AMERICAN RIVERS PROGRAM

NOTE: On July 3, 1997, the Washington Post ran an article covering the opposition to the American Rivers initiative. The piece scoffed at the idea that any cause for concern exists. The headline said "Critics Fear a U.N. Plot Beneath the Surface of 'Heritage Rivers' Initiative," joked about "black helicoptors," and quoted White House spin about how the program is totally about reducing bureaucratic interference. It equated opposition with anti-environmentalism.

In reaction, I submitted the following article to the Post. The paper did not print it, so I posted it on the Internet sites of several property rights groups. It is slated for publication in some of the newsletters.

TAKING EXCEPTION WAIST DEEP IN THE BIG MUDDY
by James V. DeLong
September 16, 1997

Public concern over the Administration's recent American Heritage Rivers initiative deserves more respect than it gets in the Post's "my, aren't they all paranoid" story [Muddying the Waters," July 3, 1997, p.A17].

Over the past 25 years, a series of events has made people who wrest their living from land or who rely on access to natural resources exquisitely nervous about government incursions. Perhaps they are over-anxious in this instance and perhaps not, but their reaction has a solid basis in recent history.

"Interpreting" Vague Statutes

Proponents of the initiative say it imposes no new mandates, that property will be respected, and so on. The same was said about the Endangered Species Act and the protection of wetlands, starting in the 1970's. Yet both those programs morphed into serious inhibitions on the use of property and are inflicting heavy losses on many people. In each case, the mechanism was agency regulations "interpreting" vague statutory language. An ESA that said, everyone thought, that you could not go out and shoot a bald eagle ended up meaning that you could not cut brush from your farmland if a rat might want to live there or repair a broken levee to protect yourself from floods if doing so would affect a minor sub-species of fish. The complex permit program that prohibits many uses of wetlands was woven by agency rules out of a few words in a law passed to curb pollution of rivers by industrial operations.

Administration Credibility Is at a Low Ebb

Because of this experience, the credibility of the "this is voluntary" and "trust us" arguments is at low ebb. The distrust is increased by this Administration's demonstrated willingness to govern by regulatory decree. The Escalante Monument designation and the proposed new Clean Air rules, among other actions, stretch executive branch authority a long way. In more esoteric legal realms, the Administration is working hard to eliminate intent as an element of any environmental criminal offence. This makes people absolutely liable for any violations, however unwitting, of a body of law that is extraordinarily complex and inscrutable. The practical result is to render agency power unchallengeable because the penalty for losing even a minor disagreement becomes exorbitant.

Nor did Muddying the Waters mention that existing programs already deal with both rivers and Heritage Corridors, or that these are not regarded as innocuous by the land users. The Wild & Scenic Rivers program covers almost a million acres. Private property within its orbit is not taken, but the use is frozen, which strips it of a good bit of its value. The program of Heritage Corridors has a similar effect. The impact there is usually through state and local zoning, not federal action, but the distinction between levels of government is not important. The links between local officials and federal are close, and private foundations are also substantially involved. People who think themselves at risk do not draw sharp distinctions between the different levels.

Lawyers Armed with Black Briefcases Full of Regulations

Next comes the great issue of the U.N.. The fear is not of a descent by U.N. soldiers leaping out of black helicopters. It is of something far more fearsome -- an invasion of an army of U.S. lawyers armed with black briefcases full of international regulations.

Here is the problem. The U.S. has signed or is considering a number of grandiose environmental agreements, such as the World Heritage Treaty or the convention establishing biosphere reserves. The pattern of these is to declare support for some general goal and pledge the signatories in vague terms to try to promote it. Commonly, the treaty also contains a clause creating an international administrative body and instructing it to flesh out the meaning of ambiguous terms. This rulemaking power echoes the authority given to U.S. agencies by U.S. laws.

It is axiomatic that a treaty takes effect only after it is ratified by the Senate. But the structure of these agreements raises two serious questions. First, if the Senate ratifies some general goal, can the Executive Branch then use the treaty as legal authority for administrative regulations that purport to pursue the goal? For example, since Yellowstone National Park is designated a World Heritage Site, can the Department of the Interior issue regulations over the "Greater Yellowstone Ecosystem" based on the Heritage Treaty? Second, does ratification of a treaty containing a clause that delegates "interpretive" power to an international body mean that the U.S. is bound by any rules issued by that body, without further action by the Senate?

Finding a lawyer who will answer either of these two questions with confidence is quite difficult, which means that concern about them is hardly paranoid. Will this Administration, which has demonstrated a thirst to govern by decree, argue that the treaties or regulations create such authority, and try to use them? Some internal Environmental Protection Agency documents indicate that it may indeed take this position. Government interpretations get a lot of leeway from courts, and it is far from clear how any legal challenge to such an assertion of authority would turn out.

The Problem of the Press

Finally, there is the problem of the press. In a recent book on the many current fights over the right to own and use property I said: "neither environmentalists nor government officials seem to understand the anger of the landowners." To a large degree, this is a consequence of the reporting of events like the rivers initiative, particularly by the Washington Post. Despite the rise of the Washington Times, the Washington Post is the house organ of what George Will calls "the political class," and the only paper most of them read. When it reports the disingenuous spin the White House is putting on the rivers initiative and ignores the long history that created the furor, it does its readers a disservice. Whether the people objecting to the initiative are right or wrong about its merits, their reaction is based on hard experience and serious questions, and the Post's readers need to know this.

JAMES V. DeLONG

Washington