March 16, 2023

703: When the Government Takes Your Home 🏑

Protecting Property Rights - Fighting Government Interference with Jim Burling

Do you feel like the government is taking advantage of vulnerable groups and stealing their property? If so, then you won't want to miss this episode of The Brian Nichols Show! Brian Nichols and Jim Burling, Vice President of Legal Affairs for the Pacific Legal Foundation, will discuss how to fight government interference and protect property owners.

In this episode, you'll hear about Geraldine Tyler, a 94-year-old woman who had her property taken away by the government due to unpaid taxes. She was left out $25,000, and the government doesn't even have to return the property in 14 states! Burling will argue at the Supreme Court that this is a violation of the eighth amendment's excessive fines clause and the fifth and fourteenth amendment's takings clause. Will the Supreme Court recognize the injustices faced by vulnerable groups and put a stop to it?

But that's not all. Nichols and Burling will also discuss the Supreme Court case Wilkins v. United States. This case draws attention to the issue of equity, as those who can least afford it are the ones being targeted. Wilkins is a property owner from Montana who owns land along a dirt road in a rural national forest area. The Forest Service had asked the prior owner of the property for permission to access the road for timber harvesting, and the owner agreed, granting an easement for the Forest Service to use. What will the Supreme Court decide in this case?

If you're interested in protecting property rights and fighting against government interference, then this episode is a must-listen. Nichols and Burling explore how we can fight back against injustices faced by vulnerable groups, and you won't want to miss it! So grab your headphones and get ready for a thought-provoking and engaging discussion on The Brian Nichols Show!


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Brian Nichols  0:22  
Oh shoot, hold tight

All right, here we go stand by

what do we do when government is the one that steals from us? Yeah. Let's talk about that. Instead of focusing on winning arguments, we're teaching the basic fundamentals of sales and marketing and how we can use them to win in the world of politics, teaching you how to meet people where they're at on the issues they care about. Welcome to The Brian Nichols Show. Foil Hey there, folks, Brian Nichols here on The Brian Nichols Show. And thank you for joining us on of course, another fun filled episode. I am as always your humble host brought to you live from our E NC Studios here in lovely Eastern Indiana. Don't let outdated business prospecting tips. Put your company at risk. Guys, we are heading to a recession. Now is the time to start getting your messaging and prospecting in order. Learn more at Brian at Brian Nichols. So we talked about this at the intro. What do we do when we're in a situation when it's not your neighbor? It's not some random bad guy, but actually, it's your government that's stealing directly from you to talk about that today. Joining us from the Pacific Legal Foundation, Jim Burling, welcome to The Brian Nichols

Jim Burling  1:50  
Show. Hey, great to be with you today.

Brian Nichols  1:53  
Thank you for joining us looking forward to digging into all things Supreme Court cases. I know we got a lot of goodies here lined up. But first, Jim, do us a favor, introduce yourself to The Brian Nichols Show audience and your roll over at PLF.

Jim Burling  2:05  
All right, I am Pacific legal foundations to Vice President of legal affairs. I've been with the foundation for almost 40 years. And I've been litigating cases from Alaska to Florida, been to the Supreme Court. And what we argue for is on behalf of property owners and people that are basically under the steamroller of government bureaucrats. And we try to lift that steamroller off of them so people can continue to do what they do best live in their homes, run their businesses, that sort of thing, free of unlawful government interference.

Brian Nichols  2:41  
We need more of that for sure. And let's talk about a specific case today where we are seeing some government interference and in this case, it's a Home Equity theft case. Now what is home equity theft? That's a great question. I'm gonna go ahead and let the expert answer that. Jim, what is home equity theft and what does it matter in this whole case of Geraldine tyre Tyler versus Hennepin County?

