PRIVATE PROPERTY RIGHTS

19.04.130 Private Property Rights. Thomas Sowell of the Hoover Institute best defines the underlying concept of property rights for the purposes of this Ordinance:

Neither ‘property’ nor the value of property is a physical thing. Property is a set of defined options... It is that set of options which has economic value... It is the options, and not the physical things, which are the ‘property’ – economically as well as legally… But because the public tends to think of property as tangible, physical things, this opens the way politically for government confiscation of property by forcibly taking away options while leaving the physical objects untouched. (Italics added)

Walla Walla County recognizes that the protection of private property rights, including their reasonable social, physical and economic based expectations, is essential to preservation of the custom, culture and economic stability of its citizens and protection and use of their environment. Federal and state agencies shall fully comply with all case law, statutes, regulations, rules, and guidelines concerning protection of private property rights in Walla Walla County, including, without limitation:

1. United States Executive Order 12630, Governmental Actions and Interferences With Constitutionally Protected Property Rights, dated March 16, 1988, and

2. Section 18 of the Washington Growth Management Act, Protection of Private Property (R.C.W. § 36.70A.370), and guidelines of the Attorney General of the State of Washington promulgated with respect thereto.

Therefore, all property rights for the purposes of this Ordinance are predicated on the basis that:

A. All fee private property and private property rights (options) of Walla Walla County citizens shall be fully protected under the Fifth and Fourteenth Amendments of the United States Constitution and the United States Civil Rights Act, as amended, and this Ordinance. The grant of a “fee” in land conveys to the grantee complete ownership, immediately and forever with the right of possession from boundary to boundary . . . S.H.A.Ill. ch 30, 12, Magnolia Petroleum Co. v Thompson, CCA Mo., 106 F2d 217, 224, 227, 228. The word “fee” is used interchangeably with “fee simple” and “fee simple absolute”. It implies an unlimited estate of inheritance when used without any qualifying adjective. Blevins v Smith, 16 S.W. 213, 218, 104 Mo. 583, 13 LRA 441. An estate in fee simple absolute means a perfect title. It is the entire and absolute interest in property or land from which it follows that no one can have a greater estate. Fink v Darst, 14 Ill. (4 Peck) 304, 308, 58 Am. Dec. 575, quoting Cruise, Dig. Tit. “estate in fee simple.”

B. The violation of fee private property rights, including the reasonable social, physical and economic expectations, of any Walla Walla County citizen by any federal or state agency shall be deemed to be a violation of this Ordinance. Liability for such violation shall be on the federal or state agency as well as on the federal or state official or employee responsible for making any decision or implementing any action which results in such violation.

Long before the establishment of the United States Constitution, the theory of the natural rights of man was established in the common law of England. As pointed out by Professor Richard A. Epstem in "Takings, Private Property and the Power of Eminent Domain" (Harvard University Press, 1985):

"All theories of natural rights reject the idea that private property and personal liberty are solely creations of the state, which itself is only other people given extraordinary powers. Quite the opposite, a natural rights theory asserts that the end of the state is to protect liberty and property, as these conceptions are understood independent of and prior to the formation of the state. No rights are justified in a normative way simply because the state refuses to protect them, as a matter of grace. To use a common example of personal liberty: The state should prohibit murder because it is wrong; murder is not wrong simply because the state prohibits it. The same applies to property: trespass is not wrong because the state prohibits it; it is wrong because individuals own private property. At each critical juncture, therefore, independent rules, typically the rules of acquisition, protection, and disposition, specify how property is acquired and what rights its acquisition entails. None of these rules rest entitlements [to property] on the state, which only enforces the rights and obligations generated by theories of private entitlement" Takings, Pages 5-6.

The concept of natural rights to property were long debated by political philosophers prior to establishment of the United States Constitution. Thomas Hobbes reached a solution about property and mankind which leaned toward government control in order to protect against human greed and self interest Hobbes felt that the price for order was "the surrender of liberty in property to an absolute sovereign." See Takings, supra, page 7. The framers of the United States Constitution rejected this concept, turning toward the theories of John Locke whose writings were known to, and cited often by, the framers of the Constitution. Locke believed emphatically that individual natural rights, including the rights to obtain and hold property, were not derived from the sovereign or the government but were in fact natural rights in the nature of "the common gift of mankind." See Takings, page 10; citing John Locke, "Of Civil Government" Chapter 5 (1690). Locke's position was based upon a simple method of individual acquisition of property rights or property interests: "individuals are allowed to keep that which they first reduce to their own possession. "See Takings, page l0.

Locke’s political philosophy set forth the view that the organization of a government does not require the surrender of all natural rights including property rights and interests to the sovereign. In accordance with that view if the government takes a property right or a property interest then it must pay for it. As summarized by Professor Epstein:

By Locke's view, the State itself does not furnish new or independent rights, qua sovereign, against the person subject to its control. There is no divine right of kings which suspends the ordinary rules of right and obligation between individuals and the state of nature. The sovereign has no absolute power to generate rights. The state can acquire nothing by simple declaration of its will that must justify its claims in terms of the rights of the individuals whom it protects: 'A State by Ipse Dixit, [which means by the state's own bare assertion of power and authority] may not transform private property into public property without compensation...' See Takings, page 12 citing Webb's Fabulous Pharmacies, Inc. vs Beckwith, 449 U.S. 155 (1980).

The framers of the United States Constitution accepted the Locke theories and, as a result, the Fifth Amendment to the United States Constitution prohibits the taking of private property for public use without just compensation.

