Move over, Saddam: Overzealous regulators also threaten Freedom

February 21, 2003

By M. David Stirling
Vice-president, Pacific Legal Foundation

I believe there are more instances of the abridgment of the freedom
of the people by gradual and silent encroachments of those in power than by
violent and sudden usurpations. - James Madison

Madison's concern is as germane today as it was when America was new: threats
to our freedom through "violent and sudden usurpations" elevate our vigilance
to the highest level, but abridgments that are "gradual and silent" receive
scant attention. Indeed, well after the purveyors of murder and mass
destruction are driven from the world scene, America's seminal principles of
freedom, democracy and the rule of law will continue to be assaulted by
"those in power"-- today, the modern government regulatory bureaucracy.

Although its encroachments abound, nowhere is the intrusiveness more evident
than in the assault on Americans' freedom to own and reasonably use private

Through laws such as the Clean Water Act (CWA) and the Endangered Species Act
(ESA), Congress delegated to federal agencies authority to regulate land use
on private property under specified and limited circumstances. Yet, although
these agencies' quest for "command and control" of private land use abrogates
the rights of thousands of property owners daily, this diminution to our
freedom goes largely unnoticed by most Americans.

In the CWA, Congress authorized the Army Corps of Engineers to regulate
"navigable waters of the United States." Nevertheless, the Corps continuously
asserts its authority to regulate nonnavigable waters, such as isolated
wetlands, vernal pools, prairie potholes, and drainage swales -- areas wet
during the rainy season, but with little or no connection to "navigable

For example, the Corps argued for years that isolated ponds and puddles were
magically transformed into "navigable waters," and subjected to regulations,
merely by the stopover of "migratory" birds.

Finally, in SWANCC v. Army Corps of Engineers, the Supreme Court struck down
the Corps' expansive "migratory bird" rule, holding that the Corps' authority
does not extend to isolated wetlands that aren't adjacent to a traditional
navigable waterway.

The Court characterized the Corps' expansive approach as "(pushing) the very
limit of the congressional authority."

But instead of reining in its excessive use of authority, the Corps turned
right around and criminally prosecuted John Rapanos for filling isolated
wetlands on his Michigan property that connected to a navigable waterway --
twenty miles away.

At the Corps' urging, Rapanos was sentenced to three years' probation and
fined $185,000.

The United States Supreme Court vacated the conviction and remanded the case
to the lower court in light of its SWANCC decision.

On remand, that court rejected the Corps' argument, ruling that "adjacent"
means directly adjacent to navigable waters.

With typical arrogance, the Corps has appealed this ruling.

Under the ESA, property owners whose land use might "harm" a listed species
can be severely restricted and even prevented from using their land.

In an all-too-frequent practice, the federal regulators utilize "politicized"
junk science to support the species' listing.

One example: hatchery-spawned coho and naturally spawned coho have interbred
in Oregon's Alsea River for over 50 years. Although the different means of
fertilization produce genetically indistinguishable fish, the feds counted
only the meager number of naturally spawned fish, while disregarding the
thousands of thriving hatchery coho. Why?

Because a smaller coho count implies that the species is imperiled, giving
the feds authority over all private property for several miles on either side
of the river.

Through this and other disingenuous devices, these agencies effectively take
control of millions of acres of private property without compensating the

The sad truth is that this regulatory bureaucracy has become so large,
unaccountable, and powerful that Congress effectively has forfeited
meaningful oversight of how these laws are administered and enforced.

This leaves victimized private citizens, especially smaller landowners and
business persons, with the near-insurmountable burden of challenging the
government's intrusive land use control in the courts.

Confronted with the enormous costs, delays, and sleepless nights associated
with going up against federal bureaucrats with no personal stake in the
dispute, but unlimited tax-generated resources, most property owners simply
capitulate rather than fight.

Until the President and Congress take back the "people's government" from the
out-of-control regulatory bureaucracy, America's core values of freedom,
democracy and the rule of law will suffer "gradual and silent encroachments."

What hangs in the balance is the question implicit in Madison's warning: how
many years of such encroachments before the "freedom of the people" is a
thing of the past?

* A former judge, state legislator and chief deputy attorney general of
California, M. David Stirling is vice president of Pacific Legal Foundation
( Mr. Stirling may be reached at

By M. David Stirling is the Vice-president, Pacific Legal Foundation
10360 Old Placerville Rd, Suite 100
Sacramento, CA 96827
Fax: 916-362-2932


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