Opinion / Annick Smith
The End of the Last Best Place?
By Annick Smith, Guest Writer, 9-29-06
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I live on a small homestead in the Blackfoot Valley. Having come to Montana from Chicago in the 1960s, I fell in love with this state. It had everything the Midwest did not have: mountains, open prairies, clean rivers, wild animals, great forests, a history that was vital and alive. I was proud to co-edit with William Kittredge an anthology of Montana’s stories and to name it The Last Best Place. We chose that title because it described this place better than any other we could imagine. Now, as I look down the Bear Creek drainage at my neighbor’s hay field, and further down to riverfront land that was recently for sale, I think of what could happen if I-154 is voted in this November, and I shudder.
What if an out-of-state investor who lives in, say, Cincinnati buys that hay field and decides to turn it into an industrial hog farm with no laws restricting him except those most basic for human health and safety? Think of the smell. Imagine swine manure flowing through irrigation ditches built by homesteaders in the 1880s and into Bear Creek, where bull trout and other native trout migrate. Such an operation would drive out old-timers like me and destroy property values for newcomers who moved here so they can raise kids or retire in a clean and healthy environment. And we would have no recourse except to bite the bullet.
That’s the small picture. The big picture is worse. Bear Creek empties into the Big Blackfoot near Johnsrud Park, where thousands of locals and tourists come to swim, dive, picnic, fish, hunt, raft, float with their children on inner-tubes. If hog wastes or other pollutants that endanger the river and adjacent lands are allowed under this initiative, will people still swim there? Will the trout survive? Would anyone want to visit such a place?
I-154 promises to protect property holders like me from government abuse of eminent domain. But we are already protected! The millionaire New York developer Howard Rich and other out-of-state meddlers who have financed I-154 with hundreds of thousands of dollars must believe we Montanans are too stupid to realize that our State Constitution and Supreme Court have protected us from abuses of eminent domain.
It’s the old bait and switch. They are trying to bamboozle us into voting for a hidden agenda that will make local rules that protect our lands meaningless. If you don’t believe me, read the measure. Under I-154, if local or state regulations prevent an investor from pursuing whatever business he wants on the land he owns, he can sue government for compensation of the dollars he thinks he would have made if his business had been allowed to operate with no regulations. Or we must repeal our safeguards. This means not only hog farms, but porno shops across from schools, gravel pits, gold mines--any activity that does not put public health directly at great risk. It means our stream access and hunting access regulations can be replaced by a property owner with no-trespassing signs and blocked roads. It means strip malls and sprawl in your back yard. Think of Texas, where there is virtually no free public access to hunting or fishing.
And who will pay if Howard Rich and his investors win? YOU WILL PAY! All Montana taxpayers will pay. Not only for the so-called ‘takings,’ of projected profits, but for lawyers’ fees and court costs. Oregon voted for such an initiative and Oregon is being smothered by lawsuits against the state totaling 4 billion dollars.
We call Montana The Last Best Place because it offers wild rivers, great forests, pristine mountains, open plains, hunting, fishing, and a way of life many other states do not have. I-154 is a horrid idea. VOTE NO. Vote to keep The Last Best Place as good as it can be.
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Comments
Please put the “Hog Farm” scare to bed. I-154 includes exemptions for public health and safety, building codes, and recognized nuisances. Henc, it is highly unlikely we’ll see “hog farms next to schools” or in residential neighborhoods. The are plenty of legitimate concerns regarding I-154’s impact on the ability of public officials to implement land use and zoning regulations, e.g., streamside setbacks. Focusing discussion on these rather, than the red herrings, strikes me as a more constructive approach.
If Ms. Smith values the aesthetics of open space afforded by her neighbor’s undeveloped hay fields, doesn’t she have an obligation to compensate this individual for providing her these benefits? Is it fair or equitable that she free rides on her neighbor? This is exactly the question that I-154 asks us to contemplate. There will be no simple answers.
Under state law, agricultural operations cannot be considered "nuisances." That includes hog farms. So a hog farm could go in next to the school, or across from the senior center.
Of course, you'll point out, I-154 includes exclusions for "health and public safety"- but what public safety is threatened by a hog farm? I suppose the hogs could escape and run amok, threatening neighbors- that would be a public safety problem! But I doubt if a community could use that argument in trying to zone hog farms out of a community. Likewise for public health-- the prospective hog-farm operator could point out that, hey, no health hazard here. Sure they smell bad, but that's not the same as presenting a health risk to the general population. "If there's a problem with effluent from a hog farm, regulate the effluent, not the hog farm," the lawyers would say.