Jim Burling  3:03  
Well, Geraldine Tyler is a 94 year old woman who used to live in downtown St. Paul, Minnesota area, and she was becoming increasingly concerned about the crime that was rising all around her people were getting mugged. They're getting robbed. And she said it was time to get out of dodge and go into a safer neighborhood, which she did. Now she had been living in her own home, a condominium worth roughly $60,000. And she is elderly woman. I said she's now 94 She fell behind in her taxes, she fell behind to the tune of $2,300, at which time, the county foreclosed on her property, which is the county's right to do that they foreclosed on her property. And by the time they foreclose, when you add it in interest and fees, and fines and all that kind of thing. It was up to $15,000. So they foreclosed on the property. And they sold it at an auction and basically got $40,000 to the property. So if she owned 15, they got 40. So what do you think happened to the other $25,000? That's a rhetorical question because we're on the air right now. The county kept it all, they kept every penny of it. Now, if you borrow from the bank, and the bank forecloses on your property, and the bank sells your property for more than you owe, the bank has to give you that property back. That is the law. But in 14 states, the government doesn't have to give you back and it generally will not give you back your property. So Geraldine Tyler, this 94 year old woman is out $25,000 The difference between the $15,000 that she owed and that was rather inflated to begin with, and the $40,000 they got for it. Now what we're arguing at the Supreme Court and what the argument will be coming up But APR is that this is a theft of her equity in the home or home equity theft. And we're saying that is unconstitutional to taking of her property, and it violates the eighth amendment's excessive fines clause to boot. And so we're hoping the Supreme Court is going to look at those cases and said, You can't do that. Because it's outrageous. And in fact, we found 14 other states where the states and counties and cities have made hundreds of millions of dollars over the past decade or so, doing this very thing to other people. We had one person that lost the home, they are $8, behind their taxes. There are homeless for clothes in the government's Yep, $8.08.

Brian Nichols  5:42  
So for a latte at Starbucks, they lost their home,

Jim Burling  5:46  
they lost their home, because the guy didn't get notice of that he thought the mail was going to the wrong place. He moved all kinds of things like that. So the foreclosure itself was bad enough, but keeping every dime that the city got on the property is a pretty they made 10s of 1000s of dollars on his property. And so there a we had a court to reverse that one because that was in a different state than just one that's going on. Now. Here. The state says this is perfectly fine. We deserve the money. Why? Because we need it.

Brian Nichols  6:20  
That's how it works. We need the money. It's the GG Wentworth commercials, right? It's my money. And I didn't know, no, let's let's talk about the violations of a number of rights here. So you mentioned the Eighth Amendment, I would say this kind of feels like it could go into a lot of different other amendments that are being violated the Fifth Amendment, the 14th amendment. So I guess, when you guys are going through, and you're arguing this to the court, what's the main I mean, I heard you say you're going to probably take more of an eighth approach in terms of going through it and it's going to be excessive, right? The excessive Well,

Jim Burling  6:50  
that's just one of our two arguments. The main argument, that's a takings violation of the fifth and 14th amendments, government, if they take your property, they have to pay you for it. That's what the Fifth Amendment says. And the 14th Amendment applies that against the state government shall not take property except for public use, without the payment of just compensation. And she had basically $25,000 of her equity in this property, it's her property. And if they're taking it from her lock, stock and barrel, they owe her $25,000. They keep the 15. But she gets the 25. If not, that's a violation of the Constitution.

Brian Nichols  7:31  
Wow. I'm just kind of at a loss for words, which I know for folks listening to the show, they think that's shocking. But you hear this and it just sounds so foreign, right? This doesn't happen in America, a 94 year old woman having her home not only taken away for back taxes, but for trivial trivial back taxes. And it just seems petty, if we're gonna really look at this from a grand scheme, like, Who are these people in government that think that this is the right thing to do beyond the well, we need the money, it just, from a human standpoint, how

Jim Burling  8:04  
it is? It is astonishing, yeah, they would do this, and that they would go to the Supreme Court to defend their actions. I mean, my God, you and I looking at this would say, well let the poor woman have the equity in her home. I mean, it's, it's basically stealing. But one of the things you have to understand is that people who have their properties foreclosed upon are often poor. They're often minorities, they often live in the inner cities and don't have the political and educational clout to fight back. And they are easy marks for their governments. And so governments across the country are looking at this as a cash cow, we can take property from these poor minorities are not going to fight back much. And we can get away with it. And by goodness, they are getting away with it. So I think it's as much as a question of theft. We talk about the need for equity. Now. This is certainly something that really targets those people who can least afford it.

