Just over a week ago, on July 14 a video was published on YouTube that illustrates how widespread this problem has become elsewhere. Do take a few minutes to watch this.
|The Whatcom Excavator||
A few months ago WE posted information about WWU student demands for a new "College of Power and Liberation" that would, among other things, undertake "de-colonial" work on campus, and have the power to investigate and discipline students and faculty members. Since March 3, little has been written in the Herald or at the WWU website about the subject. What's going on up the hill? Has the situation eased, or has the cult of intellectual oppression taken root? (If anyone knows what the status of the local student revolt is, send us a line at the contact page, or post a comment below.)
Just over a week ago, on July 14 a video was published on YouTube that illustrates how widespread this problem has become elsewhere. Do take a few minutes to watch this.
The "incarceration prevention and reduction" movement is strong here, and WE do wonder/worry that tangible animosity against local cops might lurk - heaven forbid - given some of the inflammatory statements that have been made in Washington D.C. recently - glibly referred to as "buckets of issues" about failed policing (see this pathetic video July 14). One statement stood out, "I think it is fair to say that we will see more tension in police -- between police and communities this month, next month, next year, for quite some time." Hope the police get all the support they need locally.
Three Modest Propositions
by Victor Davis Hanson, National Review Online
June 18, 2016
In future presidential editorialization about the shooting deaths of police officers, perhaps the president himself might first offer a few “words matter” gestures that would reassure law enforcement, to use another Obama phrase, that he “has their back.” Here are just three low-bar proposals for how to discourage those who glorify or advocate lethal violence against criminal-justice officers:
Victor Davis Hanson is the Martin and Illie Anderson Senior Fellow in Residence in Classics and Military History at the Hoover Institution, Stanford University, a professor of Classics Emeritus at California State University, Fresno, and a nationally syndicated columnist.
An increasing number of rural residents in Whatcom County have found themselves the target of unwarranted surveillance, investigation, and pressure from agencies because they have a few animals on their land. In case after case, many have had to give up dearly loved and well cared-for farm animals and pets not because they're polluting, but to prevent ambiguous potential impacts. There's new language proposed for the county Comprehensive Plan that talks about protecting "potential" habitat, without any definition whatsoever.
WE applaud efforts underway to question and confront the systematic, disproportionate institutional injustice of heavy handed regulatory over-reach and takings. VATOR ALERT: County staff has proposed imposing "Stormwater Special District Standards" countywide! If this happens (who can stop it?) the situation will become very much worse for everyone living in the rural county, with or without animals - and staff proposes adding more taxes to boot to give us the boot. These actions are destroying the county's rural character.
July 17, 2016
Last week we shared a post from a Whatcom County rural resident about her problem dealing with the State Department of Ecology (DOE). We shared Kathy and Ozzie’s post because we have heard rumblings from the county that DOE is expanding their compliance programs with real negative effects on rural lives. Well, Ozzie’s story has struck a chord in our county and beyond.
When a state agency comes knocking at your door it is intimidating. They come with the full weight of the state behind them. You can only hope whatever compliance they are seeking will not crush you.
Whatcom County rural land owners are finding there is no easy, quick, or inexpensive way to keep their pets on their acreage when the DOE comes knocking. They are being told they must comply with similar rules and regulations set for commercial farm lands. How does this play-out in the real world? Well, small rural land owners find it difficult to provide a space for their children’s 4-H and Future Farmers of America (FFA) animals. Doesn’t sound right or reasonable, does it? A single horse owner, like Kathy, are rightly confused that her one, 28 year-old horse, now requires a 16 page farm plan, a pipeline and a frost free hydrant to remain grazing in his meadow, his home for the past 20+ years.
An update regarding the Department of Ecology and the enormous problem of us having one horse on 3 acres. We received the 16 page "Farm Plan", which means installing a pipeline and frost free hydrant from the house to the back of the field. I've attached the picture they have sent of our property. You can see from the picture what a huge problem this all is! I don't want to get into politics, but I want to bring up a few points. We have had a horse on this property for 20 years, but now the DOE can come in and say, nope, can't do this anymore. Why don't they have to prove there is a problem? Come test the water in the winter and see if it's contaminated. I'll guarantee you it won't be. We have to get away from the ridiculous restrictions that are coming down and deal with facts. There are consequences to all of this. Ozzie is 28, he has a year or 2 left, why can't we grant him that? We have not had any luck finding him a home. Kelly Park Stables told me how stressful it would be for Ozzie at his age to be moved to new surroundings. Sad.. PLEASE think before you vote or agree with thoughtless regulations. We are the county, our kids should be able to grow up with animals, go to 4-H, show their animals, but that is all going away because you have people that are going to tell us all how we are going to live. I've been told if we speak out on video, we will be targeted. We've also been told that people from the sustainable groups "look for compliance". wow, is this the United States of America any more? I think not in Whatcom County.
Liberty Road requested permission to share Kathy Cross's FB post. The sharing mechanism on FB doesn't work on a FB Page, so we've copy and pasted this post and pictures with their permission from a public sharing on Kathy Cross's FB page
[A recent Facebook entry] from Kathy: I awoke to this message this morning.. HEART BREAKING. Please keep sharing everything, we need to stop this.
VATOR UPDATE: A protest was held at the Washington Ecology office in Fairhaven. Liberty Road reported:
Thanks to everyone who showed to the “Save Ozzie” protest today. We were approximately 40 strong in number. We showed up prepared and informed. We showed up to ask the DOE questions. And, sadly I must report here that the answers given by the Regional Office Director, Doug Allen did not satisfy many there.
A ‘zero’ tolerance level for the potential to pollute is not humanly possible and is not healthy for the environment. As agents for the DOE, it is not a satisfactory answer that they are only enforcing what the Legislature has directed them to do. If the State and Local Legislative Representatives had this intent in mind, then they need to be contacted too.
These are the word of the Whatcom County citizen’s who attended the “SAVE Ozzie” protest. Be patient. Be strong. This type of bullying must stop and we must all come together to ensure that it does.
Thank You for showing your support for “Ozzie” and all Farm Pets…because pets lives matter too.
A number of supportive citizen videos were made which can be seen here.
Good article. While it's good to see industry fighting back, WE don't expect the county's efforts to tank for long. Whatcom County council, staff, WA Ecology, and the EPA will climb right back up on their high horses and continue their long term assault on the 60% of county citizens who live outside Bellingham.
