Cannon v. State

HOLLAND, Justice,

with whom Justice Steele joins, dissenting.

We agree with the holding by the majority that DelDOT has the statutory authority to condemn land for wetlands mitigation if that action is reasonably necessary for *564the purpose of maintaining State highways. The record reflects that DelDOT’s condemnation of the Cannons’ additional property for wetlands mitigation was unnecessary and unreasonable. Accordingly, we respectfully dissent.

Eminent Domain

The power of eminent domain is an inherent aspect of sovereign authority. It is the “power to compel a transfer of property from a private owner to the government for a public purpose.”5 The power of eminent domain is the most drastic of all interferences with private property rights. James Madison expected that “[independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.”6

Our constitutional democracy frequently calls for balancing competing rights of fundamental importance. There is no doubt that the State of Delaware can exercise its sovereign authority to condemn private property for the greater public good. Article I, Section 8 of the Delaware Constitution, however, prohibits the taking of the Cannons’ property for public use “without the consent of his or her representatives.”

Unbridled Administrative Discretion

The power of eminent domain belongs exclusively to the legislative branch of the government.7 The General Assembly may delegate the right of eminent domain to an administrative agency for a public purpose. The General Assembly’s ability to delegate an exclusively legislative function, however, is carefully circumscribed by the parameters of the non-delegation doctrine.

This Court has recognized that the non-delegation doctrine is based upon a fundamental principle of constitutional democracy: “[ajdministrators should not have unguided and uncontrolled discretionary power to govern as they see fit.”8 Accordingly, reviewing Courts must focus on the “totality of protections against [administrative] arbitrariness,” including “both substantive standards and procedural safeguards,” i.e., due process or the law of the land, as the latter term appears in the Delaware Constitution.9 Where it is not feasible for the General Assembly to set precise guidelines, the presence of administrative procedural safeguards may compensate for the lack of precise statutory standards.10

In most situations involving action delegated to an administrative agency, an aggrieved party has a right of administrative review that is subject to the right of judicial review.11 That two-tiered system of review is designed to protect adversely affected parties from arbitrary administrative decisions.12 In this case, the General Assembly did not provide any statutory standards for DelDOT to. use in making its administrative determination of necessity. DelDOT did not apparently adopt any substantive or procedural safeguards for either making a determination of necessity *565or for providing administrative review of that decision.

Accordingly, judicial review is the only protection the Cannons have against an exercise of unbridled administrative discretion by DelDOT. The applicable statute provides for DelDOT to exercise its judgment in making the determination of necessity for condemning private property. There is no precedent, however, for judicial deference to an administrative agency’s determination that it is necessary to condemn private property for a public purpose when that determination is made without any substantive or procedural safeguards.

Statutes that vest the power of eminent domain in an administrative agency must be strictly construed because by their operative nature they subrogate rights of private property owners to the greater public need.13 The record reflects that the Cannons have demonstrated conclusively that, although DelDOT was required to provide property for wetlands mitigation, it was not necessary to take the Cannons’ additional private property to accomplish that purpose. The Cannons’ constitutionally protected private property rights cannot be subordinated to an administrative agency’s decision to repudiate the pursuit of a myriad of acceptable alternatives for wetlands mitigation, simply as a matter of its own convenience.

Issue Presented

This case relates to two separate takings of the Cannons’ private property by Del-DOT. The primary taking is of wetlands property owned by the Cannons that the State wants to use for the purpose of improving Route 54. The Cannons acknowledge that the State has the right to exercise its sovereign power of eminent domain to condemn their private wetlands property for the purpose of actually improving Route 54, notwithstanding the Cannons’ objections to that taking. Accordingly, the record does not support the majority’s assertion that “[w]ere the Cannons’ very narrow construction of the statute to be accepted, ... [wjhenever a proposed roadway interfered with federally protected wetlands, and the property owner refused to sell, DelDOT would be forced to abandon the project, no matter how ‘necessary’ and compelling would be the public need.” The primary taking of the Cannons’ private wetlands property for the purpose of actually improving Route 54 is simply not an issue in this case.

The issue in this case is the “additional taking” of the Cannons’ private property that the State seeks to condemn for the purpose of mitigating the wetlands that will be lost when Route 54 is improved. The Cannons contend that the additional taking of their private property is not necessary. DelDOT submits that the taking of the Cannons’ additional property for wetlands mitigation is necessary to improve Route 54 because the State cannot make improvements to Route 54 without a permit from the Corps and the Corps will not issue a permit to the State unless the State provides additional land for wetlands mitigation.

