Judges get FREE lessons on property rights

  • John Baden


The Montana resorts around Yellowstone National Park are a long way from Washington, D.C., Cleveland, or even Denver, and that, as much as a thirst for knowledge, may be what has attracted about 180 federal judges since 1992 to seminars on property rights and environmental issues.

These aren't just any federal judges. These are the men and women who sit on courts ranking as high as the U.S. Court of Appeals. They hear appeals from federal district courts on cases that include protection of endangered species and wetlands.

Their courts are the territory of the "takings" clause of the Fifth Amendment. When that clause is interpreted broadly, it can require the federal government to reimburse a property owner for regulatory acts that affect the value of private land. It is in these courts that the ability of the government to regulate private property for environmental reasons clashes with the ability of landowners to use their property as they see fit.

The judges' host at most of these dude-ranch events is not some bland judicial body funded by the federal government or a bar association. It is the organization FREE, an acronym for Foundation for Research on Economics and the Environment. Its chairman, flamboyant economist John Baden, has taught at a variety of universities but he is more policy-entrepreneur than scholar. Baden is a lover of the outdoors who says no logical reason exists for a conflict between a free market and protection of the environment. And there is nothing unusual about a non-governmental entity putting on seminars for federal judges - it is done all the time, on a variety of subjects.

Nevertheless, his judicial seminars were the subject of an exposé on the front page of the Washington Post's April 9, 1998, edition. The thrust of the story was that Baden and FREE are part of what Hillary Clinton called a "vast right-wing conspiracy."

Who's behind the scenes?

The Post got the story from the Community Rights Counsel in Washington, D.C., a one-year-old offshoot of the International City/County Management Association. The nonprofit law firm is run by Doug Kendall, an attorney and its only employee. The city/county association represents local administrators from all over the country; it was established in 1914 "to strengthen the quality of local government."

A few weeks after leaking its story criticizing Baden's seminars to the Washington Post, the Community Rights Counsel issued a 76-page report, "The Takings Project: Using Federal Courts to Attack Community and Environmental Protections." Funded by the Turner Foundation, the report charges that conservatives derail environmental laws by trying to broaden the courts' interpretation of the Fifth Amendment's takings clause.

Post reporter Ruth Marcus, in her story, linked the judicial seminars to the sources of FREE's funding, which included Richard Mellon Scaife's Carthage Foundation. This foundation also funds the right-wing American Spectator Educational Foundation and the Heritage Foundation. Scaife himself has become nationally known for helping to fund, among other efforts, the Paula Jones lawsuit against President Bill Clinton.

Other funders of FREE included the Sara Scaife Foundation, John M. Olin Foundation and the M.J. Murdock Charitable Trust. These charitable foundations also support groups such as the Pacific Legal Foundation, the Defenders of Property Rights and the New England Legal Foundation that litigate takings cases in federal courts on behalf of private property owners.

Critics say that FREE's bias can also be seen by looking at its board; members include employees of Plum Creek Timber Co., Burlington Resources Inc. and Amoco Corp.

The Post story also quoted one of the environmentalists who spoke to the judges. Doug Honnold of Earthjustice Legal Defense Fund (formerly the Sierra Club Legal Defense Fund) told the Post:

"From my standpoint, one of the most important groups of decision-makers is being fairly systematically exposed to a particular philosophical standpoint and with the express purpose of modifying results."

The story reverberated. It was reprinted on the front page of many newspapers, including FREE's hometown newspaper, the Bozeman Chronicle. And it resulted in a congressional hearing on judicial ethics.

Balancing the story

It also angered Baden, who said that the Post had strung together facts to turn him into a spokesman for positions he opposes, such as corporate subsidies. He said he has always been a strong supporter of environmental protection. "My record is really clear," said Baden, who once led the environmental studies program at Utah State University. "I think you would have a hard time finding someone who has been more beaten up than me" because of strong stands for the environment.

