Editor’s note: John Klar is a Vermont grass-fed beef and sheep farmer, and an attorney and pastor who lives in Irasburg.
[I] sometimes describe attorneys as wizards: They conjure legal spells, and draft mysterious documents with the magical power to take property, or rights, or children away. Then other wizards cast spells in opposition. They are like spells because the common person does not understand most of it, so when the wizard raises his hand and twirls his wand, he says, “I will sue you for that!” And the average person fears the unknown spell, even when it is bluff.
I want to teach some magic spells to farmers. “Taking” is the government process of eminent domain, a limit imposed on our government by the U.S. and state constitutions, which exist to keep both the wizards and the legislators (let’s call them the witch doctors) in check. “Inverse condemnation” is a phrase used to describe the elimination of rights without actually “taking” the physical property. I will explain.
When the government “takes” a strip of land for a highway or new shopping mall, it seizes legal title to that property, and pays for it. If the owner does not agree, they have rights to appeal to a court for review. Importantly, the government often “takes” private land (including farmland) for other private interests: that is, it will “take” farm or other land, then pay for it with tax dollars in the name of the greater good, which is almost always “development.” The effect of this policy over time has been to convert huge amounts of our nation’s farmland into parking lots, highways and commercial buildings.
When the government issues rules which restrict a farmer’s rights, say, to his water or land, it does not seize title to the property. But by limiting the use (the “usufruct”), a property right is taken. For example, a 25 foot setback for streams for cows can “take” a 50 foot swath of land from a farm that has grazed cows there for four generations. This kind of regulation essentially bans the use by a farmer of his property, without compensation: reducing pasture area while requiring farmers to pay real estate taxes on swaths of now-useless land. This is what the current Vermont draft of Required Agricultural Practices does. This is inverse condemnation.
Let me draw another comparison, though – when the government “takes” land for urban development, the government increases water runoff, the generation of petroleum based toxins, and the flow of pollution into our lakes and streams. That is where runoff goes when you pave – and this is estimated to cause 40 percent of Vermont’s water quality problems (more in Lake Champlain). When they make farmers move their fences, will the city dwellers move their roads? Will they even test them for their effect on water, or is it just “assumed” that progress and development will forever go unchallenged? Some environmentalists call for incarcerating farmers who discharge manure into waterways: what then shall be the punishment for commuters?
Drive along Route 89 and look over the huge tracts of now-fallow ground that once was farmland, but was absorbed by Burlington. Shall we never yell “Stop!”?
The vast majority of agricultural pollution in Vermont originates from large confinement operations – the ones government regulations for the dairy industry favored, as did a public that always buys the “cheapest” food possible while it demands farmland to build Starbucks restaurants and Gucci shopping malls. Vermont has been in this conflict since the flatlander conquistadores began arriving from the south.
So in our current battle for the small farms, the out-of-touch members of Vermont’s citizenry are howling for farmer compliance, and imposing costs on farmers that they do not impose on developers. This legislation actually states that “All Vermonters must bear the costs” of water quality cleanup. Yet they are imposing those costs solely on farmers, while exempting developers from environmental oversight.
The constitutions prohibit the government from taking anything it does not prove it needs – that is, it can’t take grazing rights without demonstrating the water is being harmed. And where it does take property rights, including riparian usufruct, it is required to fairly compensate landowners – even farmers. The message I would like to see carried to the broader public is this: suburbanized Vermonters pollute with impunity when they commute (gasoline is a pollutant) and don’t create food; farmers stay home to work and do not commute, and most of the fuel they use is expended to create food for the oblivious commuters.
Am I sane? Do I actually live in a state where city people have taken over, and are imposing environmental costs on all of us for urban and suburban development, while they impose economic burdens on farmers who produce the food they consume? Do they comprehend anymore their connection to the landscape they speed through, to the culture they sneer at, to the food they undermine and cheapen and threaten? This is what Wendell Berry has called the Center (the cities) telling the Periphery (the small farms) what to do. But clearly, the Center is so utterly out of touch that it forgot where its food comes from even as it has forgotten where its pollution comes from. How convenient to blame the farmers. I say we shut off their food. Make them pay more for it. Fine new roads, new subdivisions, new shopping malls. Let’s “take” some shopping malls and turn them into pastures.
Drive along Route 89 and look over the huge tracts of now-fallow ground that once was farmland, but was absorbed by Burlington. Shall we never yell “Stop!”? Where is the Lorax when you need him? California (Vermonters’ chief food producer) is sinking into the ground, and burning in drought and wildfires. Vermonters are going to need farmland more than trees. But the Center doesn’t know that yet, and by the time it does it will demand that the local factory ramp up production and spew out some more chicken nuggets leaking hydrogenated fat for their “local” drive-through. And then they will howl with outrage when told: “It doesn’t work like that.” And it will be too late for all our children.
That is our future, because the lack of foresight in Montpelier is gargantuan. So farmers, if they compel you to fence your cows out of grazing areas, make them pay – inverse condemnation is still a taking, and Montpelier (bound by the Constitution) must pay when they take. That’s why we have a constitution – because government and the people who control its policies are constantly out of touch with reality and think they can just pass a law and do whatever they want. It’s time to fight back.
