Center for Private Property
In a throwback to English feudalism, the United States Government currently claims ownership of over 60% of Utah’s land mass and even higher portions of land in many other western states. The vast ownership and retention of land by the federal government is an aberration in the history of the United States where the general policy for public land was one of disposal and settlement rather than retention and federal management. In Utah, lawmakers have sought to assert Utah’s claim for such lands to be disposed of as promised by the federal government when Utah was created as a state.
In 2012 the Governor signed HB 148: The Transfer of Public Lands Act (TPLA), sponsored by Representative Ken Ivory whom we interviewed about this subject last year. The bill passed with healthy majorities in both chambers and was also ranked in our Libertas Legislator Index for 2012. The new law directs the United States Government to transfer title for public lands back to Utah as promised in the Utah Enabling Act. Under TPLA, this transfer is called for by December 31st, 2014. The bill also called for a study which was subsequently released by the Utah Constitutional Defense Council. Earlier this year, a BYU Law Review Article evaluated the legal issues surrounding the TPLA.
We agree with The American Lands Council and other groups calling for such transfers. The transfer of public lands is critical to ensuring the state sovereignty envisioned by the founders for our federal system. The retention of land by the federal government is an inappropriate and unjust arrogation of power—a power not based in constitutional principles, but the loose and broad interpretation, or outright violation, of them.
The following are some of the key legal arguments for the transfer of public lands:
“What [government does] is either hurtful or profitless, injurious or ineffectual. It never can bring any useful result.” —Frederic Bastiat
The Salt Lake City Council is proposing to increase the scope of government interference in private property rights and free market commerce. According to their website, they propose to require that businesses with drive-through services accommodate all potential customers (whether on foot, bicycle, motor vehicle or other mode of transportation) to the same extent that they accommodate motor vehicle drive-through customers. The Council proposes to require that, during the hours in which any business offers drive-through services, they must also offer a walk-up window and/or walk-in services.
The proposal also includes new design standards for future development, including direct entry through the front of the building, paths leading to the entrance, well-established pedestrian routes, decorative paving, etc.
These requirements clearly violate basic private property rights. We have discussed these general rights in previous posts, and we have discussed specific violations of these rights as other government entities, such as Highland City, San Juan County, Sandy City, the State of Utah, Woods Cross, and Cedar Hills, have violated or considered violating these rights.
Private property can only be so called if the owner has the right to determine what he or she will or will not do with that property. So long as the property owner does not use the property to violate the rights of others, then no other individual or group of individuals (even under the guise of government) can rightly interfere.
We urge Salt Lake City residents and all Utahns to oppose the Council’s proposal. They request your feedback here.
“The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”—John Locke, Second Treatise of Civil Government
Last night the City Council for the City of Springville considered an ordinance that would permit residential homeowners to keep and raise chickens in their backyard—albeit subject to heavy regulations and a license. After robust public comment, including input from Libertas Institute, the ordinance was passed with only one dissenting vote. While we applaud this move and welcome Springville to the growing club of cities allowing residential hens, we argue that it shouldn’t take an official ordinance to permit something that is fundamental to private property rights in the first place.
The property rights that John Locke spoke of in his treatise were not just residential property rights, but the right to productively use one’s own property for gain, subsistence, and enterprise. Since the 13th century when King John acquiesced to the Magna Carta, the English tradition of property rights has led to a modern world where nearly any person can enjoy the ownership of property. However, over just the last century in our country, a troubling trend of growing government authority in our lives has placed property rights under direct and sustained attack. From asset forfeiture to the expanded use of eminent domain, and even to zoning regulations, property rights have waned over the last century.
In a recent letter to property owners who rent out their property, the city of Cedar Hills, Utah announced a new ordinance (Title 3-Chapter 1-Article H:Rental Dwelling Unit) that requires these individuals to seek the permission of the city government if they wish to “legally rent out a residence in the city of Cedar Hills.” The ordinance requires the property owner to submit a Rental Property Business License Application, pay an annual fee ($65 for the first property and $25 for each additional property) and be subject to an “ordinance compliance review.”
