PRIVATE PROPERTY ACT HAS A SINISTER SIDE

At first glance, HB171 is tasty fare served up to our legislators; this "Private Property Protection Act." Yum - smells delicious. Everybody likes private property.

But look closer. Use a spoon to scrape aside some of the pulp in the frothy legislative pudding. There it is, a shard of glass in the middle of that light dessert.If swallowed by the Legislature, HB171 - sponsored by Reps. Evan L. Olsen, R-Young Ward, and Met Johnson, R-New Harmony - will give Utah a monumental stomachache.

It's similar to a bill that crept through the Arizona Legislature last year, the State Lands Adjacent to Mines Act. A newspaper in that state calls it the "polluting industries relief bill."

The Arizona bill is so awful that after it passed, opponents were able to gather more than 80,000 signatures, blocking implementation until voters decide its fate in the November 1994 general election.

Utah's version, HB171, outlines its purpose as "providing that rules or actions by state agencies substantially interfering with or taking private property must be compensated for." The attorney general would create guidelines to carry that out.

What's all this talk about taking?

Under the Constitution, the government can't take private property - for example, to build a road - without compensating the owner. But the definition of private property isn't always simple.

In an Alaska case called Rybachek v. U.S., a claim is pending in court, where gold placer miners say their private property rights will be damaged if they have to comply with the Clean Water Act. The Rybacheks argue they won't be able to dredge profitably if the act is enforced; therefore, the government is taking private property rights (their profits), and the Rybacheks must be compensated.

So if a state agency makes a rule construed as interfering with private property, that agency has to compensate the owner out of its own pockets.

The law "would prevent the agencies from doing their duty, or doing what they're assigned to do in terms of protecting public health and also the environment in general," said Rudy Lukez, chairman of the Sierra Club's Utah Chapter.

Every pollution regulation impacts private property. A company can't burn coal without paying the cost of installing an air filter and a bag house. If that cuts into its profit, under the bill the Utah Division of Air Quality must compensate for interfering with private property.