Land Grab: State Wrong On Development Rights

The Michigan Department of Natural Resources is seeking to prevent any development on some 390,000 acres of prime Upper Peninsula property in a move that would dramatically—and unnecessarily—expand government land-use control.

The Mackinac Center for Public Policy confirmed yesterday that DNR officials are pursuing $20 million with which to purchase a “forest conservation easement” that would prohibit any development on the broad expanse of property, which traverses ten Upper Peninsula counties.

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The agency already controls 4.5 million acres of Michigan land, including 142 miles of Great Lake shoreline, which comprises 12 percent of all land statewide. In addition, the state owns the rights to 24 million acres of Great Lakes bottomlands, and surface or mineral rights to nearly 6 million acres of land. More than 20 percent of all Michigan property is held by federal, state and local units of government.

A Hawaiian education trust currently owns the coveted UP tracts, which encompass five miles of Lake Superior shoreline and 200 inland lakes. The trust board plans to liquidate its Michigan holdings sometime this fall.

No sooner had news of the land sale hit the headlines two months ago than some environmental activists began urging the state to acquire the property for safekeeping.

“If it all goes private, it’s gone,” Ray Fenner, executive director of Superior Wilderness Action Network, told the Detroit Free Press.

The fact that the private Kamehameha Schools Trust has for years preserved the property as forestland, while also providing hunting and fishing access, evidently was lost on Mr. Fenner and his like-minded colleagues. But the notion that government alone can be relied upon to preserve natural resources is all too widespread, notwithstanding the superior property stewardship demonstrated daily by private property owners.

The DNR already manages 3.9 million acres of forestlands, and enjoys a veritable monopoly on outdoor recreation, including 96 parks and 14,000 campsites, 92 miles of trails, marinas, bridle paths, shooting and archery ranges, luge and snowmobile runs, ski slopes and bike paths. This dominant state system has inhibited the private recreation industry, which finds it difficult to compete against state subsidies.

An “easement” purchase would not confer outright ownership of the property to the state. The land itself would have to be sold to another buyer willing to cede land management to the DNR. The agency has no official partner in its plans as yet, but state officials acknowledge having held talks with a private conservation group—The Nature Conservancy—regarding purchase of the land.

The department has submitted an application for $20 million to the state’s Natural Resources Trust Fund, which finances government land acquisition with revenues from state mineral leases. If approved, the easement purchase would be a first for the DNR. A decision from the Natural Resources Trust Fund board is expected by year’s end.

Last year, the trust fund board granted $30.1 million for 10 land acquisition requests. An additional $7.4 million was distributed for 31 recreation development projects.

The DNR’s latest land grab proposal exemplifies the troubling expansion of what’s known as the “Public Trust Doctrine.” The root of the doctrine, dating to Roman times, holds that some resources, by the laws of nature, are provided in common to all –the air and the seas, for example. The idea took practical effect as a means of constraining the crown’s abuse of resource ownership, according to James Huffman, professor of law at Lewis and Clark Law School, who addressed the issue at a forum hosted by the Competitive Enterprise Institute. It subsequently evolved into a common right to access navigable waters, principally for commercial purposes.

Throughout the 20th century, however, the doctrine has mutated into a ready excuse to subsume private property under government control for all manner of communitarian purposes. In this instance, DNR officials justify the easement proposal as necessary for environmental esthetics as well as to preserve recreational opportunities. But as Richard Epstein has pointed out, it is perversely ironic that a doctrine designed to constrain the “crown” has become an excuse to constrain liberty.

On a more practical level, government is not the most efficient or effective steward of natural resources. George Mason Law Prof. Michael Krauss notes, “In light of some very successful private conservation initiatives, there is some question of whether exerting common rights at the expense of private ones actually results in a net benefit to the environment.”

Nothing can match the power of self-interest in resource management. Unlike the distant bureaucracies with no direct stake in land management decisions, individual property owners bear economic consequences for their actions. Moreover, government operates under a set of incentives that reward process, not results, whereas private individuals derive reward from outcomes.

There’s no evidence that DNR officials are acting with nefarious purpose. Government agencies, by their very nature, seek to expand their reach. But in this instance, the citizens of Michigan and the environment fare better with more, not less property under private control. There is nothing to stop a private individual or group from either acquiring the development rights or property in question. But the state already controls more land than it can adequately care for, and no adequate reason to relentlessly acquire more.

Diane Katz is director of science, environment, and technology policy with the Mackinac Center for Public Policy.