Limits of Government authority and compensation for harm caused

[tormail]

Jurisdiction

Massachusetts

In the interest of anonymity and to protect my business interests, I will not use specific entities, or resources.

Lets say, I harvest a certain edible, non psychedelic, wild mushroom, and the law allows such harvest and sale without a permit requirement. Lets say it is very lucrative, and a fairly well guarded endeavor. Lets say the government decides they want to regulate this endeavor and some years later, creates a permit requirement to participate in this natural resource. Let say the government then in response to the increase in harvest activity caused by the broadcasting of this information to the public, requires harvest data, harvest reports. Lets say you report for several years, and because you have been harvesting this resource for so many years, and your business has standing accounts and business relationships established to move the product through the pipe, your landings are significantly more than other peoples. If the government then in turn uses that data indicating your harvest is vastly more than others, to implement harvest levels that force you personally to harvest less, and admit as much publicly. Would you have standing to sue them for unconstitutionally seizing your business or infringing on your constitutional protections? The constitution provides we have the right to be secure in our persons, possessions, papers, and effects. Does this limit what the government has the authority to do? I understand that natural resources are within the purview of the governments authority however, shouldn't they be required to implement regulations with fairness and consideration for an individuals constitutional rights? If I can prove the government intentionally targeted me, specifically based upon reporting they forced me to participate in, could I seek damages against them?

 

[zddoodah]

Lets say the government decides they want to regulate this endeavor

What government? Federal? State? Local?

creates a permit requirement to participate in this natural resource.

What does "participate" mean? Grow? Harvest? Sell? All of these? Something else?

your landings are significantly more than other peoples.

Landings?

If the government then in turn uses that data indicating your harvest is vastly more than others, to implement harvest levels that force you personally to harvest less, and admit as much publicly. Would you have standing to sue them for unconstitutionally seizing your business or infringing on your constitutional protections?

I'm guessing you don't understand what "standing" means in this context. The hypothetical "you" would, of course, have standing. However, it's not clear on what basis "you" might sue. You mentioned "unconstitutionally seizing your business," which potentially implicates the Fifth Amendment to the U.S. Constitution ("No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation."). However, that's not what you described. The implementation of harvesting limits is not the seizure of a business. You also mentioned "infringing on your constitutional protections," but I have no idea what protections you might be referring to.

The constitution provides we have the right to be secure in our persons, possessions, papers, and effects.

The Fourth Amendment to the U.S. Constitution (and many state constitutions have analogous provisions) says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." However, again, a harvest limit is not a seizure (and certainly isn't a search). In this context, "seizure" means arrest.

Does this limit what the government has the authority to do?

Of course it does, but not in the context of your hypothetical.

I understand that natural resources are within the purview of the governments authority however, shouldn't they be required to implement regulations with fairness and consideration for an individuals constitutional rights?

Imposing a harvest limit is not, in the abstract, unfair. And again, you can't just say, "this violates my constitutional rights" without identifying the specific rights at issue.

If I can prove the government intentionally targeted me, specifically based upon reporting they forced me to participate in, could I seek damages against them?

Doubtful, and it's also doubtful you could ever prove something like this.

 

[tormail]

Imposing a harvest limit is not, in the abstract, unfair. And again, you can't just say, "this violates my constitutional rights" without identifying the specific rights at issue.

While it is not unfair to impose harvest limits, if those harvest limits are based upon a few specific individuals prior landings and business relationships, and based on private data in turn forced to be public data, it is arguable that the limits were imposed in an unfair or insidious manner, so as to target these individuals and their business relationships. If the government official placed in charge of this specific harvest in turn releases a public comment specifying that their restrictive action were a direct effort to stop these specific individual harvesters from harvesting thier historic levels, then it should be considered a violation of these individuals rights. The government did no seek to limit new permit issues or new entry in to the resource, it only sought to limit the few people who had a history prior to the resource being regulated. In effect stealing the resource from them and handing to other people without a history. Prior to the governments interference the market was free and the supply was met by a few individuals, after government interference, many people became aware of this previously secretive activity and the government exploited the situation to sell permits and bring public awareness, effectively destroying those whom established the practice. The government should be prohibited from doing this. or should do it while respecting the privacy and rights of those engaged in the activity. It did not.

