Indeed, the principal reason why, in the first place, states and cities were ever organized at all was to defend private property. – Cicero 1
In 1772, shortly before the beginning of the Revolutionary War, Samuel Adams, who was a member of the Committee of Correspondence to the Boston Town Meeting, wrote the following:
Among the natural rights of the colonists are these: first, the right to life; secondly, to liberty; thirdly, to property; together with the right to support and defend them in the best manner they can. Those are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.2
Adams and the other founders of our constitutional republic felt strongly that the right to property is a fundamental part of life, liberty, and the pursuit of happiness. Nevertheless, it seems reasonable that even those who go as far as to deny the validity of eminent domain must acknowledge that to the extent the individual use of property affects other members of the community, both immediately and in the future, the community develops a legitimate interest in that use. Environmental public policy attempts to manage that interest, but is often a blunt and ineffective instrument due to a lack of scientific understanding about the long-term effects of such policies, and because of the political and financial self-interests that often drive them. This essay addresses the political and moral implications associated with the restriction of personal liberty and property rights by government that may be deemed necessary in the name of environmental protection.
I will first discuss the definition and philosophical underpinnings of private property and environmentalism in the hope of coming to logical conclusions about the relationship between them. My own a priori assumptions and worldview color my interpretations. I adhere to the premise that we live in a universe where God exists and has revealed Himself to men and women, whom He has created after His own image as a dichotomy of body and spirit. This is in opposition to views that completely reject a metaphysical sphere; that offer instead the idea that the universe and man are the result of mere chance. I maintain that God has told man that he has a right to own property.
In the first chapter of the book of Genesis, the prophet and patriarch Moses, filled with the Spirit, is inspired to write that God gave the earth, its creatures, and plants to Adam to do with as he saw fit. It is through Adam that we all share a common inheritance in the earth. In his essay, Of Property in General, the legendary English jurist, William Blackstone asserts this record of God’s gift to be the “only true and solid foundation” for man’s claim to ownership of property. 3 It is in these verses that God also gives to man the gift of liberty, “the ability to do what I want, when I want, without interference, in order that some good may be accomplished.”4 God has given us all the earth, yet we have no right to abuse it or lay waste to it. God is still the sovereign, and He alone has eminent domain. We are stewards who possess the land for a short time and pass it on to others when we die, or otherwise transfer control of it. 5 “Generations come and generations go, but the earth remains forever.” 6 We have no right to greedily hoard it or to benefit from its increase without giving back a portion to God by way of our tithes and offerings to the church, to the poor, to the widows and orphans in our midst. 7 An adherence to these views lead to a respect for the environment and the earth, and a feeling of responsibility as a steward to preserve and protect it. Nevertheless, men have other philosophies and desires that lead them to perpetrate unimaginable assaults upon each other and upon the earth itself. I must agree with Thomas Hobbes that it is for these reasons that men are left with no choice but to form government, 8 and further conclude that it is reasonable in this age to consider the environment as one of the many mutual concerns of the common-wealth.
God instructs us in the fifth commandment that He gives land to man saying, “Honor your father and your mother, so that you may live long in the land the LORD your God is giving you.” 9 We know (or should know) that we must honor our parents, and the rest of the verse speaks to the fact of our birth and the opportunities available to us to be blessed by God with property and land. By this verse I conclude that it is possible for someone to possess land; to own property. In the eighth commandment God instructs us that, “You shall not steal.” 10 This infers a right to property, that once acquired, may not be taken unjustly. God tells us that after Christ returns to rule, those who remain will have their own land. In the passage that speaks about beating swords into plowshares and studying war no more, the Lord completes this thought given to the Prophet Micah, by saying that, “Every man will sit under his own vine and under his own fig tree, and no one will make them afraid, for the LORD Almighty has spoken.”11 In the acrostic verse that describes the character of the virtuous woman, King David writes, “She considers a field and buys it; out of her earnings she plants a vineyard.” Again, this infers a right recognized by the Creator to purchase and hold real estate. Those who know the Lord,12 know that his word is truth,13 and therefore affirm a right to property.