Attack On Whatcom Refineries Tanks
Business and labor protest possible future constraints on jobs and economic growth
By Lens Team / TheLensNews / July 13, 2013
Earlier this year the federal government and then the State of Washington scuttled a coal export terminal at Cherry Point in Whatcom County. Emboldened, an environmental group amped up a related online petition drive to the Whatcom County Council to take further steps. Activists have urged the council to use a scheduled county Comprehensive Plan review to permanently bar expansion of added export capabilities for the BP and Phillips 66 refineries at Cherry Point. Recently, the plot thickened even further.
Council Member Carl Weimer moved just prior to the July 4 weekend to begin fast-tracking a formal approval process to stop future export growth of the facilities. The action by Weimer would be a major jolt to the region’s economy and sparked major blowback from business and labor. For now the growth limits are sidetracked, but likely to resurface.
Cherry Point A Major Jobs Driver
The Cherry Point industrial zone directly and indirectly drives an estimated 11 percent of employment, and 15 percent of salaries paid in Whatcom County. That’s according to the Employment at Cherry Point study released in 2014 by the Northwest Alliance for Jobs and Exports.
Fuel You Use To Drive, Fly
BP emphasizes that its Cherry Point refinery has long played a crucial role in the operation of the region’s economy, supplying fuel for motorists and major airports.
“Since it started operations in 1971, Cherry Point has processed a large share of Alaska’s North Slope crude oil…the facility processes more than 9 million gallons of crude oil a day, primarily transportation fuels. It provides about 20 percent of the gasoline market in Washington and Oregon, the majority of jet fuel for Seattle, Portland and Vancouver, BC international airports, and is the largest West Coast supplier of jet fuel to the U.S. military.”
In comments June 28 to a January draft of the so-called Comp Plan, for a review that’s required under the state’s Growth Management Act, Weimer added new draft language that would have curtailed growth of the jobs engine.
It stated that the County “no longer supports construction of additional export docks or piers at Cherry Point due to environmental and treaty rights concerns” tied to fishing and shellfish harvesting at the shoreline and what he termed increased risk of oil spills.
On Friday July 1, Weimer moved to launch a new stage of council consideration of the proposed change, with scant time for public notice of a new July 5 hearing on the matter.
Alliance: ‘Gutting’ New Job Creation Unwise
Despite the short notice, about 30 people attended the July 5 hearing, many opposed to the swift move to limit growth of export and jobs from the long-established facilities. The council delayed further consideration a week, and this week shelved the proposal for what one council member said could be at least half a year.
In a written remarks, John Huntley and Brad Owens, the Co-Chair and President of theNorthwest Jobs Alliance, said that the “proposed change would prohibit development of property and expansion of existing industrial uses on property zoned for industrial use, thereby gutting the potential for new job creation by existing or new businesses….Creating additional restraints on the viability of new and existing industries at Cherry Point would emasculate Whatcom County’s family-wage job base.”
Blowback From County Staff, Too
A high-ranking county official also weighed in with a warning. In a July 5 letter to the council about Weimer’s move, Assistant Director of Planning and Development Services Mark Personius wrote, “These suggested policy changes would constitute a significant change in land use/shoreline policy…There are potential legal and regulatory consistency issues raised” and “potential economic development and fiscal impacts to be considered,” Personius wrote.
Personius’ letter goes on to recommend the council take some time to consult with attorneys and figure out what position it wants to take on fossil fuel exports and “encouragement of renewable energy.”
Hitting The Brakes, For Now
Weimer and Council Member Todd Donovan voted to move forward with Weimer’s proposal as written but the remaining five voted to further examine the amendments, and allow for more public comment.
“We decided to take the land use proposal and send it back to the Planning Commission and not consider it in this current batch of comprehensive plan updates,” Council Member Ken Mann told Lens after the July 12 meeting. There isn’t a definite timeline, according to Mann, but the language might work its way back to the council within six months to a year.
Huntley and Owens in their statement had decried the rushed timeline. They wrote, “The attempt to limit public participation on this issue is evident, given the timing of the meeting and Council’s statements on the record that they intend to hold the last formal public hearing on August 9th and then to adopt the plan immediately afterward, implying that public comment at the hearing will have little to no impact…”
Two attempts by Lens to reach Weimer for comment were not successful.
Scrutiny, Outreach Lacking
“The challenge is most people who are supporting the proposal believe there are no fossil fuel exports happening at the moment,” said Rud Browne, another council member. Browne told Lens the BP facility is already a fairly significant exporter of refined fossil fuels. If the facility were to be shut down, he said there would be increased tanker traffic in Puget Sound as other refineries brought in fossil fuels from elsewhere.
Washington State Rep. Luanne Van Werven (R-42) told Lens the original land use plan was “acceptable” and encouraged economic growth at Cherry Point. “And all of the sudden these new marked-up amendments completely turned it upside down, without due process,” said Van Werven.
Alcoa-Intalco Works, also located at Cherry Point, would not be able to build a structure for storing aluminum under the proposed changes, according to Van Werven. “There has not been a process of bringing stakeholders together or doing the scrutiny that is always part of major policy changes and (it) is very disturbing that we are all now just finding out about it after the fact,” said Van Werven.
County Executive Cool To Proposed Changes
Whatcom County Executive Jack Louws told Lens, “I don’t believe it is in the best interest in Whatcom County to be involved in limiting the ability of industry particularly without any more public review of a major sweeping policy change like this,” said Louws.
Matthew Hepner, executive director of Certified Electrical Workers of Washington, attended the July 12 meeting to testify against Weimer’s proposed changes. Hepner told Lens the County needs jobs and economic development, especially at a time where wages are “stagnant”. He added that the city of Ferndale “is absolutely dependent on that location for success,” given the number of local residents who work at the refineries. The Phillips 66 facility is near Ferndale.
The proposed language would place Phillips 66 and all Cherry Point energy-based businesses at a severe competitive disadvantage, according to Jeff Callender, spokesperson for the Phillips 66 Ferndale Refinery.
“The proposed amendments would seriously undermine our ability to adapt to changing market conditions and make it difficult for the refinery to maintain existing infrastructure,” said Callender in an e-mail statement to Lens.
Some Voice Support
Others have expressed support. In comments submitted to the council on July 4, Antonella Antonini of Bellingham praised Weimer’s proposal, stating that it “anticipates new industrial development in the clean energy economy” without disrupting current industry operations.
Jayne Freudenberger wrote to the council that further expansion at Cherry Point would interfere with treaties made with the Lummi Nation to protect their fishing rights. “Carl’s amendments strike a good balance – protecting the rights of the existing industries while protecting the area from further expansion of fossil fuels projects,” she wrote.
