SCOTUS Sacks Case Against the Sacketts
Friday, March 30, 2012 3:17 pm | By Paul Petrick


Last January, the United States Supreme Court heard oral arguments in the case of Sackett v. EPA, involving two Idaho property-owners with a .63 acre parcel near idyllic Priest Lake. The case centered on whether or not the Environmental Protection Agency (EPA) could issue a non-reviewable compliance order mandating that Michael and Chantell Sackett reverse construction on their home and obtain a multi-thousand dollar permit or face a fine of up to $75,000 per day. Last week, the Court’s nine jurists rendered their judgment on the EPA’s conduct.
In a unanimous decision, the Supreme Court ruled that property owners may challenge EPA compliance orders in court. This conclusion was telegraphed by the justices’ scathing criticism of the Obama Administration’s arguments before the Court in January. While certainly welcome news for America’s property owners, the Sacketts are not quite out of the woods. 
Like much of the EPA’s harassment of property-owners, this action stems from provisions of the Clean Water Act (CWA). Under the CWA, the discharge of pollutants into navigable waters absent a permit is prohibited. However, the EPA’s definition of navigable waters includes wetlands adjacent to navigable waters. While one would find it difficult to pilot a boat across the Sackett’s yard, the EPA insists on labeling their property as navigable water.
Thanks to the Supreme Court, the EPA will now be forced to justify their actions in court. In the meantime, a cadre of senators is seeking a legislative remedy to the problem. The Defense of Environment and Property Act of 2012 was introduced by Sen. Rand Paul (R-KY) last month. This bill would define navigable waters as bodies of water that are “navigable in fact” or “permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers, and lakes that are connected to waters that are navigable-in-fact.” For the last seven years, the Sacketts have had to bear the cost of lost time and treasure from their rendezvous with the EPA. Despite their recent legal victory, the right to build a house on their own property continues to elude Michael and Chantell Sackett.


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U.S. Continues to Underperform in Property Rights Protections
Thursday, March 29, 2012 8:13 am | By Kelsey Zahourek

The Property Rights Alliance is pleased to herald the publication of the 2012 International Property Rights Index (IPRI), the world’s most comprehensive measure of intellectual and physical property rights among nations. Sixty-nine international organizations partnered with the Washington, DC-based Property Rights Alliance and its Hernando de Soto Fellowship program to produce the sixth annual IPRI.

The IPRI utilizes three primary metrics to create a composite score: Legal and Political Environment (LP), Physical Property Rights (PPR), and Intellectual Property Rights (IPR). Most importantly, the IPRI stresses the great economic disparities among countries with strong property rights and those without. Nations comprising the first quintile enjoy an average GDP per capita of $39,099; more than double the $18,631 average per capita income of the second quintile. The third, fourth, and fifth quintiles average $10,394, $4,655, and $5,149, respectively.

Over the last year, the United States’ IPRI remained in 18th place, replicating its all-time low score of 7.5 out of a possible 10.0. According to the index, a 0.1-point decline in Intellectual Property Rights offset an identical increase in Protection of Physical Property Rights. The Legal and Political Environment score was stagnant at 7.1

“As the global economic recovery continues at a numbingly slow pace, all nations should be seeking to provide economic stability. Strong property rights is an essential component,” stated PRA executive director Kelsey Zahourek, “While the United States still enjoys fairly strong property rights, its recent deterioration in the rankings is quite concerning. From post-Kelo eminent domain abuses across the nation to serial harassment by an overzealous Environmental Protection Agency, actions that weaken property rights pose a serious threat to economic growth and prosperity at home and abroad.”

The International Property Rights Index will provide the public, researchers and policymakers, from across the globe, with a tool for comparative analysis and future research on global property rights. The Index seeks to assist underperforming countries to develop robust economies through an emphasis on sound property law.

To view the report visit

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Kelo Needs Congressional Correction
Wednesday, February 22, 2012 4:46 pm | By Paul Petrick

Last month, the House Judiciary Committee passed the Private Property Rights Protection Act of 2011, H.R. 1433. This bill would suspend federal economic development funds for two years to any state or municipality that expropriates private property via eminent domain for a private purpose. H.R. 1433 enjoys the bipartisan support of Rep. James Sensenbrenner (R-WI) and Rep. Maxine Waters (D-CA) as well as more than two dozen other co-sponsors.

If enacted, this legislation would strike at the heart of the 2005 Supreme Court decision Kelo v. City of New London. This ruling allowed government entities to expropriate private property at the behest of another private interest for the sole purpose of increasing their jurisdiction’s tax base. H.R. 1433 will allow private citizens to legally defend their private property from confiscatory state and local governments.

Since 2005, more than forty states have independently passed legislation to limit their power of eminent domain and the Supreme Courts of Illinois, Michigan, and Ohio have barred the practice under their state constitutions. This bill provides all American citizens with the means to protect their private property from an increasingly broad definition of “public use.”

H.R. 1433 is currently awaiting a vote before the full House. Congressional action to correct the abusive use of eminent domain is a necessity at a time when government continues to permit these egregious takings. Although many states have already acted, Congress must play a pivotal role in reforming the use and abuse of eminent domain. Economists such as Hernando De Soto have confirmed that strong property rights protections are the prologue to prosperity. As Americans continue to suffer from a stagnant economy, policy makers should not pass up an opportunity to augment output.

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