The Right to Property
My life began at the moment of conception. From zygote, to blastocyte, to fetus, to the happy day when I emerged in glory and first triumph from my mother’s womb, I took up physical space. Due to the persistent requirements of the law of gravity, I soon occupied a few square feet on the face of the earth. So, I am born and afterwards I stand on my feet. Whenever I am standing in a particular spot for my own purposes, I am engaged in a physical taking, albeit temporarily, of that land. It seems to me that life would be rather unpleasant without the right to stand somewhere on the earth without interference. It is also a fact that I must eat in order to live. It follows that I might reasonably conclude that I should have access to at least enough land to provide the necessities to sustain my life. Ayn Rand said “Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life.” 14 How much more difficult this task must be without available land or resources upon which to apply one’s effort. However, resources are commonly in short supply. Mark Twain is supposed to have said, “Buy land, they’re not making any more of it.” Thomas Hobbes suggested that in the natural state of man, property rights were non-existent, possession being maintained only by individual force for a limited time. 15 I must disagree with him on this point, as I think that it is the inherent recognition of property rights that causes men to strive for possession in the first place, and has often continued to be the case throughout history in spite of the so-called civilizing influence of government. Blackstone remarks that the various other creatures have dens or nests that they occupy and defend, providing an example from nature for man to conclude that he also should secure for himself a home.16 I am reminded also of the passage in Second Samuel, Chapter twenty-three. Shammah, son of Agee the Hararite, one of King David’s mighty men, kills several of the Philistines defending what amounted to nothing more than a “hill of beans,” for his King, lentils actually, from whence the phrase is derived. Continuing the thought that I, by my very existence engage in the taking of the real estate upon which I stand, John Locke begins his treatise on property by claiming that an individual has a claim to “property in his own person” that no one “has any right to but himself.”17 Locke goes on to say that by adding labor to the resources found in nature, he adds something of himself to them and by this mixing of labor and resources gains a proprietary claim to them.18 In view of this, I would suggest that standing on one’s feet takes a certain amount of labor and increases the value of the land upon which one stands by placing there an object of inestimable value, a living soul.19 Because of the dignity of the human condition, this confers at least a temporary right of way upon the person occupying a particular spot such that we consider someone who unlawfully attempts to displace such a person as having committed an assault upon that person.21 In Locke’s argument may also be found the seeds of adverse possession, or “squatter’s rights”, and the idea of “homesteading.”
I recognize that land is a limited commodity. Time must be considered even more precious. I may with some certitude determine how much land is available for my use, but I cannot know how much time is left to me. Land may not be available for purchase at one time and then later it will become available. One can never buy more time. Labor may be expressed as a function of effort over time.21 Locke claims that it is the application of labor upon land that results in its greatest value.22 Perhaps this is because an individual’s intellect and actions expressed over time represent the sum of what can ever be offered under any condition.23 Time, effort, and thought are the sum of life, and this is why an unjust taking of property is so onerous, whether in the form of robbery, excessive taxes, or eminent domain.
Speaking of kings in the book Common Sense, Thomas Paine describes “the first of them nothing better than the principal ruffian of some restless gang, whose savage manners of preeminence in subtlety obtained him the title of chief among plunderers.”24 Paine considered those who would call themselves kings, criminals, deserving of nothing better than the sword from honest men. These villains consolidated their power and influence and ruled over vast tracks of land, offering protection and peace in exchange for tribute from other criminals outside their borders. If this seems similar to modern day organized crime, it is because it is exactly like it, and those who are successful Mafioso today would also make themselves legitimate kings if they could. After the passage of many years these feudal war lords began to refer to themselves as royalty, claiming that God himself had conferred upon them and their offspring the right of succession, the divine right of kings. Upon these nefarious foundations rest human claims to eminent domain, the primary right of the sovereign over the use of the land within his control.
Those who would set themselves up as the ultimate authority have always existed. Why do we not simply dispatch these cancerous souls that plague mankind? “[E]xperience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”25 Our form of government, as it was originally constituted, was the result of the actions of men who could no longer bear the ever-increasing tyranny to which they had been subjected. Nevertheless, through the common law the concept of eminent domain persisted, is inferred in the Fifth Amendment to the U.S. Constitution, and has received judicial recognition by the Supreme Court of the United States.
The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the Constitutions of the several States providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance.” 26
The “judicial cognizance” that the court speaks of, refers to its mandate to decide what is meant by the phrase, “nor shall private property be taken for public use, without just compensation” in the Fifth amendment. The courts have had to decide not only what “just compensation” amounts to, but increasing they have had to decide what is meant by the term “public use.” Originally, this phrase was interpreted strictly as only applying to projects such as railroad right-of-ways, highways, hospitals, schools, power-plants and the like. More recently, local governments have interpreted “public use” as the taking of private land for economic improvement purposes, and giving it to private developers who build shopping malls and real estate development projects. Private property holders have reacted with strong political opposition to such action.
