Deadbeat Feds Don’t Pay Debts
Do you know how much the federal government owes private landowners, due to regulatory over-reach?
It makes big news when American Citizens, like Cliven Bundy, allegedly owe government money.
But do you ever hear how much government owes American Citizens?
Even after government loses juried trials, it still refuses to pay damages.
Over the next few weeks, Land And Water Chief Investigative Reporter Gene J. Koprowski, will reveal government’s unpaid debts to Americans. We bet government owes American Citizens billions.
What do you bet? Win $1,000 by submitting the closest guess to: LandAndWaterUSA@gmail.com - Contest closes November 5, 2014.
By Gene J. Koprowski
When challenged by ranchers, farmers, and individuals, during the last three years, the Environmental Protection Agency (EPA) has repeatedly lost in federal court, on cases over water and land rights, according to an analysis of recent court cases by LandAndWaterUSA.
In one noted case, from 2011, the court assessed $1.7 million in damages against the EPA for malicious prosecution under the Resource Conservation and Recovery Act (42 U. S. C. §6928(d)) against a small businessman over water regulations. The total amount of damages owed by the EPA as a result of lost court cases is unknown. But victorious plaintiffs are granted lawyer’s fees, as well as other damages, by the courts, among other remedies.
Undeterred, the agency keeps on rolling out new regulations at a rapid pace, trying to increase its power, while courts and citizens struggle to contain the Leviathan.
“Lately, there’s been a lot of talk about the growth of federal regulations,” says Patrick McLaughlin, a senior research fellow at the Mercatus Center at George Mason University, a free market think tank outside of Washington D.C. “There was five times as much regulation in the 1970s as there was in 1950, as a result, of the creation of the Environmental Protection Agency. Fast forward one more time today, as of mid-2013, there are over 1 billion federal regulations that use the words ‘shall’ and ‘must’ in them. Just think about the consequences of that on jobs and economic growth.”
Latest Loss
Two recent cases illustrate the agency’s misreading of the Clean Water Act (33 U.S.C. §1251 et seq., 1972), and its losing litigation strategy, and another loss concerned the Resource Conservation and Recovery Act.
Earlier this year, the EPA suffered its latest, humiliating court loss. Over in Worland, Wyoming, farmer David Hamilton spent $30,000 to clean up an irrigation ditch, starting in 2005. Four years later, the EPA brought an administrative action against Hamilton, and his small business, Hamilton Properties, and, when he did not capitulate in negotiations with the bureaucrats, the agency filed a federal lawsuit asking for $37,500 in fines against him per day.
Hamilton hired Harriet Hageman, a lawyer with Hageman Law, P.C., to defend himself from the out-of-control regulators.
The case was straightforward. EPA claimed the farmer needed to go through the regulatory process and obtain what is called a 404 permit before he could clean up the irrigation ditch on his own property. Hamilton, through counsel Hageman, said that was hogwash, and that property owners did not have to have such a permit to clean their own ditches.
Most interestingly, the EPA’s own web site contains language which agrees with farmer Hamilton’s argument. The site says that Section 404 of the Clean Water Act regulates the discharge of water, including wetlands, but that many water-related activities are “exempt” from the law, which include regular, ongoing farming and ranching activities, building and maintaining farm or stock ponds, and the “construction and maintenance of irrigation ditches.”
Still, this did not stop the litigators from trying to expand EPA’s power in court. But the jury did not concur. After half a month in federal court of testimony, and just over two hours of closed-door deliberations, the jury this spring gave a decision in favor of David Hamilton. According to those knowledgeable about the case, the jury held that the dredge or fill activities Hamilton engaged in nearly 10 years ago were exempt from the 404 permitting requirements because they were simply normal farming and ranching activities, and common sense conservation.
Nonsense Interpretation
Though regulators pulled back on their allegations in the end, the EPA initially contended that Hamilton’s land was a wetland, even though the farmer has noted that with a mere 7.7 inches of annual rainfall, it’s more like a desert. Initially, the EPA argued in court briefs that Hamilton’s irrigation ditch project created 8.8 acres of new wetlands in Wyoming. Revised briefs by the EPA lawyers scaled back this accusation – apparently based on Google Earth and Google Maps findings – to 1.1 acres.