Baden also said that while the Post listed a string of conservative foundation funders, it left out a large liberal supporter - the Ford Foundation - because that didn't fit the paper's story line. Marcus didn't list it in her story, Baden said, because "the Ford Foundation is not part of that right-wing cabal."

Nor did the Post describe the agendas of the seminars, which began in 1992, and which seem to have participants from all sides of the issue. Environmentalists include Michael Bean of the Environmental Defense Fund, Hank Fischer of Defenders of Wildlife, and Honnold of Earthjustice. Property rights advocates include Michael Greve of the Center for Individual Rights and Jim Huffman of the Lewis and Clark Law School, as well as Baden.

FREE, which argues it is the perfect outfit to put on these seminars because it is poised between concern for the environment and belief in free markets, has its environmental defenders. Fischer, who spoke to the judges in October about his work on behalf of wolves and grizzly bears in the northern Rocky Mountains, said it was a valuable forum:

"I really didn't feel like FREE was trying to dominate with some heavy-handed message," he said. "I think some of the market concepts are pretty valuable."

Without commenting on the judicial seminars, Mike Clark, executive director of the Greater Yellowstone Coalition, said of FREE: "We think they are a legitimate voice about the environment. We just don't happen to agree with them most of the time. You can't ignore cost, but you can't measure nature in terms of the almighty dollar."

Should greens teach judges?

Others in the environmental movement think FREE's sources of funding place it outside the environmental movement. John Echeverria, executive director of the Environmental Policy Project at Georgetown University Law Center, said, "Their claim to be environmentalist is ultimately a false one. Part of the proof is to look at the special interests that fund their activities."

But Echeverria, who once worked for the National Audubon Society, and who saw early drafts of the controversial Community Rights Counsel report, thinks environmentalists can learn from FREE.

"If (hosting seminars) is an acceptable practice, then the environmental community can't afford not to play," he said.

Some, however, don't think judicial seminars put on by interest groups are acceptable. At a congressional subcommittee hearing that questioned judges about "judicial junkets" as a result of the Post article, Rep. Zoe Lofgren, D-Calif., said:

"I think there is nothing more damaging to the citizens' faith in the country and due process of law than the belief, even if inaccurate, that those who are entrusted to judge have been influenced outside of the court through financial connections."

Everyone agrees that seminars on various topics can be useful to judges. The argument is whether groups like FREE should be educating judges. There are alternatives.

The Federal Judicial Center in Washington, D.C., already offers courses on everything from understanding statistics to employment discrimination. With Oregon's Lewis and Clark Law School, the federally funded center also offers a conference on environmental law. Does that mean FREE is duplicating what the judicial center offers?

Baden says that FREE fills a niche by adding lectures on property rights and market incentives to environmental education. FREE also sets the seminars where they will dramatize what's at stake - within the greater Yellowstone ecosystem. If FREE seems biased and doctrinaire, the outfit argues, it's only to those who won't admit that free markets and private property can contribute to environmental protection.

But Community Rights Counsel's Kendall said the issue is about an inherent conflict of interest. "Why we need private institutes doing this, I can't quite figure out," he said.

"We don't think judges should be attending seminars funded by the same corporations and foundations that are bankrolling property rights legislation," Kendall continued. "The idea that ideologues on any side of the fence have an opportunity during a week while riding horseback or swimming under the stars to impress federal judges with their individual views on the law is to me offensive."

* Dustin Solberg, HCN assistant editor

You can contact ...

* Pete Geddes at Foundation for Research on Economics and the Environment, 945 Technology Blvd., Suite 101F, Bozeman, MT 59718 (406/585-1776); or the FREE Web site, www.free.eco.org;

* Doug Kendall at Community Rights Counsel, 777 N. Capitol St., NE, Suite 500, Washington, DC 20002 (202/962-3546). A copy of the 16-page report co-authored by Doug Kendall and Charles P. Lord, costs $15;

* The International City/County Management Association Web site: www.icma.org

High Country News Classifieds