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Farm, Nutrition, and Bioenergy Act of 2007--Continued --

Floor Speech

By:
Date:
Location: Washington, DC


FARM, NUTRITION, AND BIOENERGY ACT OF 2007--Continued -- (Senate - December 13, 2007)

BREAK IN TRANSCRIPT

Mr. CRAIG. Mr. President, let me join with the Senator from Tennessee in applauding an action that ultimately now will be taken by the Senate and therefore by the Congress to add substantially to an energy policy in this country that begins us down the road in a long march toward a higher degree of energy independence.

I have been in the Congress 27 years. I have always supported, up until this year, leaving CAFE or fleet standards for efficiency alone.

I got here in 1980. We had just come out of the 1970s oil crisis. We had put policy in place that was helping transform the automobile industry in our country to a more efficient fleet average. But over the course of the last 5 years, I have seen it become increasingly important that we focus on every aspect of energy in our country.

I used to be somewhat selective in what ought to be produced versus what ought not be, where we ought to put our incentives, where we ought to put our tax dollars to improve availability in the marketplace. But it became increasingly obvious to me that just a few miles per gallon per automobile in this country could make all the difference in the world.

We now import $1 billion a day in oil, approximately; $360 billion of America's money goes overseas to foreign nations which are, at best, indifferent to our interests, and at worst, using the term that I call ``petronationalism,'' use the power of their energy not only to squeeze us, but then they take that money and reinvest in our country or invest somewhere else, in many instances not in our interests.

I have always been frustrated that a great nation such as ours could not move toward energy independence, could not set as a goal that by a certain time our country could and would become energy independent in all sectors if we did the following things and if we began to drive public policy in that direction. So this spring, Senator Byron Dorgan of North Dakota and I did something I had never done before: We introduced legislation for a mandatory 4-percent change in fleet efficiencies on an annual basis. Well, you would have thought the roof caved in.

The automobile industry came to me wringing their hands and saying: We simply cannot do that. You have always been with us.

I said: Yes, that is right. In 27 years, I have not changed, frankly, and in 27 years you have not changed, and it is time we do change a little bit.

Now there are a lot of new efficiencies coming on out there, from hybrids to flex vehicles, and hopefully we are going to see a hydrogen fuel cell car on the market in a very short period of time that will begin to move its way in the market. So the automobile industry deserves a lot of credit for beginning to recognize the need to change what we use to drive America's transportation fleet.

But the opportunity to change the industry, to cause them to move down that road in a discernable and a direct way because it is the public policy of this country, is something I decided to become a part of. I believe it was with the introduction of that bill, with Senator Dorgan and I working together, that we got those kinds of things out of the Commerce Committee and into the Energy bill that passed the Senate. And that was a strong energy bill. It had all of the right blends and mixes in it to begin to create a cleaner energy consumptive world for us and at the same time a more independent and a more efficient world.

Today's vote was critical. We are going to send an energy bill to the President in relatively short order, I hope, that has a lot of those things in it and that causes America's transportation fleet to move in the right direction.

Mr. President, $3 dollars a gallon for gas is coming out of the hip pockets of moms and dads in this country today, and if that pace continues to go up, it is going to do more to change--I think in a negative way--the American economy than anything we have seen. We ought to be all about helping the average American change that equation, and I think efficiencies do that. Conservation is critical as a component of a total energy package because that which you save you do not have to produce. Just a couple of miles to the gallon across America's transportation fleet is millions and millions of barrels of oil. That is what we ought to be about. It will be a cleaner fleet and a fleet that will produce less carbon into the atmosphere.

All of us are concerned about greenhouse gasses and climate change, and efficiencies and new technologies, in my opinion, are the best direction to lead us to accomplish a cleaner world, and today a critical vote occurred that will allow us to do that.

BREAK IN TRANSCRIPT

Mr. CRAIG. Madam President, it is important for my colleagues to understand this is a private property rights debate. For some who have said, well, this is in the jurisdiction of the Judiciary Committee--and I understand the other side is going to ask for a 60-vote threshold--one of the reasons we are on the floor in a post-Kelo decision environment is because things are beginning to happen out there that frustrate all of us.

