Property rights at stake in Supreme Court case

Property rights at stake in Supreme Court case

January 22nd, 2012 in Opinion Free Press

The U.S. Supreme Court is considering a case that has disturbing hints of environmental extremism and violation of property rights.

At issue is a piece of land that a couple bought in a subdivision in Idaho. They planned to live on the residential property, which was near other homes and was already complete with a sewer hookup.

But after they bought the land and began clearing it, the Environmental Protection Agency ordered them to cease and desist -- and to "restore" the land by putting in plants that were suitable for wetlands. They were told they would have to maintain the land in its supposedly natural wetlands state for three years before they could even seek a permit to build. That process would cost them $200,000, but the alternative was to pay outrageous fines of as much as $37,500 per day if they did not comply with the environmental demands.

To make it all worse, they were denied a hearing on the costly order by the EPA. Whether they are entitled to such a hearing is what the Supreme Court plans to consider. But the broader issue is one of government takings of private property.

The key question would seem to be whether it was clear when the couple bought the land that it was subject to wetlands restrictions. If no such restrictions were in place at the time of the purchase, it was unjust to destroy the value of the couple's investment by declaring ordinary development of the land off limits. That amounts to a government taking, which the Fifth Amendment to the Constitution forbids without "just compensation."

The relevant part of the amendment reads, "[N]or shall private property be taken for public use, without just compensation."

By requiring the non-development of the private property in question and its "public use" as a wetland, the federal government essentially "took" the land's value from its owners. And thus, far from threatening them with fines, it probably should be paying them "just compensation."

Sadly, that does not appear to be in prospect.