If the claim of sovereignty lacks moral force, other arguments may be offered to justify the policy of eminent domain. An appeal to utility may be offered arguing that government’s exercise of eminent domain will result in the greatest good for the greatest number of citizens. I reject this reasoning, thinking that the aggregate measurement of happiness is impossible. It seems to me that happiness is something that is measured individual by individual and cannot realistically apply to the political constructs of society, government, or corporations. In addition, we cannot foretell the future; and in any case, an appeal to circumstances remains a logical fallacy and should not be used to validate one’s actions, let alone an entire philosophical system. An act cannot be both right and wrong and we should always do that which is right, irrespective of the consequences. So to my mind, utilitarianism fails as a justification of eminent domain.
Another justification for eminent domain is an appeal to the social contract. Among some of the earliest recorded statements regarding private property are those made by the ancient Chinese philosopher Confucius, who maintained that unassailable rights to property were a guarantee that the populace would be able to feed themselves. 27 The Chinese laws of that time ensured that the government protected the rights of citizens to bequeath property to their children, and for families to hold property corporately over generations. 28 James Madison said that, [t]he danger to the holders of property can not be disguised, if they be undefended against a majority without property” 29 In his writings he describes the political upheaval that is sure to occur when government becomes cavalier with regard to individual property rights.
It may be that the United States represents the closest approximation of Hobbesian ideals to date. Rather than be forced to accept a sovereign by force of arms, “the major part hath by consenting voices declared a sovereign”30 comprised of the people themselves. “We are the state, and we have agreed to control this geographical location, and are justified in doing so because we have invested our life and our sweat equity in it. 31 We have joined our personal authority over a particular geographical location into a corporate authority, a “constitution of a civil power sufficient to compel men to keep” their “valid covenants.” which include the recognition of private property. 32 This social contract uses the Constitution of the United States as its boilerplate.”33 We are born into the social contract and at some point, we tacitly agree to it by our participation in the benefits and responsibilities of our society. To be sure, a small percentage withdraws from the contract and “drops off the grid”, and an even smaller percentage considers themselves at war with their fellows. But for the most part, all readily agree to participate in the American social contract including its Fifth Amendment implied right of eminent domain and its Fourteen Amendment protection from deprivation of private property without due process afforded the citizen. Based on past examples, it is reasonable to predict that the community will have need of specific tracts of land for public purposes. In the same manner that we are willing to accept other reasonable restrictions on our liberty for the good of the community, we can accept the principle of eminent domain, provided that it is not abused and that we continue to have ready access to the courts in the event that it is abused. Since 2006, approximately forty state legislatures have considered measures to restrict the use of eminent domain.34 When the government exercises its right of eminent domain it is called a “taking”. When the government actually seizes and takes control of the land it is a physical taking. The Government implementation of environmental public policy that in some way restricts the use of private property amounts to a regulatory taking.
Theories of Environmental Public Policy
The present environmental movement is a culmination of the efforts of various individuals from diverse backgrounds in our history who shared a love for nature. Thoreau, John Muir, Theodore Roosevelt, and the author of Silent Spring, Rachel Carson are among those who have played a prominent part.35 Environmental policy initiatives spring from two primary views, conservation or preservation.36 Conservation is based the idea that we should make “wise use” of our natural resources, a phrased coined around 1900 by Gifford Pinchot, the first head of the United States Forest Service, while the adherents of John Muir advocate for preservation; a strict hands-off approach, especially when considering wilderness areas.37 Businesses desiring the use of land for various enterprises make utilitarian arguments that the best use of land is that which provides the greatest good for most people, citing economic growth, and ready access to products as a counterbalance to the preservation view.38 An extreme environment theory is called “deep ecology”, its adherents known as “ecocentrists.”39 Ecocentrism is a rejection of mankind as the supremacy of nature, preferring instead to view man as an integral part of an ecosystem where all parts are equally valuable. 40 The environmentalist’s agenda is focused on taking the moral idea of stewardship, as discussed earlier, and codifying it into law.41 Most of the political action taken toward making this happen comes from non-governmental organizations like Greenpeace.42 Nevertheless, environmentalism has become increasingly politicized over the past several decades, especially due to the emergence of the Green Party.43 A particularly onerous environmental tragedy, the spill of approximately a quarter of a million gallons of crude oil from a drilling platform off the California coast in 1969, generated the political impetus for the Congress to introduce and pass the National Environmental Policy Act (NEPA).44 The wording of this act has provided government with the ability to use nearly every agency of government to ensure that the environment is protected from harm. The 1970’s gave rise to additional legislation, including the creation of the Environmental Protection Agency, the 1972 Clean Air and Water Act, and a host of others. 