The Coordinating Committee and the Board will carefully evaluate all federal or state actions relating to private property and private property interests including investment backed expectations in light of the mandate of the Fifth Amendment to the United States Constitution. In so evaluating federal and state actions the Land Use Committee and the Board will apply also the principle established by former President Ronald Reagan. In issuing Executive Order 12630 any and all federal agencies to prepare a Takings Implication Assessment prior to taking any action, issuing any rule, or making any decision which would constitute a taking of private property or private property interest including investment backed expectation. The Coordinating Committee and the Board will also continue to recommend to the Congress that the impact of that Executive Order be enacted into law by enactment of appropriate private property legislation.

The Coordinating Committee and the Board has carefully followed the progress of Hage vs. United States, Civil No. 91-1470 L in which a Nevada rancher claims a taking of his property by restrictive actions taken by federal regulatory agencies and seeks compensation in the United States Court of Claims. In entering an order denying summary judgment to the Government and ordering a trial on the merits, the Chief Judge of the Court of Claims made it clear that the Constitution prevents "government from doing through general regulation what it is prevented from doing through direct specific action—taking private property for public use without just compensation." Decision of March 8, 1996, page 25.

The Coordinating Committee and the Board will also evaluate the standards set by United States Supreme Court decisions in First English Evangelical Lutheran Church of Glendale vs. County of Los Angeles, California, 482 U.S. 304, 107 S. Ct 2378 (1987); City of Monterey v Del Monte Dunes at Monterey, LTD, 526 U. S. 687, 698, S.Ct No 97-1235 (May 24, 1999); Nollan vs. California Coastal Commission, 483 U.S. 825, 107 S.Ct 3141 (1987); Preseault vs. Interstate Commerce Commission, 494 U.S. 1, 110 S.Ct 914 (1990); Lucas vs. South Carolina Coastal Council, 112 S. Ct., 526 U.S. 1003, 2886 (1992); Penn Central Transportation Co. vs. City of New York, 438 U.S. 104, 98 S.Ct 2646 (1978), and other decisions relating to consideration of reasonable investment backed expectations as a compensable property interest.

The Coordinating Committee and the Board will also review cases decided in the United States Court of Claims including Loveladies Harbor Inc., et al. vs. the United States, 21 C.L.C.T. 153 (1990) which have awarded compensation for partial takings where the takings have frustrated reasonable investment backed expectations and deprived the individual of the economically viable use of his land and property rights and interests.

The Coordinating Committee and the Board will also evaluate actions by federal and state regulatory agencies taken in the name of protecting threatened or endangered species which adversely impact private property rights, private property interests, and investment backed expectations. The standards by which such regulatory actions will be reviewed regarding such species are those established by decisions of the United States Supreme Court. The County will continue to urge Congress to enact specific private property protection from species listings.

The Coordinating Committee and the Board will evaluate the issues regarding "takings" of private property in view of the nature of a ranch operation which is set forth in this plan and which is known to everyone involved in the operations and financing of livestock grazing or any other agriculturally oriented activity in Walla Walla County.

The ranchers of Walla Walla County who graze livestock on the federal lands have a preference right to graze there. That "right" is a property interest created long before the . Taylor Grazing Act was passed. The nature of the right demonstrates the split estate concept developed in the western lands by the United States. The interest created in and owned by the Walla Walla county ranchers' predecessors in interest in allotments of grazing lands or forage lands is the "surface estate" of the split estate. The ranchers have the right to graze on the surface of the land, a right which they developed through settlement and development.

A long series of decisions by the United States Supreme Count set forth the position that when a validating or confirming statute is passed, the legal title to the possessory right passes as completely as though a patent had been issued. Title to allotments of federal land for grazing have been validated or confirmed for over a century, and the boundaries of those allotments have been adjudicated. The Stock Raising Homestead Act of 1916 culminated development of the settlement acts regarding the lands "chiefly valuable for grazing and raising forage crops" when it completely split the surface estate from the mineral estate in order to allow for the disposal of legal surface title to ranchers, while retaining undiscovered mineral wealth to the United States. The grazing right owned by Walla Walla County ranchers was acknowledged and secured by passage of the Taylor Grazing Act in 1934. Every subsequent Act regarding management of the federal lands has protected and preserved all "existing rights" such as the grazing right

Property rights related to the federal lands are split between a number of parties and users, private and governmental. The rights possessed by .the various parties include water rights. grazing rights, mineral rights, wildlife rights, petroleum exploration rights and timber harvest rights. Each of the rights has been validated and secured by statute or court decisions.

In Public Lands Council v. Babbitt, supra, the United States District Court acknowledged the "right" of a permittee to his adjudicated grazing preference, and held that such "right" could not be removed by a regulation issued by the Secretary of Interior. Such recognition of a "right" forms the base for a "taking" when that "right" is taken by regulation. It is the goal of this Plan that management activities be instituted which prevent such "taking" and which foster effective implementation of the "right" to adjudicated grazing preferences.

The split estate is further demonstrated by the stock watering right possessed by each rancher to water existing on federal land. As already recognized in the Snake River Adjudication, each rancher who grazes livestock on federal lands has the right to use water existing on the federal lands even though he or she is not the title holder to the lands themselves. The effective date of the right to water the livestock grazing on those lands is the date of first appropriation by the rancher or any predecessor in title who conveyed the stock water right.

The Coordinating Committee and the Board will plan for, and take positive action to assure, that private property rights and private property interests including investment backed expectations are protected in light of the standards set forth.

IRRIGATED AND OTHER INTENSIVE AGRICULTURE

Irrigated and Intensive agriculture provide a major contribution to the economic base of the County and is of critical importance to the economic stability of the County. Productive watersheds must be maintained within the county as essential factors to preservation of irrigated agriculture.

Thus, even in a comprehensive planning arid zoning statute which permits re-classification

and re-zoning of all lands, the legislature recognized that established agricultural uses must

continue unabated.