Property rights strengthened; politicians liable

forwarded by Jackie Juntti

6/24/02 - The following is a condensation of a pre-meeting interview with Howard Hutchinson, Executive Director of the Coalition of Arizona/New Mexico Counties, and featured speaker at the September 1, 2000 meeting of the Scenic Rivers Watershed Partnership in Salem, Missouri.

 Environmentalists and Liberals are up in arms, Mr. Hutchinson says, about recent Supreme Court rulings that strengthen individual rights and hold public officials PERSONALLY AND FINANCIALLY RESPONSIBLE FOR HARM
TO OWNERS OF PRIVATE PROPERTY resulting from the enforcement of federal laws such as the Endangered Species Act. The Supreme Court has consistently ruled and now reinforced citizen lawsuits against individual County, State or federal employees in their personal capacity to protect Constitutionally guaranteed rights. Congress and the federal government are prohibited from authorizing the filing of a lawsuit under federal statute by an individual against a State.

 Historically, environmental groups protesting local environmental matters used the back door tactic of filing suit against the federal Environmental Protection Agency or Fish And Wildlife Service under the ENDANGERED SPECIES ACT, CLEAN WATER ACT, CLEAN AIR ACT, or other federal law. The federal agency negotiated a settlement, and then issued regulations to force the State to comply with the settlement negotiated with the environmental group.

 Under this 'scenario, if an environmental group files suit against, say, the Forest Service or EPA, and the federal agency settles and attempts to force the settlement on a State, unless the State agrees to implement the conditions that the federal agency puts into place, the State can't be forced to comply with the settlement. If the state does not elect to intervene in the case or does not object, the ruling will be enforced by the court.

 If the State complies with the settlement that was reached between the federal agency and the environmental group, any citizen who is harmed by that settlement may sue under the Civil Rights Act.

 Recent Supreme Court decisions dissolve the old argument that, if Congress is popularly elected, and Congress passes a law, then the law must be in the Public Interest and therefore is authorized by the Constitution's  General Welfare clause or the Interstate Commerce clause, allowing Congress to pass any law it wants whether Constitutional or not.

Congress has assumed that the 14th Amendment allowed passage of any law deemed necessary to enforce provisions of the 14th Amendment. Now, the Supreme Court says no, the 14th Amendment is limited to protection of individual rights.

The 14th Amendment guarantees due process and equal application of the law. If a City, County or State official enters into an agreement without your permission, and your property rights are harmed by that, the official may become liable for property takings and for denial of due process and equal application of the law.

The burden is on the government entity to prove that the charge against them is in error.

As soon as people begin to understand what this means, there will be enormous changes in the roles and responsibilities of Federal, State and local officials. It may take a few suits against individual office holders and individuals within government agencies to start performing the way they're supposed to be performing.

People seek political office, by and large, with altruistic motivations. They really want to do a good job. But they haven't understood  the responsibility that goes with that office. When they raise their right  hand and put their hand on the Bible and swear to uphold the Constitution,  it's been empty.

 Well, now it's very full of meaning. And they've not been taught that. They've never understood exactly what they were swearing that oath for.

 The Supreme Court says that under the Constitution there is political accountability. Environmental groups and Liberals understand the ramifications.

 When an environmental group files suit to create Wild And Scenic Rivers, or Wilderness Designations, or Roadless Areas, or enforcement of the Clean Water Act, or land withdrawn for the Indiana Bat, under this legal theory, they exercise power delegated to them by a Congress that did not have that power in the first place.

 Wild And Scenic River designations and National Park Service land acquisition under the Public Trust concept are now all up for challenge.

If you, as a class of citizen, have your property taken or  your due process denied, in favor' of another smaller class, you have a legal cause of action. Government officials may not discriminate in favor of a special interest over a property owner.

For this to be effective in restoring private property rights it's going to take individuals with enough guts, and enough money, to fight and win in court. This will be a major battle.

The larger battle is over whether or not we are going to accept centralized Command And Control over our lives. Or, whether we retain individual choice and responsibility in what we do and how we conduct our own lives on our own property.



Howard Hutchinson,
Executive Director Arizona/New Mexico Coalition of Counties
P.O. Box 125
Glenwood, NM 88039
Telephone (505) 539-2709


              New York vs U.S.

              Prince vs U.S. (Brady Bill)

             Saenz vs Roe

              Clinton vs New York

              Seminole Tribe vs Florida


              ALDEN vs MAINE.. June 23, 1999

              (enhancing state rights/Federalism)


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