My colleague from Kansas echoes the sentiment of the American Farm Bureau and their president, speaking out about the risk now that open space property, farming property, ranching property has as a result of Kelo. Some would say on the floor it doesn't appear to be a problem. Let me suggest it is.

In Scattaway, NJ, a family protested its eviction from their 75-acre farm the town had seized under eminent domain for an open space designation. That happened in New Jersey. In Woodland, CA, in Yolo County, CA, the board of supervisors decided to seize a large area of farmland using eminent domain and declared the property open space. So here a government entity steps in and says: We are going to take open space and make it open space and we are going to use our power to do that--no willing seller, no willing buyer, a new shaping of eminent domain.

Eminent domain, as we knew it pre-Kelo, said, public use for a legitimate public use, and that usually almost always fell into rights of way, roads, power lines, and those kinds of things where, for the public good, access was being denied.

Kelo tipped that upside down.

New Brunswick, NJ. New Brunswick moved forward to condemn, using its power of eminent domain, a 104-acre farm. Open space again. Telluride, CO. The senior Senator from Colorado was on the floor supporting our amendment. The town decided to use its power of eminent domain to take about 570 acres of an 800-acre ranch and designate the property as open space. Once again, the power is being used.

That is why America's farmers and ranchers and America's agricultural organizations that represent them grow increasingly alarmed.

Sussex County, NJ. The State of New Jersey used its power of eminent domain to take 17 acres of working agricultural property to create a wetlands. Open space again.

Matthews, NC. York County, PA. York County, PA, was the one I used as I introduced this amendment a couple days ago, where the family fought, invested lots of money, and took on the county. As a result, two county supervisors were defeated in the election because they were going after private property for an open space designation, and the county said: Oh, no, you don't; you are out. Ultimately, the family won but at great expense defending their right of private property.

That is why the American Farm Bureau has said this is a high priority for us.

Madam President, Justice Sandra Day O'Connor, dissenting in Kelo v. the City of New London, which has tipped this eminent domain issue upside down, said this in her dissenting views, and it is so clear today the vision of this justice.

The outfall from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.

She spoke with great wisdom, particularly about the victims--those are the property owners--because that is exactly what is happening out there.

Is open space necessary? You bet it is. Does open space have value? You bet it does. There is no question in an urbanizing environment, parks and parkland and open space is critical. Why not willing seller/willing buyer? Why not go into the market as a city that has taxing power or a county that has taxing power ought to do and say, you know, we are going to raise a bit to go out and buy a piece of open property, instead of taking it? Now, yes, they compensate in eminent domain, but they basically establish the price. They do not have to compete.

So Kelo tipped us upside down, because in New London, as we remember, the city used their right to take away private property and gave it to a private developer because there was someone who was holding up a development. They were trying to hold onto their land. This is a critical private property rights debate and so very necessary.

I mentioned the family in Pennsylvania. For over 3 years, in Pennsylvania, that family fought their local government. How do you do it? You hire attorneys. Attorneys are expensive. You do the battle, you set up the legal case, because the county--in this instance the county government--wanted to take the land. As I mentioned, it didn't sit well with the citizens. Most citizens respect the right of private property. Most citizens understand that under our Constitution, there is a legitimate purpose for taking, and it was called eminent domain when the public good and the public value was clear.

That is the issue. It is quite simple. Now, is it a judiciary issue? Yes, it is. It is also an agricultural, farm bill issue. The reason I am on the floor with the amendment is because this taking is beginning to accelerate across our Nation and our Judiciary Committee has done nothing, to date, to reshape the Kelo decision, to protect the rights of the private property owner beyond the legitimate public good, and it is an important thing we do. That is why we are speaking out at this moment, and that is why it is important.

I yield to the chairman of the Senate Ag Committee.

Mr. HARKIN. Will the Senator yield for a question?

Mr. CRAIG. Sure.

Mr. HARKIN. I have read the Senator's amendment. I have sat and read the whole thing.

Mr. CRAIG. It is quite simple.

