Property Rights Foundation of America®
Founded 1994

President Trump and Property Rights: Promises Made, Promises Kept?

Mark Miller, Esq.
Senior Attorney & Managing Attorney
Pacific Legal Foundation Atlantic Center
Palm Beach Gardens, Florida

Twenty-first Annual National Conference on
Private Property Rights
October 21, 2017
The Century House, Latham, N.Y

 

In all of those awards [mentioned by Carol LaGrasse] you didn't hear anything about technology, though. So, let's see if I can earn a technology award right now. Just bear with me one moment. I think it's going to work.

Can everyone hear me if I just speak? I am from New Jersey, so I may go back and forth between the mic… Hopefully, it's going to work. We'll find out in a minute when I play the videos. It never fails if I travel the technology is going to be sketchy. That's entirely on me. Let's be clear about that.

So, as Carol said, I'm an attorney with Pacific Legal Foundation. My topic today… I'm going to tell you a little bit about Pacific Legal foundation and why my two cents might be worth two cents. But the topic, before I get to about Mark Miller and Pacific Legal Foundation, is "President Trump and Property Rights: Promises Made, Promises Delivered?" Carol so graciously asked me to come speak this year. She gave me a call, actually, or I may have called her, I don't recall. No, I think Carol called me. I was actually cleaning up from Hurricane Irma when she called and we were talking, as I much prefer to talk on the phone, than to clean up my yard from hurricane damage. We were talking about what might be interesting. What you all might want to hear about. Obviously, with the incredible change in the election that we had in November, which I think surprised most people — not everyone, but I think most people — Carol and I both thought it would be interesting to talk about how things are going. You know, we're nine months or so into President Trump's first term. I have to say "first." He made a lot of promises. That's one thing Carol and I talked about. He made a lot of promises to get himself elected. What has he done in terms of those promises and property rights? So, "promises made, promises delivered?" is my topic.

As I said, I work for Pacific Legal Foundation and I manage the Atlantic Center down in Palm Beach Gardens, Florida. That's quite a mouthful, Pacific Legal and then the Atlantic Center. We're called Pacific Legal Foundation because we were founded in California. In a nutshell, before I give you the two minute spiel, what I do is I sue the government. I sue the local government. I'll sue the state government and I'll sue the federal government. If you can find me another government, I'd be happy to sue them, too.

That's what Pacific Legal is for. We are a nonprofit, charity foundation 501(c)(3). We were founded in the early 1970s. The origin story for those of you who like your superhero comic books and the super heroes now always have origin stories, so, as Carol said, I am a super lawyer. I don't have my cape but… The Pacific Legal Foundation origin story is that when Ronald Reagan was governor of California he was sued by the American Civil Liberties Union, the ACLU, because he was trying to enact common sense welfare reform. He, of course, was not happy about being sued by the ACLU so he turned to Ed Meese, who was already with him and one of his closest advisers, and he said, "Why are there no groups like the ACLU but perhaps that would speak up more for the little guy?" And from that simple conversation Pacific Legal Foundation was born.

A couple of deputy attorneys general in California who were in the state attorney general's office heard about that idea and they started Pacific Legal. Hence the name "Pacific." That was in 1973. Now, we've since grown. In the early 80s we started winning cases at the Supreme Court of the United States. Before I go to that slide though, I'm just going to describe this one. That there is my director. He is one of our vice presidents at Pacific Legal, Jim Burling. Jim Burling is one of those attorneys who has won at the Supreme Court of the United States on property rights. He also has spoken at one of these annual conferences a number of years back. And so, Jim's quote there is, "For every victory we achieve governments will try evasion, obfuscation, and massive resistance. Eternal vigilance backed by eternal litigation is the price of liberty. That's why PLF goes to court."

As I said, in 1973 we were founded, so for forty-four years we've been the nation's premier defender of liberty and justice for all. We have about 150 cases all over the country. I'm a member of the bar in Florida and New Jersey and on several federal courts among our 25 attorneys or so, we are members of at least a dozen state bars and pretty much every federal court in the country. And then the nine Supreme Court wins. Again, it's just a predicate to get so that when I talk I'm just blathering, at least you'll know why I'm blathering. We won nine cases in the Supreme Court. As Carol said, I was in all of the most recent, the last two wins. Those cases involved opening the courthouse doors. And those two cases on behalf of landowners, we were involved with the appeals of landowners who were trying to use their property that in both cases their property was, say give or take, 100 to 120 miles away from the nearest navigable water.