This ordinance violates the fundamental principles of private property rights. Property rights require that an owner may do with their property as they please, so long as they do not infringe on the rights of other individuals. If a city requires certain conditions be met (that are not related to an existing or imminent violation of other individuals’ rights) in order for an owner to rent out their property, then clearly the city purports to possess the authority to prohibit the owner from renting out their property. If the city assumes this right, then clearly the owner does not have the right to rent out their property, but may do so only with the consent of the city. In this case, there are no private property rights with respect to renting out the property, but rather a city-granted privilege bestowed upon whomever they deem fit, based on whatever arbitrary criteria they choose.
Utah is blessed with some of the most amazing landscapes in the country. From the curious rock waves of Zion’s slot canyons to the Salt Flats in the west desert, tourists from around the world want to visit this state. Utah is also a bustling hub of energy and resource development, providing valuable jobs and affordable energy. Balancing these usually competing interests has been a difficult challenge, and not just since environmental activist Tim DeChristopher hijacked an oil and gas auction in December 2008.
IACX Energy, a Dallas-based helium gas producer, decided to avoid the possibility of litigation or activist-inspired regulatory compulsion by going directly to their would-be adversary and working together to craft a “win-win” agreement that augments drilling in a proposed wilderness area. By drilling horizontally to the intended underground helium dome instead of vertically, IACX gets its gas and the Southern Utah Wilderness Alliance protects valuable wilderness. “Let’s face it—when you’re on federal land, you have many stakeholders,” IACX president Scott Sears told KUER. ”And I think the worst thing you could do is just barge in like a bulldog and say, ‘This is mine and I’m gonna do whatever I want and to heck with the rest of you.’”
“Taxation is theft!”
While true, shifting the debate over taxation to its logical conclusion at the outset causes many people to simply ask: “Then how should government services be funded?”
Much of the debate over this question can only be resolved by determining which services the government should actually be providing. What, in other words, is the proper role of government?
Let’s address Utah specifically, where (for example) the state is constitutionally obligated to provide educational services to the children of its citizens—a requirement that deviates from government’s proper role. How should these schools be funded?
On October 1, 2013, the supposed “shutdown” (better referenced as a “slimdown”) began. While competing political factions bicker over who’s to blame, and while the public demands resolution, an interesting conversational point has surfaced. If non-essential government employees have been furloughed, it raises the question: why do non-essential government employees even exist?
Americans are well versed in the long history of rampant government waste. Lucrative bureaucrat salaries, revolving doors, inertia, and annually inflated budgets have become second nature. Despite all the attempts to introduce reform, government continues to hire more and more people.
In light of this, how can the “slimdown” be used to our advantage? There are a few areas of policy—where Utah has battled the federal government—that recent events suggest can and should be devolved to the state level.
A recent article tells of a Woods Cross man who was seeking permission to enter into peaceful commercial transactions. He intended to sell firearms out of his home—an intent to which many of his neighbors strongly objected. This legal activity apparently must have the blessing of the local planning commission according to local ordinance, and a permit must be issued.
Libertas Institute is currently soliciting submissions for our second annual essay competition. The theme of this year’s contest: ”The Proper Role of Local Government.” Do the activities of a local planning commission fall within the scope of the proper role of local government?
The above-cited article describes the man’s neighborhood as one “where streets are lined with single-family homes, bicycles litter lawns, and kids spend summer days beating the heat in their swimsuits..” The article mentions that some of the residents of the neighborhood are upset that their neighbor wants to sell firearms from his home. One such neighbor, Ria Vanlet, is quoted as saying, “If you’d sell vitamins, maybe. But firearms, it’s a different story.” Among her reasons for opposing the man’s right to sell firearms from his home was that she is concerned about safety.
Article 1 Section 6 of Utah’s constitution states, “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed.”
Today, Governor Herbert is hanging his hat, not on that particular sentence, not on the fundamental principle of liberty, not on the inherent right of the individual to bear arms, but on the second part of that clause which says, “but nothing herein shall prevent the Legislature from defining the lawful use of arms.”
Governor Herbert has chosen to veto House Bill 76, which would allow law-abiding Utahns to conceal carry an unloaded firearm without needing a permission slip (conceal carry permit). The bill passed through both the House and Senate by over a 2/3 vote.