Mr. HARKIN. It is quite simple. It doesn't take a lot of time to read it. Then I listened to the Senator talk about the Kelo decision.

I am not a fan of the Kelo decision either, but it seems to me the way the amendment is written--and I ask the Senator this--if someone, if a private farmer had farmland, and a private developer came in and got the local jurisdiction to condemn that farmland and take it for private development, that would be allowed under your amendment?

Mr. CRAIG. Our amendment speaks to open space versus open space.

Mr. HARKIN. I ask the question, though.

Mr. CRAIG. I do not disagree with your interpretation of the current amendment.

Mr. HARKIN. That is what I wanted to make clear; that the Kelo decision----

Mr. CRAIG. Well, I would like to have gone further than that. The concern we had, and what appears to be most visible today in the new use of Kelo, is open space for open space. Municipalities and counties are stepping out--with the cases I gave, Mr. Chairman--and saying that for purposes of parks, we find this is a new tool. Historically, parks were willing seller/willing buyer, and wetlands, and now other broader interpretations of ``public good.''

But Kelo, being specific and relating to private government entities taking property for private development, we do not speak to that. We think it is a broader issue that the judiciary ought to speak to.

Mr. HARKIN. I thank the Senator for yielding and engaging in this colloquy. I was listening to the Senator talk about the Kelo decision, but the Senator's amendment doesn't reach the Kelo decision.

Mr. CRAIG. Oh, I disagree totally.

Mr. HARKIN. Well, if you allow----

Mr. CRAIG. Madam President, let me respond. When the Senator says we don't reach the Kelo decision, we reach a portion of the Kelo decision that is now most frequently impacting farms and ranches, and that is open space for open space.

Municipalities and counties and in one instance, as I cited, a State, prior to Kelo, were not using these powers of eminent domain to acquire open space. They were going out and buying it in the market and competing for it. Now they are. So Kelo, in fact, is being used for this purpose. That is why we are addressing this.

Mr. HARKIN. I will have more to say about that later, but let me ask another question.

Under the Senator's amendment--I wish to make sure I read it correctly--if a local jurisdiction--planning and zoning--decided to condemn some land or to take land for a park, if the amendment were adopted and put into law, that would mean that jurisdiction, whatever that jurisdiction is--it could be a county or a State--couldn't even get any money for education. No title I money for education. They could not get special education money. Let's say, money for special education, they wouldn't be able to get that either; is that a correct reading? For 5 years, they couldn't get that?

Mr. CRAIG. If it were open and currently operating farmland and/or pasture land.

Mr. HARKIN. Yes.

Mr. CRAIG. For agricultural purposes, and they did that for open space purposes, there would obviously, if this were law today, be a great debate in that community. That community would say, you cannot use this power and put our educational monies at risk.

We say, yes, Government monies, Federal Government monies. So it would clearly have a dampening effect. You and I both know, because we have been at those different levels of government, that there are thresholds by which a planning and zoning entity of a county or a municipality can and cannot operate. Would it have a chilling effect? Yes. It would stop them from doing that. That is the intent. Would it put the educational money in jeopardy? No, it wouldn't because they wouldn't put it in jeopardy.

You can use scare tactics, you can create, if you will, stalking kinds of arguments. But you and I both know, in practicality, they are not going to put those other values at risk.

Sewage and water money and all of the kinds of other things that you and I work hard to get for our communities--that is not going to be put at risk because what is going to happen is they are going to quit using the Kelo decision. They are going to quit using eminent domain in its broadest sense until this Congress gets back in the business of shaping it again. That is why we are doing what we are doing here.

Mr. HARKIN. I think, then, we get to the crux of this issue. What the amendment of the Senator does is it has the Federal Government telling a local entity, a local government or a State government what it can and cannot do within its own jurisdiction.

This is a very powerful Federal Government, a heavy hand coming in telling people that we know better than they what they should be doing.

Mr. CRAIG. The Senator knows as well as I do that, with wetlands, with endangered species, you name it, the Federal Government, by law, by statute, by regulation, by Clean Water Act, does a lot of things. It is hard to deny that we do because local entities operate under those laws. We are simply asking local entities, in their exercise of eminent domain, to operate within the law. This amendment, broadly supported by American agriculture for fear of taking of their land, and by the livestock industry, and by the Public Land Council and others, says: No, don't do that.