The logical question is, can DelDOT accommodate the Corps’ wetlands mitigation requirement without taking additional private property from the Cannons? The record reflects the answer to that question is an unqualified “yes.” The Corps has a hierarchy of preferences for property that will each satisfy its general requirement for wetlands mitigation. The Corps’ hierarchy of preferences is a specific recognition that one or more of the Corps’ highest *566preferences of property for wetlands mitigation may not be available.

Why then did DelDOT offer the Cannons’ additional private property to the Corps for wetlands mitigation? The answer is because DelDOT knew that the Cannons’ additional property comported with the Corps’ highest preference for on-site and in-kind wetlands mitigation. Del-DOT offered the Cannons’ additional private property to guarantee the Corps’ permit approval by avoiding negotiations with the Corps about other property that the State either owned or could buy, because any of those other properties would be further down the Corps’ hierarchy of preferences for wetlands mitigation. Accordingly, the question presented to this Court is, whether an administrative agency can condemn the Cannons’ additional private property simply because it did not want to negotiate with the Corps about providing for wetlands mitigation with other property that the State owned or could buy?

Property and Liberty

The most definitive and authoritative book on property rights and liberty in America was written by Professor James W. Ely, Jr.14 The title for Professor Ely’s work was inspired by Virginian Arthur Lee’s declaration that “[t]he right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.”15 A brief historical review is helpful to understand why DelDOT had no authority to condemn the Cannons’ private property.

The origin of property rights in America can be traced to the Magna Charta in 1215, which protected the rights of property owners against arbitrary action by the sovereign. It provided in chapter 39 that “[n]o freeman shall be taken or imprisoned, or disseised ... unless by the lawful judgment of his peers, or by the law of the land.” With this language, the Magna Charta secured the rights of private property owners against deprivations by the sovereign without due process of law.16 That guarantee remains one of the most fundamental tenets of our American constitutional democracy.

In 1687, when the State of Delaware constituted the three lower counties of Pennsylvania, William Penn (“Penn”) arranged for the publication of a commentary on the Magna Charta.17 Penn implored American colonists “not to give away any thing of Liberty and Property that at present they do ... enjoy.”18 In 1689, John Locke (“Locke”) wrote his famous Second Treatise on Government, which asserted that legitimate government was based on a compact between the people and their rulers.19 “According to Locke, private property existed under natural law before the creation of political authority. Indeed, the principal purpose of government was to protect these natural property rights, which Locke fused with liberty.” 20 Undoubtedly influenced by Locke, the rights of property owners were eharac-*567terized by the most prominent political theorists in the eighteenth century as the “bulwark of freedom from arbitrary government.” 21

In 1721, John Trenchard stated, “All Men are animated by the Passion of acquiring and defending Property, because Property is the best Support of that Inde-pendency, so passionately desired by all Men.”22 The Lockean theory of property rights was reflected in the English common law. In his Commentaries on the Laws of England (1765-1769), William Blackstone acknowledged the influence of Locke’s formulation on the law’s evolution. Blackstone summarized the English common law on property rights in broad terms: “So great moreover is the regard of the law for private property, that it will not authorize the least violation of it.”23 Prior to the American Revolution, property ownership became identified with the preservation of political liberty. Blackstone’s Commentaries were studied as a definitive summary of English common law.24 The Declaration of Independence reflected the inseparability of political liberty and private property described in the compact theory of Locke.25

1776 Delaware Constitution

Following the Declaration of Independence from the English monarchy, the historic authority of general sovereignty became vested in each of the former colonial states.26 As new sovereign entities, each state drafted its own constitution.27 The first colonial constitutions attempted to set forth in writing universal principles, grounded in reason.28

The challenge in writing state constitutions was to reconcile the known conceptions of sovereignty with “notions about the popular foundations of legitimate government.” 29 Those efforts were influenced by philosophers, such as Charles Montesquieu, Jean Jacques Rousseau, and Locke, and by English common-law scholars, like Edward Coke, Henry deBracton and William Blackstone.30 Each state constitution attempted to define sovereignty with precision and to restrain its exercise within marked boundaries.31

The first Delaware Constitution and the Declaration of Rights and Fundamental Rules of the Delaware State (“Declaration of Rights”) were adopted in September 1776. The primary authorship of the 1776 Delaware Constitution and Declaration of *568Rights is traditionally ascribed to Thomas McKean, a Delaware lawyer and signatory of the Declaration of Independence.32 McKean had studied the English common law at the Middle Temple in London, where he was a contemporary of William Blackstone.33

The first section of the Declaration of Rights reflected a continued adherence to the philosophy of Locke and provided that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”34 The first Delaware Constitution also reflected a continued adherence to the English common law and stated:

The common law of England, as well as so much of the statute law as have been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution 35

The 1776 Delaware Constitution was preceded by the Declaration of Rights.36 The principles from the Magna Charta that protected property rights were included in the 1776 Declaration of Rights. Section 10 provided that “every member of society hath a right to be protected in the enjoyment of life, liberty and property [and] ... no part of a man’s property can be justly taken from him or applied to public uses without his own consent or that of his legal Representatives.”37 Section 12 provided that “every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by course of the law of the land.”38

United States Constitution

Protecting the right to acquire and own private property was also of a paramount importance fir the Framers of the United States Constitution. Invoking the philosophy of Locke, John Rutledge of South Carolina told the delegates at the Philadelphia Convention that “[property was certainly the principal object of Society.”39 Alexander Hamilton stated, “One great objt. of Govt, is personal protection and the security of Property.”40 According to Professor Ely, “many provisions of the Constitution pertain to property interests and were designed to rectify the abuses *569that characterized the revolutionary era.”41

In 1790, John Adams stated, “Property must be secured or liberty cannot exist.”42 The Fifth Amendment became effective in 1791 and explicitly incorporated into the United States Constitution Locke’s theory that “protection of property is a chief aim of government.”43 The importance of the Fifth Amendment is described by Professor Ely:

As finally adopted, the Fifth Amendment contains two important property guarantees, along with procedural safeguards governing criminal trials. The amendment provides in part that 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.” Madison’s decision to place this language next to criminal justice protections, such as the prohibitions against double jeopardy and self-incrimination, underscored the close association of property rights with personal liberty. Individuals needed security against both arbitrary punishment and deprivation of property.44

According to Professor Ely, the Due Process Clause in the Fifth Amendment was a direct descendant of the Magna Charta and the initial state constitutions (like Delaware’s) and “in time became the most significant constitutional guarantee of property rights.”45

Present Delaware Constitution

Following the enactment of the United States Constitution and the operative effectiveness of the Bill of Rights in 1791, Delaware adopted its own new constitution in 1792. The President of the 1792 Delaware Constitutional Convention was John Dickinson, who had studied the common law of England at the Middle Temple in London with Thomas McKean and, thus, was also a contemporary of William Blackstone.46 John Dickinson and the other framers of the 1792 Delaware Constitution clearly intended to preserve and incorporate the well-established common-law principles from the 1776 Delaware Constitution into the protections afforded by the Bill of Rights in the 1792 Delaware Constitution.

Today, the first document that appeal’s in the Delaware Code is the Magna Char-ta.47 The entire Delaware Bill of Rights has remained virtually intact since those provisions were adopted in the 1792 Delaware Constitution. Article I, Section 8 of the present Delaware Constitution provides: “nor shall any person’s property be taken or applied to public use without the consent of his or her representatives, and without compensation being made.”

Although this history demonstrates that property rights are fundamental to liberty, they are not paramount. In 1798, United States Supreme Court Justice James Ire-dell noted that public projects “are necessarily sometimes built upon the sod owned by individuals.”48 Accordingly, Justice *570Iredell acknowledged that “private rights must yield to public exigencies.”49

Necessity Preserves Balance

The members of the General Assembly are the representatives elected to protect the Article I, Section 8 private property rights of Delaware’s citizens, such as the Cannons. The General Assembly has properly placed the burden on the State to demonstrate “necessity ” as a condition precedent to taking private property for a public purpose.50 Title 17, section 132(c)(4) of the Delaware Code permits DelDOT to discharge its duties under section 132(b) by enabling DelDOT to “[a]c-quire by condemnation or otherwise any land, easement, franchise, material or property, which, in the judgment of the Department shall be necessary.”

It is uncontested that DelDOT could not build the Route 54 project without providing a proposal for wetlands mitigation that was approved by the Corps. In order to condemn the Cannons’ additional property for compensatory mitigation, however, DelDOT had to establish that specific condemnation of that particular parcel was necessary to commence the Route 54 project. In this case, the record reflects that DelDOT has failed to demonstrate that it was necessary to take the Cannons’ additional property for the public purpose of improving Route 54. That purpose could have been accomplished by satisfying the Corps’ requirement for wetlands mitigation with other land already owned by the State or other land purchased by the State from a willing seller. The basis for these conclusions is found in the analysis of the law and the facts that follows.

