Roger Marzulla was Assistant Attorney General for Environment and Natural Resources at the Department of Justice, and past President of the Mountain States Legal Foundation. He is coauthor with his wife of “Property Rights: Understanding Takings and Environmental Regulation.”
Federal Newswire:
How did you get interested in property rights?
Roger Marzulla:
It started very early in my career, fresh out of law school. I went into a law firm in San Jose, California that specialized in real property law. Right in my lap landed a constitutional case dealing with the use of land and the county's attempt to impose various fees and exactions for development and use of that land. My second year in law practice, I found myself before the California Supreme Court arguing about the Fifth Amendment and how property could not be taken, according to the Founding Fathers, without just compensation.
I became fascinated by that issue, specifically as one of the key guardians of our civil liberties–ownership of property and the ability to retain the fruits of your labors. From that time on, I've been doing property rights law in one form or another, in government, private practice, and public interest law firms.
Federal Newswire:
Has the Supreme Court's view of private property rights changed?
Roger Marzulla:
From the early years of the century up to the 1980s, we found the courts, who follow the lead of the Supreme Court, not paying as much attention as we would wish to the individual rights in property, and felt that the claims of society in general overwhelmed those of the individual property rights holder.
During the Reagan administration where I had the opportunity to serve in the Justice Department, there was a group of us…who attempted to breathe life again into the property rights protections enshrined in the Constitution. We were able to get the Supreme Court to take some cases and make some good decisions.
From that point on, property rights have seen a resurgence. I think in a recognition that communal systems [like] the tragedy of the commons are not protective of individual rights and ultimately results in a poorer society.
Federal Newswire:
Can you talk about the Kelo case that went before the Supreme Court?
Roger Marzulla:
The ‘power of eminent domain’ is an inherent power of the government to acquire private property for necessary public works. You can't build a road without piecing together various portions of property, and the government needs to then acquire that property. It has the right to do that. That is called the right of eminent domain. It's also called condemnation.
The nature of that right is that it has to be conditioned on something. The government can take your property and say, "Tough luck"--that certainly happens in dictatorships. Or you adopt our constitutional process, which says that if private property is taken, (a) it must be for public use, and (B) there must be just compensation.
The public-use issue has faded to some extent in the wake of the Kelo decision…because that was a case involving a redevelopment of an area that was done for the purposes of creating an industrial park for a company. In fact, we find that local governments, not unusually, will delegate the power of eminent domain to companies.
We fought that over the years. But the argument the Supreme Court was faced with was, is it really a public use when a private company gets to take people's private property?
One of the landowners, Mrs. Kelo, had a little pink stucco house, and she said, "Hell no. You can't buy my house because you're not taking it for public use." The Supreme Court, however, decided that public use included redevelopment, or redevelopment included public use and therefore, private property could be taken even if the title didn't go to the government.
Federal Newswire:
Was Kelo decided that way because the Supreme Court relied on a hundred years of precedent that required that outcome?
Roger Marzulla:
That's right, and we have seen in the current Supreme Court a willingness to reopen some decided issues in the past to try to get the law back on track. Mind you, that is not just a function of this Supreme Court. I think of the Warren Court back in the 1960’s and '70’s that overturned all sorts of civil rights, criminal prosecution, kinds of areas of decision that created new law, and basically reversed prior decisions.
Our law consists of two major components; statutes that are passed by the legislatures and decisions that are made by the court. That's what's called the common law system. The court will look to its prior precedents, “how did we decide this issue before? We figured it out and hopefully came to the right decision, so we'll follow that precedent.”
Sometimes the court realizes “we actually got it wrong or we didn't realize what would be the results of this decision.” They reverse course, invalidate the prior decision, and refuse to follow the prior precedent.
Federal Newswire:
Can you explain “takings” and what Chevron deference is?
Roger Marzulla:
Chevron deference goes back to a 1984 decision of the Supreme Court. The court was attempting to determine whether an EPA interpretation of a Clean Air Act included in a regulation was faithful to the Clean Air Act that Congress passed. The court created in that case, Chevron versus Natural Resources Defense Council, what has come to be called the Chevron Deference Rule.
What it said is the agency is the expert here. They know what's going on with the Clean Air Act and they ought to be able to interpret it for us.
At the time, it seemed an entirely reasonable decision. But what has happened over the years is the agencies have grabbed hold of this notion and it has grown.
So Congress passes a law saying the agency can do X, and the agency says, well, X includes A, B and C so we're going to do that. That is exactly what is before the court in the current fishing cases.