You can point out, if you will, those kinds of arguments. But they are hollow in the sense that we constantly do that, and we have done that. Local governments operate under both local jurisdiction, local law, State and Federal law. So I do not see that as a problem. It can be argued, but it is not precedent setting in any sense of the word.

Mr. HARKIN. I say to my friend from Idaho that all of the things he mentioned--the Clean Water Act and all that kind of stuff--we can get into that, but, yes, if a local entity violates that, they are subject to certain sanctions, usually fines.

Mr. CRAIG. Yes.

Mr. HARKIN. They are not subject to losing all their Federal money for education, for health, for transportation, for everything else--nothing like that. I know of no instance like that in any Federal legislation. If the Senator can find one for me I would appreciate it. I can't.

Mr. CRAIG. I will not disagree with the Senator. I believe the taking of a person's wealth--and you and I in farm and ranch company know the assets of a farmer and rancher are tied in the land. It is their bank. It is their savings. It is their retirement. Some even like to pass it down generationally.

To have a municipality flex a new muscle that grew out of a decision at the Supreme Court level because of an entity in Connecticut using it is ominous and needs to have powerful teeth in it to say to that local municipality or county: Thou shalt not, for these very narrow purposes, use eminent domain.

I am saying you and I come from farm country. We know how valuable that land is. It is that farmer's or that rancher's savings. It is their retirement, should they choose to sell it, and they can sell it to the city for a park if they want to. But for a county or city to step in and take the land when you want to hand it to your daughter or your son or your grandson, generationally, to pass it down through for agricultural purposes--there ought to be teeth, very powerful teeth. I think counties and cities ought not be allowed to do it, period.

Mr. HARKIN. But it seems to me, I say to my friend, those are the governments that are closest to the people, rather than some distant government in Washington telling them what they can and cannot do. Plus, I say to my friend from Idaho, with all due respect, this did not grow out of the Kelo decision. Local governments have had the power of eminent domain probably going back to the founding of our Republic. I was trying to find out exactly when, but probably the early 1800s, maybe the 1700s.

Mr. CRAIG. I have under the Constitution for ``the defined public good,'' and the defined public good was very clear, and we defined it in statute.

Mr. HARKIN. But I say to my friend, defined public good has been parks and recreation areas and things like that.

Mr. CRAIG. But they have not--excuse me. Senator?

Mr. HARKIN. I say to my friend from Idaho I am sure he has visited Gettysburg. Gettysburg National Park would not be a national park were it not for the power of the State of Pennsylvania to have the right of eminent domain because that is what they used. They had to use it in order to get that land together for Gettysburg Park. I say to my friend, with all due respect, it is a national historical monument. But that is what they had to use to do it.

Should Washington have been able to tell them no, you can't do that?

Mr. CRAIG. Right in the middle of Gettysburg is a private operating farm today. The reason it is there is because they would not allow it to be condemned, and they did not meet the threshold price of a willing seller, willing buyer. The State of Pennsylvania, for rights-of-ways of road, but other than that in almost every instance in my knowledge as it relates to Gettysburg, bought it, acquired it, and they used Federal money to get it and they used the Federal Park Service and a variety of other tools.

No, there is something new happening out there in a post-Kelo environment. You need to talk to your Farm Bureau in your State, and others, and your cattlemen and other farm organizations. Something new is happening in farmland, especially those lands adjacent to rapidly expanding urban environments. It is happening in a post-Kelo environment. That is why we are addressing it today on the Senate floor.

Mr. HARKIN. I say to my friend, again, the amendment doesn't even go to Kelo because my friend admitted a local government could condemn, eminent domain, take private farmland for a private

developer. Under his amendment they can still do that.

Mr. CRAIG. We don't speak to that. We speak to the issue at hand today: taking private farmland in municipalities and urban areas, counties and States, for the purpose of open land, and that is a post-Kelo phenomenon.