45 However, problems arise when government becomes overly intrusive in its attempt to protect the environment, is incompetent in its efforts to do so, or when political or venal motives drive the environmental agenda. In her book Understanding Environmental Administration and Law Susan Buck, Professor of Political Science and Director of Environmental Studies at the University of North Carolina admits that, “Public policy is in reality a complex, confused and confusing Rube Goldberg device into which an infinite variety of ingredients are poured and out of which comes…a surprise” 46 What she does not explain is why citizens should be subjected to the results of this type of governmental serendipity. Another admission by Dr. Buck is that rather than being rooted in scientific research and fact, she believes “the entire policy process is political,” and that “the formulation and legitimation phases are the most intensively political.”47 Even if politicians were to make the scientific data their primary concern, Dr. Buck also tells us that while scientists know that phenomena such as climate and ocean currents are changing, they do not actually know how or whether man can have measurable impact upon it. 48
It seems reasonable to assume that if environmental concerns are going to be adequately addressed, solutions must be applied globally. Aristotle tells us in Politics, “that which is common to the greatest number has the least care bestowed upon it.” 49 In 1833, British economist William Forster Lloyd wrote an essay on the use of common resources that illustrated this concept as he described the use of publically owned grazing land by privately owned flocks.50 The herdsmen abuse the land by overusing it because they have no economic incentive not to do so. Some suggest that the easiest solution is to ensure that property is privately owned wherever possible to ensure that someone has a vested interest in caring about it.51 It is easy to see how this solution is not applicable to the atmosphere and the oceans, both communally owned because it is impossible to divide them. The difficulty with this concept is obvious; there is no world authority to implement or enforce such policies.52 “[T]he law is the command of the sovereign backed by a sanction”, and there is no earthly sovereign that can yet lay claim to such universal authority. 53Moreover, the movement toward international cooperation and administration is hampered by the same unsolved problems evident at the state and national level, personal greed, political infighting, and lack of solid scientific data. All these factors continually work against those innocent citizens who seek only to live their lives, conduct business, and exercise their natural rights without molestation.54 Expanding bureaucracies restrict liberty and curtail rights if only by applying the bottleneck of increased paperwork and reporting requirements. Restrictive regulations limit freedom of action and while reasonable arguments may be made for some government regulation, it is the nature of bureaucracies to expand to the point that they become oppressive. To illustrate the uses and abuses to which public policy, science, and politics are employed in the name of the environment, I shall review two examples: the initial draining and eventual reclamation of a section of Lake Apopka over a sixty-year period, and a recent attempt by the Jacksonville Port Authority to build a cruise ship terminal in Mayport Village.
In the early 1900’s, vegetable farmers began the difficult task of farming the rich, black land around Lake Apopka using Montana mustangs, a smaller breed of horse fitted with what looked like snowshoes to prevent them from sinking into the soggy marshland.55 In 1950, William Long graduated from Virginia Polytechnic Institute and went to work as a farmer with his father and older brother.56 From the first, he desired to strike out on his own and one day heard about a new project in the center of Florida.57 Beginning in the 1940’s, The Zellwood Drainage District was formed by a special act of the Florida legislature which was to greatly affect the environment. The legislation was designed to improve the conditions for farming by building a dike sectioning off several thousand acres of Lake Apopka to expose the rich muck-land and drain the surrounding marches 58 Long and his friends took full advantage of this new opportunity to grow carrots and corn, and became the most successful farmers Florida had ever seen.59 The American Vegetable Growers Magazine recognized Billy Long for eleven years in a row as one of the top vegetable producers in the United States.60 From meager beginnings of sixty acres, a stake of two thousand dollars and a borrowed tractor, he grew his business until he had two thousand acres under the plow.61 Mr. Long was also responsible for the introduction of Zellwood sweet corn, a variety that today makes up over three quarters of all the corn produced in the Zellwood area.62 Thousand of acres and scores of farmers produced boom crops; so much that excess produce was trucked into Gainesville and given away.63 But now the government has shut down of all eighteen thousand acres of the Lake Apopka muck farms, and the vegetables produced by them are no longer available to the residents of Florida.64 The