 

[tormail]

What government? Federal? State? Local?




What does "participate" mean? Grow? Harvest? Sell? All of these? Something else?




Landings?




I'm guessing you don't understand what "standing" means in this context. The hypothetical "you" would, of course, have standing. However, it's not clear on what basis "you" might sue. You mentioned "unconstitutionally seizing your business," which potentially implicates the Fifth Amendment to the U.S. Constitution ("No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation."). However, that's not what you described. The implementation of harvesting limits is not the seizure of a business. You also mentioned "infringing on your constitutional protections," but I have no idea what protections you might be referring to.




The Fourth Amendment to the U.S. Constitution (and many state constitutions have analogous provisions) says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." However, again, a harvest limit is not a seizure (and certainly isn't a search). In this context, "seizure" means arrest.




Of course it does, but not in the context of your hypothetical.




Imposing a harvest limit is not, in the abstract, unfair. And again, you can't just say, "this violates my constitutional rights" without identifying the specific rights at issue.




Doubtful, and it's also doubtful you could ever prove something like this.

Is a news article with the public official assigned to regulate the activity stating "a couple of guys harvest almost all of the harvest" sufficient? The state forced reporting of how many, and from where, and to whom they are sold. What time of day, how long did it take, and which days. It then in turn used that data to target these "couple of guys" 7 years previous to this news article there was no reporting, no regulation, and no permit required.

 

[tormail]

The government had no right to use my activities and exploit them for their own purpose of selling permits and increasing public awareness of my previously private information and activity.

 

[Zigner]

The government had no right to use my activities and exploit them for their own purpose of selling permits and increasing public awareness of my previously private information and activity.

So, you're not here for any legal advice, then. You're simply here for validation.

 

[tormail]

So, you're not here for any legal advice, then. You're simply here for validation.

And how is this legal advice? He asked what rights I feel have been violated, so I am stating them ask requested. I have a right to be secure in my person, papers, possessions, and effects. I would assume that would convey to legal activities and business relationships, perhaps I am wrong? I established a business conducting an activity that was completely unregulated for 20 years or more. It was my livelihood. The government then brought attention to my activity in a direct effort to bring attention to the public and to sell permits. While it may have had a right to do so, it should have been done with some consideration for my rights, it in fact seemingly was done vindictively. As the public official publicly stated their intent was to stop these specific "few guys'. It made no attempt to reduce the overall take, or limit new permits or entrants, it only made an effort to impose limits that effected these specific people, as per their own statements "this wont effect very many people" "as "15% of harvesters harvest the entire annual harvest". That to me is where the government trampled upon my rights. It used my previously private reporting data against me specifically. Not to protect a resource, or the environment, but because they didn't want me to make as much money as I was making. If the resource was their concern then new entrants and permits should have been curtailed, and then limits imposed on those with a history of harvest, per their mandated reporting. THAT would protect those harvesters privacy rights and prior business relationships and NOT interfere with the free market. The state intent was clearly to distribute the harvest and NOT to limit the harvest overall. THAT is the problem. Its not their place to do so. Its like them saying Microsoft sells too many computers so we are going to set a limit on computer sales that only affects Microsoft so that Acer, and HP, and any new computer manufacturers can capture some of the market share. That's not legal.

 

[zddoodah]

I asked you a number of questions. You ignored most/all of them and, instead, posted a bunch of rants. That's not conducive to getting useful feedback.

The government should be prohibited from doing this.

This is an issue that you can address by lobbying your elected representatives or trying to get an initiative on the ballot. Not sure what you're seeking to accomplish by posting here.

 

[Tax Counsel]

The government had no right to use my activities and exploit them for their own purpose of selling permits and increasing public awareness of my previously private information and activity.