Council Member Mann said the intent of the proposal is not to shut down industry at Cherry Point. Mann said he has been specific in asking BP and other businesses in the area to be specific about what in the language could threaten their operations. “We want the language to protect them and allow them to continue to operate and function and adapt to market conditions,” said Mann.
Callender said Phillips 66 recommends that any proposed changes should follow the prescribed process beginning with the Planning Commission and allowing adequate time for meaningful engagement with stakeholders.
“All we can do is present the facts as we know them and hope that sound minds prevail,” said Owens.
Mann said the council is seeking to engage the community with more rigorous hearings. He added one option the council may consider is finishing all parts of the comp plan but not doing the final vote until the process for Cherry Point has been completed.
Fishing Impacts Disputed In Coal Terminal Decision
In denying permits for the proposed coal export terminal of SSA Marine at Cherry Point earlier this year, the U.S. Army Corps of Engineers relied heavily on anticipated negative impacts to tribal fishing, buttressed by a report from the Washington Department of Ecology.
However project supporters emphasized minimal impact on fishing. They said that the increase in vessel disruption described by Ecology as 76 percent was deceptive because that actually represented the difference between a fraction of a percent, from .11 to .19. They also stressed that state data showed the number of boats during fishing season opening days from 2002 to 2014 were very few. Over the total 13 year span, project supporters said that within a half mile of the proposed terminal only four boats were counted on opening days, and 11 within a mile.
Reporting and writing by Mike Richards and Matt Rosenberg.
The $18.3 cost of this judgment might be painful for the citizens of SeaTac, but good should come of it - money well spent if the new council can get rid of the staff infection down there.
CITY OF SEATAC SLAMMED WITH $18.3 MILLION JURY VERDICT, CITY ATTORNEYS GUILTY OF DECEPTION
We The Governed, Glen Morgan
July 12, 2016
On Friday, Judge McDermott presided over the final stages of the K&S lawsuit against the City of SeaTac. The results reflect poorly on the City of SeaTac senior staff, legal counsel, and the planning department. In summary, including jury verdict award, interest, and legal fees, the Kingen family was awarded $18.3 million (a new Washington State record for land use jury verdicts). Additionally, the judge made the unusual recommendation that formal sanctions be made against the City of SeaTac’s attorneys who colluded with SeaTac planning staff in a pattern of deception, dishonesty, and violation of the law in order to destroy the Kingen’s commercial property value so that the City of SeaTac could take their property from the Kingens for the city staff’s own central planning schemes.
Judge McDermott found SeaTac guilty of deception and dishonesty on Friday. He had harsh language for SeaTac city legal staff.
I have written several articles here and here detailing what appears to be a serious staff infection at the City of SeaTac. It has been clearly pointed out that SeaTac’s senior legal counsel, Mary Bartolo was providing inaccurate and misleading information to the SeaTac City Council. It appears these articles were not harsh or clear enough. The truth is far worse than anyone has realized. Here is what the judge says:
“A government entity owes a duty of honesty and transparency to those people to whom they deal with…The City (of SeaTac) violated that duty so many times I’ve lost count,…it’s amazing. Quite frankly, the actions of the City of SeaTac in this case are unexplainable and totally unacceptable. The period of deception even lasted through their answer in the public records…I find this to be the worst thing about this case is the actions of the City and how dishonest they were and I find that to be completely and totally unacceptable.” (p46-47 Transcript K&S vs. SeaTac hearing July 8, 2016)
...here is another quote,
“I also want to make sure that there is no mistake on the part of the defendants or the plaintiff that the City engaged in a pattern of deception that lasted years, and because of that, the Kingens’ damages are not just limited to losing the property…” (p45 K&S vs. SeaTac July 8, 2016)
SeaTac’s staff infection and central planning scheme leads to $18.3 million loss to the city
For a complete review of the findings of fact, I have attached documents at the end of this article. However, the summary of this case is basically as follows:
Not everyone gets a warm welcome in SeaTac. Apparently some people have their property stolen by city staff
A land developer (K&S) owned a piece of Land in SeaTac in 2004. They want to build a parking garage. The Central Planning Staff at the City of SeaTac decide they don’t want a parking garage there, but they keep this to themselves, and keep changing the rules for the property owner. City legal staff goes along with the deception aiding and abetting the scheme. The City decides they want the land for their own project, and they keep this secret too. The City staff also wants to partner with another parking garage company, and they don’t want the Kingens to be their competition. Eventually, after many years of closing every development door to the property owner, the City of SeaTac is able to force the property owner into financial distress. The city uses a straw buyer (“the guy”) to acquire the debt on the property and secretly threaten to bankrupt the property owner. Under financial stress and other pressures, the property owner is forced to lose the property and only realizes that the same SeaTac staff who were denying their permits for six years were the same people who bought their debt, threatened them, and now owned the property.
At that point the property owner wants to discover the truth and attempts to get public records to see what was really happening. The City fails to comply, hides records, can’t find records, delays, etc. The property owner takes years to get enough records to realize the enormity of the original scam played on them and files a lawsuit against the City of SeaTac. The city tries to claim that the statute of limitations has run its course (so sorry, you waited too long to figure out what we did while we were destroying and hiding records from you). After many years and expenses, the case goes before a Jury in Superior Court, and in January the Jury awarded $9.6 million to the Kingen family. Last Friday, the final step in this decade long experiment in central planning empire building by SeaTac staff was closed and after interest, penalties and legal fees were negotiated, the City of SeaTac is on the hook for $18.3 million.
A serious housekeeping is in order at SeaTac City Hall.
All this because the City staff, attorneys and to some extent the legacy elected officials decided to play Simcity with other people’s property.
It gets worse – the insurance company may not have to foot the bill.
As I wrote about in my last article on this issue, the insurance company has filed a lawsuit against the city, and to quote from that case, once again:
“There is an actual and justiciable controversy as to whether the City is liable based on any criminal, dishonest, or fraudulent acts or omissions that constitute a knowing violation of the rights of another person.” (paragraph 147 insurance company lawsuit against the City of SeaTac alleging why the insurance company refuses to pay the jury verdict against the city)
Mary Bartolo – SeaTac City Legal Counsel at a recent City Council Meeting. Under her direction, legal staff were dishonest and deceptive, costing SeaTac taxpayers at least $18.3 million
The City of SeaTac’s legal Counsel Mary Bartolo attempted to claim this was misquoting or mischaracterizing that case. However, Friday’s ruling from the judge in this case makes her effort to deceive and mislead the elected officials or the public that much more difficult. In fact, the City of SeaTac probably needs new legal counsel because sanctions are going to be brought against at least some of these attorneys and they may not be able to practice law when this is done anyway.