Mr. HARKIN. It has been that way, as I say, going back to Gettysburg. They did use eminent domain in Gettysburg.

Mr. CRAIG. They did use some, yes, I don't deny that.

Mr. HARKIN. They carved out some sections where they didn't think they needed them, but they did on some other sections. So it has been that way forever. Kelo didn't open floodgates. What it did was open floodgates for private, and that I find anathema; that you could use eminent domain for some private purpose. But for a public purpose such as parks and recreation and things like that, it has been this way since the founding of our Republic, I say to my friend.

My friend, I know is a conservative. It seems to me conservatives are always looking askance at the Federal Government coming in, heavyhanded, and telling local jurisdictions what they can and cannot do. This, it seems to me, would be the heaviest hand that I have seen in my years here.

My friend is right. We, a lot of times, do pass laws, Clean Air Acts, things like that that he mentioned, and we impose fines if they don't do something. But we don't say if you violate it, we are taking away your education money, your health money, your transportation money, and everything else. I just know of no other case like that in Federal law.

The PRESIDING OFFICER. The Senator from Idaho is recognized.

Mr. CRAIG. Madam President, we have not yet a time limit. I have expressed the will and concern of those who are cosponsors of the amendment. I put into the record the expression of our largest national farm organization that sees the threat as clearly as I do, maybe less clear than the chairman sees it because there is a pattern rapidly growing out there in a post-Kelo environment--open space taken for open space purposes. They are taking it from the private landowner. We think there ought to be strong teeth here.

With that, I retain the remainder of my time. Others are here to debate the issue.

The PRESIDING OFFICER. The Senator from Iowa.

Mr. HARKIN. Madam President, I just have a few minutes. I know we want to get to the Brown amendment. The Senator from Ohio has been very patient, waiting a couple of days to get to his amendment. I appreciate that. I have just a couple of things I wanted to respond to.

First, regarding the Craig amendment, I have here a letter dated December 11 from the National League of Cities, the National Conference of State Legislatures, the U.S. Conference of Mayors, and the Council of State Governments, all writing in opposition to the Craig amendment.

It says--I just want to read what they said in this letter:

This amendment is not only ill-advised, but it is also unconstitutional. Amendment No. 3640 would preempt state and local land use laws by prohibiting any federal funding that goes to state and local governments from being used for acquiring ``farmland or gracing land for the purpose of a park, recreation, open space, conservation, preservation view, scenic vista, or similar purpose.'' This would severely chill state and local historical preservation, community service, and environmental efforts.

Under this amendment, if a state or locality were to use the power of eminent domain for virtually any public purpose, even if such action was completely in accordance with its own statues and land use development ordinances and regulations, the state or locality could lose all applicable federal funding. The 5th Amendment of the U.S. Constitution expressly permits the taking of private property for public use provided just compensation is provided to the owner of the property.

The power of eminent domain has always been, and should remain, a state and local power. The state power to use eminent domain for public purposes is fundamental to a state's and locality's ability to provide for the community needs of its citizens, to protect unique and scenic areas of a state by creating parks, and to preserve wildlife and topography of a significant nature.

Again, we urge you to reject the Craig Amendment No. 3640 because it preempts state and local law and thwarts valid state and local efforts to preserve their natural resources for the use and enjoyment of all citizens.

I ask unanimous consent the letter representing the National League of Cities, the National Conference of State Legislatures, U.S. Conference of Mayors, and the Council of State Governments be printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

December 11, 2007.
Hon. TOM HARKIN,
Chair, Agriculture, Nutrition and Forestry Committee, U.S. Senate, Washington, DC.

DEAR SENATOR: On behalf of the undersigned organizations, we write in strong opposition to the amendment offered by Sen. Larry Craig (No. 3640) to H.R. 2419, the ``Food and Energy Security Act of 2007,'' which is scheduled for floor debate today. This amendment is not only ill-advised, but it is also unconstitutional. Amendment No. 3640 would preempt state and local land use laws by prohibiting any federal funding that goes to state and local governments from being used for acquiring ``farmland or gracing land for the purpose of a park, recreation, open space, conservation, preservation view, scenic vista, or similar purpose.'' This would severely chill state and local historical preservation, community service, and environmental efforts.