Actually, the government does have that right. When there is a limited resource, to provide fair access to it to those interested in participating in it, the government may need to restrain the overuse of that resource by a few high producers. Getting good data is part of the process of determining how that resource is being used. When you are one of those high producers, of course you feel it is wrong. But you are only really taking into account how it affects you, and not the community as a whole. I see no constitutional violation here. Yours is a political problem to resolve by convincing the body that made the regulation to change it.

 

[welkin]

Actually, the government does have that right. When there is a limited resource, to provide fair access to it to those interested in participating in it, the government may need to restrain the overuse of that resource by a few high producers. Getting good data is part of the process of determining how that resource is being used. When you are one of those high producers, of course you feel it is wrong. But you are only really taking into account how it affects you, and not the community as a whole. I see no constitutional violation here. Yours is a political problem to resolve by convincing the body that made the regulation to change it.

Maybe yes and maybe no as to a constitutional violation. This appears to be a state issue rather than Federal from OP's jurisdictional declaration. The issues related to state agencies, having the power to regulate any given activity, has to be found first in the statutes that give that agency the power to regulate and what they can regulate.

On a Federal level, the Supreme Court recently heard oral arguments (January 17) on a case, LOPER BRIGHT ENTERPRISES V. RAIMONDO, that challenges a long standing president, that when a statute is ambiguous or silent on what can be enforced and how by an agency of the government, (Chevron) the agency can interpret the statute. The decision is expected in June.

The Loper Bright case is alleging a taking of property because the herring fisherman are being required to pay for federal inspectors to be present on their boats and amounts to a significant amount of their profits.

How the decision will spill over into state regulation remains to be seen. But if Chevron is overturned, it will likely have impact in the states.

 

[Tax Counsel]

How the decision will spill over into state regulation remains to be seen. But if Chevron is overturned, it will likely have impact in the states.

The Chevron standard is, and always has been, a decision that only applied to the deference give to interpretations of federal law by federal agencies. The states are not bound by that decision in how their own state agency decisions are interpreted. They may instead apply their own rules as to the degree a state agency may interpret a state statute. Some states may choose to follow whatever standard the USSC comes up with if it chooses to modify the Chevron standard at all. My expectation is that the Court will cut back a little bit on Chevron's rather broad deference to agency rule making but won't severely limit it for the simple reason that if would then push all those situations to the courts, and the courts are not experts on most areas that the agencies regulate. The justices and federal judges have in their opinions consistently stated that courts lack the expertise needed to rule on many agency regulations, particularly those that involve highly technical or specialized subject matter.

It is the agencies that have the experts on that. Federal courts already have more cases than they should for expedient resolution of disputes. Open the court doors wide to bring every dispute over an ambigious statute or one that happens to be silent in a particular fact pattern would significantly increase the work load of the federal courts, with the result that decisions would be made even more slowly than they are today unless Congress becomes willing to authorize enough new judges to take on the increased work load. That would most affect civil cases, as criminal cases have to apply the speedy trial rule that the Constitution demands for criminal prosecutions. Having judges make those technical decisions on implementing a statute is likely to lead to poorer rules as the court can only decide the case in front of it and cannot write a comprehensive and cohesive set of rules that many of the laws passed by Congress require.

I have personal experience with this as one of my jobs when I was an IRS attorney in DC was writing and reviewing tax regulations. Writing a good regulation takes time and the Administrative Procedures Act (APA) sets out the basic rules agencies must follow in issuing regulations and similar guidance. One of the rules is that agencies must solicit and take into account public comments on their proposed regulations, giving the public, and particularly those who will be most affected by it, the chance to have input and point out flaws or improvements that can be made to it. If a judge decides those rules instead, they would be rules made by someone who is not expert in the matter being regulated, not bound by the rules of the APA, and lacking any public input that would assist the judge in making the rule better. And the rules wold come piecemeal, making the rules disjointed and at times even contradictory since each judge would only decide some narrow part of the whole matter to be regulated. Some things are just not suited to courts to decide.

