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Taking Liberties 

by Ray Ring & r & & r & & lt;span class= & quot;dropcap & quot; & O & lt;/span & n a sunny May afternoon, Eric Dondero stood on a sidewalk in the small town of Three Forks, Mont., asking people to sign a petition. Next to him sat a knee-high poster board that said simply: "Protect Private Property Rights ... Citizens Fighting Eminent Domain Abuse." Locals wheeled their pickup trucks into the parking spaces around the Conoco, and as they walked into the store, Dondero started into his pitch, saying, "This is a statewide petition to protect our property rights. To keep that new eminent domain law from coming to Montana and taking our homes away."





Most people signed and went on their way, with Dondero offering his thanks and a hearty, "You're a great American! I appreciate it!"





Dondero seems like an ordinary concerned citizen. But the Texas resident is actually a longtime libertarian activist and a point man for an orchestrated, multi-state campaign. With help from professional signature gatherers like Dondero, and with big bucks from donors as far away as Chicago, New York and Washington, D.C, this campaign has landed -- or is poised to land -- initiatives on the ballots of six Western states this November: Arizona, California, Montana, Nevada, Idaho (where it's called Proposition 2) and Washington (Initiative 933).





The initiatives are often billed as efforts to "reform eminent domain." Governments at all levels invoke eminent domain on occasion to condemn property, forcing the owners to accept a buyout to make room for new roads, electricity lines, urban renewal and other projects that benefit the public. The practice has been the target of public outrage recently, thanks to a 2005 U.S. Supreme Court ruling known as the Kelo case, in which the high court held that the city of New London, Conn., could exercise eminent domain to condemn the homes of Susette Kelo and six other holdouts to make room for a global pharmaceutical company's 100-acre manufacturing complex.





But the patriotic sales pitch hides something else entirely. National libertarians have their sights set on something much bigger than protecting a few property owners from eminent domain: They want to lay waste to land-use regulations used by state and local governments to protect the landscape, the environment and neighborhoods. Their goal has received little attention, partly because of its stealth mode. But the fact that they just might pull it off makes the campaign the hottest political story in the West this year.





& lt;span class= & quot;dropcap & quot; & T & lt;/span & he libertarian movement -- broader and more powerful than the anemic Libertarian Party -- has a growing reach in American politics. The movement's mission is to maximize individual freedom by limiting government power in everything from taxes to judges' rulings. One of its national leaders, Grover Norquist, has said that he wants to reduce government "to the size where I can drag it into the bathroom and drown it in the bathtub."





Libertarians and property-rights activists, citing the Fifth Amendment of the U.S. Constitution, believe that a huge array of common government regulations on real estate, such as zoning or subdivision limits, "take" away property value. Therefore, they say, the government should compensate the owner or back off. This extreme view of "regulatory takings" is really at the core of this year's campaign -- not eminent domain.





"The property-rights advocates have exploited Kelo to advance a broader anti-government agenda," says John Echeverria, head of the Environmental Law and Policy Institute at Georgetown University in Washington, D.C.





Each of the six initiatives on state ballots this year has its own sales pitch, but they all deliberately tuck the takings agenda inside the unrelated eminent domain controversy. The Los Angeles-based libertarian Reason Foundation mapped the strategy in a 64-page paper published in April entitled "Statewide Regulatory Takings Reform." It recommended pushing "Kelo-plus" initiatives, combining eminent domain reform with regulatory takings, to capitalize "on the tremendous public and political momentum generated in the aftermath of the Kelo ruling."





The initiatives have titles like "Protect Our Homes," "The Home Owners Protection Effort" and "People's Initiative To Stop the Taking of Our Land" -- as if the government is about to come in with bulldozers and sweep everyone off their property. The Washington initiative has the most blatant ruse; it's the only one that would make no overt changes in eminent domain power, but it still mentions the issue in its preamble, and the initiative's Web site prominently lists examples of alleged eminent domain abuse.





