Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.

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The Consequences Of Land Ownership

“If a man owns a little property, that property is him.…it is part of him….in some ways he’s bigger because he owns it.” 
                                                              —John Steinbeck, The Grapes of Wrath

Property rights are the most fundamental institution in any economy and society. They determine who makes decisions about valuable resources and who captures the economic gains from those decisions; they mold the distribution of income, wealth, and political influence; they set time horizons and investment incentives; and they define who will take part in markets. These attributes are well recognized among economists for spurring economic growth.

But economists have missed another equally important characteristic of private property rights that has long been emphasized in philosophical, legal, and historical literatures and is captured in the quote from John Steinbeck above. Individual owners are more confident, self-reliant, and entrepreneurial than non-property owners. Where access to property is widespread, politics are more stable. Owners have a stake in the existing political regime. Moreover, people acquire property through the market and do not mobilize for forced redistribution using the power of the state through revolution and revolt. They expect property rights to be secure and view government regulation with suspicion. The use and trading of property assets is seen as a positive sum game. With broad property ownership and market participation, the state is less important than the market, and the economy in turn is less centralized, more atomistic, market-based, and supportive of entrepreneurship. This description characterizes the United States from its colonial beginnings through the 19^th century and generally on to today.

In contrast, in countries where property ownership is highly skewed and access to ownership open only to elites, non-owners view things differently. Acquisition of property, wealth, and political power can only occur through capture and then enlistment of the state, as occurred in the extreme in 1789 France or 1917 Russia, or is reflected in recurrent political upheaval and redistributions characteristic of Latin America with its many disaffected populations, military revolts, and coups that have occurred since colonial times. This political uncertainty and lack of overall optimism and entrepreneurship has contributed to slower long-term economic growth than a region so rich in natural resources might have otherwise enjoyed. Why has the southern half of the hemisphere had such a different long-term experience than the northern half? Why has there been more ongoing economic growth and political stability in the North than in the South? Differences in the ownership of land is the key.

Supreme Court hears “phantom frog” case

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights. Oral argument held at U.S. Supreme Court on October 1, 2018.

Congress must do its own job—make laws

The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law. PLF’s supporting brief urges the Court to revive the Non-Delegation doctrine, so Congress can no longer dodge accountability by sloughing off its lawmaking responsibilities.

Crosscut proposes that Property Owners pay for salmon mitigation

The liberals have come up with a “new” solution to save the orcas and salmon. Rather than identifying the problem and solving it (See attached). They have launched another fund raising campaign.

To save salmon, orcas: Make landowners pay
Too few property owners are choosing to improve habitat. Their alternative should be annual payments.

Mitigation for continuing impacts could be accomplished in the form of periodic compensatory habitat enhancements on site or off site, or annual payment of a fee in lieu of physical mitigation. Calculating required mitigation for the continuing impacts of each land parcel would be a big job, but it’s feasible if done in increments.

For example, the first phase could evaluate the impacts on salmon from bulkheads and buffer clearing identifiable via remote sensing. We could then assess annual mitigation for this harm to salmon while work proceeded to evaluate other impacts. Bank hardening missed by remote sensing but identified by inspection from boats could be the second phase. The third could be evaluation of the degree to which each land parcel controls stormwater runoff as well as the presence of mature forest that controls stormwater. (That is, we would check that the runoff rate does not hurt salmon.) Additional impacts could be added to the records of parcels as the evaluation phases continue. Landowners could request site inspections and corrections of the records if they disagree with the assessments calculated from remote sensing or local property records.

This overall effort could quantify the harm to salmon being caused by each land parcel relative to other land parcels in the Puget Sound watershed, allowing equitable assessment of the annual mitigation needed from each parcel. Fees collected in lieu of physical mitigation could be used to pay for the program’s administration, fund habitat projects, and lower property taxes of land that is achieving adequate biological functions.

Read the full article
Crosscut Article by Doug Hennick dated October 15 2018

 

Oct 25: Dinner Speaker Marty McClendon

Our dinner speaker for October is Marty McClendon, Candidate for Washington State’s 26^th Legislative District. Marty has been a licensed Real Estate Broker in Gig Harbor for the last ten years. As such he is fully conversant with the property ownership issues facing us. He previously worked in the health care field, pastored a church and hosted a radio program. Please join us for dinner on Thursday Oct 25, 2018 at 5:00PM at McClouds Grillhouse (2901 Perry Avenue, Bremerton WA 98393).

September Dinner Speaker Changed

I got word yesterday that our speaker Louisa Garbo (DCD Director) was cancelling for tomorrow night, I contacted Doug Simpson, the individual I had asked to be our speaker for October.

Doug Simpson is a political and campaign consultant.  Prior to retiring, he facilitated and directed 121 election campaigns spanning more than 25 years.  He has a win / loss ratio of 88 percent.   Doug has prided himself in working only for those candidates who possess a fundamental historical understanding of the basis and authority of civil government.

Unlike most other consultants, Doug lobbied during the legislative sessions for conservative causes; staying close to those legislators he’s helped get into office. As a staunch conservative, Doug believes that true political conservatism has its basis in the Bible, our US Constitution and subsequent rule of law.

Please come out and hear his view of current politics. We meet on September 27 at 5PM at McClouds Grill House, 2901 Perry Ave East, Bremerton WA 98310.