I'm going to talk quite a bit about navigable waters. But the reason navigable waters matter is that's how the federal government tries to use the Clean Water Act to tell you what you can do with your property. In these two cases that went to the Supreme Court in 2015 and then were resolved in 2016, you had property owners who intended to use their property but they went to the federal government as a precautionary measure to make sure the federal government would agree with them that because they were 100 miles or so away from the nearest navigable water, the nearest river, gulf, the Great Lakes, obviously Atlantic, Pacific or a navigable stream that would connect to a river, what have you. Because they were so far away they did not think they needed a permit under the Clean Water Act to discharge into their properties. Because, in fact, much of the property is either dry or in one of the cases it was a bog but it was, like I said, about 120 miles away. Yet the federal government, the U.S. Corps of Engineers, told all of these property owners that, "No, in fact, you will need a permit, a federal permit, to do what you want to do, even though you say you're 100 miles away from the nearest navigable water." Again, we're talking about property rights. What's interesting is these cases like this tend to get categorized for the lawyers. We put everything into little boxes. There's environmental law or maybe administrative law but, in fact, it's really about your ability to use your property. Most of what Pacific Legal does is about your buildings, your property. The real cute thing the federal government did here was they told our clients that they couldn't use their properties because the federal government, in its infinite wisdom, believed that there was federal wetlands on these patches of land 100 miles away from the nearest navigable water.

The landowners said, "Then we're going to sue you and argue to a neutral, independent magistrate, a federal judge, that you're acting crazily, as the lawyers say, arbitrarily and capriciously. It's completely ludicrous to suggest that a piece of property — the case that went before the court in oral argument was in Minnesota — that a piece of property 120 miles away from the nearest navigable water, which was the Red River to the north, is somehow connected to that, when there are highways and what-have-you between them. The cuteness of the federal government's position was, "No, you don't even get to sue us. You just have to apply for the permit." And after you apply for the permit, which the Supreme Court Justice Scalia has pointed out that applying for a permit under Clean Water Act, a certain kind of permit can cost you upwards of $200,000 and take you two years. After you spend the $200,000 and after you spend those two years to use your property that you don't think you need a permit, if the government doesn't give it to you, you can then challenge it. At the end of the two years and say, "I never needed a permit in the first place" So, you had to apply for the permit, spend the money, waste the time, only then to actually say, "I didn't need a permit," and get a judge to try and agree with you.

Justice Scalia said that's outrageous. That's simply an unconstitutional restriction on property rights and really an unconstitutional restriction on your right of access to the courts. When the federal government makes a final decision that controls your property, the effects that impact you and have consequences for you, you should get to go to court. So, that's the case we argued last year in the Supreme Court called Hawkes [Army Corps of Engineers v. Hawkes Co.]. I was Second Chair in the case, which means I was on the briefs. I was right there a few feet away from the justices and, in fact, the Supreme Court has a tradition that when First Chair gets up to argue the case, Second Chair, sitting in that second chair, gets to slide over into the first chair. So, briefly, for a few moments, while my colleague was arguing, I was sitting First Chair at the Supreme Court of the United States. This is what we do at Pacific Legal. We started winning our cases at the Supreme Court back in the early- mid-1980s. Again, about property rights. That's been our focus ever since.

And, of course, the Property Rights Foundation of America, I was looking at Carol's website, and her first two goals really go together with PLF's goals like peas and carrots. We stand for private ownership of land and resources. That's the very first goal of the Property Rights Foundation. We stand for the constitutionally guaranteed protection of the private property owner's right to use his property unencumbered by unjust regulation. That's really exactly what we do and it's a good example of why one of the first briefs I worked on for Pacific Legal, I joined it almost four years ago, was the brief, together with Carol up here on Friends of Thayer Lake.

