DOES THE FEDERAL GOVERNMENT OWN YOUR PROPERTY?
Is your property truly your own or may the federal government on virtually any pretext take it away from you?
More than a century ago, Congress began the movement to exercise federal regulatory control over the nation’s waterways. This year the Clean Water Act turns 41. For four decades EPA regulations have caused thousands of property owners to suffer fines, lose the economic value of their property, or declare bankruptcy and lose their property entirely. Farmers and land owners near waterways have come to learn all to well what it means to experience a regulatory takings—to have your property devalued and your title to property transformed from defeasible to indefeasible. An owner in title only, those who suffer the worst following receipt of EPA Compliance Orders must pay taxes on property they can neither use nor sell.
EPA has defined properties across the United States to be “wetlands” or “jurisdictional wetlands” because those properties accumulate water seasonally, are adjacent to navigable waterways, or are used by migrating water fowl or other water dependent species.
has deemed those who own commercial or residential lots near navigable
waters and choose to build structures on those lots to have violated
EPA regulations that protect “jurisdictional wetlands.”
The Supreme Court case of Sackett v. EPA is an excellent example of
EPA’s “jurisdictional wetlands” regulatory abuse.
The Sacketts own a residential lot in a residential community that is adjacent to Priest Lake in Idaho. Unbeknownst to them, EPA decided to deem their property a “jurisdictional wetland.” Having no knowledge of that EPA determination, they contracted to have the land prepared for construction of their dream home. The earth was leveled in preparation for the laying of a foundation when all of a sudden the EPA arrived on site, informed the Sacketts that they had to halt construction, and then shortly thereafter mailed them a Compliance Order that imposed a fine and penalties of about $75,000 a day on them. They asked EPA to halt the fines and penalties pending a hearing on the matter, but EPA told them it would neither stop the daily fines and penalties nor afford them any hearing. In short, they were told they could not appeal the decision, had to stop construction and return the land to its “wetlands” state, and pay the monies demanded. They sued, and each federal court except for the Supreme Court sided with EPA. The Supreme Court reversed, remanded the case to the district court, and ruled that EPA had adopted a final rule that must be open for judicial review.
The Sacketts are still battling the EPA, and the EPA is still imposing $75,000 in fines and penalties every single day. The figure demanded by EPA is now in the tens of millions. All the while their fate hangs in the balance, depending on what the federal courts decide. If they lose, they will be driven by the EPA into bankruptcy.
That horror is the subject of an interview with Damien M. Schiff, aired on my radio program, Jonathan Emord’s Truth Trial (see emordtruthtrial.com). Damien Schiff is the lawyer who represents the Sacketts. He is the Principal Attorney for the Pacific Legal Foundation in Sacramento, California. He argued the Sackett case before the Supreme Court.
EPA has an ever expanding definition of “jurisdictional wetlands” that essentially embraces every property in the United States that directly or indirectly feeds surface water into a navigable water way of the United States. As much as 75% of land in the United States could satisfy that definition, meaning that the land you think you own may well be land the EPA thinks it controls.
The federal courts have yet to define limits to EPA’s power to declare “jurisdictional wetlands,” and, so, EPA endeavors year after year to expand its regulatory reach, causing ever more private property to slip from private hands and into the clutches of that agency.
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Rarely are individuals whose lands are taken by the federal government ever fully compensated for the taking. At the founding, property rights were considered largely inviolable. No just government could presume to deprive Americans of their rights to life, liberty, and property. Since the mid-1930s, however, property rights have been violated on no more than a rational basis justification; virtually any government reason for depriving Americans of their property has sufficed under the law. Until we restore property rights protection, all Americans remain at risk. Indeed, the entire free enterprise system remains in perpetual peril, capable of being driven out of existence by aggressive economic regulation.
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