While I agree Chevron gives the agencies more deference than they should have, effectively removing much court oversight of the regulations, I would not want to see the Court go so far in the other direction that it so severely restrains the agencies in making rules that it forces the courts into that role instead. The best outcome in modifying the Chevron standard would allow some more meaningful review of regulations by the courts than they have now without the courts stepping in to have the judges effectively write agency regulations.

But the situation posed by the OP is not one of agency regulation, as I understand the facts, but rather that the elected body that enacts local laws imposed the requirements of which the OP complians. A decision about the deference given to executive agency rules would have no impact on that. That's instead a question of whether the local elected body has exceeded the powers granted to it by the state and/or whether that elected body has violated the rights of the OP under either the state or federal constitution.

 

[welkin]

I have personal experience with this as one of my jobs when I was an IRS attorney in DC was writing and reviewing tax regulations.

I too have personal and rather extensive experience with executive state and Federal agency rule making. Specifically the USEPA and NJDEP just to point out that I understand the points you make in your post. But I have also seen the APA, on both the state (every state has one) and federal level, ignored and abused. It is very far from a perfect process when the agency itself is in charge of the process without oversight. And that is where the courts come into play notwithstanding whether it becomes a burden on the court system or not. It's the only way to ensure that people's right are not trampled by say permitting requirements that do not appear in enabling legislation but just appear out of thin air. And the pace of such permitting requirements is accelerating.

All you have to look at is what is happening in PA with the Amos Miller Farm case where an Amish farmer, that sells privately to his members, is being attacked by the USDA and PADA trying to shut him and other Amish farmers down from selling foods that they have been selling for over a century. You should be worried about this!

LOPER BRIGHT ENTERPRISES V. RAIMONDO,

In 1976, Congress passed the MS Fisheries and Management Act. While it addressed mostly Pacific and North Atlantic waters, it did not address the herring fisheries in the Atlantic to the extent that fees were set for the Pacific and North Atlantic but not for the herring fisheries. All vessels in the fisheries would be required (may require) Federal inspectors on board to monitor the take.

The government paid the bill for the monitors. But as it ran out of money for the program, it started to require the herring fisherman to pay third party contracted monitors at a cost of over $700.00 per day to be allowed to fish.

Back to OP's post.

But the situation posed by the OP is not one of agency regulation, as I understand the facts, but rather that the elected body that enacts local laws imposed the requirements of which the OP complians

I'm not so sure that OP's post is dealing with an elected body. The USFS has their hand in this and so does MA.

 

[Tax Counsel]

But I have also seen the APA, on both the state (every state has one) and federal level, ignored and abused. It is very far from a perfect process when the agency itself is in charge of the process without oversight. And that is where the courts come into play notwithstanding whether it becomes a burden on the court system or not.

Of course it's the job of the courts to ensure that agencies follow the laws set for them by Congress. That's never been in dispute. I don't know how closely every federal agency follows the APA, but at the IRS we had a separate review process to make sure the APA requirements were met. It was in the agency's bests interests to do so because all the time and effort that goes into detailed regulations like IRS puts out ends up being wasted as soon as the regulation is tossed out by the courts. The IRS is, however, more likely to encounter challenges its regulations for the simple reason that it engages in civil litigation a lot more than most other federal agencies do, and there is specialized tax court for the income, gift, and estate taxes that will scrutinize every part of a regulation. Other agencies don't face challenges to their regulations very often, which lets them get away with more in the regulations they issue.

For the regulations I wrote I followed the APA template (for lack of a better word) that the IRS had all regulation writers follow to ensure no APA step was skipped. The public hearings I held on my regulations had absolutely no one show up, but I was still there anyway even though I knew it was extremely unlikely that anyone would show up. All the comments I received on my proposed regulations were submitted in writing and nearly all were by professional associations like the ABA, AICPA, etc. My regulations had very little impact on the average taxpayer, so it's not a surprise that the public would have very little interest in them.

I've seen the regulations of other agencies that are so general and largely just restate the statute as to be pretty much worthless. I don't even know why they bother to issue those when the regulation provides no more guidance than the statute does. The only benefit to that is that simply repeating the statute guarantees the courts won't strike the regulation down for exceeding the authority they had to issue the regulation.

