Protection? For Whom? No One.

Wednesday, July 30, 2008

Allen Prather wrote me yesterday about a remarkable and inexcusable abuse of federal power by the Environmental Protection Agency against ordinary citizens minding their own business in our home state of Mississippi.

Wyatt Emmerich of the Greenwood Commonwealth has been following developments. His column from last week opens chillingly:

Robert Lucas, his daughter Robbie, and his engineer, [are] all in prison now for many years because they dared to fight the EPA's designation of their pine land as "wetlands."

Daughter Robbie is behind bars for seven years, separated from her 1-year-old son. Had they plea-bargained and pled guilty, they probably would be free now. Instead, they maintained their innocence and fought the EPA in court, where the feds brought the full force of their prosecutorial power on them. Judicial precedent forbade the court from even ruling on the key issue: whether or not their land really was "wetlands."
Emmerich, sounding a clarion call, states that, "Every landowner in Mississippi needs to understand this case and the threat to their property and freedom."

If anything, he understates the scope and magnitude of this danger. In addition to affecting citizens of every state, this threat serves as a particularly good example of the connection between our rights -- which the government is supposed to protect -- and our lives.

The Lucases had, as it turns out, depended on developing land for their livelihood, Robert having done so for half a century -- starting in high school, working his way through college, and building a spotless reputation along the way.
In the last 48 years, [Lucas] has developed over 2,000 lots, all by subdividing cutover timber land north of Pascagoula into two- and four-acre home sites with roads, electricity, water wells and septic tanks. He usually owner-financed the lots he sold and carried the loans for people who might not otherwise be able to buy a lot. Most of the housing built on the lots was of modest design.

Lucas never had any trouble with the law, criminal or civil. No lot owner ever sued him. His daughter, Robbie Lucas Wrigley, mother of a young child, followed her father into business and sold lots. They had a good reputation with lot sales to thousands of customers.

Their engineer, M.E. Thompson, 76, designed the septic systems, following Mississippi Health Department guidelines. The project which landed them all in jail is called Big Hill and is located 12 miles north of the coast in Jackson County. The land is 100 feet above sea level and is full of pine. The nearest creek where you could place a canoe is two and a half miles away. [bold added]
Or, more to the point, the Lucases and Thompson, never had trouble with proper, objective law. That changed when environmentalists perverted the law to protect the earth from human beings doing what nature itself requires us to do to survive: alter their environment. In this particular case, wetlands law doesn't just affect the freedom of these three in some minor aspect of their lives (which would still be inexcusable): It endangers their very livelihoods.

Note that the law concerning wetlands is bad enough in that its object -- the violation of man's right to property -- is improper to begin with. This impropriety is compounded a thousandfold, however, by its non-objective nature. As we follow Emmerich's narrative, this will become glaringly obvious.

On what rational basis would one conclude that a pine forest 100 feet above sea level and more than two miles away from even a small creek is a "wetland" and therefore have any reasonable hope of obeying such a law? None, and furthermore, Lucas was going out of his way to abide by the law!

After running afoul of Pansy Maddox, a state functionary in charge of septic permits, Lucas found himself suddenly having to fight tooth and nail to have nearly 100 arbitrarily rescinded septic permits for his Big Hill development reinstated. He won that battle fair and square, only to find that this bureaucrat was perfectly happy to use the apparatus of the federal government to empower her vindictive rage. (It is taking a great deal of self-control on my part to avoid using very filthy language to describe this person.)
Then one day federal officials appeared at Big Hill accompanied by [Mississippi Department of Health's (MDH)] Pansy Maddox. Involved were the Mississippi Department of Environmental Quality (DEQ), the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA). The big guns had arrived.

Shortly thereafter, the Corps informed Lucas that Big Hill may have a wetlands issue and directed him to hire experts to do a wetlands determination of the entire property.

Lucas hired the experts recommended by the Corps, and they drew up maps delineating areas that had wetlands features. The experts didn't determine that these areas were true wetlands, just that the areas warranted further study. The EPA took the study and ran with it, declaring the pine land was "jurisdictional wetlands," thus totally under the control of the EPA.

This is where the enormous irony exists. If the EPA says your land is "wetlands," then it is wetlands. The courts will not, as a matter of law, overrule a "scientific" determination by the EPA. You can own perfectly dry pine land with 100-foot trees and no standing water, but if some low-level EPA staffer declares your land "wetlands," then your land is essentially confiscated. You have no legal recourse. [bold added]
Lucas, considering his predicament and getting "the best legal advice in the state" -- from somoene who is now "a top EPA official", decided to fight in court.

He was demolished by federal officials who had decided to make an example of him in a process that makes my recent adventure in postmodern civics seem like a high school field trip by comparison:
The jurors were led along this fantasy trail by Jeremy Korzenik, senior trial attorney for the Department of Justice's environmental crimes division.

The seven-week trial was presided over by Judge Louis Guirola, a former federal prosecutor appointed to Mississippi's Southern District in 2003. Last year, Guirola led the entire nation in white collar criminal cases. Guirola made news when he hired Dickie Scruggs to represent him in a Katrina lawsuit over damage to his home.

One can imagine that professionals of higher education were either excluded from jury selection or begged off. Few successful people with significant jobs can sacrifice seven weeks of their lives on a trial that should never have taken place.

So you are left with less-educated jurors who are satisfied with the per diem jury duty compensation. These jurors know not to bite the hand that feeds them. They are easily led along by the overwhelming power of the prosecution, which has the entire array of the federal money and bureaucracy behind them. It was a kangaroo court.


