A student emailed me the article “‘The Buzzard of Backcountry’ Strikes It Rich in National Parks“. It’s about a wealthy real estate developer, Thomas Chapman, who built a luxury home on private land that sits within a national park. (Many plots of private lands are surrounded by national parks and forests.) Some argue that it harms the viewshed and aesthetic value of the park, while others view property rights as paramount. The article states, “With that, Mr. Chapman aims to make a point: Environmentalists and park managers can wring their hands about development tearing up the wild, but unless they’re willing to spend top dollar to preserve that land, they have no claim on it. And if they won’t buy it, he’s perfectly willing to develop it as a private playground for a wealthy buyer.”  The article points out that the federal government has allocated additional funds to buy private lands for preservation.  However, the article fails to point out that the federal government need not buy the land at all, and instead could limit private property rights on lands not owned by the federal government pursuant to the Property Clause of the U.S. Constitution, in the interest of protecting federal lands (see, e.g., Camfield v. U.S., 167 U.S. 518 (1897); Minnesota v. Block, 660 F.2d 1240 (8th Cir. 1981).  The federal limits of the Property Clause have not been tested legislatively to the same extent as the Commerce Clause.  There is no Lopez or Morrison yet in Property Clause jurisprudence.  Given Congress’ concern of overriding private property rights, and environmentalists’ concerns over how the current U.S. Supreme Court would react to sweeping legislation based on the Property Clause, I suspect limitations on private lands in national park boundaries will exist, but not with as strong of limitations as permissible under existing caselaw.

(The article does point out that the president could better preserve much federal land by declaring them national monuments.  West Wing fans know from this episode and my former students know from class that this is done pursuant to the Antiquities Act….my current students will learn this fact this week, unless they read my blog.)

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