Federal Statutory and Regulatory Scheme

Section 404(a) of the Clean Water Act generally bans the “discharge of dredged or fill material into the navigable waters” of the United States without a prior permit from the United States Army Corps of Engineers (the “Corps”).51 Section 404 vests the Corps with the statutory authority to regulate wetlands development.52 Section 404(b)(1) provides that the decision to issue a permit for the discharge of fill material into wetlands is made using guidelines developed by the Corps and the Environmental Protection Agency (the “EPA”).53

Pursuant to section 404(b)(1), the EPA develops section 404(b)(1) Guidelines, in conjunction with the Corps, for use by the Corps as the permitting authority.54 In evaluating all applications for Department of the Army permits, the Corps will deny a permit involving activities with section 404 discharges into navigable waters unless the discharge complies with the EPA’s 404(b)(1) Guidelines.55 In addition to ensuring compliance with the section 404(b)(1) Guidelines, the Corps considers wetlands mitigation throughout the permit *571application review process.56 A general statement of the Corps’ wetlands mitigation policy for evaluating permit applications is set forth in 33 C.F.R. § 320.4(r).57 This general statement is not, however, “a substitute for the mitigation requirements necessary to ensure that a permit action under section 404 of the Clean Water Act complies with the section 404(b)(1) Guidelines.” 58

Provisions addressing compliance with the EPA’s 404(b)(1) Guidelines are set forth in 40 C.F.R. pt. 230 at subpart B. In reviewing an application’s compliance with the section 404(b)(1) Guidelines and determining whether to grant or deny a permit for the discharge of fill material into wetlands, the Corps must further follow the general policies of 33 C.F.R. pt. 320 and procedures of 33 C.F.R. pt. 325.59 33 C.F.R. § 320.4(g) states that “[authorization of work or structures by [the Department of the Army] does not convey a property right, nor authorize any injury to property or invasion of other rights.” Under 33 C.F.R. § 320.4(g)(6), an “applicant’s signature on an application is an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application.” 60 Similarly, 33 C.F.R. § 325.1(d)(7) states that an applicant’s signature will be an affirmation that the applicant will possess the requisite property interest. Accordingly, the federal statutory and regulatory scheme clearly contemplates that an applicant will offer land that it owns for purposes of wetlands mitigation.

In this case, the applicant, DelDOT, did not offer any land owned by the State of Delaware to the Corps for wetlands mitigation. Instead, DelDOT’s application to the Corps for a wetlands permit only offered the Cannons’ additional land on the assumption that DelDOT had the absolute authority to condemn any property that it wanted to seize for wetlands mitigation. Whether the Cannons’ additional property could be condemned for compensatory wetlands mitigation is the crux of this matter.

Memorandum of Agreement

In furtherance of the federal statutory and regulatory guidelines, the EPA and the Department of the Army entered into a Memorandum of Agreement (the “MOA”) for determining mitigation under the Clean Water Act section 404(b)(1) Guidelines.61 This MOA articulates “the policy and procedures to be used in the *572determination of the type and level of mitigation necessary to demonstrate compliance with the Clean Water Act ... Section 404(b)(1) Guidelines.”62 The MOA “must be adhered to when considering mitigation requirements for standard permit applications.” 63

The MOA is the operative document in this appeal. Pursuant to the MOA, the Corps must subject individual permit applications to “a process known as mitigation sequencing” to determine whether the section 404(b)(1) Guidelines have been met.64 Under the mitigation sequencing program, the Corps initially assesses an application to determine whether the proposed activity “avoids adverse impacts on wetlands to the maximum extent [practicable].” 65 Next, the Corps considers appropriate and practicable66 requirements that could be placed on the proposed activity to minimize any remaining unavoidable impacts.67 Finally, the Corps must lessen the effect of unavoidable impacts by requiring the permit applicant to provide appropriate and practicable compensatory mitigation when minimization is not possible.68

“The objective of mitigation for unavoidable impacts is to offset environmental losses.”69 Such mitigation should provide, at a minimum, one for one functional replacement, recognizing that the minimum requirement may not be appropriate and practicable in all cases.70 The MOA does not itself, however, establish “a no net loss policy for the Nation’s wetlands.”71

Mitigation Sequencing

The MOA mitigation sequencing program was triggered in this case because the Corps determined that the impact to wetlands caused by the DelDOT Route 54 project required compensatory mitigation. The relevant provision of the MOA addressing DelDOT’s obligation for compensatory mitigation states:

Appropriate and practicable compensatory mitigation is required for unavoidable adverse impacts which remain after *573all appropriate and practicable minimization has been required. Compensatory actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands) should be undertaken, when practicable, in areas adjacent or contiguous to the discharge site (on-site compensatory mitigation). If on-site compensatory mitigation is not practicable, off-site compensatory mitigation should be undertaken in the same geographic area if practicable (i.e., in close physical proximity and, to the extent possible, the same watershed). In determining compensatory mitigation, the functional values lost by the resource to be impacted must be considered. Generally, in-kind compensatory mitigation is preferable to out-of-kind.72

Under this provision, a hierarchy of preferences is established regarding the type of compensatory action that should be undertaken. The MOA sets forth a preference for on-site compensatory mitigation over off-site, and in-kind compensatory mitigation over out-of-kind.