Brian Nichols  9:03  
Yeah. Well, I mean, this case, it's it's developing, right? We're going to be hearing the hopefully the results and outcomes here sometime this year. Is that Is that still the That's

Jim Burling  9:11  
right, the arguments will be in the end of April, and we expect a decision from the Supreme Court sometime by the end of June, but I figure this one, the courts gonna have no problem deciding this one pretty quickly.

Brian Nichols  9:24  
They better not. Not Goodness gracious. Well, here's that one court case that is currently still under deliberation. This is from back in November, I believe, of 2022. And that was the Supreme Court case, Wilkins v. United States, Jim Joseph favorite set the groundwork for this case.

Jim Burling  9:40  
So Wilkins is a property owner up in the rural national forest area of Montana, and he owns this property along this country dirt road, and it's a nice place for privacy now, many many years ago, but 3040 years ago, the Forest Service went to the prior owner of this property and said look, we would like access. So we can do timber harvesting beyond your property can you want to give us access, and the owner said will surely cooperate, here's sign a piece of paper. Here's an easement. The easement gives you permission to or your agents to go on through the road and up to Forest Service property and do the timbering and come back and everything was fine. Until the Forest Service started treating this road not as a road for it in its contractors do occasionally whoever is timber, but every member of the public was encouraged to use his property and deed the Forest Service put up a sign saying public road come on in. Well, it didn't have to come on in. But that was the essential message behind it. And Wilkins became increasingly unhappy with this because not everybody was respecting his privacy and his property rights. They were trespassing on to his very property to go hunting. And somebody actually shot his cat, his cat survived. But he was pretty upset about that. And he went to the forest service and said, Look, you have to do something, you have to keep the public out, you got the easement. But it's not a public easement in the forest, who said, well, we'll work on that with you. Well, you know, come back, we'll have to go take it upstairs. And we'll come back in a while and just just hang tight. And that went on for quite a while. And they eventually put up the sign and he said what's going on? And they said, Well, you know, tell you what, we're going to treat it as public property and too bad. Now, that's it, we're the government, we can get away with it. So he sued. And the government put up a marvelous defense called a statute of limitation saying that, because he didn't file suit within 12 years, he's out of luck. And he can't get in any evidence of why there was this delay, because they, you know, they led them on this primrose path. So the argument for the Supreme Court is, does the statute of limitations really kick in, in a situation like this, where there is evidence that he would like to be able to present that showing that he really did not need to file the lawsuit, until it was unequivocally clear that the Forest Service is not going to do what they said they would do and keep the public out? When they put up the sign and wrote him the note saying, you know, go pound sand, that is when the statue limitations should have run from right. And that's when he did file the lawsuit from that period of time, he would have fit within statute limitations. So it's a question of, you know, do you trust the government? Or do you just sue them immediately? Well, most people think you don't want to sue them immediately if you can work out something with them. But if working out means that you're going to lose your ability to sue in the first place, you know, hire your lawyers and go to court now?