That's the predicate for why I have a few cents to say about property rights or President Trump. I'm probably going to, as the speech goes on, say some things that make it sound like I am skeptical of President Trump but I want to emphasize that that skepticism really has nothing to do with him. It' just has to do with the way I look at the government. I love my country. I love my government. I just don't want some of the things my government does sometimes. President Reagan, I think, identified for us really the way I feel about the federal government and government in general.

[Video plays. Ronald Reagan speaks.] "I think you all know that I've always felt the nine most terrifying words in the English language are, "I'm from the government and I'm here to help."

That's the way I look at things when it comes to our government. "I'm from the government. I'm here to help." It's my job to oppose the government when it's abusing property rights. I have a healthy skepticism about any government actually, be it liberal or conservative and I suspect most of the room would agree with me that the election of President Trump was the better of the alternatives. And there's your alternative. That is to say, that as I talk about some of President Trump's successes in his first nine months and, perhaps, some of the things we should be looking for in the next six-and-a-half, seven years, I expect, seven plus years, we have to keep in mind that if I'm being critical of President Trump or of his administration, we're talking about the agencies, we're talking about the "deep state" in many cases. Let's just keep in mind that I think we all agree that we're light years better than where we would have been.

President Trump made a lot of promises when he was running. A ticket to the topic at hand. Boy, did he make promises. Let's see if I can find that video.

[The video is a compilation of all the promises that Trump made during the campaign.]

To see video [Video: Sarah Parnass/The Washington Post] click here

Mr. Miller: Indeed, he did make a lot of promises. Let's see if I can get back to my video. A number of those promises impact property rights. But I'm not going to discuss all of them. In a few of them that were in that video he talked about rebuilding infrastructure. I'm going to talk about that. He talked about getting rid of the EPA, I'm going to talk about that. And he talked about picking excellent Supreme Court justices. All of those things really impact property rights and I'm going to be talking about them today. A few things that I won't talk about, for example, are the wall. The wall, I think, what you saw during the campaign, sometimes, is you saw people trying to criticize those who were supporting Trump saying, "Well, President Trump used eminent domain in Atlantic City and so he loves eminent domain."

And then, of course, the Clean Power Plan I'm not going into that because another speaker is going to address that. But as for eminent domain and President Trump, there's certainly no question, and it would be inappropriate for a speaker on property rights not to at least mention, that Atlantic City case about Vera Coking where President Trump, at the time just a private citizen, was hoping New Jersey would work with him. Its casino redevelopment authority, which I just find to be one of the more remarkable names for a government agency anywhere, any time. There's literally a New Jersey Casino Redevelopment Agency [CRDA - Casino Reinvestment Development Authority]. We need to be redeveloping casinos. I hate the government doing that. So, yes it certainly throws shade, as the kids say these days, at President Trump for having tried to take a little old lady's home so that he could have a driveway in front of one of his casinos. I actually can't but smile even thinking of about it. But at the same time you really can't go too far with that criticism when you then move, say, twenty years ahead to where we are today, at least I would suggest you can't. And so, my counterargument for why you can't hold that too much against him and if you read President Trump as you've certainly been prolific for example, if you read Art of the Deal, what he's going to tell you is that, I don't think he addresses Vera Coking in the book it was before the Coking situation, but I think that some of the things he said effective apply which is he knew how to work with the government. He knew what to do, what buttons to push, what levers to pull in order to get what he wanted. It wasn't that he was in favor, necessarily of the government taking someone's property to give it to a casino owner, but rather he knew the government would probably do that and it was in his business interest to do it. Now I'm not happy that he wanted to do that, but at the same time, he campaigned on his promise that because he knows how the government works he also can also, sort of, take a wrecking ball to it. I think there's something to be said for that. I really don't... I perhaps disagree with some of my colleagues who would really hold that against him in and it applies here because of the wall. He talks about building his wall and, yes, that may have some eminent domain features but I don't really know where that's going to go and so I'm not going to really get into that today.

There are some promises that I can report back upon today as I've said: Talking about the EPA; talking about justices:

[A video plays that was an ad in support of confirming Neil Gorsuch for the Supreme Court.]

Watch it here.