For the naive and ignorant who still want to suspend disbelief or who think this is hyperbole, let’s quote from Judge McDermott:
“…the City Attorney’s Office participated in this profound and unacceptable pattern of deception. That violates the rules of professional conduct. That is totally and completely unacceptable to this court… I have never filed a complaint against a lawyer, but I would seriously recommend that you take some advantage to do that, counsel, because that can’t be allowed to exist.” (p.49 K&S vs. SeaTac July 8, 2016)
Judge McDermott does give Mary Bartolo some benefit of the doubt in this excoriation of the legal staff, but she does not deserve it. It defies all reason and logic to believe Mary Bartolo did not approve and supervise the pattern of deception which SeaTac legal counsel abetted and encouraged in their planning department. The best argument that Mary Mirante Bartolo can make is that she was incompetent, knew nothing, and that as a manager she did such a poor job that this pattern of deception happened under her nose for many years and she didn’t know. Either way, the taxpayers of SeaTac are on the hook for $18.3 million and the city desperately needs new legal counsel.
It should be noted that interest will continue on this award throughout the appeal process at 12% per year until it is paid. That is over $6,000 per day, $180,000 per month, $2 million per year that will be added to the $18.3 million. At some point, this becomes real money – even when the bureaucrats and politicians act like it doesn’t really matter.
SeaTac City Councilman Tony Anderson finds Tea Party Conspiracies in every shadow, but can’t see corruption when it is presented to him with evidence in court. The Jury did not find his testimony to be credible.
Long-term City Council member Tony Anderson, one of the few incumbents left on the SeaTac City Council was paid to represent the city throughout the long jury trial. Despite all the evidence he witnessed, when called to the stand and asked if he thought the city staff did anything wrong, he paused for a long time and finally said “No.” The jury disagreed. This illustrates what is wrong in the City of SeaTac. Some elected officials and staff don’t see corruption even when it is presented to them. These are the people who should not be in government.
How many others have been harmed by SeaTac’s staff infection?
The real question that this entire fiasco raises for the citizens of SeaTac and their elected council is just how many other people have had their lives ruined, investments destroyed, and dreams dashed because of staff run amok? It is doubtful that the Kingen family is the only property owner damaged by this behavior. There are many of them, but most of their dreams were successfully crushed by the city staff and schemes. It is hard to beat City Hall. When City Hall is corrupt and dishonest, it gets harder. We are fortunate that Kathy and Gerry Kingen prevailed and has exposed this corruption for all to see. We can only hope this discourages other cities and bureaucrats from doing this to property owners as well.
Voters swept out incumbents in SeaTac last fall. New Council members being sworn into office in January 2016. They have their work cut out for them.
Fortunately for the taxpayers of SeaTac, there is a bright side to this dark cloud over the city. Voters last November replaced all four incumbents with new elected officials who can turn over a new leaf and bring honesty, transparency, and fiscal responsibility back to the city. While staff have successfully sabotaged the new council’s first city manager, it is possible for the council to recover. Additionally, the council can remove their corrupt and dishonest legal staff. New attorneys are not hard to find. Cleaning up city government is never easy, but it has to start somewhere.
We may never know how many have been harmed in the past or are being harmed right now by this abusive staff, but we can start the healing process by replacing senior city staff and perhaps reminding them that they work for the people and to stop treating the people like the governed…
In SeaTac, nobody is safe from staff’s plans to steal your property.
Our Constitution begins with the phrase “we the people.” It was the founder’s intent that government be created by the people, to serve the people. It wasn’t their intention for the people to serve the government. It was always intended that government which failed to serve the people should be “altered or abolished.” Until we return to the founder’s intent, we remain We the Governed…
Source documents and related articles linked below:
City of SeaTac misled by staff attorney, highlighting the staff infection
The City of SeaTac suffers from a serious staff infection
Resident tells SeaTac Council to put aside personal gripes and “fix the damn city”
Childish Political Leadership in Thurston County is Costing Taxpayers Millions
July 8, 2016 Hearing Transcript KS v. SeaTac
Findings of Fact and Conclusions of Law in Support of Promissory Estoppe…
Interrogatories and Answers
Insurance company rejects payment because of fraud and other reasons by the City of SeaTac
Jury Verdict – K&S Verdict Form (note Misrepresentation Claim 1.3 is another term for “Fraud”)
Plaintiffs Briefing – In support of Promissory Estoppel Claim
Seatac -Prothman Report – 2010
Supplemental Briefing on Constitutional Issues
Support of Motion for Partial Summary Judgment
K&S – Trial Brief
Trial Exhibit 110 – 154th Redevelopment PP presentation
Trial Exhibit 111 – 176th Redevelopment Plan (Power Point Presentation)
City’s Press Release – Jan 2010 (original)
Revised Final Press Release (City Press Release rewritten by K&S to represent their view of the situation)
DEPOSITION of CRAIG WARD (former SeaTac City Manager)
DEPOSITION of STEPHEN BUTLER (former SeaTac Director of Planning)
DEPOSITION of TODD CUTTS-Dec 1 – 2013
The Fourth of July is the day we adopted the Declaration of Independence, 240 years ago. We're not celebrating the day, we are celebrating our independence! And not just some proto-Brexit. The big idea was that persons were by nature free in thought and spirit, and that the powers of civil and just order rested in the will of the people. We had not only the right but a duty to free ourselves of tyrannical governance.
Thomas Jefferson wrote,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
Think about that.
We hold these truths to be self-evident,
What we are about to say should be obvious to anyone,
that all men are created equal,
That there is no divine right of kings (it's obvious that we're not all the same, but nobody has special privileges under the law, or in the eyes of God),
that they are endowed by their Creator with certain unalienable Rights,
That we are born with basic human rights that cannot be granted by any government, because they're ours to begin with,
that among these are Life, Liberty and the pursuit of Happiness.
To name but three, Life, Liberty, and the pursuit of Happiness. Life, Liberty and Property were the three rights listed in common usage by Classical Liberals. However, Jefferson changed Property to pursuit of Happiness. What seems like a a mere dated turn of phrase today, probably caused a swivel-neck double-take at the time.
WE surmise that Jefferson didn't want to enshrine Property (as in Slavery) in a document like this. Slavery was a property rights issue back then. But slavery was the antithesis of all men being created equal.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
To secure these rights (not grant them!), governments are instituted among men (government is man made, there is no divinity about it). As Monty Python put it so graphically in The Holy Grail, "I mean, if I went around sayin' I was an emperor just
because some moistened bint had lobbed a scimitar at me they'd put me away!"