lake developed algae blooms which were caused by the large amounts of phosphorus being pumped into it, run-off from the muck farms that needed to be continually pumped out so that they would be traversable.65 As the lake continued to deteriorate, a local citizen’s group, the “Friends of Lake Apopka, formed to fight for the lake’s survival.66 The newly formed St. Johns Water Management District began to impose regulations that continually lowered the amount of phosphorus that could be pumped into the lake overtime, until it became impossible for the farmers to continue operations.67 The farmers were being regulated out of business and so they responded in the late 1980’s by suing the St. Johns Water Management district and won, claiming that the district’s methodology was unscientific, and its conclusions not backed by credible research.68 The management district finally had a law passed by the legislature codifying the amount of phosphorus that could be pumped into the lake .69 Realizing that their business was at an end, the farmers negotiated a buyout.70 While Mr. Long acknowledges that he received a fair price for his interest in the property, he says that nothing could replace what amounted to a life’s work and crowning achievement on the muck farms.71 Later on in 1999, the St. Johns Water Management District flooded 13,000 acres of the farmland in an attempt to begin rehabilitation of the lake, and hundreds of large waterfowl were killed.72 While pesticides and other chemicals leaching out of the farmland were blamed, no positive evidence could be produced.73 Nevertheless, the St. Johns River Water Management District was charged both civilly and criminally under various federal statues for reckless and negligent practices resulting in the death of over a thousand migratory birds due to eating poisoned fish during the 1997-98 migratory season.74 The fish became poisonous allegedly because of the high amounts of pesticides remaining in the land purchased by the District. 75 The Department of Justice claimed that the Water District knew that the flooding was likely to cause the deaths of the birds if done during the migratory season.76 Florida is unique because of the extensive amount of drainage, and water management that has taken place over its history in order to make the land habitable.77 Consequently, Lake Apopka is just one example out of many in the state where government has drained areas, digging canals or building dikes, so that the land could be made habitable. All of these projects had significant environmental impact.
Mayport Cruise Terminal
Recently the citizens of Mayport, a small waterfront community won their battle with JAXPORT over the unwanted development of a cruise ship terminal in their neighborhood, a section of Jacksonville rich with history that desires to remain the way it is. Their victory is sweet but their struggle was onerous, neither pleasant nor interesting but relentless and time consuming. The Jacksonville, Florida port authority, JAXPORT has removed all mention of the proposed terminal from their master plan citing “[r]easons having to do with the global recession.”78 However, the Mayport Village Civic Association maintains that the reason JAXPORT has appeared to abandon the project is because of their actions including a complaint they have filed in the Fourth Judicial Circuit.79 The complaint charges that JAXPORT “committed numerous violations of the public records laws and sunshine laws”, in an attempt to obscure the plans that they had to take over the Mayport Ferry as a prelude to taking two thirds of waterfront for the massive project.
In Florida Statute 342., “[i]t is declared to be a legitimate county or municipal purpose for any county or incorporated city or town in the state to improve and beautify waterways”.80 In Florida Statute 342.07 it says that “[t]he Legislature recognizes that there is an important state interest in facilitating …recreational …and commercial fishing facilities, and in maintaining the availability of public access to the navigable waters of the state…. [s]eaports are excluded from the definition. ” 81 This legislation gave rise to Florida Statute 342.201, the Waterfronts Florida Program designed to “provide technical assistance and support to communities in revitalizing waterfront areas in this state”, to include “[p]rotecting environmental and cultural resources; Enhancing the viable traditional economy; [and s]erving as a source for information and technical assistance for Florida’s waterfront communities in preserving traditional recreational and commercial working waterfronts”.82 Mayport is listed as one of the waterfront communities designated to receive such support on the Waterfronts Florida Program website.83 The City of Jacksonville opened a similar office in 1977 called the Mayport Waterfront Partnership in collaboration with the City of Atlantic Beach.84 Its mission included “preserving, promoting and protecting the natural resources, cultural and historical heritage of Mayport Village and the surrounding communities”85 This was done with a view of capturing a percentage of the eco-tourism market in Florida. Based on these definitions the Mayport Waterfront Partnership submitted a resolution to the City of Jacksonville that rejected the cruise ship terminal because it amounted to the establishment of a seaport in violation of FS 342.07.86 The City of Jacksonville itself had declared that “the fishing community of Mayport Village is a unique an invaluable resource to the City and its citizens and should be preserved for future generations” as recently as 2001.87 A companion resolution was submitted to the city council by the Greater Arlington Beaches Citizens Planning Advisory Committee.88 Nevertheless, the city and the port ignored both resolutions.