The MOA provides, as appears from the testimony, the following hierarchical preferences for compensatory mitigation: on-site, in-kind; on-site, out-of-kind; off-site, in-kind; off-site, out-of-kind. In assessing the type of compensatory actions the permit applicant will be required to undertake, the MOA conditions the compensatory action on whether it is “practicable.”73 The MOA specifically states that in determining “practicable” mitigation “[pjractica-ble is defined at Section 230.3(q) of the Guidelines.”74 “Section 230.3(q) of the Guidelines reads as follows: ‘The term practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. ’ ”75

The proper focus on the “practicability” of accommodating the Corps’ preference for compensatory action by DelDOT with on-site, in-kind compensatory mitigation must logically begin on land already owned by the State or available from a willing seller. If undertaking on-site compensatory mitigation was not practicable from land owned by the State or that could be voluntarily acquired, the MOA permitted DelDOT to offer off-site compensatory mitigation. Therefore, it was not necessary to condemn the Cannons’ additional land to accomplish the improvements to Route 54.

DelDOT’s Mitigation Proposal

DelDOT’s Route 54 project design, constructing an elevated viaduct and a six foot elevated fill berm to access it, crossed wetlands. The fill for the approaches to the viaduct required DelDOT to obtain permits to fill wetlands from the Corps. DelDOT engaged Edward Launay (“Lau-nay”), a professional wetland scientist, to address the issue of wetlands mitigation.

After conducting an assessment of potential wetlands mitigation sites along the Route 54 corridor, Launay selected only one mitigation site, an additional 6.53 acres of the Cannons’ land. Initially, Launay *574did not conduct a formal off-site search “since the environmental agencies prefer on-site mitigation as a first option and the Cannon property provided an ideal site adjacent to the roadway improvements.” After a June 3, 1999 meeting with the Cannons, however, DelDOT agreed to have Launay review other potential off-site areas near the project.

Nevertheless, the record reflects that Launay submitted the Cannons’ property to the Corps as the only mitigation site, apparently without reviewing other off-site areas. Consequently, the Cannons requested, pursuant to the Freedom of Information Act, that DelDOT identify and provide all “lands held by the State which are earmarked or could be used for mitigation of filling Federal Title 10 Section 404 wetlands.” In response to the Cannons’ Freedom of Information Act request, Del-DOT sought to obtain answers through internal communications.

Those internal communications reflect that, in response to the Cannons’ request, DelDOT Real Estate employee, V. Wayne Rizzo (“Rizzo”), was asked to provide a list of all State owned lands in the Route 54 project vicinity, which would also be passed on to Launay to review for mitigation potential. On June 15, 2000, Rizzo determined that no DelDOT owned lands existed in the Route 54 project vicinity. On June 19, 2000, DelDOT asked for the evaluation of other state owned land in the area.

Thereafter, as a result of these internal communications, in response to the Cannons’ Freedom of Information Act request, Launay was asked to review eighteen excess Sussex County properties owned by DelDOT for potential use as wetlands mitigation sites.76 Launay issued a report evaluating DelDOT’s properties on September 28, 2000.77 Launay stated that he thought he was requested to study other DelDOT properties since DelDOT “wanted to make sure that they didn’t, in fact, hold other properties that could be suitable and to prepare a document stating so.” Lau-nay determined that the eighteen DelDOT properties were inferior to the Cannons’ additional property and unacceptable as mitigation sites.

Cannons Oppose Application

After DelDOT submitted its application for a wetlands fill permit to the Corps, a public notice was issued on December 12, 2000. In response to that notification, the Cannons formally protested the use of their property as a wetlands mitigation site by letter to the Corps dated January 3, 2001. The Cannons also requested that the Corps look to other lands owned by the State of Delaware for mitigation purposes.

DelDOT responded to the Cannons’ letter by submitting to the Corps Launay’s report, which rejected other DelDOT mitigation sites as inferior to the Cannons’ property. Not surprisingly, the Corps disregarded the Cannons’ protest. The Corps issued a permit to DelDOT to All wetlands for the proposed improvements to Route 54 upon the condition that Del-DOT secure ownership of the Cannons’ additional property prior to commencing work.