And so, how does a promise on a justice effect property rights? When we lost Justice Scalia, we lost one of our two staunchest justices on private property rights. The other being Justice Thomas. When Mitch McConnell said he was not going to confirm anybody into the Supreme Court and he was going to keep the Republicans together, that's sort of the second part of it. I have to tell you, I was skeptical like everyone else in the room the Republicans, as they've shown since President Trump was inaugurated, don't seem to be able to work together on anything. But Mitch McConnell, to his credit, was able to keep them together and fend off the confirmation of Merrick Garland, who may be a very good man, but he would have been terrible on property rights. We know that because he was on one of the most important federal courts in the country, other than the Supreme Court of the United States, the D.C. Circuit. He still is.

The D.C. Circuit hears many of the appeals that involve federal agency decision-making. The case that I just described, specifically for one, the Hawkes and then there was this companion case called Kent Recycling [Kent Recycling Services, LLC v. United States Army Corps of Engineers]. Those do not come out of that court but these kind of challenges where you're challenging federal agency action oftentimes emerge from the D.C. Circuit. The D.C. Circuit is happy to say, when it come to agency decision-making, which is agencies that are in the Executive Office of the federal government and so on the president's side, they're going to defer to them. They're going to say unless they act arbitrarily and capriciously, they're just going to say, "Okay, it's okay." We might think it's inappropriate what the EPA wants to do, what U.S. Fish and Wildlife wants to do but we're going to defer to them because they're the court of supposed experts. That perspective is a perspective that if it made it to the Supreme Court would have cohered with Justice Ginsburg, Justice Breyer, certainly Justice Sotomayer and we're talking a generational challenge. This Scalia seat, if it had gone to Merrick Garland or really anyone else that President Obama would have appointed, then property rights would have been set back, in a way, that just would have been amazing. Then McConnell pulls the rabbit out of the hat and is able to hold up Garland. For President Trump there's his promise and I have many friends in the Bar who would have told you they didn't like this, that, and the other about President Trump, but they said, "I'm going to vote for him because he has told us he's going to appoint conservative justices to the Supreme Court of the United States." He even gave us a list of twenty judges and one senator, Mike Lee, from Utah. He said, "I'm going to appoint someone from that list," And I don't know in my forty-six years on this Earth that a politician is going to tell me something and actually do it, I never would have bought it. But in fact, on that list, there was two lists, and on the list when they were put together and he said, "Here's my twenty-one," — was Neil Gorsuch. Neil Gorsuch, as opposed to, say, Merrick Garland. He's just one of the many judges that President Trump could have picked. He is fantastic on property rights. When he reviews the administrative decisions, again, the kind of cases Pacific Legal has won. He says we should not be deferring to federal agencies. We should be evaluating them as judges do as our Founding Fathers thought judges should do. They're neutral. Certainly the executive agencies make a decision and they deserve some credence but not this deferential standard where justices simply have to hold their nose and the judges hold their nose and say we think this is outrageous but we're going to defer because they're the experts. Gorsuch said that's not a way judges should act. He just, as recently as last week on the Supreme Court, wrote that and explained that again. That is his philosophy. He had a case before him — the justices had a case — where he said this is not the right case to address this question, for reasons having nothing to do with the issue of the review of administrative agency decision-making that holds that property owners have property rights, but we need to get to it. It's a very good sign that Justice Gorsuch would write something like that just this last week. I think it bodes very well.

When I talk about people voting for President Trump because he said he was going to appoint good justices, if that's the reason they voted for him, well, that has returned — I'm back to the casino idea — really come away further. If you bet there was about 100 to 1 bet and you got great returns, I'm not great on my gambling analogies, because not only did he appoint Gorsuch but he has named many good judges. It's, frankly, remarkable. I'm old enough to remember the first President Bush's appointments and to have practiced in front of any number of them, certainly President Clinton's, and then President George W. Bush's appointments, President Obama's. Let's talk about the Republicans. The Republicans who in theory would believe in property rights the way we do at least they will tell us they do. The judges that have been appointed and that have been nominated by President Trump are, for the most part, light years better than you're going to have seen in the late 80s, or 90s with the first Bush and in President Bush in the late 2000s in his two terms. Not to say that those are bad. But President Trump has focused on lawyers and the lower court judges who understand what Carol believes, what this group is about. As Carol said, "We have friends over there in D.C." We certainly do. Those friends are the ones telling President Trump whom to pick. He may tweet a lot of things but I'm a big believer in, "don't look at what he says, let's look at what he's doing" and what he's doing when it comes to judges is fantastic.