But here's how the initiatives would work: If you could fit 20 houses on your land, plus a junkyard, a gravel mine, and a lemonade stand, and the government limits you to six houses and lemonade, then the government would have to pay you whatever profit you would have made on the unbuilt 14 houses, junkyard and mine. Generally, if the government can't or won't pay you, then it would have to drop the regulations.





Nationwide, eminent domain is invoked on behalf of developers only a few thousand times a year. But these initiatives are likely to affect millions of property owners, day in and day out, year after year.





& lt;span class= & quot;dropcap & quot; & F & lt;/span & or perspective, look to Oregon, where voters passed the father of these takings initiatives, called Measure 37, in 2004. That initiative blew holes in the strictest land-use system in the country, allowing longtime landowners to escape many state, county and city regulations.





Despite delays caused by court fights, Oregon property owners have already filed about 2,700 Measure 37 claims, aiming to develop about 143,000 acres. Most claims are designed to loosen up the zoning of farmland and forest land. Some would break small parcels into a few additional lots. Some are from billboard companies that want to put up bigger ads in Portland. Others are for developments of hundreds of new homes, resort hotels and mines. All told, the claimants demand that governments either waive land-use regulations or pay nearly $4 billion in compensation. Not surprisingly, in almost every one of the 700 claims settled to date, governments have waived the regulations.





Oregon property-rights advocates say Measure 37 will work out fine, rolling back a heavy-handed, inflexible land-use system. "We've had a centralized planning system for so long, it created a lot of animosity in people," said Dave Hunnicutt, president of the state's leading property-rights group, Oregonians in Action.





But many Oregonians -- including thousands of neighbors who have written official comment letters on the claims -- say the new law is a disaster. Many say the campaign, which featured TV and radio ads starring ordinary citizens who had fallen victim to rigid land-use rules, was deceptive.





Bill Rose, who breeds specialty grasses on 2,100 acres in the Willamette Valley, about 20 miles south of Portland, said he voted for Measure 37 because he wanted to relax regulations enough to allow modest subdivisions on hilly, unfarmable rural land. Then one of his neighbors filed a Measure 37 claim to convert a 40-acre berry farm into lots as small as one-seventh of an acre for 280 houses. The developer wanted the Clackamas County government to waive the agricultural zoning or pay him at least $3.6 million. The county had no choice but to approve the claim. Now Rose is making a last-ditch attempt to persuade the county to limit the number of new septic tanks. He says Measure 37 claims "will destroy this valley -- the best place to live and farm that I know of."





In tiny Brookings, on the southern Oregon coast, the owner of a 10-acre lily farm filed a Measure 37 claim to turn it into a 40-space mobile-home park, and got the Curry County government to waive its regulations. Near Bend, semi-retired engineer Jim Miller is trying to use the measure to build a geothermal power plant, revive a pumice mine and construct as many as 100 vacation homes on a patch of private land that sits inside Newberry National Volcanic Monument. If Deschutes County denies the claim, Miller and his partners want $203,492,831 in compensation.





"It's happening all over Oregon," said Renee Ross, who lives on 32 wooded and pastured acres near Molalla, southeast of Portland. Two of her neighbors have filed Measure 37 claims. One wants to build nine houses on 60 acres, and the other wants to dig a gravel mine on 80 acres. Handcuffed by Measure 37, the Clackamas County government approved both claims. "We went from having a very strict land-use policy to having no policy," she said. "We don't have any rights at all. It leaves us no say in the types of surroundings we live in [or] the undesirable businesses that can be put in right next to our property."





& lt;span class= & quot;dropcap & quot; & T & lt;/span & he initiatives on state ballots this year vary in their specifics, but like Measure 37, they have no language explaining where governments would get money to pay property owners for the impacts of regulations. They are intended not to make regulations workable, but to prevent them entirely.





They would all be more sweeping than Measure 37 in this sense: The new initiatives would apply to all landowners facing new regulations passed by state and local governments. The one in Washington would be retroactive, covering regulations passed since 1995. They all exempt regulations that protect health and safety, such as limits on sewage discharges, but those regulations rarely stand in the way of development.





