A pair of litigators working to strengthen property rights kicked off the inaugural Montana Property Rights Conference at the Northern Hotel Thursday.

Paul Beard, a principal attorney in the Pacific Legal Foundation’s Property Rights Group, and William Perry Pendley, president and chief operating officer of the Mountain States Legal Foundation, took the crowd of 120 attendees through some key court battles and suggested ways to reform the way key laws are being administered.

Pendley, who worked in the Reagan administration, left the crowd with these words from the Second Inaugural Address of the nation’s 40th president: “If not us, who? If not now, when?”

“We are in a heck of a fight for the future of the republic,” Pendley said. “If we don’t turn things around, we won’t be able to look our kids and our grandkids in the face and say, ‘We did everything we could.’”

Beard, who led off the conference Thursday afternoon, discussed a pair of landmark cases his foundation won arguing before the U.S. Supreme Court. One, Koontz v. St. Johns River Water Management District, allowed a Florida man to not have to pay to improve ditches and canals that were miles away from the property he wanted to develop, as part of wetlands mitigation required by the government. The case, which has been litigated for 20 years, has been remanded to Florida courts to determine damages, Beard said. The original litigant died, and now his son has picked up the torch.

There are plenty more potential cases in the pipeline, Beard said. One he mentioned is a law recently passed in San Francisco that allows displaced tenants to demand from their landlord the difference between rent-controlled rent and market rent “as a payoff to them,” Beard said.

During Thursday evening’s session, Pendley discussed three laws with which property owners have had their share of problems:

  • The Endangered Species Act, the “pit bull of environmental laws” because it has no cost-benefit analysis required. “I know of no landowner who has been paid for the presence of endangered species,” he said, “which is why we often say, ‘Shoot, shovel and shut up’ – but that’s not legal advice.”
  • The National Environmental Policy Act, which “Richard Nixon signed into law while he was watching football games one New Year’s Eve,” Pendley said. He called NEPA, which requires opportunities for agency scrutiny before government projects are undertaken, “the vehicle of choice for suing the federal government to put things to a stop.” Following Nixon’s signing on Jan. 1, 1970, three important things have not occurred, Pendrey noted: no new oil refineries have been built, the Army Corps of Engineers did not improve the levies around New Orleans pre-Hurricane Katrina “because environmentalists objected on NEPA grounds” and the U.S. Forest Service has prevented harvesting trees on federal land until “the timber rots on the stump. There’s little wonder we have problems.”
  • The Clean Water Act, which seeks to protect “the waters of the United States” from further pollution. The problem, he said, is that it’s taken decades to define the term “waters of the United States.” The original bill that became the Clean Water Act was 88 pages, he pointed out. The recently-released definition of those five words, “waters of the United States,” is 370 pages.

Serving under James Watt during the Reagan administration, Pendley was deputy assistant secretary of the Interior for Energy and Minerals. Now he’s written a book about Reagan.

Called “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and why it Matters today,” the book explains, according to its author, how environmentalists “were concerned about people” in the era that Pendley, Reagan and Watt were in government, “but now are not, and people are shocked about that.”

Between serving as governor of California and president, Reagan wrote thousands of radio addresses, Pendley said, with two-thirds of them covering three pet themes: the economy, energy and international affairs. Reagan believed as early as the late 1970s that solving the nation’s problem of depending on others for its energy needs would take care of the other two, and he’s been proven correct, Pendley said.

The conference, being held by United Property Owners of Montana, continues Friday with an 8 a.m. talk by Andrew P. Morriss, dean of the Texas A&M University School of Law. Morriss will discuss the history of eminent domain, changes in the practice over the years and recommendations for reform.

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