160-acre farm as wetlands, subject to a complex tapestry of regulations. A decade of legal battles has taught the siblings how intractable government rules can be. The wetlands designation, they argue, restricted their right to forbid public access. Cases such as the Broncyzks' have fueled a growing movement to seize greater protection of property rights. At least 500 grass-roots organizations across the country are now pushing for changes in the reach of government regulations, and Republicans in Congress have picked up on their anger.

On the floor of the House Thursday, federal lawmakers will begin to debate new rules regarding the protection of property rights under the Fifth Amendment, which states that if private property is taken for public use, government must provide ``just compensation'' to the owner. The Broncyzks argue Minnesota's wetlands designation constituted a ``taking,'' for which they are entitled to compensation.

Earlier this week, the House debated legislation that would require federal agencies to conduct extensive cost-benefit analyses of all proposed regulations before enacting them. The House has already passed a moratorium prohibiting agencies from imposing new regulations through this year and suspending all rules issued since November of 1994. The ban faces a veto threat.

ALL together, the House regulatory reforms, called for in the Contract With America, are a vital part of the GOP effort to deconstruct the New Deal model of government. But critics argue the reforms are hasty, ill-conceived, and will add more bureaucratic confusion.

``There are two paths to regulatory reform: rewrite the regulations, or add complexity and drag to the process,'' says Maureen Steinbruner, president of the Center for National Policy, a think tank here. She says the Republicans are taking the latter approach.

The Bronczyk case illustrates the debate over regulatory burdens. Starting in 1979, the Minnesota Department of Natural Resources conducted a statewide inventory of state public waters.

It designated 79 acres of the Broncyzks' farm as public water wetlands. A subsequent survey enlarged the area. The Bronczyks are now pursuing, through the Washington-based Institute for Justice, a ``takings'' suit against the DNR.

The Bronczyks claim they have lost the right to restrict access to their land, which their attorneys argue diminishes the resale value of the property. DNR counters that the public only has a right of access to standing water on the Bronczyks' land, not the entire wetlands. In the Broncyzk case, the Institute for Justice is seeking to rein in regulations by overturning the wetlands designation, or offer adequate compensation.

Congress is seeking similar objectives. The takings reform bill requires Washington to compensate a property owner when government action diminishes the fair market value of the property by 10 percent or more. Until now, courts have decided the threshold of diminution on a case by case basis, usually finding in favor of compensation only in cases where a ``taking'' decreased the property value to the owner by at least 80 percent.

Rep. Lamar Smith (R) of Texas, a leading proponent of property rights, argues that the reforms are necessary to protect people from overzealous and costly regulations. ``Private property rights is the equivilent of civil rights in the 1960s. It is a neglected constitutional right, abused by the federal government,'' he says.

BUT Bill Roberts at the Environmental Defense Fund in Washington says this rationale for takings reform amounts to a backdoor effort to undermine environmental legislation. Mr. Roberts supports reviews of the regulatory system, but argues they should be done by examining the regulations themselves. Congress reauthorizes such laws as the Endangered Species Act on a periodical basis. He also says the reforms will cost the taxpayer more. Compensation in wetlands takings, for example, would come out of the Pentagon's budget, since the Army Corps of Engineers has jurisdiction over wetlands permits.

He argues that the courts are still the best place to resolve issues of takings and compensation. And that, according to Richard Epstein, a law professor at the University of Chicago, augers well for property rights advocates, given the composition of the Supreme Court and the public anger over regulations.

Meanwhile, John Bronczyk just wants to enjoy his morning walks. ``The whole country is overregulated, it put it mildly.''

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