Some sects of environmentalists are well known for disrupting and interrupting land transactions for the cause of conservation, using whatever legal and regulatory means necessary to control, coerce, or prevent concerted human development.
It’s a combative legacy that has left many of their critics wondering: If land conservation is of such utmost importance, why not just pay for ownership of such lands, protect and conserve them as one sees fit, and be done with political and legal antics?
Alas, it’s a strategy that has routinely been tried, but continues to be met by undue resistance from government regulators and lawmakers.
Consider the story of American Prairie, a Montana-based non-profit whose main goal is “to purchase and permanently hold title to private lands that glue together a vast mosaic of existing public lands,” all for purposes of “wildlife conservation and public access.” According to Outdoor Life, American Prairie has thus far “accumulated nearly 100,000 acres of private land, and another 310,000 acres of associated federal and state land in northeast Montana,” with the specific goal of better managing the region’s native bison population.
For defenders of secure property rights as the most just and effective path to conservation, it’s a wholly legitimate mission, if not a noble pursuit. Yet the state’s Republican legislators recently tried to pass a bill that would prohibit American Prairie and other organizations from such transactions, claiming that such sales provide unfair tax advantages to nonprofit organizations. In an op-ed, bill sponsor and Republican state Rep. Dan Bartel openly boasted that he wished he could “legislate them out of existence.” Given that this is “not how the law works,” Bartel lamented that he would have to settle with limiting property rights instead.
While the bill in Montana now looks to be a failed effort, it is not an isolated case. As Shawn Regan details in an extensive essay for the Property and Environment Research Center, the stories are many. Whether one looks to the range of activist gimmicks or more serious, good-faith efforts to acquire public lands or buy out hunting permits, environmentalists have routinely tried to use private ownership to achieve their goals.
The laws vary, but as Regan explains, much of the government resistance tends to surround public lands, relying on narrow definitions of “productive use”:
“The extent of these voluntary market-based exchanges is often limited to private lands. On federal and state property—which makes up most of the land in the American West—such deals are much more complicated, if not outright prohibited.
“Environmentalists are often not allowed to acquire public land leases to conserve the land—at least not without considerable difficulty. And it’s not due to a lack of financial resources. As [environmental activist] Tempest Williams found out the hard way, federal and state laws typically prevent leaseholders from acquiring such rights for nonconsumptive purposes …
“The laws and institutions governing the use of most federal- and state-managed land emerged in the 19th and early 20th centuries for a narrow purpose: to promote the productive use of the nation’s resources. Property rights were established and maintained by actively using the resources. Concepts such as ‘beneficial use,’ ‘use it or lose it,’ and ‘the rule of capture’ undergird the legal history of U.S. land policy and still serve as the basis for many of the rules that determine the use of natural resources.”
One can disagree with environmentalists over what is “most productive” for the land in question. But by seizing or regulating away the freedom to buy and manage such property freely, we eliminate our best mechanism for facilitating such disagreements.
“The lesson is not that energy development, logging, or livestock grazing is bad, or that every effort to stop such activities should prevail,” Regan writes. “Rather, it’s that environmental values are real and legitimate, and they are best expressed in ways that acknowledge existing property rights, seek an honest bargain, and reflect the opportunity costs of the other forgone values associated with the land.”
When we remove rightful paths of recourse – ceding property planning activities to the state – we ought not be surprised when environmentalism takes an overtly political turn. Indeed, the more we cling to public criteria and our own narrow notions of “productivity,” the more we invite others to do the same — using the same coercive means to defend their own preferred ends. As Regan explains, “People who want to conserve lands often have no other option but to lobby for restrictive designations, regulate existing land practices, or file legal challenges to stop extractive activities on public lands they care about.”
Further, by deferring to politics when it benefits certain special interests, we only invite greater cynicism about the true ability of markets and economic freedom to provide as better a path to conservation. “It’s clear that many people value conservation and are willing to spend their own money to get it,” Regan concludes. “The only question is whether those resources will be channeled through zero-sum political means or through positive-sum market mechanisms.”
For proponents of economic freedom who also believe in the good of environmental conservation, such struggles will continue to require consistency, even when it may feel uncomfortable or uncertain. In the end, our environmental advocacy will inevitably answer one central question: Do we believe in the power of property rights or not?