There were many environmental concerns surrounding the establishment of a cruise ship terminal in Mayport. Cruise ships use a product called bunker-c to fuel their engines, an archaic, unrefined, and toxic fuel mixture that has been linked to various respiratory illnesses.89 The ships not only use bunker-c while under way, but also to run their plants while at the dock, which in the case of the proposed Mayport terminal would exceptionally close to residential housing.90 During a typical stay a cruise ship may use up to 1.2 tons of metric fuel. “One cargo or cruise ship in port can pollute as much as 350,000 cars”91 While some ships are refitted to utilize shore power when it port, this is an expensive unattractive option for most companies.92 Cruise ships have been known to dump grey and ballast water improperly and this concern was combined with the fact that Jaxport had planned to create a ten-acre parking lot adjacent to the terminal that would send thousands of gallons of storm-water runoff into the St. Johns River each year.93 The residents of Mayport suspect that the war is not over, and continue to meet and organize in hopes of preserving their way of life.
What would have happened in Apopka had the Federal Government failed to intervene? No doubt, the problems with Lake Apopka would have continued for sometime, as they have despite the intervention by environmental agencies. The citizens of Apopka could have moved to find a commercial and cost effective solution to remove the phosphorus in the lake. There were such options available and the impetus to find them.94 If the state and federal agencies had not been involved, the farmers and their neighbors may have had a chance to reach an equitable solution by other means. When all else fails, there have always been legal remedies available to both private citizens and local governments in the form of public and private nuisance lawsuits.95 Conceivably a greater portion the lake could have been drained and the area turned into productive farmland, or the reclamation project could have proceeded, but at a slower more considered pace allowing more opportunity for research and scientific study as to how to proceed, while greatly lessening the impact on the lives of the farmers and hundreds of workers who had invested their entire lives in building something there for the good. No one can deny that Lake Apopka had become a sewer and was threatening the surrounding bodies of water. A flourishing eco-tourism /bass fishing industry had been wiped out. However, it was the far-reaching authority of government that initially created the environmental problems, and their continuing ineptitude is documented. The driving force has always been the local citizens. They were the ones who initially pushed for the creation of the Zellwood Drainage district, and sixty years later other local citizens formed the Friends of Lake Apopka to ask the state legislature to have the lake cleaned up. The state by an action of the legislature created an economic opportunity for citizens to take advantage of. The farmers invested their lives in that opportunity. When the experiment went awry after a generation, the farmers became the scapegoats. The actions of the Department of Justice to punish the state for what was an inadvertent if incompetent killing of waterfowl, was in my opinion counterproductive. What seemed to be lacking at all times was an adequate amount of hard scientific evidence and research. This seems to me to be the ideal role of federal or global agencies, to provide the research scientific evidence, techniques, and solutions, rather than regulate the business and lives of individuals in their local communities by imposing endless regulations.
What of Mayport? Here citizens who had a personal interest in the fate of their community successfully halted what might have become an ecological hazard through a process of litigation. Their arguments are based on law and procedure enacted by deliberative assemblies at the local and state level, rather than upon regulations imposed by a federal agency. The city government, of Jacksonville, unresponsive to the cultural heritage and desires of one of its smaller communities attempted by a physical taking to implement a economic development plan in the name of the ‘greater good’. Whether because of corruption or ineptitude they chose to ignore data that suggest that the terminal would have had a negative environmental impact on the Mayport community.
I submit that it is far more difficult to rectify these types of intrusions and misadventures when they are imposed at a federal or perhaps at a global level. Even with the best of intentions, mistakes are often made and data is misinterpreted. The possibility that human greed, or a desire for power may skew the decision making process cannot be discounted, and therefore it seems best that the authority to impose environmental regulations remain at the local and state level whenever possible, especially the power of eminent domain. Those seeking to act on behalf of the sovereign on a larger scale should be very sure that their proposed actions rely upon the most extensive research before attempting to do so. Their scientific data should be so unassailable as to be adhered to without question. The objection to this is that waiting until one can be certain may result in waiting until it is too late. In reply, I would say that preserving liberty always entails this type of risk and inconvenience. It is easier to get things done without waiting for assent, without respecting the rights and feelings of others, without discussion and debate. To allow this is to allow the possibility that our solutions will not be accepted, and that we will fail to achieve our goals. This must apply to the goal of protecting the environment as well.
Some think Patrick Henry impetuous to have demanded liberty or death before the Virginia House of Burgesses but those good gentlemen did not. They assented to the idea that liberty must take precedence before life, and that is to say that liberty must come before everything else. Freedom of action to do the right thing makes the chance of finding the answer to every problem possible. Too great a restriction on freedom in order to prevent individuals from acting negatively hampers others from acting positively; possibly preventing the discovery of solutions that are desperately needed. I suggest that the better idea is to cooperate as a network, rather than as a hierarchy. Information being exchanged globally while authority is exercised locally is the optimal model. Nations should share their scientific resources and research, and focus on providing high quality data to local authorities who can exercise their right to make wise choices for themselves and their families. In such a political atmosphere, it is more likely that nations, states, and villages will be willing to accept the scientifically proven, logical restrictions that are necessary for the management of our ecological commons.
