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 have 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
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
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
"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 water
mark, 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
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
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
Private property is the key to human dignity.
Floy Lilley is Program Manager at the Murchison Chair of Free Enterprise
At the University of Texas at Austin, and Vice Chair of Sovereignty
International. This aticle is based upon her remarks made to Southern
Hardwood Forest Research Group, Feb.17, 2000, Stoneville, MS.