And of course, this government does not lord it over the people; rather the government derives its power from the consent of the governed.
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
And so, when the aforementioned conditions are not met, We the People must do something about it. To wit, change it, or replace it with something that is organized such that it will secure our rights, i.e., safety and happiness.
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
We're not talking about change for the sake of trivial change. And we've demonstrated a remarkable willingness to put up with quite a bit of abuse, for as long as we can stand it, than to replace a familiar but dysfunctional state.
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
We reach a point, however when enough is enough. When we see a series of rules and regulations that continue to limit our ability to pursue happiness, crushes our liberty, and threatens our lives, we should, we must, do something about it.
Has our government crossed that line? WE believe it is becoming dangerously arrogant about it's role in our lives. Are WE proposing a revolution? Secession? No, and no. But we can, and we should compare the role of today's government to the principles that Jefferson lays out.
WE believe somebody (look to the left and to the right) needs to monitor our government much more closely than we have of late. Our city and county councils meet twice a month, and the bureaucracies run five days a week, vigorously churning out new programs, rules and regulations, depleting our earnings, and limiting what we can and cannot do.
Government is taking our liberty, and selling it back to us as permits. WE haven't been asking for this, but rent-seeking, grant-grubbing special interests have. Here's a news flash: special interests are not We the People. They are not created equal. They do not deserve special treatment under the law.
This Independence Day, let's consider what insufferable evils, abuses and usurpations led our founders to a bloody revolution. Let's consider what we can do to avoid the need for another revolution. Let's restore our founding principles peacefully, while we still can.
Maybe you've heard about this (Published on YouTube May 17, 2016) with this note:
"In the City of Bellingham, Arthur Thomas is being charged with the crime of washing his car. Many other cities and counties in Washington State have passed similar ordinances or codes under pressure from the Washington State Department of Ecology. The goals of the ordinances are to punish citizens for washing their cars because it might pollute the environment. It is also convenient revenue collection. It is the overcriminalization of normal human activity like this that leads us to recognize that we are no longer living like "we the people," but have instead become "we the governed."
If you like this video and wish to read more about the need to protect property rights, please visit www.capr.us. Please consider joining, donating, or both so that we can continue to tell stories just like this one. Only by exposing the truth to the largest audience possible can we begin the process of reversing these unjust ordinances, regulations, and rules that produce such miserable results...this isn't freedom, and it certainly is not justice."
This book interview may look long, but WE think it offers a gripping synopsis of the deep philosophical struggle that confronts and divides us. Is the nation and its constitution (in non-partisan terms) "a republican one or a democratic one"? Barnett explains the fundamental schism, in his own words. Don't miss his new book, which is worth every penny.
The Individualist Constitution
Libertarian legal superstar Randy Barnett
challenges conservative judicial orthodoxy.
Damon Root from the June 2016 issue, Reason.com
In 2012 Chief Justice John Roberts led the U.S. Supreme Court in upholding the constitutionality of the Patient Protection and Affordable Care Act. "It is not our job," Roberts wrote in National Federation of Independent Business v. Sebelius, "to protect the people from the consequences of their political choices." With those deferential words, Obamacare was saved from legal destruction.
Most conservatives today remain outraged by Roberts' opinion. But according to Georgetown law professor Randy Barnett, one of the architects of the legal challenge to Obamacare, those conservatives don't really understand what it is they're railing against. In that case, Barnett writes in his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, "the chickens of the conservative commitment to judicial restraint [came] home to roost." For far too long, Barnett maintains, too many legal conservatives, from John Roberts on down, have championed judicial deference to majority rule at the expense of the judiciary's duty to enforce the Constitution and act as a check against the other branches of government. Conservative legal orthodoxy itself, in other words, played a central role in allowing Obamacare to survive.
Barnett is now on a mission to upend that orthodoxy. "The Obamacare decision had a very galvanizing and chastening impact on conservatives generally, and I believe caused them to begin to rethink this reflexive acceptance of a progressive concept of judicial restraint," Barnett says. "This book is intended to offer my proposed approach to the appropriate role of judges going forward."
Barnett, a professor of legal theory at Georgetown University Law Center and the author of nine previous books, including Restoring the Lost Constitution: The Presumption of Liberty, spoke with Senior Editor Damon Root in February about the republican Constitution, the specter of judicial activism, the legacy of Justice Antonin Scalia, and why he worries that "winter is coming" to the U.S. Supreme Court.
reason: The title of your new book is Our Republican Constitution. You say that you are using the term republican in a non-partisan manner. How are you using the term?
Randy Barnett: The thesis of the book is that there are two different approaches to the Constitution, the republican one and the democratic one. They're each based on different conceptions of "We the People." If you take "We the People" as a group, and you're concerned with "We the People" governing, then the only way that the will of the people can govern is by majority rule. So then anything that gets in the way of majority rule is suspect and potentially illegitimate. Which includes judges getting in the way. Judges are not accountable, they're not elected, and if they get in the way of the will of the people there is something wrong there. That's the democratic Constitution.
If you take "We the People" as individuals, as I believe the Declaration of Independence does, then the purpose of government, according to the Declaration, is to secure the rights of "We the People," each and every one of us. Then government is the servant of the people, and the function of judges—who are also servants of the people—is to fairly adjudicate disputes between members of the sovereign people and their servants. People as a group yields completely different judges than people as individuals. "We the People" as individuals yields a republican Constitution and in the book I maintain that the Constitution we have is a republican Constitution.
reason: You stress the idea that the rights of the American people predate the existence of the American government. Why?
Barnett: The Declaration of Independence says that all persons are created equal and they are endowed by their creator with certain inalienable rights. So the Declaration says, first comes rights and then comes government to secure these rights. That is the republican vision that led to the U.S. Constitution.
reason: What role do the Reconstruction Amendments—the 13th, 14th, and 15th Amendments—play in your conception of the Constitution?
Barnett: The initial Constitution, though it was republican and though it was not democratic, was highly imperfect. It left democratic rule at the state level free enough to impose slavery on some members of their populations. Eventually, as everyone knows, this led to intense conflict and a new anti-slavery Republican Party, and eventually a Civil War, finally culminating in that Republican Party passing amendments to the Constitution that did not make the Constitution perfect, but did make it much more republican. It now protected individuals from majorities in their states where previously those protections were very, very few in the Constitution.
reason: You're closely associated with the legal philosophy known as originalism, which says that the Constitution should be interpreted according to its original meaning. What's wrong with the idea of viewing the Constitution as a living document, or at least as a document that's flexible enough to adapt and change with the times?