I'll just give you some examples, some names. I always find it humorous because one side of the political aisle gets credit when they appoint the first this, the first that. The other side of the aisle never gets credit because if it's, say, Clarence Thomas. He's a conservative so it doesn't matter that if he was on the other side of the aisle he would get a checkbox for being a minority or what have you. Here is a perfect example. The very first nomination President Trump made to the Federal Appeals Court bench — after Justice Gorsuch, after nominating Gorsuch — to the lower courts was a judge named Amul Thapar, who was a federal district judge, graduated Boston College, undergrad, his law school, I think was Harvard Law, but be that as it may, he was a district judge, the first Indian-American appointed to the Federal Appeals Court. He was appointed to the Sixth Circuit. Part of my job at Pacific Legal was to investigate all of President Trump's list when he nominated, when he gave us the list of twenty-one and Thapar was one of them so even before he got elected he had identified Judge Thapar. I can tell you having looked and done the investigation of these names, Thapar is excellent on property rights. He's now one step below the U.S. Supreme Court, making good decisions on property rights. We also have Amy Barrett, a professor at Notre Dame, who apparently is too Catholic for Di Fine [Dianne Feinstein]. She would be another one. As soon as she gets confirmed she would be excellent on property rights. Greg Katsas, who is a D.C. Lawyer. He's appeared before every federal appeals court. I think he's argued something like seventy-five cases in the federal appeals courts and U.S. Supreme Court.

Another judge who would be great on property rights is Don Willett, a Texas Supreme Court justice. You're not going to get better than Don Willett down there in Texas if he gets confirmed to the Fifth Circuit Court of Appeals. He understands property rights the way everyone in this room and Carol does. It's exactly how we look at property rights. It's remarkable when you compare to what we've seen in the past. I would say that President Trump's greatest accomplishment in this first year in office is the way, in terms of property rights, he's handling his appointments.

His second greatest accomplishment would involve regulatory rollback. His promise, — well, hang on I've got it on one more slide. So, Kim Strassel, with The Wall Street Journal, wrote about the fact that President Trump is appointing great judges, not just Justice Gorsuch and she said that, "The media remains so caught up with the president's tweets that it has missed Mr. Trump's project to transform the rest of the federal judiciary. The president is stocking the courts with a class of brilliant young textualists…" which means judges who actually follow the law. That's what textualists means. When you hear it thrown around like it's some sort of bad word, it's judges who actually read the law and stick to what the law says. I know it's crazy. Don't try and use that word on MSNBC. To me it's what judges are supposed to be doing. Then she also goes on, Miss Strassel, in The Wall Street Journal, This is as of about two weeks ago:

"Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year. There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes.

"This project is the work of Mr. Trump, White House Counsel Don McGahn and Senate Majority Leader Mitch McConnell. Every new president cares about the judiciary, but no administration in memory has approached appointments with more purpose than this team."

They also worked with two organizations: The Heritage Foundation and the Federal Society. Between McGahn and Heritage and the Federal Society we've just seen great judges up and down everywhere.

Audience member: That was an excellent article.

Mr. Miller: Yes. The Strassel article, yes. One way I prepare for speeches. Let's find what good people have said and let's just parrot what they said. Humility is always right.

So, regulation rollback. Another one of President Trump's promises was for every regulation that gets passed underneath his administration he would eliminate two. Really "passed" is the wrong word because Congress is not passing these regulations. These are laws, but they're not called laws, they're called rules, regulations, guidance documents, tweets, facebook posts, that all of a sudden govern us like the rule of law. Also a new term for it is "regulatory dark matter." What that means is, you can't see it but it's governing the way you act. In President Obama's Administration he said, he could govern with a pen and a phone. He took this to a new level. It's not to say the last several presidents all haven't used agency action to get around what Congress is supposed to be doing, what our Founding Fathers thought was Congress's job. Crazy. Write the laws. It's just there in the Constitution. Instead, Congress writes in general mumbo-jumbo and then tells the agencies to implement it. Then we can't get rid of those bureaucrats, those deep state bureaucrats, who write these rules.