Under this amendment, if a state or locality were to use the power of eminent domain for virtually any public purpose, even if such action was completely in accordance with its own statues and land use development ordinances and regulations, the state or locality could lose all applicable federal funding. The 5th Amendment of the U.S. Constitution expressly permits the taking of private property for public use provided just compensation is provided to the owner of the property.

The power of eminent domain has always been, and should remain, a state and local power. The state power to use eminent domain for public purposes is fundamental to a state's and locality's ability to provide for the community needs of its citizens, to protect unique and scenic areas of a state by creating parks, and to preserve wildlife and topography of a significant nature.

Again, we urge you to reject the Craig Amendment No. 3640 because it preempts state and local law and thwarts valid state and local efforts to preserve their natural resources for the use and enjoyment of all citizens.


DON BORUT,


Executive Director, National League of Cities.


CARL TUBBESING,


Deputy Executive Director, National Conference of State Legislatures.


TOM COCHRAN,


Executive Director, The U.S. Conference Of Mayors.


JIM BROWN,


Washington Director, Council of State Governments.

Mr. HARKIN. I have a letter of December 11 from a number of environmental and wildlife groups: National Audubon Society, Defenders of Wildlife, National Resources Defense Council, Sierra Club, the Wilderness Society, the World Wildlife Fund and others, in opposition to the Craig amendment.

[Page: S15403]

I ask unanimous consent that letter be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

December 11, 2007.
Re Oppose Craig Farm Bill Amendment.

Hon. Tom Harkin,
Chairman, U.S. Senate Agriculture, Nutrition & Forestry Committee.
Hon. Saxby Chambliss,
Ranking Member, U.S. Senate Agriculture, Nutrition & Forestry Committee.
Hon. Patrick Leahy,
Chairman, U.S. Senate Judiciary Committee.
Hon. Arlen Specter,
Ranking Member, U.S. Senate Judiciary Committee.

DEAR SENATORS: On behalf of our members and supporters, we strongly urge you to oppose the amendment Senator Craig (R-ID) has introduced to the Food and Energy Security Act of 2007 that would prohibit all state, local, and federal use of eminent domain to take farmland or grazing land into public ownership for the purposes of a park, recreation, open space, conservation, preservation view, scenic vista, or similar purposes. It would impose severe sanctions on any state or unit of local government that uses eminent domain for these purposes--a five-year loss of financial assistance and all federal funds appropriated through an Act of Congress or otherwise expended by the Treasury. The Craig amendment arbitrarily imposes absolute bans on certain longstanding uses of eminent domain for public use while totally excluding others, including prisons, public utilities, roads or rights of way open to the public or common carriers, pipelines, and similar uses.

Acquiring land by purchase or donation is preferable, but there are times when eminent domain is necessary and appropriate, both for the public uses that would always be banned by the Craig amendment and those that would always be allowed.

Congress and the courts have repeatedly recognized that local, state, and national parks and recreation, open space, conservation, preservation view, and scenic vistas are clearly valuable public uses that justify eminent domain. For example, the Congressional Research Service's Annotated Constitution cites laws and cases upholding eminent domain, including an 1896 Supreme Court decision confirming the right to condemn in order to ``promote the general welfare'' by preserving an historic site (the Gettysburg Battlefield) for public use and protection.

``E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress takes land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. No. 90-545, Sec. 3, 82 Stat. 931 (1968), 16 U.S.C. Sec. 79 (c) (taking land for creation of Redwood National Park); Pub. L. No. 93-444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. No. 100-647, Sec. 10002 (1988) (taking lands for addition to Manassas National Battlefield Park).''

The Craig amendment would be a draconian infringement on federalism by the federal government into the traditional rights of state and local governments. It would even ban uses of eminent domain to clear title when no one objects.

The Craig amendment would devastate the ability of states, localities, and the Federal governments to create and protect public parks, to provide for conservation of essential resources and recreation, and to preserve open space. Sometimes, the ability to require a property owner to sell property at a fair price is needed to deal with an unjustifiable ``hold out'' who seeks to stop a worthy public project, or to extort a monopolist's profits from the public.