Brian Nichols  12:55  
Well, we've had our friends here from the fairness center on many a time and the horror stories that we've heard from public sector unions and having to deal with nonsense, and you just look at across the board, a lot of these issues end up being created by government just by trying to create these arbitrary laws. Right? And it I don't know, Jim, like, you must experiences a lot where it just common sense seems as should prevail over some of these just convoluted nonsensical laws. In this case, it just, what would you do, right? And I think this is like, the part that your average person listening, they're like, yeah, what would I do? If I was in the situation of Wilkins, like I wouldn't, I wouldn't want to go and sue the government right away, like you think you would deal with this, like a rational human being you'd try to be respectful and work with the people that you're trying to work with. But to your point, government seems to more often than not necessarily be rational or to be in the mindset of approaching things with common sense. So what do we do when we're trying to tackle these sometimes convoluted cases that really shouldn't be convoluted at all? Yeah,

Jim Burling  13:58  
it shouldn't be at all. But my counsel is when you work with the government, and you're trying to shake the hands of the government for a deal, you withdraw your hands, count your fingers, count the rings on them, because you're probably missing something. And it's sad to say, but you can trust yourself. But you really can't trust a bureaucrat in situations like this. If they give you oral assurance without something in writing that they have authority to give you. Then you better watch out.

Brian Nichols  14:30  
All right, Jim. Now it's time for us to go towards the final case of today and that is one dealing with everyone's favorite three letter organization, the EPA second V EPA, from last year, October 2020. To do us a favor set the groundwork for this case.

Jim Burling  14:45  
So roughly a decade and a half ago, the Sacketts which are a couple people, he's a contractor. They're not rich, they're building a single family home for themselves. You know, it's typical home not huge or anything like that on a pizza. property in a residential subdivision outside of priest Lake, Idaho. And as they were starting to clear the land, they got a visit from the EPA and the EPA said, You're filling wetlands and you have to stop. Well, the second stop, but they scratch their heads and wetlands, what wetland, EPA recall him, he said, you're on the wetland map. So the Sacketts got out the EPA map and found there are no wetlands here in this map. So they call back the EPA and the EPA said, Oh, those maps aren't accurate. And so they began this saga that went on for years and years, EPA sent them a compliance letter saying that you have to remove all the work, you've done the field that you've put on the property so far, you have to plant wetland vegetation, you have to fence it, then you have to wait several years. So the vegetation to take once that happens, you can apply for an after the fact permit to legalize the work that you had done, and have since undone, and then maybe we'll give you a permit. If you apply for a permit to build your house. Maybe we won't, but you won't be in trouble. Now. If you don't do what we say there are consequences $37,500 per day that you don't do what we say to remove the fill in for a violation of our compliance order, plus another $37,500 per day for violating the Clean Water Act, or $75,000 per day. They were outraged. And they said but there are no wetlands on the property. We hired an expert by this time and the expert says there are no wetlands on the property. EPA says we don't care. So a dozen years ago we are in the Supreme Court arguing for the right to challenge the EPA is wetland determination because the EPA said you can't challenge us until you go through all these procedures, removing the field planning the wetland vegetation, putting up the fence, that kind of thing. And until you do that you can't go to court to challenge whether or not it's a wetland in the first place. Now, we won that case? No, I did nothing at the Supreme Court about a dozen years ago. And now since then we've been arguing over whether or not there are wetlands on the property subject to federal jurisdiction. This went on for years the EPA wanted to go in and get more samples in evidence because they didn't have enough to justify their determination in the first place. And then a district court sat on the case for three years with doing nothing. Finally, the district court said Yeah, I agree the EPA there are wetlands there. The Ninth Circuit said Yeah, sure. And now we're at the Knights were at the back at the Supreme Court. And that was a case where we argued early in October. And the issue is when does the federal government have jurisdiction over a wetland and this case of EPA, because we're saying look to for the federal government to have jurisdiction over a wetland, it has to have some connection to a navigable waterway. Congress and the Federal Government only have jurisdiction to the extent that constitution allows the Constitution says the federal government can regulate commerce. Commerce means things like interstate waterways. So we're saying they're less wetland in some way touches or has a direct impact on a navigable waterways, such as priest Lake, which was several blocks away for the property. federal government doesn't have jurisdiction. And the Supreme Court is interested enough in this question that they took this back up. So this is a second time we've been to the Supreme Court on the SEC case. And it's going to have potentially huge impacts on wetland regulation in this country. Whether or not the damp spot of grant and your backyard means that you can't touch it without a federal permit.