*575 DelDOT Creates Necessity

DelDOT argues that condemnation of the Cannons’ additional property was necessary since the Corps, under the MOA’s sequential review, would require wetlands mitigation for the Route 54 project on-site and in-kind, regardless of whether other State owned off-site locations were available for mitigation purposes. This argument is contrary to the MOA’s express language. What DelDOT purports to be the Corps’ “requirement” for on-site and in-kind compensatory mitigation is in actuality a non-mandatory preference. Moreover, the Corps preference for on-site and in-kind compensatory action yields in a hierarchical order whenever that preferred action is not practicable. The Corps then allows an applicant to offer compensatory action off-site in the same geographic area, if practicable.

To be “practicable,” either on-site or off-site actions should be reasonable in terms of cost, existing technology, and logistics in light of overall project purposes, i.e., from land that the applicant already owns or could acquire from a willing seller. By selecting and submitting only the most preferred, on-site and in-kind solution, DelDOT assumed that compensatory mitigation through a voluntary sale or condemnation of the Cannons’ additional property was a practicable alternative. DelDOT knew, however, that the Cannons did not intend to voluntarily transfer their additional property by at least June 3, 1999.

Notwithstanding its knowledge of the Cannons’ refusal to sell additional land, DelDOT applied for a permit from the Corps by offering the Cannons’ property as the only mitigation site for compensatory mitigation. The Corps approved Del-DOT’s permit by requiring the acquisition of the Cannons’ additional property prior to commencement of the project. Thus, DelDOT argues it became “necessary” for DelDOT to condemn the Cannons’ property in order to fulfill Special Condition 28 of the DelDOT permit to fill wetlands to improve Route 54. The federal regulations specifically provide, however, that a permit from the Corps “does not authorize any injury to property or invasion of rights or any infringement of Federal, state or local laws or regulations.”78

By submitting only the Cannons’ additional property for wetlands mitigation, DelDOT guaranteed that the Corps would condition its grant of a permit to fill wetlands on DelDOT’s acquisition of the Cannons’ property. In this appeal, DelDOT has the temerity to argue that it is now “necessary” to condemn the Cannons’ additional land for wetlands mitigation so that Route 54 can be improved. In fact, DelDOT suggests that it had the right to submit any private property anywhere in the State for wetlands mitigation and then to condemn that property if its acquisition was a condition for obtaining a permit for construction from the Corps.

DelDOT operated under the assumption that the State had the absolute right to condemn the Cannons’ additional property.79 Thus, DelDOT did not offer the Corps any other State owned property for *576wetlands mitigation. If any necessity existed for acquiring the Cannons’ additional property for mitigation purposes, DelDOT created that necessity by limiting its review to one potential mitigation site that it did not own and that the Cannons did not want to sell.

Cannons Condemnation Unnecessary

Launay testified that the Cannons’ additional property was the only mitigation site submitted to the Corps. Launay testified that in negotiations with the Corps on DelDOT’s behalf, he operated under the assumption that “ultimately the State somehow would acquire that piece of property.” Launay testified that DelDOT offered the Corps the most preferred mitigation site in order to ease and facilitate the negotiation process for a permit to fill wetlands. Therese Fulmer, Del-DOT’s Manager of Environmental Studies, Planning, and Project Development, also testified that DelDOT operated under the assumption that they had the power of condemnation and attempted to accommodate the Corps’ preference for on-site compensatory mitigation without even considering off-site compensatory mitigation options.

Launay testified that at least 100 acres of State owned land existed that could have been reviewed and offered to the Corps, located in the same watershed, within some level of the Corps’ mitigation preferences. The Corps’ representative testified that if it was convinced that the Cannons’ property was not practicable or feasible the Corps would have considered other mitigation sites.80 Accordingly, Del-DOT’s conscious choice to submit only one mitigation site, which it did not even own, to accommodate a non-mandatory preference by the Corps resulted in the Corps’ imposition of a condition that does not constitute the statutory necessity which would enable DelDOT to condemn the Cannons’ additional property.

Conclusion

The record reflects that condemnation of the Cannons’ additional property for wetlands mitigation was neither necessary nor reasonable. Although it was necessary for DelDOT to provide for wetlands mitigation to receive a permit for construction of the improvements to Route 54 from the Corps, it was not necessary to offer the Cannons’ additional property to accomplish that purpose. In the absence of establishing a necessity, DelDOT had no statutory authority to condemn the Cannons’ additional land.