1. Cicero. On Duties. 44BC
2. Adams,Samuel, The Rights of the Colonists. The Report of the Committee of Correspondence to the Boston Town Meeting. Boton:Edes and Gaill and T. & J. Fleet. November 20, 1772, pp. 2-3
3. Blackstone, William. Commentaries on the Laws of England Vol.2 (1769) Univ. of Chicago, 1979. Ch. 1, Pg. 3
4. Rose, Louis. On Parliamentary Procedure. Florida Student Philosophy Blog. University of North Florida. Internet Website. http://unfspb.wordpress.com/2008/06/30/on-parliamentary-procedure/. We do not have the freedom to do wrong, which is not called liberty at all but rather license, or sin.
5. Goldstein, Robert J. Ecology and Environmental Ethics: Green Wood in the Bundle of Sticks. Applied legal philosophy. Aldershot, Hants, England: Ashgate, 2004. Pg. 96
6. Ecclesiastes 1:4
7. Deuteronomy 14:28-29
8. Hobbes, Thomas. Leviathan. Indiana: Hackett .1994. Ch 7. para 13.
9. Exodus 20:12
10. Exodus 20:15
11. Micah 4:4
12. Actually know Him, that is to say know Him literally, not figuratively.
13. John 17:17
14. Rand, Ayn. Capitalism: The Unknown Ideal. New York: Signet Pg. 9
15. Hobbes, Thomas. Leviathan. Indiana: Hackett .1994. Ch 13. para 8.
16. Blackstone, William. Commentaries on the Laws of England Vol.2 (1769) University of Chicago, 1979. Chapter One, Pg. 4
17. Locke, John. Two Treatises of Government and A Letter Concerning Toleration. Kansas: Digireads.com . 2005 Pgs. 79-80
18. Locke. Pg. 80
19. Mark 8:36
20. As we are wont to say in New York in such situations, “Hey! I’m walking here!”
21. Rand, Ayn. Capitalism: The Unknown Ideal. New York: Signet Pg. 20
22. Locke, Pg. 84
23. Rand, Ayn. Capitalism: The Unknown Ideal. New York: Signet Pg. 21
24. Paine, Thomas. Common Sense, Whitefish, MT: Kessinger Publishing, LLC. 2004. Pg. 8
25. Jefferson Thomas. Et al. The Declaration of Independence. Philadelphia, PA. 1776
26. U.S. Supreme Court. Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403 (1878)
27. Bell, Daniel A. & Ham, Chae-bong. Confucianism for the Modern World. Cambridge University Press, 2003. Pg. 228
28. Bell. Pg. 299
29. Madison, James and Ketcham, Ralph Louis. Selected writings of James Madison. Indianapolis: Hackett Publishing, 2006. Pg. 350
30. Hobbes, Thomas. Leviathan. Indiana: Hackett .1994. Ch 18. para 5.
31. Rose, Louis. Contract Law and the U.S. Constitution. University of North Florida Florida Student Philosophy Blog. http://unfspb.wordpress.com/2008/09/19/contract-law-and-the-us-constitution/. 2008
32. Hobbes, Thomas. Leviathan. Indiana: Hackett .1994. Ch 15. para 3
33. Rose. Contract Law and the U.S. Constitution
34. Tanner, Robert (AP National Writer) 40 states re-examining eminent domain. Boston Globe. February 5,2006
35. Buck Susan J. Understanding Environmental Administration and Law. Wash. DC: Island Press, 2006. Pg. 20
36. Hale, Benjamin. Private Property and Environmental Ethics. Metaphilosophy. Vol. 39, No. 3, July 2008 0026-1068. Oxford: LLC and Blackwell Publishing Ltd. Pg. 410
37. Hale. Pg 410
38. Doyle, Timothy, and Doug McEachern. Environment and Politics. London: Routledge, 1998. Pg. 138
39. Doyle. Pg 38
40. Doyle, Pg 138
41. Goldstein, Robert J. Ecology and Environmental Ethics: Green Wood in the Bundle of Sticks. Applied legal philosophy. Aldershot, Hants, England: Ashgate, 2004. Pg.95
42. Doyle. Pg. 138
43. Doyle. Pg. 1
44. Buck. Pg. 22
45. Buck. Pg. 27
46. Buck. Pg. 41
47. Buck. Pg. 52
48. Doyle. Pg. 212
49. Aristotle, and Benjamin Jowett. Politics. Dover thrift editions. Mineola, NY: Dover Publications, 2000. Book II-II-4 Pg. 57
50. Pojman, Louis P., and Paul Pojman. Environmental Ethics: Readings in Theory and Application. Belmont, Calif: Thomson Wadsworth, 2008. Pg. 392
