Battle lines are being drawn in Northern Idaho, where two sets of Priest Lake-area landowners are mired in fights with federal regulators that may result in sweeping changes to the Clean Water Act. While one case heads to the U.S. Supreme Court this winter, another is just heating up. Both are being seen by libertarians as key fronts in a general war on land-use regulation, and now Bonner County has a vehicle for stepping into the fray with its newly minted--and controversial--Property Rights Council.
Established by the Bonner County Board of Commissioners, the group will research and advise on a sweeping array of property-rights issues--potentially everything from minor land squabbles to complaints about state and federal agencies--but do so from a mandated libertarian point of view, a fact that is raising eyebrows across the state.
Just one of its inaugural causes and a good example of how wide the council is willing cast its net: The case of Jack and Jill.
When Jack and Jill Barron started clearing land and dumping fill on their property near Priest Lake, it was with the thought of building a home in the peaceful wilderness outside the small town of Nordman. Instead they got slapped with a compliance order from the Environmental Protection Agency.
According to regulators, the Barrons had placed rock and other fill into four acres of wetlands and stream channels near Lamb Creek--a tributary of Priest Lake--without getting the necessary permits from the U.S. Army Corps of Engineers.
That was in 2009, and the couple has since gone to criminal court and been acquitted. They're still liable for the civil compliance order, however, which could cost them more than $32,000 per day if unmet.
It's a plight not unlike that of their more famous neighbors, Mike and Chantell Sackett, who were hit with an almost identical order for the same alleged offense near the exact same creek.
While the Sacketts' 2007 case has progressed to the U.S. Supreme Court and become a national cause celebre among libertarians--including Kentucky GOP Sen. Rand Paul--the Barrons are looking to their local government for help.
Riding (maybe) to the rescue: the Bonner County Property Rights Council.
Support of Last Resort
According to Bonner County Commissioner Cornel Rasor, the Barrons' issue is a prime example of why the Property Rights Council was formed in the first place. Indeed, whether to get involved in the matter is one of only two items currently being considered by the seven-member advisory group--the other being a proposed county watershed ordinance.
"The Property Rights Council provides opportunities for the county to interpose to protect property owners from financial ruin from super-governmental agencies," Rasor told members of the Association of Bonner County Employees on Nov. 14. A request for a follow-up interview went unanswered. "[In the Barrons' case] essentially what you've got is a federal government agency that is going to destroy a family using what seems to be specious claims. ... If the county becomes the support of last resort, then this gives the county an opportunity to step in."
A lifelong Bonner County resident, Rasor serves as both chairman of the Bonner County Board of Commissioners and the Bonner County Republican Central Committee. If Northern Idaho is known for its strong libertarian streak, then Rasor is one of its leading lights.
Though only making news in the past month or so, the Property Rights Council is an idea that Rasor has been working on since his election in 2008 and a concept he's been talking about for the past 25 years.
According to an email sent to a constituent, and obtained through a public records request, Rasor put his goal simply: "I now see that we must use other ways to shrink government than simply surgery. I want to create the possibility that what is removed is permanent."
In its infancy, the advisory council is only now establishing its bylaws. Its exact scope and operations are in flux. From available documents, it is clear that the council has no policy powers and can only make recommendations to commissioners. Its primary role is research, and its stated goal is to find ways to unburden property owners from as much regulation, taxation or other impositions as legally and statutorily possible.
Much of the communications surrounding its formation are, according to Bonner County officials, protected by attorney-client and work privilege, but what is really raising some eyebrows is the group's overt allegiance to conservative libertarian political ideology--an ideology that Rasor unequivocally adheres to.
"I'm not good at lying, so I don't do it," he told county employees. "People know where I am with property. It's one of the three things that government is supposed to protect: life, freedom and property. And without it we don't have a free country."
A group like the one now operating in Bonner County has never been seen in Idaho. All-volunteer and strictly advisory, the Bonner County Property Rights Council begins its meetings with an invocation, the Pledge of Allegiance and enshrines a number of libertarian-minded principles under the broad umbrella of "free-market policy." It makes its case using jargon like "public choice theory," "public interest" and "government failure theory"--libertarian ideas that suggest, among many other things, that privatization of public services is usually more beneficial, and funding should more often than not be shifted from tax dollars to user fees.
The council's draft bylaws include a complex process for collecting, researching and advising on property-rights questions, as well as institute a pyramidal structure of certifications that are achieved by completing various levels of training in free-market policymaking.
One of the few membership requirements, other than residency in Bonner County, is that, "Members must commit to focus their efforts principally on promoting and protecting private property rights in the manner set forth in these bylaws."
As it turns out, the "manner set forth in these bylaws" is based on policy research and texts produced or approved by libertarian think tanks The Cato Institute and State Policy Network, the latter being a national partner of the Idaho Freedom Foundation.
To earn the PRC "constituent" certification--which is the first of four gradations--members must spend no less than 20 hours completing one of two State Policy Network endorsed books: Beyond Politics: The Roots of Government Failure, produced by The Independent Institute and available online in soft cover for $19.50, and Government Failure, A Primer in Public Choice, a Cato-published work available for free on the organization's website.
Once completed, the prospective constituent must schedule two separate one-hour book discussion interviews to ensure a proper understanding of "public choice theory."
All of this must be completed within three months of the first PRC meeting, followed by attainment of "friend" status--which requires 110 hours of study--within 12 months.
The final levels include "policy analyst," which certifies members to become full-fledged PRC research analysts and "legal policy analyst," qualifying the recipient to integrate legal research with free-market policy.
Who decides when members have sufficient grasp of the concepts? None other than Pam Stout, the grandmotherly leader of the Sandpoint Patriots Tea Party, who became a national figure after the publication of a 2010 New York Times article on the movement and a subsequent appearance on Late Night with David Letterman.