Brian Nichols  18:51  
Wow. Well, unfortunately, Jim, we're already getting hard pressed for time here, which means I guess we have to go towards our final thoughts. And I'll kick things off here. This speaks to there's a war taking place. And that is the government versus the people whether we want to acknowledge it or not. And we look at the laws that have been created over the past 250 plus years. And a majority of these laws. While there are a few exceptions to the rule have just been created to help inflate the the really the the layer of distance between the government and the people where the government is insulated from the very laws and the very rules that they are claiming to be enforcing. So I guess this speaks to not just why it's so important to have folks like you going out and actually fight the good fight, but also why it's important for us to fight the good fight in impacting the lawmakers who are actually setting these laws. Now, to that point, the EPA, they're kind of an organization that just does their own thing. And I guess this is addressing a really big concern, Jim is these unelected bureaucrats who pretty much can do whatever the heck they want and then maybe they'll get their their wrist slapped a few years down the road. And that's the other part. We're dealing with real people's lives that I mean, you mentioned three years, five years just sitting on cases not moving forward. Those are years you're not getting back. Those are years, that once they're gone, they're gone. So it's imperative on us, I think, to actually change the way we're approaching these issues. Because if we just keep on going, as we've been going, we're just gonna see things get worse and worse, and we're gonna be playing more and more defense versus the best way to win the game, I think play level offense. That's my final thoughts. What do you got for us?

Jim Burling  20:25  
I absolutely agree with you. I think that if you're dealing with government, bureaucrats, government agencies, you have to make sure they're doing it lawfully. So much of what they're doing now is really unconstitutional gray zones, where they're trying to get away with things that they were really never intended under our constitutional structure, without any kind of oversight, meaningful oversight, without any kind of consequences for their action. And we need to change the laws, both at Congress and in the courts. And that's what we're trying to do at Pacific Legal Foundation is to go to court represent individuals who are being ground under the wheels of the bureaucracy and showing to the courts. These are like you said, Brian, real people with real lives and our lives are finite. Government's life is infinite. But our lives have an endpoint. Sad to say, and we need to get relief without having to go through dozens of years of litigation.

Brian Nichols  21:20  
Hear hear Jim? Well, unfortunately, we are already hard pressed for time, which means and there's a camera works, which means yes, it's time for us to say goodbye. But first, we must go ahead and make sure that folks can continue the conversation should they so choose. So John, obviously you're doing great work over at the Pacific Legal Foundation, where can folks go ahead support your work, but also they want to reach out to you go ahead and do so.

Jim Burling  21:41  
Absolutely. And go to Pacific Pacific is our website and their links to learn more about the cases that were involved in how to contact us and all kinds of things like that.

Brian Nichols  21:53  
Perfect. All right, folks. Well, if you got some value from today's episode, you know the drill do me a favor, go ahead and give it a share. When you do tag yours truly at beat nickels liberty. And by the way, if you're joining us here on the audio version of the show, which I know 99% of you are will have no fear we have a video version of the show as well head over to your favorite podcast catcher. Click the artwork, it will bring you over to Brian Nichols where you will find today's episode, you will find the transcript from today's episode plus, you will find the video version of the show from rumble Odyssey and on YouTube. If you go us and join us on YouTube, give me a favor hit that subscribe button and little notification bell so you know it's a single time we go live. And by the way, if you are joining us on YouTube, we're gonna continue the conversation with our friends over at the fairness center. That episode should be popping up right about here. So you go ahead and click there. I will see you over there. But with that being said Brian Nichols signing off. You're on The Brian Nichols Show for Jim Burling. We'll see you later.

Jim Burling  22:45  
All right. Bye.

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