Barnett: The written Constitution is the law that governs those who govern us. Those who are being governed by that law should not be able themselves to change it without going through the amendment process any more than we can change the laws that are governing us just because we don't like them. A written Constitution is simply a means to protect the rights and powers retained by the sovereign people. You have to jump through some amendment hoops before the government can expand its powers. They cannot do it on their own. That's all originalism says.
reason: You envision the courts playing a robust role in enforcing the terms of the Constitution. What do you say to the charge that your approach will end up giving judges the license to engage in judicial activism?
Barnett: Judicial activism is a pejorative used by people to describe judges striking down laws that they shouldn't strike down. Almost no one believes that judges should never strike down any law. So striking down a law that ought to be struck down is not judicial activism. I'm only calling for judges to invalidate laws that are unconstitutional, and therefore I do not favor judicial activism. But I do favor what's called "judicial engagement," which means that judges should not be passive and should not be upholding laws that are unconstitutional. And by unconstitutional here I mean beyond the just powers of government, as the Declaration says.
reason: When we talk about constitutional law, it's common to talk in terms of rights. Did the government violate my right to free speech, did the government violate my right to keep and bear arms, etc. But you spend much more time in this book on the issue of government powers. Why is that?
Barnett: One of the purposes of this book is to refocus our attention on the scope of government powers and move away from this discussion of rights. As you know, I've done a lot of work on the Ninth Amendment ["The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"], but I never thought it was the first, best option for judges to identify unenumerated rights and then enforce them. That was only something that should be done in our current constitutional regime in which certain rights are separated out for special protection; I believe others should be added as well. But I believe the first, best option is to hold government to its just powers. We shouldn't be focusing most of our attention—and neither should judges—on what our rights are. We should be focusing our attention on what are the just powers of government and asking whether government is acting within those just powers, whenever it is restricting the liberty of the people as generally understood.
Now, the liberty of the people does not include the liberty to rape, murder, or rob people; that's not liberty. That's what a classical liberal would call license, or unjust conduct. But if you're not doing any of those things, if you're going about your business and now government wants to restrict your liberties, then it needs to do so only within the limits of its just powers. The attention of this book is on what are the just powers of government, and how does the U.S. Constitution limit governmental powers, and why are those limits good for liberty without judges specifically protecting rights per se?
reason: On the state level, doesn't that still raise the question of what rights are protected by the 14th Amendment, either via its Privileges or Immunities Clause or via its Due Process Clause? How should federal courts go about holding states to their just powers?
Barnett: I agree it's somewhat more difficult at the state level. The Privileges or Immunities Clause is really no more difficult to understand than the Ninth Amendment. It's a reference to the retained liberties of the people as well as certain additional special protections that are enumerated in the text of the Constitution that formerly had been only applied to the federal government. Identifying the privileges or immunities is not all that difficult. What makes states somewhat more difficult is figuring out what are the just powers of states. The Congress has specific, enumerated powers, so you have a list you can consult. As long as they are exercising one of those powers it's constitutional. States have general powers. So then you need a theory of what those powers are. Now, these are unenumerated powers. Unenumerated things are more uncertain than enumerated things. But general powers were never thought to be unlimited powers. Unlimited power is tyranny. Arbitrary and irrational rule is tyranny. And no small-r republican thought states had that kind of power.
I talk a lot in the book about irrationality and arbitrariness and how there was always objection to irrational and arbitrary laws. The debate then is over what is the exact scope of government power, what are the appropriate state purposes. And there is a fundamental agreement, a widespread consensus on some of that, which we can summarize as health and safety laws. Any laws that are meant to protect the health and safety of the public would be within the proper province of state governments.
reason: What do you say to those who maintain that the states actually have very broad powers to regulate economic affairs, including the passage of what you or I might consider to be "irrational" legislation that harms economic liberty?
Barnett: I don't think there are very many people who would expressly say that states have the power to pass irrational and arbitrary laws of any kind. The Supreme Court has never said that. In fact, it's denied it. I think that the Constitution is not perfectly libertarian, and it is constitutional for states to regulate economic liberty in ways that we libertarians might find counterproductive and bad. That doesn't necessarily make them irrational and arbitrary. The Constitution provides an outer boundary that is more libertarian than the one the courts currently enforce, but may not be perfectly libertarian.
I would also stress that libertarians do believe in the reasonable regulation of liberty. Libertarians have nothing against contract law. Contract law is an elaborate body of doctrine meant to regulate the making and enforcing of contracts. Libertarians do not object to property law, which is an elaborate body of doctrine related to the acquisition, ownership, possession, and disposition of property. Or tort law. These are all bodies of law that regulate the exercise of liberty and distinguish between rightful conduct and wrongful conduct.
reason: Many conservatives are critical of substantive due process, or the use of the Due Process Clause to protect substantive rights from government regulation. You're also somewhat critical of it in this book. But at the same time you maintain that judges should use the Due Process Clauses to protect substantive rights in certain cases. Could you explain that?
Barnett: Substantive due process was a phrase made up to criticize the Court for using the Due Process Clause in certain ways. It was meant as a pejorative, like judicial activism. It was meant to be contradictory. Substantive due process is a contradiction in terms; procedural due process is a redundancy. So it was always a pejorative term. Modern substantive due process is objectionable because it relies on judges to distinguish between liberties they find to be fundamental and liberties they find not to be fundamental, and to protect the former and not protect the latter.
The Due Process Clause is about the application of statutes that purport to be laws to individual persons. It's part of the due process of law that an individual person can challenge whether a law is within the just powers of the government to impose on them and is properly a law. And they ought to be able to do so before a neutral tribunal, which is what is provided by the judiciary. So in that sense judges should be able to say whether a law is within the just powers of government, and they're going to have to look at the substance of the law—not just the way it was passed—in order to assess that.
reason: In other words, being able to go to court to vindicate your rights is part of what the due process of law covers?
Barnett: One way of looking at this is when you bring a First Amendment claim in court, there's no reason why it's not a "substantive due process" claim. It's part of the process of law that individuals can go to court and challenge a statute that's being applied to them because it violates the First Amendment. We just think of that as a First Amendment case, but the challenge that's taking place in court is part of the due process of law. And to handle that challenge you need to look at the substance of the law to see if it violates the First Amendment.
reason: Your previous books have been published by academic presses and written largely for scholarly audiences. This book reads more like a call to arms. Who is your intended audience here?