These are cases in which under statute passed by Congress, fishing companies are required in many instances to carry aboard federal employees called observers, whose job it is to see that the fishing boats comply with the various requirements of federal statute.
The statute says that the fishermen can be required to take these observers, but it says nothing about who pays them. In fact, Congress has authorized money to pay these observers. They're employees of the federal government and they get federal government checks, but the relevant agency, the National Marine Fisheries Service, decided that they were running short on funds.
They have required the fishing companies or the fishermen [to pay], and these are usually people who have very tough jobs and they're not making a lot of money.
There's nothing in the statute Congress passed saying the fishermen have to… pay these people. But the agency interpreted the statute to say, “well, if the fishermen have to have these people on their boats, they'll be required to pay part of it.”
The Supreme Court has granted review, and we're hopeful that it will look at the deference analysis that was used by the Court of Appeals. That court said, “well, we don't see anything in the statute–it's silent on any payment, so we will defer to the agency because the statute is silent.”
That's exactly upside down. If the statute doesn't say the agency can do it, how does the agency say, “well, yeah, we can. We just interpret it to say we can do what Congress didn't say we could do.”
So you see how the precedent has gotten out of hand.
Federal Newswire:
Was there ever a takings claim raised?
Roger Marzulla:
We actually did…deal with some tuna boat observers. There were claims that forcing federal officials to be on boats that, after all, are themselves private property, is an invasion. It may be time now to revisit that issue and, of course, the issue of [adding] insult to injury requiring that the fishermen pay these observers.
Federal Newswire:
Why have agencies decided to adopt such expansive authority?
Roger Marzulla:
The whole structure and theory of Chevron deference is that Congress passes the buck to the agency in the first place. Congress says I don't know what to do about wetlands, whales, or whatever so we'll just give it to some unelected bureaucrat and let them come up with some rules.
What happens is then Congress is effectively leaving it up to the agency and bureaucrats to define what the law is and what they are or are not supposed to do. The agencies–and this is the second blow under the doctrine,--have figured out if we write our regulations so they're vague and so nobody really knows what they mean or what's right and what's wrong, then we can come out with an interpretation of our regulation.
The court under the Chevron doctrine is going to say, well, the agency is the expert. After all, they wrote the regulation. They must know what it means and you violated it because you thought that was high desert just because it was dry, but it's actually navigable water because we interpret it to be such. So you go to jail or you pay a huge civil fine or you can't use your property.
Federal Newswire:
How does a person’s intent come into play in cases where laws are violated?
Roger Marzulla:
When you take first year criminal law, you are taught that there is a so-called mens rea requirement. That's the Latinization of “intent,” where if someone does something but doesn't really intend to do it then it's normally not criminal.
With expansion…of the regulatory state, we find ourselves facing the prospect that we are [often] in violation of a law. In fact, it's difficult to go through a day without violating some law or regulation of some kind, totally unintentionally.
With these regulatory violations, they can be civil, meaning that you usually pay a fine or you may be under some limitation in what you are allowed to do with your business or property. Or they can be criminal, with the usual penalties of not only fines but going to jail and going for years. Those kinds of violations, if they're violations of regulations, have been held to be strict liability crimes–or crimes without intent.
If you disturbed a wetland, injured an endangered species or habitat of an endangered species, even though you didn't know that there was an endangered species around and you had no knowledge of what kind of habitat they inhabit anyway, you can still be held liable for civil penalties and even criminally for those actions.
It has put us in a position that it's really up to the prosecutor whether you are going to jail or not.
Federal Newswire:
Are there different kinds of due process?
Roger Marzulla:
Yes. Due process is really at bottom a sense of fairness, a sense that the justice system, the governmental system is working properly and the law tries to define certain basic elements of due process.
Traditionally, we define it as notice and a fair hearing. If you don't know what the law is, you haven't received notice, then you really shouldn't be held responsible for complying with the law. If you go before a judge, jury, or an agency that has its mind made up before you ever get a hearing, then you really haven't had a fair hearing.
Who can possibly take the hundreds, thousands, or millions of pages of regulations and statutes, and know what it is you are or are not required to do? That doesn't even get into the notion of agencies that give short shrift to the processes that are required by statute or the fundamental notion of just what is due process and have they given you a fair hearing? Have they given you a fair shot?
This does take us back to Chevron. If the agency starts with, “hey, my interpretation is what prevails here, I don't care what you have to say about your interpretation of the statute or the regulation because I, the agency, have already made up my mind.” Well, is that really due process at all?