DelDOT’s actions also violated the private property rights that are guaranteed to the Cannons by Article I, Section 8 of the Delaware Constitution. That provision in the Delaware Constitution protects against a taking of the Cannons’ private property for, public purposes without the consent of the Cannons’ elected representatives. The General Assembly conditioned DelDOT’s authority to exercise the inherent sovereign powers of eminent domain upon a demonstration of necessity. Since DelDOT’s condemnation of the Cannons’ additional land was unnecessary, it was not in accordance with the applicable statute enacted by the Cannons’ elected representatives. In the absence of procedural safeguards, DelDOT’s action also violated the non-delegation doctrine that is based upon the due process rights of private property owners that are guaranteed *577by the terra “law of the land” in Article I, Section 8.

The Superior Court’s decision to affirm DelDOT’s finding of necessity is not supported by the record and is not the product of a logical deductive process. DelDOT’s condemnation of the Cannon’s additional land was both legally erroneous and constituted an abuse of the sovereign power of eminent domain. Therefore, we respectfully dissent.

. James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 5 (2d ed.1998).

. 12 The Papers of James Madison 204-07 (Charles F. Hobson & Robert A. Rutland eds., 1979).

. See Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 678-79, 43 S.Ct. 684, 67 L.Ed. 1167 (1923).

. Atlantis I Condo. Ass'n v. Bryson, 403 A.2d 711, 713 (Del.1979).

. Id. at 713, 717.

. Id. at 713.

. Id. at 717.

. Id.

. See State ex rel. Sharp v. 0.6878 Acres of Land, 105 A.2d 205, 206 (Del.Super.Ct.1954).

. James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed.1998).

. See id. at 26 (quoting Arthur Lee, Am Appeal to the Justice and Interests of the People of Great Britain, in the Present Dispute with America 14 (New York, 1775)).

. Id. at 13.

. Id.

. William Penn, The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-Bom Subjects of England (Philadelphia, William Bradford 1687).

. Ely, supra, at 17.

. John Trenchard, Cato’s Letters, no. 68, Mar. 3, 1721, in The English Libertarian Heritage 177-78 (David L. Jacobson, ed.1965).

. 1 William Blackstone, Commentaries *135.

. Ely, supra, at 17.

. Ely, supra, at 29.

. See generally Randy J. Holland, State Constitutions: Pwpose and Function, 69 Temp. L.Rev. 989, 989-90 (1996).

. See Willi P. Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 4 (1980); Gordon S. Wood, Foreword: State Constitution-Making in the American Revolution, 24 Rutgers LJ. 911, 913-14 (1993); Note, The Theory of State Constitutions, 196 Utah L.Rev. 542 (1966).

. Adams, supra, at 4.

. Jefferson Powell, Languages of Power, A Source Book of Early American Constitutional History 22 (1991).

. Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 6 (1990).

. Seminole Tribe v. Florida, 517 U.S. 44, 168, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (Souter, J., dissenting) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 398-99, 1 L.Ed. 648 (1798) (Iredell, J., dissenting in part)).

. Proceedings of the Assembly of the Lower Counties on Delaware 1770-1776, of the Constitutional Convention of 1776, and of the House of Assembly of the Delaware State 1776-1781, at 25 (Claudia L. Bushman et al. eds., 1986).

. See Randy J. Holland, Introduction to The Delaware Bar in the Twentieth Century xix, xxv (Helen L. Winslow et al. eds., 1994).

. Declaration of Rights and Fundamental Rules of the Delaware State of 1776, § 1.

. Del. Const, of 1776, art. XXV; see also Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279, 1308 (1995).

. The Declaration of Rights was adopted by the convention on September 11, 1776. Shortly thereafter, the first constitution of the State of Delaware was enacted on September 20, 1776. See generally Wood, supra, at 921 (noting that the Delaware Constitution, as with constitutions from four other states, was prefaced with a bill of rights, "combining in a jarring but exciting manner ringing declarations of universal principles with motley collections of common law procedures”).

. Declaration of Rights and Fundamental Rules of the Delaware State of 1776, § 10.

. See id. § 12.

. 1 The Records of the Federal Convention of 1787, at 534 (Max Farrand ed., 1937).

. Id. at 302.

. James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 43 (2d ed.1998).

. Discourses on Davila, in 6 The Worlcs of John Adams 280 (Charles Francis Adams ed., Boston, Little Brown 1851).

. Ely, supra, at 54.

. Randy J. Holland, Introduction to The Delaware Bar in the Twentieth Century xix, xxv, xxxiii (Helen L. Winslow et al. eds., 1994).

. Del.Code Ann. vol. 1 (1975).

. Calder v. Bull, 3 U.S. (3 Dall.) 386, 400 (1798) (Iredell, J., dissenting in part).

. Id.

. See Del.Code Ann. tit. 17, § 132(c)(4) (1995); see also Wilmington Parking Auth. v. Land with Improvements, 521 A.2d 227, 232-33 (Del.1986).