Finally, as the Congressional Research Service explained about a different proposal, there does not: ``seem to be any proportionality requirement between the prohibited condemnations and the length and scope of the federal funds suspension. If Congress' Spending Power includes a proportionality requirement for conditions on federal funds, as the [Supreme] Court suggests, the absence of proportionality in some of the bill's applications may raise a constitutional issue.''

For all these reasons, we urge you to oppose the Craig amendment.

Sincerely,
Jason Jordan, Government Affairs Manager, American Planning Association; William Snape, Senior Counsel, Center for Biological Diversity; Brian Hires, Colorado Field Coordinator, Center for Native Ecosystems; Bob Dreher, Vice President for Conservation Law, Defenders of Wildlife; Anna Aurilio, Director, Washington DC Office, Environment America; Brian Moore, Director, Budget and Appropriations, National Audubon Society; Karen Wayland, Legislative Director, Natural Resources Defense Council.
Linda Lance, Vice-President for Public Policy, The Wilderness Society; Doug Kendall, Executive Director, Community Rights Counsel; Martin Hayden, Legislative Director, Earthjustice; Sandra Schubert, JD, MA, Director of Government Affairs, Environmental Working Group; Julie M. Sibbing, Senior Program Manager for Agriculture and Wetlands Policy, National Wildlife Federation; Ed Hopkins, Director, Environmental Quality Program, Sierra Club; Jessica McGlyn, Senior Program Officer, World Wildlife Fund.

Mr. HARKIN. Madam President, I think the Craig amendment, about which I just engaged in a colloquy with my friend from Idaho, the Craig amendment really is the heaviest of heavy hands I have ever seen proposed for the Federal Government. First, I do believe also, as I just stated, it does violate the fifth amendment to the Constitution. Also, it doesn't even get to the Kelo decision.

As the Senator himself admitted, even under his own amendment we would have the oddest of all situations. It would then be permissible for a local entity to condemn private land for private use, but it would not be permissible for a local entity to condemn private land for public use. That is the oddest of all circumstances. Again, to say to a local entity that you cannot use the power of eminent domain, granted to you by the Constitution of the United States, for a park or recreation area or whatever it is, a public use for future generations to enjoy--to me, that is an interference in local government and local government decisions.

My friend talked about, yes, somebody may want to pass farmland on to future generations and things like that. I am very sensitive to that. Yes, they should be able to. But shouldn't also a local entity or a State devise parks and recreation areas, also for future generations? There seems to be some thought if a State uses its power of eminent domain, they can just take the land away. The fifth amendment of the Constitution says, no, you have to have just compensation. That is where you get into courts a lot of times.

We have seen eminent domain used for power lines, for example, to go across the State. Again, the amendment of the Senator, I don't know if it would reach the power lines.

Mr. CRAIG. Will the Senator yield for that?

Mr. HARKIN. Yes.

Mr. CRAIG. It is important to state for the record this amendment touches none of the standard uses of eminent domain and historic uses, and I said so and all the other Senators speaking to it said so. Rights-of-ways--this is open space land only. It is very clear, it is very targeted. It does not touch any other area of historic use of eminent domain. OK?

Mr. HARKIN. Madam President, well, I say to my friend, one of the historic uses of eminent domain has been for parks. When was Central Park in New York set aside? The power of eminent domain was for Central Park in New York. I think that has been over a hundred years.

Mr. CRAIG. And a lot of people had their land acquired and purchased; eminent domain was used.

Mr. HARKIN. I say to my friend, I do not have a catalog----

Mr. CRAIG. I think the Record is replete now with the fact that there has been an acceleration of counties and cities using it post-Kelo.

Mr. HARKIN. But my point----

Mr. CRAIG. I know what your point is; I know we should be speaking through the Chair for that purpose. In my opinion, it is a broadening of the definition of public use in a post-Kelo environment that has put America's agricultural land at risk in a greater way than ever before. That is why this amendment is brought to the floor.

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