Would that argument hold water in court? Who knows?! Only one way to find out- pass I-154, let the claims for regulatory takings flood in, have those idle county attourneys get to work defending the communities values (first determining which battles to fight, which to simply waive the regulations on), then clog the courts with these cases, as many of them trickle up to the MT Supreme court .....
So we would have the courts determining if a porn shop near a elemntary school constitutes a "public safety risk." In fact , the courts would determine in many cases whether a proposed development fits under this exclusion or that on. But doesn't that fall under "public policy" -- a job for the executive branch rather than the judicial?
Oh, and did we include this little nugget of I-154?: If a developer brings a claim against a county for a regulation that he feels reduces his property value, and if the court finds that I-154 doesn't apply ( i.e- developer loses in court), the county is still responsible for the developers legal expenses. There is no economic incentive for a developer NOT to bring a claim - its a win-win situation for them!
In general, the invisible hand of Adam Smith works best when the parties who benefit from their decisions also bear the expenses of those choices. Irresponsible development occurs when someones benefits from their development, but the surrounding neighbors, or the community, or possibly someone many miles away (downstream?) bears the costs. This is the economic principle of "externalizing costs." Someone else bears the cost, while a developer reaps the benefits; I think this was the gist of Ms. Smiths article- that because Montanans hold natural values above economic ones (one of the reasons why people have moved here over the past 100 years- it sure ain't for the money!)
You are correct, Pete, in the sense that the real effects of I-154 would be more subtle and insidious, acting on regulations such as streamside setbacks. These are the hard choices for our elected officials, who can develop creative solutions allowing private landowners flexible use of their land, while still protecting public values.
That's why we'd better elect them carefully, rather than hamstring them from doing their job.
Regarding coal bed methane: Here’s a perfect example of property rights in tension. Like much of western water law, the split estate is a 19th century institution utterly unsuited for the realties of today. This historical artifact reflects the mining companies' early domination of our institutions. The system developed when most mining operations were modest and land had little value.
It is a sorry state indeed, one that demands clarification. It does not however negate the fact that subsurface owners have a property right as legitimate as surface owners.
My neighbors banded together last year when an inappropriate commercial interest tried to move into our rural, residential neighborhood. After tremendous stonewalling & incompetence from county government, we finally got it zoned through citizens' initiative. Had I-154 been in place, that would have amounted to regulatory takings, and although WE would have been the ones getting royally taken, there would have been no recourse. We'd all be watching our property values go down while some get-rich-quick schemer with no investment in our neighborhood (other than financial) made his buck.
I've actually lived next to a hog farm in the past. (True story.) It smelled, and the swinging doors on the feeders were always clanging. But I find hogs less odious than the greedy, grasping
b@$+@rd$ who look at the land and see only dollar signs.
First, have any of you kept up with the long list of moral and ethical "questions" concerning geddes, baden, and the "persuasive seminars" they stage for "flexible" people in power through that twisted think-tank they use as a money-catcher? Speaking of hog farms, you truly do need to do your homework on these people before you invest your energy in being a "straightman" against which they can play their little publicity games! I honestly can't understand why anybody, NewWest or anybody else, continues to give them any airtime at all.
Second, think for a moment about the last six years during which the country has pretty much followed, like a mindless flock of sheep, the same bunco ideology that these hucksters are still spouting. Where has it gotten us? Good news, the equity markets are finally back to the levels they set six years ago, only now the dollars on which the averages are based are only worth sixty cents each! Geddes and the rest of the "greedy, grasping b@$+@rd$" who still spout this stuff are peddling a bankrupt ideology and it was bankrupt before most of them were even born. Lazy fare (as long as your Dad's accountant sends your trust fund check) "supply side" ideology didn't work for Hoover when he ushered in the Great Depression; it didn't work for Nixon when he gave us stagflation; it didn't work for Reagan when compounding recessions got so bad that David Stockman had to admit that it was all hucksterism with no genuine analysis or planning behind it; and it hasn't worked at the hands of these clowns either!
Third, the true "value" of the American West is that it HAS intrinsic value that isn't based on some huckster's con game. The "value" of the American West can thus only be fully appreciated and preserved by those who see that "value" and see past the games. The "value" of places like the American West is meaningless to people like geddes and his cryptmates because, being illuminated by open sunlight like it is, it can't ever truly be appreciate by them. They truly know the price of everything and the value of nothing.
Of course there is the problem of the folks who throw every obstacle possible in the way of the hay farmer who wants to sell his land to a developer. He should have that right, no obligation whatsoever to maintain a pretty scene for anyone.
If the author wants to have control of the land....buy it, don't depend on laws to prevent someone else from using it. Now that is selfish.
