One of America’s most cherished
constitutional guarantees is the promise that no one may be deprived of
life, liberty, or property without due process of law. Many people know
of the due process protections for people accused of a crime, such as
the presumption of innocence and the right to counsel. But adjudication
processes by regulatory agencies are different, and sometimes result in
property owners being treated worse than criminals.
In criminal law, due process works to
ensure that innocent people are not convicted of crimes. Violations of
due process may lead to evidence being thrown out, or convictions
overturned on appeal. Though no one likes to see guilty defendants walk
free on “technicalities,” when it happens we can take comfort in the
constitutional protections that demand we sacrifice convictions in some
instances to ensure a just criminal justice system for the country as a
whole.
But property owners don’t enjoy those same
protections when regulatory agencies begin enforcement actions against
them. As seen in the table below, property owners operate at a serious
disadvantage when their conduct is challenged by agencies.
PLF client John Duarte knows firsthand just how little due process property owners are afforded.
Other than a single brief phone call from
the Army Corps of Engineers, the federal government gave Duarte no
warning of the cease and desist action for tilling his field to plant
wheat, allegedly in violation of the Clean Water Act. The agency pursued
Duarte without giving him access to the evidence against him or an
opportunity to present any favorable evidence in his own defense. When
he requested a hearing, they ignored him. Agents intentionally destroyed
portions of the record, meaning that some evidence used against John
Duarte has never been seen by anyone outside the agency that found him
guilty. The cease and desist order deprived John of the use of his
company’s land and threatened a potentially devastating penalty against
him, placing hundreds of jobs at risk.
Property rights is one of the cornerstones
of American freedom and liberty. The Founders thought it sufficiently
important that they extended due process protections to three things:
life, liberty, and property. The courts should take these protections as
seriously for property owners as they do for accused criminals.
This article is from the from the Spring 2018 issue of PLF’s flagship publication, Sword&Scales.
2 comments:
This article is correct and reflects the same argument that Cliff Gardner of Ruby Valley Nevada has put forth for years. With the new administration can we hope at least some of these abuses of authority will be stopped by the federal officials themselves?
Cliff Gardner is a rancher, naturalist, and legal scholar who has made the argument that one of the awful violations by federal employees is the deprivation of due process and the second is the nature of federal courts claiming jurisdiction under Article IV.
See Cliff's web site at www.gardnerfiles.com
Mr.Rathbun: Thanks for the gardnerfiles.com website. Quite a bit of good reading/info.
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