Though not involved solely with the Property Rights Council, Stout was hired by the county prior to the council's establishment to serve as a "paralegal program manager" and help get the council off the ground.
Stout's job, though not a paralegal herself, is to assemble a team of paralegal trainees who can be schooled and farmed out to other departments and groups--including the PRC--to perform legal research. She is paid $25,000 per year--a good wage in Bonner County, especially since her position is listed for just 19 hours per week.
According to documents on the voluminous Property Rights Council page of the Bonner County website, the paralegal program is even open to participation from local schools in the hopes that it will "help immunize students from academic biases favoring government intervention."
For regional watchdog Terry Harris, executive director of the Kootenai Environmental Alliance, the whole project is nothing more than an attempt by hard-right conservatives to set up some kind of libertarian policy institute under the aegis of Bonner County government.
"These are big national forces at work," he said. "I think it's an ideological thing--that somebody is telling them that land-use regulation is bad and they should go after it. ... I think they think of themselves as a think tank, though I'm not sure how much thinking is going on."
Much Ado About Something
Local reaction to the establishment of the Property Rights Council has been a mix between puzzlement, skepticism, suspicion and boosterism.
Rasor referred to an October Associated Press article on the council as a "hit piece," though added that it had "backfired" by getting other communities around the country interested in setting up similar councils.
The Idaho Attorney General's Office was asked to comment on the legality of the council in a query filed by Sen. Shawn Keough on behalf of a concerned constituent. The response, copies of which were handed out at the Nov. 7 PRC meeting, supported the legal right of the county to establish such a council and called it "an innovative solution to an ever-present tension."
However, the AG warned that it should take care to obey open-meeting and public-records laws and "care should be exercised to ensure that the free market of ideas is not corrupted by requirements to adhere to a single source of information."
Penned by Assistant Chief Deputy Brian Kane, the assessment also raised concern over seeming "loyalty oath" language. The attorney general's recommendations were incorporated into the draft bylaws at the PRC meeting.
According to Keough: "I asked for the AG's opinion on the Property Rights Council because I had a constituent request I do so and I agreed that the questions asked merited an outside legal review. ... As a state senator, I don't have an opinion as to whether the commission should have set up the council or not as it is, again, within their authority to do so."
Finally, earlier this month, Clark Fork-based news magazine The River Journal ran a lengthy, blazing condemnation of the project, saying it "looks much like an amoeba" and casting a critical eye on the partisan nature of those involved.
For Rasor, and county Prosecuting Attorney Scott Bauer, the brouhaha is unwarranted.
Referring to the 13 other advisory groups currently working with the county, Rasor wondered aloud why there were so many questions about the PRC and none regarding groups like the airport or animal advisory boards.
"No one seemed to question the staff time that was used to support them," he said at the county employee meeting. "I have no problem with the questions, but I'll be frank with you, they seem a little disingenuous."
For Bauer, who has taken the lead in the Prosecutor's Office for setting up the PRC, the "vitriolic" response has been based on a lack of understanding.
"Some environmental groups, they believe that respecting property rights is going to automatically lead to environmental degradation," he said. "I think that's an assumption that's not borne out at all by the State Policy Network research. ... The Property Rights Council needs to be given a chance before it's rejected out of hand."
Wayne Hoffman, founder and intellectual engine behind the Idaho Freedom Foundation, gave a presentation to the group via video and said he's had an ongoing conversation with Rasor and Bauer on how best to establish the council and set its prerogatives.
"We provide information to a lot of different groups across the state--try to get them to embrace free-market ideas and educate people about the proper role of government and what can happen when the private sector is really allowed to develop and engage without the intervention of the government," he said. "I applaud them for working with government officials to seek free-market solutions wherever possible, to look at private-property rights and give them the attention they deserve. It sounds like they're off to a good start."
Where some Bonner County employees seem to be leery relates to just how the PRC defines "property rights."
Christine Quayle, a jury commissioner who heads the Association of Bonner County Employees, raised one point of concern by noting that part of the PRC's purview is to look at county insurance and risk management--areas that go well beyond land use.
"If this is a property-rights council, why is it investigating employee insurance?" she asked.
Rasor's response: "Property taxes pay for those benefits."
Pressing on, Quayle asked whether that meant that "pretty much everything is up for investigation," and Rasor confirmed: "It is, as it is for all citizens. ... If it has any impact on your property it can be investigated by a property rights council. Any impact, even economic."
Bauer confirmed that understanding of the council's scope in a subsequent interview.
"It's not limited to real property," he said. "Anything with county activities that might affect property rights is fair game for us to mission."
Admitting he hadn't heard "a whole heckuva lot" about the Bonner County PRC, Tony Poinelli, Idaho Association of Counties deputy director, said a scope that broad is "actually getting beyond what I think of as property rights. ... Whenever I think of property rights, I think of planning and zoning."
According to Bauer, the PRC fills a need that county planning and zoning doesn't--and can't--meet.
"The Planning and Zoning Commission looks at property rights among about nine or 10 other goals that it's pursuing. It's very normal for planning and zoning to subordinate property rights in favor of other goals," he said. "The purpose of the council is to take a real solid, deep look at those issues. ... The idea here is, 'Let's just get the information from reliable, academic-level sources and get it in front of the commissioners.' It's not to dictate a decision."
Still, the injection of political philosophy into a county advisory group doesn't sit well with Harris--nor does the idea of creating another deliberative body square with its stated purpose of limiting bureaucracy and stripping away government regulation.
"Procedurally, it's just bad government," he said. "Some of the stuff doesn't make any sense; it seems like a layer of bureaucracy. ... It's also just very exclusionary. It's a one-sided ideological program that just seems out of place in county government."