The New York Times has discovered that incentives matter:
In the fall of 2004, Terrence O’Donnell, an affable judge with the placid good looks of a small-market news anchor, was running hard to keep his seat on the Ohio Supreme Court. He was also considering two important class-action lawsuits that had been argued many months before.
In the weeks before the election, Justice O’Donnell’s campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories.
Justice O’Donnell’s conduct was unexceptional. In one of the cases, every justice in the 4-to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs.
Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio.
An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.
There is so much hyperbole in the discussion that it obfuscates the real issue; If regulation causes economic harm to a land owner who should bear the associates costs?
This is an important debate in an era where the number of regulations continues to increase at an increasing rate. Regardless of the outcome, this is an important discussion. One would hope we could get to the issue as opposed to building straw men and employing demagoguery.
I don't like I 154 much, but the support for it points to the fact that some local governments are beginning to overstep the planning compact. As long as planning provides the three "p's", predictability of land use, planning for infrastructure, and protection of property values, it will continue to be overwhelmingly supported by the populace even if they sacrifice some of their own land use perogatives.
Certainly it isn't needed as a reply to Kelo; I think that is Trojan horse for the real meat of the initiative concerning what some might call regulatory "takings".
Current land use regulations require public involvement - true "planning from the people". I-154 will not return control of your land to you. The potential is high for your property values to decrease as a result of a negative land use choice by your neighbor.
So - there are multiple considerations in this Initiative, and it's important to think objectively when reading the bill. Both supporters and opponents are providing "knee jerk" responses based upon their political leanings. Think big, people - think to the future - and carefully consider.
"I-154, the property rights measure, had the support of 51 percent of those polled, while only 24 percent were against it. Twenty-five percent said they were undecided."
Full story at:
http://www.billingsgazette.net/articles/2006/10/02/news/state/30-poll.txt
Of course the public isn't hearing much about who is funding the campaign because, whaddya' know, the Montana front men for I-154 refuse to identify their out-of-state financiers. And of course people also aren't hearing the details of I-154's impacts because, ahem, it's been tossed from the ballot because of the extensive fraud that the sponsors deployed to put the initiative on the ballot. But still....
A few things about I-154. It doesn't define, "public health and safety," so don't assume this artful expression covers what you think it does. Some people will say it covers hog farm pollution, some will say no, such as those people who claimed for years (and still claim) that tremolite asbestos in Libby,Montana, is not a threat to "public health and safety." Also, I-154 is not limited to only "new regulations." In fact, at least a half dozen very smart Montana attorneys and legal scholars who have reviewed it conclude the measure is written so vaguely, and constructed so weirdly, that it can easily be interpreted to apply to regulations and statutes that were approved years ago, covering all sorts of landowners, no matter when they received title to their land. Don't believe the nonsense about it only affecting regulations we have yet to create. It's not true. And, thanks to the language in the measure that guarantees claimants will get their attorney fees and court costs paid whenever they seek a claim in court -- irrespective of the outcome -- you can count on plenty of attorneys making plenty of outrageous claims for many crafty landowners seeking to extort some big bucks from local government. It's a risk-free deal for them. And, as somebody has said already, unpredictability is what it's about.
And, by the way, why do we need I-154? Is the heavy hand of government really stopping people from developing their property in Montana? It certainly isn't in the Bitterroot, or Gallatin, or Flathead, or Missoula Valleys -- and it certainly isn't stopping anybody from doing pretty much most things in the rural areas of Montana. I'm not convinced its landowners who need I-154. This initiative, as well as initiatives to cap state spending and allow recall of judges -- all good, red meat issues for far-right conservatives -- are on the ballot in a number of states, where Republican candidates are either in trouble or otherwise in need of some extra votes to oust a Democrat. And of course, coincidentally, they need to turn out far-right conservative voters (think Ohio, circa November 2004), who just might sit things out in November unless there is something that gets their blood boiling, prodding them to drop by the polling booth. Now, ya' gotta wonder, who is funding this initiative, why we're not being told, and who really needs it? In politics, there often is no such thing as coincidence.
2. The money is thrown into this and that.
3. The pork barreler takes credit for creating jobs.
4. The job creating activity (economic activity) results in the destruction of fish and wildlife habitat.
5. Meanwhile, more people have moved in from elsewhere, further straining the ability of local governments - and the land - to give services, ecological and otherwise.
6. The pork barreler gets re-elected and subsequently brings more pork home.
7. The cycle repeats itself.
8. The "last great place" becomes "just another place."
Sigh
Let us talk about past and future. meantime, keep on speaking your mind.