51. Hale. Pg. 408
52. Buck. Pg. 197
53. Ibid, Pg. 1
54. Machiavelli, Niccolò, and Dominic Baker-Smith. The Prince. New York: Knopf, 1992. Ch. 9, Pg. 43
55. Swanson, Henry. Countdown for Agriculture in Orange County Florida. Orlando: Designers Press. 1975 Pg. 198
56. Interview with Mr. William D. Long.
58. Swanson. Pg 210
59. Interview with Mr. William D. Long.
60. Brown, Reggie. William D. “Billy” Long. Florida Agriculture and Consumer Services News Release. Internet website http://www.florida-agriculture.com/news/william_long.htm
61. Gauthier, Chris. State plants Apopka farmer in Agricultural hall of Fame. The Apopka Chief. February 25, 2005
62. Shofner, Jerrell. History of Apopka and Northwest Orange County, Florida. Tallahassee: Rose Printing 1982
63. Interview with Mr. William D. Long.
64. Milkovich, Matt. Sweet Corn Farm Last To Grow Zellwood Variety. Vegetable Growers News. Internet Website. http://www.vegetablegrowersnews.com/pages/arts.php?ns=240. Accessed April 19, 2009
65. Riley, Nano. Waters that Kill. Aubrey Organica News. Internet Website. http://www.organicanews.com/news/article.cfm?story_id=2. Fall/Winter 1999
66. Friends of Lake Apopka. Internet Website. http://www.fola.org/about/about.htm. Accessed April 19,2009
68. Friends of Lake Apopka. Lake Apopka Timeline. http://www.fola.org/PDFs/LakeApopkaTimeline.pdf
70. Interview with William D. Long.
72. United States Department of Justice. Memorandum of Understanding Resolves Criminal Investigation & Natural Resource Damages Claims Against St. Johns River Water Management District. Internet Website. http://www.usdoj.gov/opa/pr/2003/October/03_enrd_556.htm. October 8, 2003
73. Patterson, Steve “Lake Apopka February 1999: An environmental tragedy” The Florida Times-Union
74. United States Department of Justice
77. St John’s Water Management Water District. A Timeline of Water Management in Florida. Internet Website. http://sjr.state.fl.us/history/index.html
78. Spivey, Erich. JAXPORT Halts Cruise Ship Expansion. American Broadcasting Company local affiliate WJXX Channel 25 and National Broadcasting Company local affiliate WTLV Channel 12. Internet Website. http://www.firstcoastnews.com/printfullstory.aspx?storyid=132602
79. Interview with Ms. Sandra Tuttle, Mayport Village Historian. March 21, 2009
80. Mayport Village Civic Association, Inc., Dean and Tabitha Singleton, and ,Sandra and John Tuttle, Plaintiffs vs. Jacksonville Port Authority and the Consolidated City of Jacksonville. Fourth Amended Complaint in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida. February 9, 2009
81. Mayport Village
83. Florida Department of Community Affairs, Division of Community Planning, Waterfronts Florida Program. Internet Website. http://www.dca.state.fl.us/fdcp/dcp/waterfronts/CommunityContacts.cfm#Mayport
84. Interview with Ms. Sandra Tuttle
85. City of Jacksonville Department of Planning Development Mayport Waterfront Partnership. Internet Website. http://www.coj.net/Departments/Planning+and+Development/Community+Planning/Mayport+Waterfront+Partnership/Mayport+Mission+Statement.htm
86. City of Jacksonville Ordinance 2001-910, Sec 656.395(b)
88. Interview with Ms. Sandra Tuttle
89. Miller, Andrew. Mayport and the Cruise Terminal. Memo from Andrew Miller, Executive Director, Public Trust Environmental Legal Institute of Florida. to Louis William Rose. May 25, 2009
90. Miller, Andrew. Mayport and the Cruise Terminal.
91. Dunham, Ben. “Senate Committee Passes Bill to Regulate Ship Pollution”. Earth Justice. Internet Website. http://www.earthjustice.org/news/press/2008/senate-committee-passes-bill-to-regulate-ship-pollution.html. May 21, 2008
92. Miller, Andrew. Mayport and the Cruise Terminal.
94. Email from Mr. Jim Thomas, biologist with the Friends of Lake Apopka
95. Buck. Pg. 83