So, Trump, like I said, he knows how the government works. He's had to deal with them whether it's building the Wollman Rink there in the city or any of his other projects. He knows what it means to work with the government and here the federal government. He said, "I'm going to eliminate two rules for every new regulation adopted and insure that the net cost would be zero. In nine months the Trump Administration has issued about 2,200 rules. President Obama had issued almost 2,700 rules in the same time frame in 2016. President Trump's tally would be an 18% decrease. But keep in mind, even getting rid of a rule requires issuing a rule in order to comply with the Administrative Procedure Act notice and comment requirements. So, all that is to say that it's a lot of complication. That's really what the federal government does, all the government does in general. It tries to make things really complicated so that the regular Americans in this room give up. Yes?

Audience member Lawrence Kogan: I'm glad you brought that point out because it's going to take time for us to go through the notice and comment process. They did all the comments, then report back as if you had taken them into consideration. The two-for-one rule, it's too general because everything is subcontext specifically. In the end of the day, it's going to take, probably, eight years to undo all the damage that was done during the last twelve years.

Mr. Miller: I would say more than eight years. I'm reminded when you point out how long it takes to... Judge Kozinski recently wrote a, I think it was concurrent, Judge Kozinski is one of the only smart judges on the Ninth Circuit. The ninth Circuit is [unintelligible] the fruits and nuts out there in California.

They were looking at a rule I think was from 2001-2002 and here it was 2015 and, I think it was his opinion in '14 or '15. He's saying we're through another administration. It's 14 or 15 years later and we're just deciding whether this rule passed appropriately. At some point, how our Founding Fathers thought the government is supposed to work, we're losing it. And I would agree that what you're getting at with President Trump, it seemed very difficult to pull off. What I was saying, though, in terms of "can he pull it off," it's something we see on the left side of the aisle. I think the more conservatives who've identified Trump very early on as someone they wanted, to the skepticism of other conservatives, the ones who did they saw an insight to him that, I think, that I know I didn't see at first but I certainly believe now which is, "don't take him literally but take him seriously." When he says two-for-one I'm not going to hold him to it. The media is. The media is going to hold it literally. They don't want him to do it. But then when he doesn't do it, they're going to say, "You didn't do it." So, he can't win under the way the media tries to posit it. In fact, He's so much better. Yes, sir?

Mr. Kogan: Another point is that you have an embedded legacy bureaucracy that's from the last three administrations that is blocking any attempt at the political level to remove those regulations.

Mr. Miller: Yes.

Mr. Kogan: And then you have to first find out exactly how many regulations are out there, what their impacts are then you have to figure out… You have to have staff enough to be able to then reformulate. He doesn't have any of that.

Mr. Miller: Well, that's a perfect way for me to segue into some of the cases. I'm going to give an example of how the deep state is thwarting what I think President Trump wants. In fact, my job for the last year, give or take, has been trying to get the administration to do what I think President Trumps wants them to do and being thwarted by the bureaucratic state. I agree. It's not easy.

Mr. Kogan: And you know in the Department of Justice I have several state DOJ cases going on right now. And like you see in DOJ, the bureaucrats are blocking, besides the Senate, blocking the confirmations. They're still acting assistant Attorneys General. They're not in the chain of command which means you can't bring relief even into a mediation session to try to solve the case.

Mr. Miller: I have an example. I'm going to jump ahead and play a video that is exactly what you're describing. This is one of the cases we just settled. I'm going to skip ahead but it is exactly what you're describing, which is the bureaucracy beating the administration.

This is the story of John Duarte. Before I play the video, John Duarte has Duarte farms out in California. Under the prior administration… He's probably a medium-sized family-owned business. A couple hundred people work for him. Their livelihoods depend on him. Give or take about seven or eight years ago, a bureaucrat was driving by his farms, by Duarte's farms, and he saw a plow. This bureaucrat, who was of the mentality of President Obama, what have you, that never saw a farm he liked, he's driving by and he sees that in this dirt patch that they're plowing it for weeks. He knows that twenty or thirty years ago that at some point a prior farmer had stopped farming it and so now Duarte who bought the property was going to restart farming it. He had it for years and he hadn't been farming it but he was going to restart.

