November 30, 2015

Federal bureaucrat’s response to request for hearing: “just a ranting fishing expedition”

By Anthony L. Francois Senior Attorney

Due Process is a basic element of the rule of law, giving form to the principle that government must act in accord with the law, even when enforcing the law. In the simplest sense, due process is what prevents the government from making secret decisions that deprive you of your life, liberty, or property. This tends to prevent the state from making mistakes, as well as guarding against the influence of improper motives. In practice, due process requires the government to provide notice and a hearing before taking your life, liberty, or property. This practice is commonplace in criminal prosecution, but it has been late in coming to federal environmental enforcement. For example, the US Army Corps of Engineers can order a property owner to stop using their property without a hearing, based solely on the Army’s unilateral opinion that the Clean Water Act was violated on the property.

When the Army ordered Pacific Legal Foundation’s client Duarte Nursery to stop all work on its property without a hearing, Duarte Nursery responded in writing, requested the information the supposed violation was based on, and demanded a hearing. The Army investigator’s response: “no substance, just a ranting fishing expedition.” He went on to argue that Duarte’s request for information (the provision of which was itself a due process obligation of the government) be disregarded under the Freedom of Information Act, and then to purge his own investigation file of “tons of stuff” that he did not want made available to Duarte Nursery.

The Army never gave Duarte Nursery a hearing, and the order to stop work is still in place almost three years later. Pacific Legal Foundation is representing Duarte in federal court, seeking an order declaring that the Army violated Duarte’s due process rights, rescinding the unconstitutional cease and desist order, and declaring that the Army’s Clean Water Act enforcement regulations are unconstitutional. The federal district court in Sacramento heard arguments in the case at the summary judgment stage on November 20, and we are looking forward to a decision holding the government responsible for its unconstitutional enforcement excesses.

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