(4) The process used by government agencies shall be protected by
attorney client privilege. Nothing in this section grants a private party the
right to seek judicial relief requiring compliance with the provisions of this
section.
We made
a request under the FREEDOM OF INFORMATION act to the State Attorney General
(AG) for what documents were prepared by the AG's office to comply with RCW
36.70A.370. They forwarded to
us the AG's "ADVISORY MEMORANDUM: Avoiding Unconstitutional Takings
of Private Property, December 2003". (the "Memorandum") This document is supposed to be a guide
(not a legal
opinion) to assist local governments in determining whether certain
governmental actions could result in an unconstitutional taking.
We have
read the AG's Memorandum, cover to cover.
We then compared "it" to other state and national TAKINGS documents
either as court precedences or treatises by those in the judiciary. And although we have no intention of
comparing every statement in the Memorandum against other documents, some very
striking differences occur between the AG's Memorandum and these other cases and
opinions. Not to mention some
substantial omissions. One glaring
omission was not mentioning anything about the "Best Available Science" doctrine
as required in the Growth Management Act to establish a "clear
governmental purpose".
I.
PROPERTY RIGHTS DEFINED:
The
first and most striking difference was what the AG construed as the rights of
ownership as defined by the State and Federal Constitutions: The Memorandum stated that 1) "The
Right to Own or Possess"; 2) "The Right to Exclude Others from the
Property"; and 3) "The Right to Transfer the Property to someone
else".
And yet in a "Fifth Amendment" treatise by State Supreme Court
Justice Richard B. Sanders (12/10/97), states that:
"Property "is defined by (Washington)
state law. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 2709,
33 L. Ed. 2d 548 (1972). Our state, and most other states, define property in an
extremely broad sense."
"Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment, and
disposal. Anything which destroys any of the elements of property, to that
extent, destroys the property itself. The substantial value of property lies in
its use. If the right of use be denied, the value of
the property is annihilated and ownership is rendered a
barren right."
Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664
(1960) (quoting from Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W.
513, 19 A.L.R. 1387 (1921)).
And further, Justice Sanders states:
"While it is up to each state to define property for itself, the right to
use one’s property has been universally understood to be a fundamental attribute
of real property ownership. Compare Eaton v. Boston, C. and M.R.R., 51 N.H. 504,
511-512 (1872) ("the framers of the Constitution intended to protect property
rights which are worth protecting; not mere empty titles . . . among those
elements is, fundamentally, the right of use . . . ") and Lord Coke: "to deprive
one of the use of his land is depriving him of his land. What is the land but
the profits thereof?" See also John M. Groen and Richard M. Stephens, Takings
Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at
1266, 1295 (Spring 1993)."
Rob, even a layman can understand that when "use" is
severely restricted or taken, ownership becomes a barren right. If property ownership is a
"barren" right, then private citizens have no right to own
property. If the private citizen
has no right to own property, then it follows that Government "owns" all
property. Many in government and
the environmental movement actually believe this and would like to see this to
be the final outcome of private property in America today, the Constitution be
damned.
We rural landowners ask
that you please review the AG's Memorandum of December 2003 and see about
clarifying true property ownership, best available science issues and when
TAKINGS occur. Politicians, driven by very powerful
environmental lobbyists, need regulations, restrictions and ordinances of their
own to curb the wholesale restrictions and takings of private property by
government ordinance.
In fact Rob, if it doesn't stop
pretty soon, Washington State Government at all levels, is going to have a major
uprising on their hands from rural landowners, all across this state and it is
my intent to foment that uprising if changes don't occur soon. We need
your help to curb government where your authority as AG will allow you to
do.
Thanks again for expressing some
of your knowledge and wisdom about the CAO, re-districting and other
relevant matters at the May Valley Alliance last night.
Take care and good luck as Attorney
General.
Ron Ewart, CEO
TRIANGULUM CORP.
Fall City, WA
425 222-4742 or 1 800
682-7848