Rushmore State News

A South Dakota couple's appeal shot down by the U.S. Supreme Court more than three years ago is one case study in a report issued this spring that describes how bureaucratic regulatory bodies continue to tell property owners what to do.

"Federal bureaucracies are designed and driven to pursue their narrow missions, be it regulating education, economic activity, or the environment," said the Pacific Legal Foundation's report, "The Regulatory State's Due Process Deficits," issued in May. "Even if well intentioned, agencies' myopic focus on their own regulations, policies and objectives, as well as the documented tendency of bureaucracies to expand their own power and personnel, leads them to give short shrift to the fundamental value of individual liberty—as many Pacific Legal Foundation (PLF) clients can attest."

The 30-page report focuses on what it calls "a critical aspect of the problem," which is a "lack of constitutionally required due process in agency regulation and enforcement."

Rushmore State News reached out to Pacific Legal Foundation Senior attorney Tony Francios for additional comment but received no reply.

Established in 1973, Pacific Legal Foundation is a nonprofit legal group "that defends Americans’ liberties when threatened by government overreach and abuse," the about page on Pacific Legal's website says. "We sue the government when it violates Americans’ constitutional rights—and win."

Litigation by Arlen and Cindy Foster, which wasn't a win for Pacific Legal, is one of nine case studies in the report that details how "the judiciary places a heavy thumb on the scales of justice in favor of the overreaching agencies," the report said.

The Fosters sued the U.S. Department of Agriculture, alleging they were denied constitutional due process when the department declared wetland plants on their 0.8-acre property in Miner County were federally protected.

In April 2016, the U.S. Eighth Circuit Court of Appeals upheld an earlier U.S. District Court ruling that sided with the USDA. Pacific Legal argued at the time that the appeals court was wrong when it deferred to the USDA's expertise but the U.S. Supreme Court, in January 2017, declined to take up the case.

"The Fosters' case demonstrates the due process deficit of unfair rules of evidence," the foundation report said. "Rather than using reliable evidence to evaluate whether the Fosters' land contained a wetland, the USDA used the selection of a biased comparison site to dictate its preferred result. Agencies should make decisions based only on reliable evidence and should give people a fair opportunity to refute that evidence."