Where have all the flowers gone?

No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Fifth Amendment, U.S. Constitution.

"That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called." James Madison Papers #16, Property.

It seems that people forget or overlook the early guidance of our founders to protect property as diligently as life and liberty. The consistently narrowing reading of the Fifth Amendment over time has circumscribed property rights unremittingly, and has made a mockery of just compensation.

There can be no argument that property taxes, eminent domain, regulation of property use and even concepts of nuisance do not constitute a taking of private property for public use. They obviously are; nonetheless, we tend to tolerate such injustice because somehow there is a superior rationale - a sense that what a person may do on or with his or her property is, like speech, somehow subject to a community standard.

We frequently acknowledge that yelling "fire" in a crowded theater, although protected by the free speech clause, does not protect the yeller from the consequential damages. Likewise, creating an attractive nuisance on private property does not protect the owner from ensuing damages where innocents predictably fall victim to the attraction.

Reasonable regulation of private property could conceptually fall within the ambit of permissible governmental activity if there were a common understanding of what is "reasonable"; unfortunately, "reasonable regulation," like "justice," "pornography," and "art" increasingly seems to be totally in the eye of the beholding judge or justice.

Who can argue that Coeur Alaska has not paid its dues with regard to the Kensington Project? Scores of millions of dollars have been spent on regulatory compliance. EPA and the Army Corps of Engineers have actually reached an accord on how the relevant sections of the Clean Water Act are to be applied in this case. Two-thirds of America's elders on the Supreme Court of the United States bench have signed off on their interpretation.

Yet the ink was hardly dry on this drawn-out litigation before the EPA was back to the Corps demanding yet another look at the question of whether Lower Slate Lake was the best disposition of the Kensington mine tailings. Though Coeur has already looked carefully at a paste tailings facility, EPA now wants another look.

Further, because in the course of preparing the Lower Slate Lake tailings repository, according to EPA, "Coeur Alaska excavated an area near Lower Slate Lake and exposed some sulfide-bearing rock [which] resulted in acid rock drainage that flowed into a settling pond near the outlet of the lake and into East Fork Slate Creek," EPA wants more public hearings, which of course means more decisions by federal agencies and additional litigation and further delays of the project.

Could this have been what James Madison and his fellow founding framers were referring to when they said that private property should not be taken for public use without just compensation?

Irrespective of whether the EPA is arguably exercising its seemingly unending authority within the scope or purpose of the law, it is in no sense radical or extreme for there to be outrage at the incessant prosecution and persecution of reasonable contributors to our local, state and national well-being.

Throughout the country, land use rights organizations and advocates have huddled in the shadows crying in their beer about the injustice being perpetrated on the owners of private property. The Alaska National Interest Lands Conservation Act was little short of an effort on the part of a large number of people to circumscribe private property rights; its opponents who weren't worn down in that fight were overrun.

Perhaps it is too early to plead for balance. Perhaps economic implosion is the only solution. Perhaps the true irony is that so many of those, who worry about an annual 1-centimeter rise in the sea level, are so unconcerned abut the rising tide of regulatory interference with our lives. Yet it appears that the latter will drown us much sooner and will be a "long time passing."