Federal Newswire:
Why is the idea of transparency and accountability so important?
Roger Marzulla:
It's important because the government works for us. That's the fundamental premise of our republic, of our constitutional system. If you want to use the word democracy, the idea is we are not servants of the government. They are servants of us.
The only way we know if the government is living up to its responsibilities, constitutional, statutory, and ethical for that matter, is if we know what the government is doing. To the extent that they are hiding their actions from us, putting up shields, and lack of transparency or accountability, we don't have a republic, we don't have a constitutional system.
Federal Newswire:
What is Executive Order 12630?
Roger Marzulla:
During the 1900’s and up to the time of the Reagan Administration, there had been a general ignoring of the constitutional requirements for protection of property rights. The Supreme Court in 1987 issued three decisions, a trilogy that began to breathe life once again into the constitutional protections of property rights. President Reagan signed Executive Order 12630, which requires every agency before issuing a major regulation to consider whether it is a taking of property rights or not.
If you look at the Federal Register and you look at the bottom of major regulations, they will recite–along with compliance with the Regulatory Flexibility Act and Paperwork Reduction Act and several other executive orders–that they have complied with Executive Order 12630.
Now, unfortunately, an Executive Order is only as good as the respect that government agencies and bureaucrats give it. It is not enforceable by a court.
Fundamentally, we are seeing very little compliance with Executive Order 12630, and it is generally considered to be not subject to the Freedom of Information Act. We can't even demand the analysis that is supposed to be done, the takings impact analysis that the agencies are supposed to do.
It's one more area in which, if we had transparency we would be seeing how the agencies are analyzing.
Federal Newswire:
Why are the takings cases that are currently before the high court important?
Roger Marzulla:
There are two very interesting cases.
First, last year, we had a couple of very important property rights decisions. One of them out of Minnesota, invalidated as a taking the county's practice of foreclosing on people. In this case, a 90-year-old lady who lived in a little condominium had gotten behind on her property taxes. The county foreclosed on her condominium and then sold it for a profit and kept the results.
This year, [a related] case is Sheetz vs. El Dorado County, California. Mr. Sheetz wanted to get a permit to place a modest mobile home on a parcel of property that he owned. The county said, "Fine, you can do that, but we have this traffic impact fee that's going to cost you $24,000 to get your permit."
Mr. Sheetz said, "Whoa, wait a minute. I'm not going to contribute to any traffic." I guess he's going to drive back and forth to his mobile home once in a while, but he's not creating a traffic problem. The court in California held that, because the legislature had created this fee as a statute, it would be invalid if the zoning board simply imposed it on the individual.
The Supreme Court has already gotten there in a case called Koontz out of Florida, where it said you can't just say “if you want to use your property, you have to pay the government.” You can't do that because it's an unconstitutional condition on the exercise of a constitutional right. The government can't charge you for exercising your religion. They can't charge you for exercising your right to freedom of speech. They can't charge you for getting due process, and they can't charge you for using your property.
The second case that the Supreme Court has agreed to hear comes to us out of Texas. The issue is this: The State of Texas constructed a highway that flooded and destroyed the plaintiff's land. The plaintiff said, "Hey, the State of Texas has taken my property." The District Court and the Court of Appeals said that may be so, but in federal court, you can't sue the State of Texas. You may have a constitutional right, but you have no way of vindicating it.
The issue the Supreme Court has agreed to hear is whether the Constitution itself creates the cause of action. Otherwise, the government can simply say, “oh yeah, the Constitution says we have to pay you, but you don't have any way to sue us to get paid.” That is at a minimum, a denial of the just compensation entitled under the Constitution. It's probably a denial of due process as well because there's no process.
Federal Newswire:
Are the nets these fishermen use miles long, meaning it could be quite hard to get them in between the wind turbines that are only one mile apart?
Roger Marzulla:
Well, it is, and you don't turn a boat like you can turn a car. These fishing boats, which are pretty good-sized as well, need a lot of space to make turns and to maneuver, especially when they have nets, and they simply can't do it. They made those comments, submitted studies to the government agencies and were basically disregarded. So that's the issue for the fishermen. It is a huge issue for the County of Cape May because the majority of their income is derived from tourism. Studies indicate that people don't really enjoy the seashore as much if they've got these big turbines just offshore. Let alone during times that they're building them.
Federal Newswire:
What is the website for your law firm?
Roger Marzulla:
The law firm's website is www.marzulla.com.
