Sackett vs. EPA and private property rights

The EPA is testing the Supreme Court’s and American’s nerve to defend the rights of due process and private property.  John Adams argued, “Property must be secured or liberty cannot exist.” Photo:

WASHINGTON, January 20, 2012 – The Supreme Court just heard arguments in a case that pits the Environmental Protection Agency (EPA) against the fundamental right of due process and secondarily private property rights; the court is eyeing another similar case as well. John Adams argued, “Property must be secured or liberty cannot exist.” Those who believe that a centralization and concentration of power within government is necessary to advance society downplay the importance of the case.  

Private property is the primary reason for government 

U.S. Supreme Court Justice George Sutherland told the New York Bar Association in 1921 that man has three great rights – “the right to his life, the right to his liberty, the right to his property…The three rights are so bound together as to be essentially one right…To give him his liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.” 

The understanding that preservation of property is the chief role of government goes back to the Magna Carta and key writings by John Locke– both of which influenced the Founders as they contemplated whether to defy the King of England for abusing or otherwise disregarding those three great rights.   

Obama administration is testing the limits

Many politicians and all manner of ideologues have argued for over 100 years that the Constitution is outdated and that society must “evolve” beyond its many checks and balances. The argument, rooted in the worst form of hubris and disregard for the individual, goes like this: we know better how to educate children, regulate business, and protect the environment or whatever aspect of life.  Give us the money and the authority; we’ll take care of things.

The people are kept docile by paying them increasingly well for light work, including lots of vacation and other benefits as well as assuring them that evolved societies put no restrictions on any personal desires, except eating fatty, fried foods, just so long as no one else gets hurt, of course.

Europe, especially Spain, Italy and Greece, is a great place to view the cost and promise of societies where taxes are high, cultural mores are discarded in the name of multiculturalism and government benefits and programs care for all from cradle to grave.

The Obama Administration’s EPA is being used as a litmus test for just how far Americans will let the country drift ever closer to a European model of big, heavy-handed government. The Supreme Court has become the final polite battleground for the dueling ideologies that in general represent a Constitutional Republic versus social democracy.

In Sackett versus EPA, according to the Wall Street Journal, “In May 2007, three days after workers started clearing the [Sackett] property, officials from the EPA and the Army Corps of Engineers showed up to ask if the Sacketts had a permit to fill in wetlands. The officials said they were acting on an anonymous tip. Nearly seven months later, the agency sent the couple a compliance order directing them to restore the property to its original condition.” 

The Sacketts argued that the property is in a platted subdivision and is not a wetland. “We sent them two certified letters asking them what we did wrong,” Mr. Sackett says. After weighing whether to comply with the EPA order or fight the agency in court, Mr. Sackett offered to give the property to the government, but officials turned him down.

EPA fined the Sacketts at $37,500 a day leading to a bill of $40 million. The lot cost them $23,000 near Priest Lake, Idaho. 

“The government argues that the EPA can’t enforce the compliance order on its own. It would have to file suit against the Sacketts, putting the matter before a court. And even if the Sacketts lost, the government says, there’s no reason to think a judge would impose the same maximum of $37,500 a day on a homeowner that might be appropriate for a big industrial polluter. That enforcement process provides the Sacketts with due process, the government argues.” 

The bottom line: the EPA can do what it wants. If an individual does not like it, take the EPA to court and hope a judge imposes smaller fines. A $40 million bill from the agency and no provision for due process – all based on an anonymous tip – undermines the right to private property.

The Supreme Court is also looking into another case with private property impacts – are roads used to haul timber subject to the same Clean Water Act permitting as major industrial sites and municipal systems. 

According to the Wall Street Journal, in Georgia Pacific versus Northwest Environmental Defense Center, “an environmental group claimed that water runoff from logging roads was getting into fish-bearing streams. The District Court said there was no case but in its ever-willful way the liberal Ninth Circuit overturned, ruling that the roads should fall under so-called “point source” standards, which require special permits from the EPA.”

The bottom line: make the time and costs for permitting so onerous that managing natural resources in the U.S. is not financially viable – another indirect taking of private property rights. 

Beneficiaries of freedom must speak up

As the beneficiaries of all sorts of freedoms for several generations now, it’s easy to forget how odd it really is to have private property rights. In view of history as a whole and comparatively to other forms of government imposed around the world, America is still unique.

We need a strong government at the federal level and among the states but…

It is wrong for the EPA, representing our federal government, to arbitrarily decide, without proof, without giving the landowner due process that a piece of property is in some form of violation and begin levying huge fines on the owner while the case is being decided.

It is wrong for the Clean Water Act, a very important piece of legislation, to be used as a hammer to cripple business and thus eliminate options for landowners to derive income from their land.

John Adams also said that, “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

Carla Garrison follows current events with one eye on history and the other on the future.  Her goal is to encourage people to know the truth and use it as a call to personal action.

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Carla Garrison

Carla writes about current issues and events with an aim toward telling the truth, using the writings of great thinkers, dead and living, as well as common sense.

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