March 23, 2018

Due Process: Criminals vs. property owners

By Jeremy Talcott Attorney

One of America’s most cherished constitutional guarantees is the promise that no one may be deprived of life, liberty, or property without due process of law. Many people know of the due process protections for people accused of a crime, such as the presumption of innocence and the right to counsel. But adjudication processes by regulatory agencies are different, and sometimes result in property owners being treated worse than criminals.

In criminal law, due process works to ensure that innocent people are not convicted of crimes. Violations of due process may lead to evidence being thrown out, or convictions overturned on appeal. Though no one likes to see guilty defendants walk free on “technicalities,” when it happens we can take comfort in the constitutional protections that demand we sacrifice convictions in some instances to ensure a just criminal justice system for the country as a whole.

But property owners don’t enjoy those same protections when regulatory agencies begin enforcement actions against them. As seen in the table below, property owners operate at a serious disadvantage when their conduct is challenged by agencies.

PLF client John Duarte knows firsthand just how little due process property owners are afforded.

Other than a single brief phone call from the Army Corps of Engineers, the federal government gave Duarte no warning of the cease and desist action for tilling his field to plant wheat, allegedly in violation of the Clean Water Act. The agency pursued Duarte without giving him access to the evidence against him or an opportunity to present any favorable evidence in his own defense. When he requested a hearing, they ignored him. Agents intentionally destroyed portions of the record, meaning that some evidence used against John Duarte has never been seen by anyone outside the agency that found him guilty. The cease and desist order deprived John of the use of his company’s land and threatened a potentially devastating penalty against him, placing hundreds of jobs at risk.

Property rights is one of the cornerstones of American freedom and liberty. The Founders thought it sufficiently important that they extended due process protections to three things: life, liberty, and property. The courts should take these protections as seriously for property owners as they do for accused criminals.


This article is from the from the Spring 2018 issue of PLF’s flagship publication, Sword&Scales.

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Duarte Nursery v. U.S. Army Corps of Engineers

John Duarte and Duarte Nursery, in rural Tehama County, California, received a cease and desist order from the U.S. Army Corps of Engineers for engaging in normal farming activities (i.e., plowing) that purportedly affected wetlands. Duarte was not permitted any type of hearing to defend himself.

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