A Supreme Court remade by President Donald Trump, one that now includes Associate Justice Amy Coney Barrett, will have one vast if invisible cheering section: citizens unfortunate enough to get caught up in the federal regulatory maze that dictates when private property can or cannot be used according to the rulings of the U.S. Fish and Wildlife Service (the Service) and the U.S. Army Corps of Engineers (the Corps).
For the previous 30-some years, federal regulators could, under routine circumstances, forbid a private citizen with full legal title to his or her land to do anything with it—to mow its grass, fell its timber, or plant and harvest it for food. To defy the Service’s or the Corps’ orders is to risk jail time under the federal Endangered Species Act (ESA) or massive fines under the Clean Water Act (CWA).
Dig around in the records of any city or township visited by an ESA declaration that such-and-such “subspecies” is “endangered” or “threatened”—say, the Stephens’ kangaroo rat, the California gnatcatcher, the San Diego fairy shrimp, to name a few—and you will find libraries full of “impact studies” and dusty applications for “take permits” begging the Service for permission to allow productive activity on a citizen’s private property.
You’ll also find broken dreams and scuttled businesses.
Occasionally, one landowner, usually assisted by a not-for-profit legal defense fund, will fight on for years to get a day in court, like Michigan developer John Rapanos did for a decade beginning in the mid-1990s, only to finally reach the Supreme Court and be met with a 4-4-1 decision in 2006 that stops short of enforcing the Constitution’s takings clause.
The court has long turned a blind eye to the havoc dealt to landowners large and small via the obscure declarations of bureaucrats. Rapanos is one of a long line of landowners ground down by a combination of bureaucratic and legal delays.
Complaints about government regulators are hardly new. Recall one of the complaints of the Declaration of Independence, that King George III had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”
The king had nothing on the federal bureaucracies and environmental activists. The courts established by the Constitution protect not just freedoms of speech, the press, the free exercise of religion and the right to bear arms but also the right to own property and not to have it taken by the government without a fair price. Yet courts have stood aside, allowing property to be frozen as beyond use, without any compensation.
Perhaps that will change under the new Supreme Court. Perhaps the court will finally defend landowners—small, stretched, bankrupted-by-bureaucrats landowners—from civil servants who declare and depart, who denigrate this right and deny its relevance.
Many, many people have been waiting a long time. Perhaps this is their year.