But the Chevron case was about how much deference the courts owe to the regulations the agencies put out, not whether the it is the courts' role to review regulations. As I said before, I have always thought that Chevron was overly deferential to agency regulations, largely taking the courts out of the picture. The problem I do not want to see is for the Supreme Court to do a complete 180 and essentially make it impossible for an agency to issue needed regulations and just dump it entirely on the courts to do. Not only would that overburden the courts, but the rules the courts would make would suffer in quality for the reasons I mentioned before. It's not the job of the courts to write regulations. It is the job of the courts to ensure the regulations that agencies write don't exceed the agency's authority and don't alter the legislative scheme Congress enacted. The regulations should fill in the technical gaps that Congress didn't address.

All you have to look at is what is happening in PA with the Amos Miller Farm case where an Amish farmer, that sells privately to his members, is being attacked by the USDA and PADA trying to shut him and other Amish farmers down from selling foods that they have been selling for over a century. You should be worried about this!

That sort of thing is not new. It stems from a case in the 1930s in which the Supreme Court upheld an action by the USDA during the depression that limited farm production to help stablize produce prices. The USDA in that case ordered a farmer to stop growing food on his land that was never sold, never entered into commerce at all, but was consumed by the farmer's family. Despite what I would see as an action that has very little impact on commerce at all, let alone interstate commerce, the Supreme Court at the time upheld that action as being within the power granted by the statute Congress enacted. While the courts since then have pulled back from that extreme example, Chevron still leaves a lot of room for agencies to end up exceeding their congressional mandate or the Constitution. I think the former tends to be the more common problem with most agency regulations today.

But while I don't want that kind of extreme regulation, I do see the need for agency regulations to provide the details Congress didn't put in the statute to effectively carry out the intent Congress had in enacting the law. Congess doesn't have the time nor the expertise to write rules that go all the way down to the granular details like what form the public should use and what that form looks like, etc.

IMO, the Court will get it right if it finally moves more to the middle and sets up a rule that allows courts to more meaningfully review the agency's actions without going so far as to push the job of actually writing the rules to judges who lack the expertise needed to do a good job of it.

 

[welkin]

IMO, the Court will get it right if it finally moves more to the middle and sets up a rule that allows courts to more meaningfully review the agency's actions without going so far as to push the job of actually writing the rules to judges who lack the expertise needed to do a good job of it.

 

[welkin]

I agree. Nobody wants judges writing technical regulations. The next thing you know is that judges will think they can run businesses. Oh wait, they already think they can.

 

[Tax Counsel]

I agree. Nobody wants judges writing technical regulations. The next thing you know is that judges will think they can run businesses. Oh wait, they already think they can.

It's amazing to me how many people think that running a business is easy and that they and just about anyone else are capable of doing it. Starting up your own business involves a lot of work (a lot more than a 40 work week at a desk job), considerable risk since there is no guarantee the business will make money, or if it does, that the amount the owner gets after taxes would exceed the net pay he or she would get at a regular job, and importantly, involves knowing not only the trade or craft you do in your business but also the actual business management side: how to keep good records, how to interpret those records to gauge how your business is really doing and spot the areas that need improvement, how to hire, fire, and manage employees, and raising all the money it will take not just to open the doors but to keep it running for awhile while building the customer traffic needed to be profitable. When I collected tax for the IRS a lot of the business tax cases I had involved owners who were very good at their craft/trade but absolutely terrible at keeping records and actually doing the management side of things. For some businesses that weren't already dead by the time I showed up I was able to compile a good financial picture of the business and tell the owners where they were hemmoraging cash and some ways they might fix it. I'd also tell them to get a good accountant and, if they can't do it, hire a business manager. Some of those taxpayers took the time later to contact me and thank me for pointing their business in the right direction or for showing them their business was never going to work and closing it down before throwing even more money down the drain. It takes a certain kind of person that really has the entrepreneurial spirit and is willing to fail a time or two before hitting on a winner to create a thriving business. Not everyone has that.