This is a dry dirt patch you're going to see in the video. Just to the point you're making, the federal government argued, when that bureaucrat went by, that he was violating the Clean Water Act because he was discharging, by farming, by plowing that property, they said he was "deep ripping" this farmland. The deep ripping was four inches. It was just barely the top. But they said it was deep ripping and then said that the furrows that were created, and this is in legal paper work, the bureaucrat who said this is under the Obama Administration, I'm going to tie it up in a minute, the furrows that were created made mini-mountain ranges and between the furrows. Water would gather when it rained or what have you what they call out West vernal pools and the water would evaporate but they said those pools would work their way to navigable waters and so the federal government had the right to tell him he can't plow.

Under the Clean Water Act there's an exception for farming but they said because you hadn't been farming that land, that exception no longer applied to you, to the tune of $45 million in penalties. A federal judge, appointed by President Obama, followed that logic out and so, under the Obama Administration he was losing, losing, losing. We were representing him saying this is outrageous and any number of arguments. It was a fundamental unfairness. But the main argument we were making was the property rights. That fundamentally they had no say here because there was no waters of the United States on the property. There was no connection to navigable waters but we lost on that point under the Trump Administration. That's what was frustrating. This is what I want you all to look for under the Trump Administration. This video takes place before it's settled but they pushed it through and they forced him to cave. They said you're looking at $45 million in penalties or you're looking at one million dollars, $1.1 million in fines and then credits buying wetlands elsewhere mitigates the "damage" you did. To save his family business he had to take that deal. Basically, eat $1.1 million so that he wouldn't risk the finding of the judge because the judge had made it clear she had no respect for this businessman making a living as a farmer keeping hundreds of people at work. The Trump Administration didn't do anything. We would hear that the DOJ cared about it but then when we asked them what's going on they acted like they were doing us a favor to let him be penalized to the tune of $1.1 million. He's looking at $45 million that he can't heel but at that point he's lost his business.

Mr. Kogan: Did you get Acting Assistant AJ Jeff Wood in the room.

Mr. Miller: Jeff Wood? Yes, and he wrote the press release. Yes, Jeff Ward was involved.

Mr. Kogan: He was hand-selected by Jeff Sessions.

Mr. Miller: Yes.

Mr. Kogan: So, how could a man who was hand-selected by Jeff Sessions brag about a tragic ending to that story.

Mr. Miller: That's an excellent rhetorical question. Let me just real quick play that video. I'm going to run out of time but…

[A video plays describing Mr. Duarte's problem.]

Mr. Miller: That video was made before the settlement. Pacific Legal normally does not settle cases. I've been involved once or twice when the settlement was something the business owner had no choice but to accept. And I would argue, and it's a legal discussion for another day, but I would argue that "no choice" that the government gives you is unconstitutional in and of itself. That Duarte case is a good example where I don't know why President Trump, despite that fact that this case got a good degree of national coverage, why what I believe the President would want wasn't followed through by his administration including the Justice Department.

Back to my outline. The regulatory rollback. The Waters of the United States, that was the rule that the government used to force Mr. Duarte to settle for $1 million, it was premised on, in part, the Waters of the United States rule. President Obama uses that Waters of the United States rule, used it, passed it, in that agency to try to implement it, starting in 2015 and the courts froze it. So, we rollback to the earlier version of the Waters of the United States rule. Just to give you an example of what President Trump did right, he's already trying to eliminate the rule that President Obama put forward. That rule there's a lot of problems with that I would argue that would allow the federal government to regulate pretty much any sort of a puddle anywhere. But a concrete example is: any water within 4,000 feet of a tributary would be Waters of the United States. That's, basically, almost anything within a mile, eight tenths of a mile of water. A puddle on my property would conceivably need a permit. I would need to go get a permit from the federal government. You're looking at, of course, when you violate the Clean Water Act $37,500 in fines a day. $37,500 in fines a day. I don't want to be read as criticizing President Trump. He's been doing a lot of good things and he's just starting. Yes, sir?

Mr. Kogan: I don't mean to heckle you. I just have one more comment. The thing that people need to realize with the Clean Water Act is that the liberal judges like to make it a point that it is a strict liability statute. If this gentleman would explain what a strict liability statute is and its significance. For instance, you don't need evidence to prove any harm.

