County Government Can Protect Property Rights - Why County Law Needs to Adopt E.O. 12630

By Jim Faulkner
SUA News


A chill wind set white caps on the Potomac River and the cherry trees were still fast asleep. March, which had pounced in like a lion, was only now, on the 15th of the month, beginning to abate slightly. On that day in 1988, President Ronald Reagan signed into law Presidential Executive Order 12630 (E.O. 12630). The Executive Order is entitled, "Government Action and Interference with Constitutionally Protected Property Rights." This Executive Order had been fought by the federal bureaucrats, but the citizens who had been struggling against illegal bureaucratic regulations, which denied them their right to just compensation for the taking of their property under the Fifth Amendment, took new hope.

This new hope was to be short lived, because the various federal agencies refused to complete "Takings Implications Assessments" (TIA's) as required by the Executive Order. In fact, when requested to complete TIA's by private citizens, groups and even local governments, they refused, saying that this Executive Order did not apply to their department. In addition, they resorted to initiating fines and penalties against so called "transgressors" of their regulations from $5,000 to $50,000 per day for those who questioned their authority.

When the "Attorney General Guidelines for the Evaluation of the Risk and Avoidance of Unanticipated Takings" were issued to enforce the presidential order, they defined "private property" to include "all property protected by the fifth Amendment to the United States Constitution, including, but not limited to, real and personal property and tangible and intangible property." No wonder the bureaucrats were upset, to say the least.

Some state governments have passed their own version of Executive Order l2630, but very few. So most people in the United States are dealing with the dilemma of a host of federal agencies ignoring the presidential order and state governments which may also be involved in "takings" situations, in which the people have no protection except the Fifth and Fourteenth Amendments, which are also ignored regularly.

That is why the solution to this problem is for your county government to step in and pass into county law E.O. 12630 and the accompanying General Guidelines. The Executive Order requires all federal agencies to analyze the effect or potential effect of their actions, decisions, or regulations on the economic value or use of private property through the completions of a "Takings Implication Assessment." If it is in the public interest to take the private property, the private property owner must be justly compensated for their losses under the Fifth Amendment to the U.S. Constitution.

County Commissioners and Supervisors should also be aware that it is expedient for them to enact laws, rules, statutes, ordinances or resolutions that give them the power to enforce those rules which the state or federal government agencies are refusing to enforce. Remember, "All federal officers have only those powers expressly granted or necessarily implied by statute." Hoppe vs. King County 95 Washington 2nd 332622 P. 2nd 845 (1980).

The Supreme Court, over the years, has considered a number of cases which deal with the Fifth and Fourteenth Amendments to the Constitution --That private property shall not be taken for public use without first paying just compensation. The bureaucrats have tried to circumvent this trend by "regulatory takings," which is nothing more than inverse condemnation. You all know what this means. The bureaucrat says to you, we aren't taking your property we are just telling you that you can't use it for the purpose you bought it and have been using it for generations, because you have wetlands, or a threatened or endangered critter lives on your land, or some day migrating birds may want to pay you a visit on their way north or south. That is a regulatory taking and it is unconstitutional. Therefore, if the federal or state government will not enforce your constitutional rights, then it is up to your local government to do the job and protect your rights. In fact, that is just what the Founding Fathers envisioned our system of government working --from the bottom up (We the People), not the top down (tyranny).

Close to 200 years ago, the Kentucky Legislature issued a resolution:

"Whensoever the federal government assumes undelegated powers, its acts are unauthoritive, void and of no force."

The County Sheriff, the county judges and the County Commissioners are the power and must challenge the federal government whenever that government oversteps its limited boundary. There are over 3,000 county governments in the United States and each is a self-contained, lawful authority, charged with doing whatever is necessary to see that the County runs independent and free of federal and state intervention.

Federal and state regulators, using their own twisted logic, now claim that Lucas v. South Carolina Coastal Council, applies only when 100% of the value of the property has been destroyed. All of the environmental groups and some of the government sympathizers are already arguing that because 'Lucas lost 100% of his property, when a person loses less, say 99.9% of his property, Lucas will be null and void. That twisted logic will have no efficacy in fact.

When the U.S. Supreme Court found for Lucas, they reversed the inequity of the South Carolina Supreme Court and once again unequivocally announced that the words of the U.S. Constitution are more than empty platitudes. They sent state and federal bureaucrats a message that they are not to destroy private property. Of course those arrogant bureaucrats are looking for ways to get around Lucas. While Lucas represents a tremendous victory for property owners, eternal vigilance is still the watchword. The county must be on the alert to protect its citizens and economic stability through the use of Executive Order 12630 and the accompanying Attorney General Guidelines, for every offended individual cannot afford to sue the government for a regulatory taking.

This process is not meant to be confrontational, but to inform the citizenry of their rights and to require that bureaucrats follow the laws and regulations to the full extent of their authority and jurisdiction. Neither to exceed it nor to choose to enforce those parts that pleases them and to ignore the rest.

Jim Faulkner is with the National Federal Lands Conference, a Utah based organization involved in fighting for private property rights.


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