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34


THE LIBERTARIAN ENTERPRISE
Number 34, December 25, 1997

Rolling Along the Road to Serfdom

By George L. O'Brien
obiewan@doitnow.com

Special to The Libertarian Enterprise

         In a critical review of Charles Murray's book, What It Means To Be A Libertarian, conservative writer Daniel Casse wrote, "This is not to say that Americans are blithely marching down the road to serfdom. But neither do they view our collection of costly, inefficient, and poorly managed programs as the primary threat to liberty and self government." Yet the facts would appear to contradict him.
         There is a curious irony in Casse's reference to Frederick Hayek's classic book, The Road to Serfdom. Hayek made the point that central planning is inconsistent with personal liberty and effectively requires the application of arbitrary power. The misuse of this power is not simply some sort or aberration to corrected by more laws and replacing the current rascals with better rascals. It is inevitable.
         If Daniel Casse is correct in claiming that the rise of statism is not viewed as a "primary threat to liberty and self government", it is because people have become so numbed to restrictions on their freedom that nothing the government does is able to outrage them. But people should be outraged.
         One example of continuing outrages involves what Max Boot in the Wall Street Journal calls "The Wetlands Gestapo." (March 3, 1997) This article is the story of man named James J. Wilson who has been sentenced to 21 months in prison and $4 million in fines for the crime of destroying wetlands.
         Did Mr. Wilson sneak into the Everglades and turn it into a land fill? No. Did he destroy a waterway? No. Did he put homes where there was once a marsh? No. What Mr. Wilson did was that he created a pond. "See that pond. I'm convicted of filling in wetlands under that pond. I filled them with water."
         To quote Max Boot, "Unbelievable? Only if you're not familiar with the Orwellian world of environmental crime. It's just as illegal to fill in a wetland to construct a pond as it is to build a shopping mall. Another Maryland wetlands criminal, Bill Ellen, served six months in prison for building a wildlife preserve. In Mr. Wilson's case, some 20 of the 50 acres of wetlands he's been convicted of destroying wound up as lake. A lot of the rest remains as open space, albeit slightly less wet than it was before."
         So how did Mr. Wilson get caught in this Kafkaesque nightmare? Apparently he was guilty of imagining that he had property rights. The project he was constructing was part of a new town called St. Charles which was specifically designed to mix people of various economic and social levels together. In 1976 the Army Corps of Engineers, which regulates wetlands, approved the master plan environmental impact statement for St. Charles and declared "The construction of St. Charles Communities will have no impact on our area of responsibility."
         In 1990, the Army Corps of Engineers reversed its position and declared Parcel L a wetland. Mr. Wilson sued for compensation under the "takings clause" in the Fifth Amendment. "They got real upset with me because I was challenging the right of the Army Corps of Engineers to unilaterally expropriate my land."
         In 1995, the feds made criminal charges against Mr. Wilson for violating the Clean Water Act. (U.S. Attorney James C. Howard denies that the prosecution was motivated by vindictiveness. This statement does not jibe with the fact that the government never issued a "cease and desist" order, but simply went straight to criminal charges.) Mr. Wilson was convicted and is out of jail awaiting appeal.
         How far along has this gone? To quote Max Boot again, "It's striking to note that `wetlands' never appears in the 1972 Clean Water Act. The act simply outlaws the `discharge of any pollutant' into the `navigable waters' of the U.S. Based on this rickety foundation, the Army Corps of Engineers has erected a bureaucratic skyscraper. The Corps held that it can regulate `wetlands' -- if they're `adjacent' to navigable waters. The St. Charles `wetlands' are actually dry most of the year, and the nearest navigable water is the Potomac river, about six miles away." Using this definition, the entire country is subject to the Army Corps of Engineers.
         Hayek would not have been surprised.


George L. O'Brien, longtime veteran of the Libertarian movement is a spokesman for the anti-civil forfeiture organization, F.E.A.R.


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