Monday, October 3, 2011
In an earlier post I commented on two land use cases on which the Supreme Court will hear arguments this term. I suggested that Sackett v. EPA and PPL Montana LLC v. Montana are connected by a common theme. Both cases demonstrate the dangers that attend government advocacy for or against private land use. The dangers are not merely for private landowners; this advocacy is dangerous for the government actors, as well. In this post I’ll consider two implications. In a later post, I’ll explore one more.
First, government advocacy threatens the appearance of impartiality of those charged with adjudicating disputes about land use. This danger is particularly acute when the same governmental entity is charged with investigating, prosecuting, and adjudicating the dispute, as in the Sackett case. But it also appears when state courts appear to adopt uncritically the state’s factual inferences, as in the Montana case. The law of course contains numerous provisions to protect the appearance of impartiality of judges, though it contains fewer provisions to protect administrative agencies, such as EPA. The appearance of impartiality has broad implications for the rule of law. Courts—and administrative agencies when acting in their adjudicatory capacities—are supposed to be impartial arbiters of factual inferences, rights, and remedies. If citizens have reason to lose their confidence in the impartiality of adjudicatory bodies then the rule of law suffers.
Second Government advocacy threatens the security of property. Unlike PPL Montana, the Sacketts do not have significant financial resources with which to contest the claims of government “experts.” (In our age of legislative and regulatory science, these cases almost always boil down to a battle between experts.) But there is a more fundamental problem. If the government is both the litigant against and the adjudicator of property rights then what recourse do most landowners have? The Sacketts have the Pacific Legal Foundation on their side. PPL Montana was savvy enough to discover a federal question that interested the Supreme Court. Most landowners in similar positions will not be so fortunate. Their property rights are secure only as long as the government does not imagine better uses (or non-uses) for their lands than they are making. This is a problem not merely for landowners who come into the cross hairs of government regulators. Is it a problem for all of us; property is the foundational institution undergirding all economic activity.
None of this is to suggest that the Supreme Court should rule in favor of the private parties in these cases. Nor is it to suggest that governments should not regulate land, or that governments should never litigate land use issues. I do not know enough about the disputes to comment on the merits. If the Sacketts’ land is located on a wetland then they must comply with applicable federal law. If the State of Montana in fact owns the riverbeds then the power company might lawfully be charged rent for its occupancy. But these are contested questions. Have the private parties been afforded a reasonable opportunity to make the contest? There is plenty of reason to doubt.