Moreover, compared to Oregon, most of the targeted states have immature land-use regulations. All their land-use planning would essentially be frozen, with no chance of evolving in the future, even as the states are hit with population booms. Rapidly growing communities from Boise to Tucson, now inching toward meaningful land-use regulations, would be stopped in their tracks.





In Montana, the initiative would prevent counties from passing or enforcing any new regulations. Also, there would be no more grassroots efforts to create small zoning districts, unless the residents could get every property owner within each district to agree to every regulation. In the past, Montanans have passed ballot initiatives banning game farms and cyanide process gold mining; the takings initiative would derail all future efforts like these.





In other words, if you live in any of the six states targeted this year and someday you might want a new regulation to put conditions on a Wal-Mart, or to protect stream banks from new construction, or to require developers to do anything for open space and affordable housing, you would be wise to vote "no" in November.





& lt;span class= & quot;dropcap & quot; & E & lt;/span & ric Dondero kept on the move after Three Forks. A week or two later, he was collecting signatures in Milltown, a working-class settlement almost 200 miles to the west, on the fringe of super-liberal Missoula. A week after that, he was working small towns east of Billings, about 150 miles east of Bozeman. He said he personally collected at least 10,000 signatures on Montana's libertarian initiatives. After leaving Montana, he worked on initiatives in Oregon and Colorado.





From now until November, unless lawsuits jam up the works, libertarians will likely continue to make headway. Fueled by hundreds of thousands of dollars from national libertarian groups, they'll push their message in statewide TV and radio ads that feature victims of regulations -- or, even more compelling, victims of eminent domain.





It's a virtual replay of the story in Oregon in 2004, but there's a key difference. In Oregon, a huge coalition opposed Measure 37, including environmentalists, governments, planners, architects, nurses, labor, neighborhood associations, the Oregon PTA and the American Cancer Society. They won endorsements from every daily newspaper in the state. They spent twice as much money as the property-rights side. And they still lost. Now, in many of the other states, the opposition is disorganized and poorly funded.





Those who understand what's at stake realize that it's an emergency. Rodger Schlickeisen, head of Defenders of Wildlife, a national environmental group, hired a consultant to evaluate what happened in Oregon in '04. He said opponents ultimately lost on "the fairness issue." The Measure 37 campaign used a few compelling examples to portray government as an enemy of property owners.





To beat that kind of campaign, opponents have to take a leaf out of its book: They need to find compelling examples of people who've been helped by land-use regulations. "There's no reason that their side should have the fairness frame. There are huge fairness issues with regard to your neighbors and your community," Schlickeisen said. One person's rights can be another person's ruin, and strong regulations often raise property values, rather than lower them.





"It's all sound bites in a statewide ballot initiative [election]," warned Janet Ellis, head of Montana's Audubon Society chapter, which is beginning to organize the opposition here. "That's going to be the challenge, to wrap it up in a few words." She hopes to assemble a coalition that includes senior citizen groups and churches.





It will be difficult to get voters to see all the ramifications. Even Eric Dondero seems oblivious to how the Big Campaign often disguises regulatory takings inside "eminent domain reform." When asked about regulatory takings, he didn't seem to understand the issue.





"I'm not quite sure what you mean," Dondero said. "I guess it means that if a government were to build a big ugly building next to your property, and lowered the value of your property, they'd have to compensate you." When he was told that it means something else altogether, something much bigger, he said, "To me, that's a secondary part of this. To me, the main deal is Kelo. Admittedly, I'm not really up on that part of the issue."





Apparently, Dondero is just a foot soldier -- courageous in his way and sincere in his beliefs, but not fully aware of how he fits into the overall mission, how his idealism is being used by those above him on the command chain. No doubt many of the people who signed his petition, thinking they were standing up for the principle of private property rights, didn't understand the ramifications either.





The question for Westerners is this: How much will they choose to understand when they go to the voting booths this November?





This story originally appeared in High Country News (www.hcn.org), an award-winning news magazine that covers the West's communities and natural-resource issues from Paonia, Colo. Ray Ring is High Country News' Northern Rockies editor.
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