. See 33 U.S.C. § 1344(a) (2001); Randall S. Guttery et al., Federal Wetlands Regulation: Restrictions on the Nationwide Permit Program and the Implications for Residential Property Owners, 37 Am. Bus. L.J. 299, 301-02 (2000).

. See 33 U.S.C. § 1344.

. See 33 U.S.C. § 1344(b)(1); Guttery et al., supra, at 302.

. Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 45 Fed. Reg. 85,336 (Dec. 24, 1980) (codified at 40 C.F.R. pt. 230).

. 33 C.F.R. § 320.4(a)(1) (2001).

. See id. § 320.4(r)(l).

. See id. § 320.4(r) n.l.

. See id.

. 33 C.F.R. § 323.1 (2001). Adherence to such general policies and procedures is required in addition to those special policies, practices and procedures to be followed by the Corps in connection with permits to authorize section 404 discharges. See id.

. Richard Hassel ("Hassel”), Assistant Chief of the Corps’ Regulatory Branch, testified that the Corps Regulatory Program does not require land ownership in its permit decision. Hassel stated that if the proposed activity was not contrary to the public interest and complied with the necessary federal regulations, the permit would be issued conditioned upon receiving the necessary legal instruments to perform the work on the property.

.Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, 55 Fed.Reg. 9,210, at I (Mar. 12, 1990) [hereinafter 1990 Memorandum of Agreement]. The MOA does not change substantive regulatory requirements, maintaining the need for compliance with the EPA’s 404(b)(1) Guidelines. 1990 Memorandum of Agreement, at I.

. 1990 Memorandum of Agreement, supra, at I.

. 1990 Memorandum of Agreement, supra, at I. The MOA focuses on standard permits which are "those individual permits which have been processed through application of the Corps public interest review procedures (33 C.F.R. 325) and EPA's Section 404(b)(1) Guidelines." 1990 Memorandum of Agreement, supra, at I. An individual permit, such as DelDOT's permit, means a "Department of the Army authorization that is issued following a case-by-case evaluation of a specific project involving the proposed discharge^) in accordance with the procedures of this part and 33 C.F.R. part 325 and a determination that the proposed discharge is in the public interest pursuant to 33 CFR part 320.” 33 C.F.R. § 323.2(g) (2001).

. Guttery et al., supra, at 314; see also 1990 Memorandum of Agreement, supra, at II.C.; Appellants’ App. at 248.

. Guttery et al., supra, at 314; 1990 Memorandum of Agreement, supra, at II.C.

. The MOA specifically states that "[i]n determining 'appropriate and practicable’ measures to offset unavoidable impacts, such measures should be appropriate to the scope and degree of those impacts and practicable in terms of cost, existing technology, and logistics in light of overall project purposes.” 1990 Memorandum of Agreement, supra, at II.C.

. Guttery et al., supra, at 314-15; 1990 Memorandum of Agreement, supra, at II.C.

. 1990 Memorandum of Agreement, supra, at III.B.

. 1990 Memorandum of Agreement, supra.

. 1990 Memorandum of Agreement, supra, at II.C.3.

. 1990 Memorandum of Agreement, supra, at II.B.

. 1990 Memorandum of Agreement, supra, at II.B.n.3 (alteration in original) (quoting 40 C.F.R. § 230.3(q)).

. Although Rizzo’s June 15, 2000 response indicated that DelDOT did not own any lands in the vicinity, Launay’s report clearly states that DelDOT provided and requested him to evaluate a list of Sussex County properties owned by DelDOT. No further reference is made within the DelDOT internal communications as to where such a list was generated.

. Appellants' App. at 190-217 (Evaluation of Wetland Mitigation Potential for Sussex County Properties Owned by the Delaware Department of Transportation).

. 33 C.F.R. § 320.4(g)(6)(2001).

. On February 9, 2001, DelDOT stated in a letter to the Corps that for DelDOT "to obtain possession on the property acquisitions that [it] could not negotiate to a settlement, [the Cannons’ additional property,] it [would] be necessary for [DelDOT] to demonstrate to the court that [the] project [would] in fact be permitted by the Corps.” Accordingly, Del-DOT requested the Corps to issue the previously accepted permit, "with appropriate conditions,” by mid-March. That date was requested because DelDOT believed "that [it] would allow [DelDOT] sufficient time to complete the property acquisitions."

. Hassel testified that if the State could not condemn the Cannons' additional property the Cannons' mitigation site would not be feasible for compensatory mitigation. Hassel stated the Corps would then sequentially review other potential mitigation sites under the MOA's hierarchy to find a practicable and feasible alternative.

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