Barnett: This book starts off by talking about my experience in challenging Obamacare. And I do believe the Supreme Court's decision in Obamacare represented a legal-cultural inflection point for the conservative and libertarian legal movement. Up until that time, those of us who argued for the kind of judicial engagement we've been discussing were clearly the minority view within the conservative legal movement. The Obamacare decision had a very galvanizing and chastening impact on conservatives generally, and I believe caused them to begin to rethink this reflexive acceptance of a progressive concept of judicial restraint.
Now exactly where that rethinking takes them is an open question. This book is intended to offer my proposed approach to the appropriate role of judges going forward. It's directed more specifically at conservatives than the left. In the past my academic writings have probably been more aimed at the progressive mainstream of legal academia, whereas this book is really more aimed at conservatives—and libertarians, because I don't think libertarians fully understand what they ought to be for, either.
That's my target, therefore it has a certain stridency my other writings haven't had. I presented the book to a seminar here at Georgetown and one of the students reasonably replied that as a progressive he found the rhetoric a little bit off-putting. And I replied, "It wasn't written for you." It was written for people who already agree on some of these things but have a different view of judges. And I think their different view of judges has always been based on a different view of "We the People" and popular sovereignty. It's a book that goes back to first principles in order to expose people to this other vision of popular sovereignty.
reason: You just referred to some conservatives having a "progressive concept of judicial restraint." Lots of conservatives probably think judicial restraint is a bedrock conservative principle. What does progressivism have to do with it?
Barnett: This book is primarily a narrative. It's a story that starts at the beginning and takes us to the present. And a very important chapter in that story, and in my book, is about how the progressives changed our view of the Constitution as well as our view of the role of judges. They changed it from a republican Constitution, where judges were considered to be guardians of the rights of the people, to a democratic Constitution, where judges are problematic because they thwart the will of the people and therefore should exercise their power of judicial review with restraint.
By the way, the phrase "the power of judicial review" was relatively unknown prior to the 20th century. Prior to the 20th century, prior to the rise of progressivism, there was simply a judicial duty to enforce the law. And the Constitution being higher law, any inferior law such as a statute that was in conflict with the higher law was invalid. Where did "the power of judicial review" come from, as opposed to the judicial duty to follow the law? It came from, I believe, the idea that duties are obligatory; you have to do it. But powers are discretionary. By shifting from the idea of duty to follow the law to the power of judicial review, [progressives] introduced the notion of judicial discretion and judicial restraint precisely to get judges out of the business of protecting the liberties of the people from progressive state legislatures and then a progressive Congress, in the form of the New Deal Congress. So this was a calculated political strategy. And modern political conservatives were all educated by progressives of various kinds, and the debate on the Court after the New Deal was between the restraint progressives and the activist progressives. Conservatives tend to line up with the restraint progressives. The book tells this story in some detail.
reason: In your view, what Supreme Court decisions reflect the judicial duty properly applied?
Barnett: I spend a great deal of time talking about the lower court decision inWilliamson v. Lee Optical, which was called Lee Optical v. Oklahoma. In the lower court decision, which was a three-judge panel, it evaluated a restriction on the practice of selling eyeglasses in Oklahoma. Lee Optical was a company that operated basically like LensCrafters does today: You could go into the store to get new glasses and they would figure out what your prescription was by putting your glasses in a lensometer, and they would make you a new pair of glasses. The legislature basically outlawed what we would think of as LensCrafters in favor of sending everybody to ophthalmologists and optometrists, denying opticians the right to pursue this occupation. The lower court judges said that this was unconstitutional because it was irrational and arbitrary, and they took evidence, they heard argument, they heard witnesses, and after evaluating the evidence in a lengthy opinion they explained why this was irrational and arbitrary.
It then went to the Supreme Court and the Supreme Court said, "Forget all the evidence. Forget realistically assessing the law. As long as we can imagine a reason why the legislature might have done these things, even if there's no evidence that's why they did it, it's constitutional enough for us." I think people should look at that [lower court] decision as a model of what judges are capable of doing.
reason: You were an adviser to Rand Paul's presidential campaign. Now that Paul has dropped out of the 2016 race, are there any remaining presidential candidates who align with your legal views?
Barnett: I'm not advising any other campaigns, and by the time this interview appears we may know who the Republican nominee is going to be. Libertarians—and conservatives also—may be put to some very hard choices about who they should support in the next election.
reason: The recent death of Justice Antonin Scalia has thrown the future of the Supreme Court into doubt. You got to know Scalia personally and also argued before him in Gonzales v. Raich, where you represented medical marijuana patients in a federalism challenge to the Controlled Substances Act. Can you say a few words about Scalia and his influence on the law?
Barnett: I first met Justice Scalia when I was a research fellow at the University of Chicago. He was a contracts professor. The next time I saw him was when I argued the Raich case. He was my toughest questioner that morning and he ruled against us. I must admit that I was bitterly disappointed by his stance. I wrote a rather strident article condemning his approach, called "Scalia's Infidelity," in the Cincinnati Law Review. After I came to Georgetown I got to know him professionally. We never became social friends but I got to know him in a variety of venues.
He visited my small seminar to talk about his new book, and I introduced him at various talks at Georgetown. And I grew very fond of him. I also taught constitutional law and I taught his opinions. I came to respect his concurring opinion in the Raich case. I don't have a very high opinion of Justice [John Paul] Stevens' majority opinion, but I think Justice Scalia's concurring opinion is quite well-reasoned and only makes a single assumption that changes the outcome. And that is whether we were entitled to a meaningful hearing on whether this prohibition on medical marijuana was essential to a broader regulatory scheme. He adopted the judicial deference and restraint approach, and once he did that the outcome was determined. But the structure of his argument was actually pretty good. So I got to know him, I got to respect him, and then upon his passing I realized I had actually grown to like him. I hadn't realized that I had grown some affection for him.
His legacy is complicated. He had a huge impact on the way the Supreme Court does its job. When he came in, the Supreme Court was anti-textualist. It paid scant attention to the text; it pretty much did whatever it felt like. This was exemplified by his sole dissent in Morrison v. Olson about the independent counsel law [allowing for investigations of public officials to be conducted by "special prosecutors" who do not answer to the president]. It was an 8–1 decision. Chief Justice Rehnquist wrote the majority. Justice Scalia had just come on the Court when he dissented and questioned [the law's] constitutionality based on first principles and separation of powers. He predicted very bad results as a result of this law and his prediction proved prescient. Not because he was such a great prognosticator but because he was following the principles of the Constitution.