The EPA presented evidence at trial of the alleged “harm and damage” that Hamilton caused. According to those close to the case, the EPA was worried about the possible eradication of Russian Olives, which are considered a weed in Wyoming, on the 1.1 acre wetland. The EPA presented arguments – unpersuasive to the jury – that the removal of the Russian Olives harmed song and game birds. The case was won even though the judge made an odd, pre-trial ruling that Hamilton’s irrigation ditch was a “navigable waterway” and was thus covered by the Clean Water Act. This was not persuasive to the jury either in the end.
An Earlier Loss
The EPA does not seem to respond well to feedback from juries that its tactics are unacceptable. Just over 24 months ago, the U.S. Supreme Court ruled on the case of the EPA v. Mike and Chantell Sackett of Priest Lake, Idaho. The case was handled by the Pacific Legal Foundation (PLF), a non-profit, conservative law firm that works with land and homeowners. Upon commencing construction on their property, the couple received a “compliance order” from the EPA, contending that they were violating the Clean Water Act.
In an opinion by Justice Antonin Scalia – and agreed to by all the justices -- issued on March 21, 2012, the Court held that the EPA's “compliance orders” may be challenged in a civil lawsuit brought under the Administrative Procedure Act (APA). The compliance orders are "final agency action" for purposes of the APA, and the Clean Water Act does not prevent judicial review under the APA, Scalia wrote.
In a concurring opinion, Justice Samuel Alito wrote, “unthinkable” the Sacketts and other property owners could not sue the EPA, as the agency had argued earlier. “In a nation that values due process, not to mention private property, such treatment is unthinkable,” Alito wrote.
Most Humbling of All
But most humbling of all for the EPA may be the 2011 case of Hubert P. Vidrine, Jr., and his wife, of Baton Rouge, La., in which the court issued a stunning 142 page judgment, and awarded the Vidrines $1.7 million in damages against the EPA for wrongful prosecution under the RCRA. The EPA agent Phillips testimony in the case was not credible, and “Agent Keith Phillips’ attempt to explain his conduct was disarmingly without merit,” wrote the judge in the case. “Setting aside the fact that Agent Phillips’ testimony before the grand jury [in a related matter] was false, it was also designed to inflame the passions and play on the fears of the grand jury.”
In this very sad case, a small businessman was accused of polluting a Louisiana water, and was prosecuted under the criminal sections of RCRA, even though federal agents knew there was no credible evidence ever to convict him of the allegations. The case led to Mr. Vidrine becoming very ill and his wife losing “benefit of consortium” with him.
“This case is a poster child for the abuses that can occur when the federal government unleashes its awesome prosecutorial powers without adequately supervising the work of its agents,” said Richard Samp, the lawyer for Mr. Vidrine. “Mr. Vidrine suffered tremendous financial and emotional losses because a rogue EPA agent lied to the grand jury and misled prosecutors and the court for his own malicious reasons,” Samp added.
The same, apparently, can be said of many of the EPA’s most controversial cases, at least that’s how juries and judges are interpreting them these days. Interestingly, there is no online record as to whether the EPA has paid the judgement, and Vidrine’s lawyer did not respond to a query from LandAndWaterUSA regarding the matter.
Deadbeat Debtors
Land and Water USA is also tracking other federal cases where U.S. federal agencies – in addition to the EPA -- have been in the wrong, and, it has been confirmed that the losing agency has not paid damages, including one case stemming from the time when President Clinton designated the Escalante Staircase monument during the 1996 presidential election race.
As a result of the decision – made to sway voters in Utah and Arizona in the Dole v. Clinton campaign – many cattle businesses were bankrupted and small towns damaged. To this day, the Department of the Interior has not paid one rancher known to LandAndWaterUSA more than $500,000 in damages. Clinton in that case utilized the The Antiquities Act of 1906, (Pub.L. 59–209, 34 Stat. 225, 16 U.S.C. § 431–433), signed by President Teddy Roosevelt.
The 1906 law stated that it was intended for: "... the protection of objects of historic and scientific interest." These areas are given the title of "National Monuments." The law allows the President to attach private lands for the purpose of preservation.
The first use of the Act protected a large geographic feature – President Roosevelt declared the Devils Tower National Monument on September 24, 1906. Roosevelt also used the Act to create the Grand Canyon National Monument, so as to protect a place of “great historic and scientific interest.”
Sources who have followed the Escalante case call it an “unconstitutional taking” without compensation to the landowners.
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Relevant Case Law
http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf
http://duwaterlawreview.com/united-states-v-hamilton/
http://www.taftlaw.com/linked_documents/0000/0890/Vidrine_Judgement.pdf