Mr. Miller: Or poor bad intent. That's what offends me. You don't need hardly any evidence. You get these battle of experts. And then you don't even need bad intent. You didn't mean to violate the Clean Water Act and it doesn't matter. You're looking at fines of $37,500 a day. Well, it's okay that you didn't have bad intent because it's not a punishment for a crime. What's the difference? I know I'm not going to go for it. My family's destroyed, my business is destroyed, who cares whether it's called criminal or called civil? We see the same thing with the Endangered Species Act. In fact, to roll into the Endangered Species Act… Can I play another video, Carol? Do I have enough time?

Carol LaGrasse: Ten minutes.

Mr. Miller: Ten minutes. Okay. This case, I think, is more extreme because this is going to be a video of Sean Hannity rather than me. This is a case of President Trump's Administration's pushing what the deep state started under President Obama. It's a case currently pending at the Supreme Court of the United States. It's about the Endangered Species Act and critical habitat. I'll give a thumbnail sketch before we play the video. When a creature or plant is deemed endangered, the federal government has to also declare critical habitat for that endangered species. If you own property within that critical habitat, watch out! Because, basically, that means that the federal government can control what you're ever going to do and has a veto power over anything you want to do with your property. This case, sort of on Kermit the Frog, is about a frog that lives in Mississippi but the federal government says it can regulate Louisiana landowners because of a frog in Mississippi. It's called a Markle [Markle v. U.S. Fish and Wildlife Service] and it's right now pending at the Supreme Court. We're waiting to see if they're going to take it. It's one of the most incredible abuses of federal power you're ever going to see.

[The Sean Hannity video plays. It describes how a frog that lives in Mississippi is being used by the government to restrict land usage in Louisiana.] Watch video here.

Mr. Miller: So, I'll jump ahead. So Reed, that's my colleague Reed. The two of us are on that case together and it's really the nut of it when the federal government likes to play down what it's doing. "Oh, we're not stopping or interfering with Mr. Poitevent. The federal government has to play down what it's doing and then, of course, local and states do the same thing. They say, "we're not interfering with him. He's leasing the property right now out to a public company, Weyerhaeuser, and Weyerhaeuser uses it for timber." But it's zoned for development. When that lease expires with Weyerhaeuser, Mr. Poitevent and his family would like to develop it. But if that critical habitat stands, if that decision stands, that the courts, up 'til now, have approved, they'll never get to develop it. The federal government has a veto as my colleague Reed just said. To get again to the point of what out administration is doing, well, this case started around 2008 or 2009. In fact, just to rub salt into the wound, how outrageous what the government did here is, this frog, it was called the dusky gopher frog. It lived in Mississippi, fifty miles away from this man's property in Louisiana. They literally changed the name of the frog. It was called the Mississippi gopher frog. They literally changed the name to dusky gopher frog to obfuscate, to obscure, the fact that this is a frog in Mississippi not in Louisiana. Now it's called the dusky gopher frog.

Well, the case is pending at Supreme Court. We submitted our briefs, asked the Supreme Court to take the case. The Appeals Court, down in New Orleans, the Fifth Circuit, was a 2 to 1 decision against us, against common sense, and yet the majority said the agency, basically, can do whatever it wants. Then there was a rehearing en banc and we lost 8 to 6. The six judges who dissented wrote a scathing dissent, and yes, I'm running out of time. That's not the Supreme Court. What was President Trump's administration going to do? So far they've asked for ninety days of extensions before they respond to us. That's unusual. Sixty days is not unusual, ninety days is. We haven't opposed it because we wonder if the administration is considering rolling back and recognizing that this is so outrageous. If they can declare property in Louisiana for a Mississippi frog to be protected, then they can declare this hotel to be protected for that frog. What would stop them? Nothing. That's why I think this case has a good chance of being heard at the Supreme Court. I would tell you about a lot of other cases, too, but I'm too talkative, too verbose.

I can't thank you enough. I would encourage you to… The purpose of this speech is to talk about what the President is doing. We have to hold their feet to the fire. The deep state… It's easy for the politicians who get appointed to simply roll with what the deep state bureaucrats tell them to do. We have to stay on top of them and make sure they implement what the president wants. Thank you very much.

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