We've gone from that decision in the 1980s to the Heller case in 2008 in which now, representing the majority, Scalia writes a comprehensively originalist opinion restoring to the Constitution an entire amendment in the Bill of Rights, the Second Amendment right to keep and bear arms. Even the dissenters in that case, as exemplified by Justice Stevens' dissent, were speaking wholly in originalist terms. Nine justices all talking about original meaning. That's a sea change, and he is responsible for that sea change.
reason: You've been a constitutional scholar and litigator for three decades. From where you stand now, are you optimistic or pessimistic about the future of the law?
Barnett: It's going to depend on who replaces Justice Scalia and who replaces other justices that will inevitably retire. If they're replaced by progressives who believe in a living Constitution then we're in for a very long winter. Winter is coming, Damon.
Things have been moving in the direction of originalism, things have been moving in the direction of limited government in the courts—very slowly, very incrementally, but it has been moving forward. And we're winning the intellectual battle outside the Court, which has started to have an effect inside the Court. But ultimately who gets to be on the Court is a political matter that gets to be decided by an elected president and an elected Senate. If the elections go the wrong way, or the president is insufficiently aware of these issues, or delegates this decision to the wrong people, then we can be in for a very bad time.
SCOTUS = Supreme Court Of The United States
WOTUS = Waters Of The United States
The Supreme Court ruling in the Hawkes case described below may not, at first blush, seem to offer much direct relief in respect to over-reaching 'wetlands protection' takings here in Whatcom County. But it may have some bearing on some of the sweeping Corps of Engineers actions that have been taken locally. For example, the Corps buddied-up with the Lummi tribe in establishing their "wetlands and habitat mitigation bank" in 2012. Does its large "WOTUS" area meet criteria that would withstand scrutiny in a federal court? Those who find themselves in the crosshairs, forced to buy 'shares' in the mitigation bank to make improvements to or simply use their property within this huge area that's been turned into a piggy-bank, might be able to seek judicial review given this Hawkes decision. Also see this Pacific Legal Foundation synopsis of the case.
at The PERCOLATOR, the PERC Blog
Property and Environment Research Center
re-post by Professor Jonathan Adler
Originally appeared at the Washington Post's Volokh Conspiracy blog on May 21, 2016.
This morning, the Supreme Court issued a single opinion in an argued case that should be of particular interest to private landowners and administrative law aficionados: U.S. Army Corps of Engineers v. Hawkes. In Hawkes, a unanimous court concluded that private landowners may challenge a federal agency’s conclusion that a given piece of land is subject to regulation under the Clean Water Act (CWA) once such a “jurisdictional determination” has been made. With this ruling, the court handed private landowners a small but significant victory.
Here’s some background. Under the CWA, it is illegal to “discharge” a “pollutant” into the “waters of the United States” without a federal permit. These terms are defined quite broadly, so that the deposit of soil, dirt or clean fill may constitute the “discharge” of a “pollutant.” This means that a private landowner who seeks to build on his or her property, perhaps by building a home, must obtain a federal permit if (and this is the key part) that land is considered part of the “waters of the United States.” How would a piece of land be considered “waters”? Because the federal government has defined the “waters of the United States” to include wetlands. If such lands are sufficiently connected to other waters, such as rivers and streams, they are subject to the CWA’s permitting requirements.
For an individual landowner, it is not always clear whether a given piece of land is subject to the CWA regulation. For this reason, landowners may seek a jurisdictional determination from the federal government (specifically, the U.S. Army Corps of Engineers), in order to find out whether federal regulators believe a permit is required. If the Army Corps says “no,” then the landowner is in the clear (at least under the CWA). If the Corps says “yes,” then the landowner must obtain a permit before, say, placing fill on the property.
Under today’s decision, a jurisdictional determination is a final agency action that is subject to judicial review. This is because once the Army Corps determines that a given parcel is subject to regulation under the CWA, it has reached a final conclusion about its jurisdiction, and this decision has clear consequences. If the Corps concludes it has no jurisdiction, the landowner can be sure the he or she will not risk federal prosecution for developing the property without a permit. If the Corps concludes it does have jurisdiction, then the landowner knows that developing the property without a permit is, in the view of the agency, illegal. Further, the court concluded, once an affirmative jurisdictional determination has been made, a landowner has no meaningful alternative to judicial review to contest the agency’s decision.
What this means, in practical terms, is that landowners have greater ability to determine whether their property is subject to federal regulation and to challenge potentially overbroad assertions of jurisdiction. If the Army Corps tells a landowner that a given property is subject to CWA regulation, and the landowner disagrees, the landowner may challenge the Army Corps’ determination right away. Had the federal government prevailed, however, a landowner faced with an unfavorable jurisdictional determination would have had to seek a federal permit (which can be costly and time-consuming, and its own source of uncertainty) or risk prosecution by developing the property without a permit.
Chief Justice John Roberts wrote the opinion for the court. Three other justices wrote concurrences: Justice Anthony Kennedy (joined by Justices Samuel Alito and Clarence Thomas), Justice Ruth Bader Ginsburg and Justice Elena Kagan.
Kennedy’s concurrence stressed that even with the court’s decision (and its prior decision in Sackett, which I discussed here and here), the application of the CWA to private property “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the nation.”
Also, of particular interest to administrative law types, Kagan and Ginsburg expressed differing opinions on the effect of Bennett v. Spear on finality doctrine — an interesting question to be resolved another day.
Redefining the Waters of the United States: The EPA’s new water rule could discourage private conservation efforts.
Last August the Excavators reported on Seattle's outrageous trash snooping scheme directing trash collectors to pick through folks' garbage bags in order to shame and fine anyone not recycling according to dictum. "In a city where political correctness trumps individual rights, the city passed an ordinance that not only requires Seattlelites to compost their food waste, but required its trash collectors to inspect trash cans for excess food waste, with the threat of shaming notices and fines for noncompliance. The problem here is that the Washington State Constitution’s right to privacy doesn’t allow this — according to well-established state Supreme Court precedent."
Pacific Legal Foundation (bless them) took this on, and won! Resistance to coercion may not be entirely futile.
Pacific Legal Foundation
Ethan Blevins - April 27, 2016
Today, Judge Beth Andrus ruled that Seattle cannot hunt through its residents’ garbage in search of prohibited food waste. Our lawsuit, Bonesteel v. City of Seattle, challenged a Seattle law that says garbage collectors must search through trash cans along their routes each week to determine whether more than ten percent of the volume of your garbage contains food waste or recyclables. We relied on Washington’s right to privacy, which ensures that “no person shall be disturbed in his private affairs” without a warrant. The judge agreed that the garbage can contains private information about our lives that deserve protection from prying eyes. If Seattle wants to rifle through your trash, it’ll now need a warrant. You can read the judge’s opinion here.
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