Seeking ammo for the trial, the FBI, the U.S. Attorney's Office and four environmental agencies began holding meetings in a local gym attended by the Big Hill homeowners. At these meetings, homeowners were told by six believable authorities that they had been defrauded by the Lucases. Despite the federal dog and pony show, the government persuaded only 10 percent of the Big Hill lot owners (36 out of 300) to join in their criminal case against the developer.

The local hearings were laying the groundwork for a federal lynching in the name of saving the environment. It made great PR, exemplified by the boastful press releases sent out immediately after the conviction. The bureaucrats, the prosecutors and the judges all jumped on board this gravy train of political correctness. There was just one small problem. The Lucases were innocent.

They were accused of building on wetlands, but they were never allowed in court to contest the validity of the wetlands designation. [Update: See Note 1. --ed] How can pine land be wetlands? In fact, when Lucas was selling some timber off the land, the Corps approved the sale stating in its report that "no waterway existed" and "no wetlands had been built" and "no action required." They were accused of not obtaining EPA septic permits. In fact, no such permit has ever been required or given anywhere in the U.S.A. [bold and link added]
Emmerich's list of false charges goes on and on, and he closes by noting how prophet-like our Founding Fathers were:
This is what John Adams and Thomas Jefferson feared -- an out-of-control, out-of-touch, unaccountable federal bureaucracy wreaking havoc on ordinary citizens. Their fears, first conceived 250 years ago, have proven to be remarkably on target.
And what accounts for their remarkable ability to foretell such tyranny? Their understanding that each man owns his own life, and that the proper purpose of the government is to protect the individual. This understanding, if only implicit, was much more common among the general public in their time than it is now. It must become much more common again before we will begin to stop hearing of such atrocities or, worse still, having them visited upon ourselves.

I strongly recommend reading both of Emmerich's columns soon, as his paper seems to remove them from open access after a couple of weeks.

-- CAV

Note 1: But see Qwertz's comment on how the court dealt with the EPA's designation of this property as a "wetland".


: Added Note 1 (HT: Qwertz).


Galileo Blogs said...

What an abomination! The government regulators in this case act exactly as the Mafia do. Facts don't matter, such as whether the Lucas's dry, forested land is a wetland (leaving aside whether it should matter). Reason is shut down and arguments are ended with the point of a gun.

At least the Mafia is more honorable by comparison. They seek personal wealth, which does represent a value, even if stolen. These bureacratic terrorists, on the other hand, exert power as a nihilistic end in itself. Whether motivated by Gaia-love, hatred of man including comfortable homes and wealth, or merely motivated by something as bizarre as trying to get back at a former employer in a sexual harassment scandal, the effect is the same: innocent, productive citizens have been unjustly imprisoned.

I wonder if Judge Guirola, who accepted the EPA's nonsensical determination that the Lucas's dry land is "wetlands," has to worry that his home, possibly destroyed by water from Hurricane Katrina, will be threatened with bureacratic destruction in the same manner? The land underneathh his home is a far more likely candidate for wetlands designation.

No, you guessed it; it won't happen anytime soon. For the moment, he is part of the gang that holds the power.

If anyone needs a concrete example that no one has rights in a mixed economy driven by fiat regulation, this is it.

Gus Van Horn said...

"At least the Mafia is more honorable by comparison."

Well-put, and your whole comment is 100% on-target.

qwertz said...

Patently, I am in accord with everything you say. Or at least, this is patent to anyone who knows me. So the following should not be taken as disagreement with the conclusions that CWA is bad and this situation is bad and the 5th Circuit decided the case wrongly.

But it isn't entirely accurate to say that the Court deferred to the EPA's designation of the land as wetlands. In fact, the designation of the lands in question as wetlands was a question put to the jury. The jury decided, based on the evidence presented, that the lands fell within the jurisdiction of the EPA. They decided this beyond a reasonable doubt. So the EPA's "wetlands" designation was questioned by the jury.

It was also questioned by the trial court, and by the 5th Circuit. The trial court was asked, after the government's case and again after the verdict, to dismiss the charges on the grounds that the government hadn't presented enough evidence to convince any rational factfinder beyond a reasonable doubt that (inter alia) the lands were "wetlands" under the jurisdiction of the EPA. The trial court determined that the government had presented enough evidence so that a rational factfinder could reasonably vote for conviction.

On appeal (the most recent ruling), the 5th Circuit was asked to review the sufficiency of the evidence again.

The Court reviewed the government's evidence, which included expert testimony, maps, and surveys and determined that the jurors could have reasonably found that there was a "significant nexus" between the property and a tributary to a navigable-in-fact waterway (the Rapanos plurality). Although the Court took note of the Rapanos dissent (arguing that courts should defer to the judgment of the Army Corps of Engineers), it did not hang its hat on that argument.

Legally the overriding problem here is the existence of the Clean Water Act, which is itself a result of very bad Commerce Clause jurisprudence. Our rationalistic, positivist, judiciary cannot look beyond the immediate legal question to ask "whence the rule?" Most fundamentally, the culture is to blame. Remember: if only one juror had not been convinced beyond a reasonable doubt, there would have been an acquittal. Just one. That twelve people, on the evidence presented, could come to this insane conclusion is very, very depressing. It is critical that Objectivists work hard to change the culture, especially to promote better epistemology.


Ad Hoc Committee for Property Rights said...

If this were a work of fiction and someone named the thug "Pansy" nobody would believe it. I've heard lots of outrageous stories, but this might be the worst.

Gus Van Horn said...

Thank you for lending your superior legal knowledge to this post.

I must agree, the presumably low level of education of the jurors notwithstanding, that it is depressing that they all were convinced beyond a reasonable doubt that they should convict.

Your comment gave me some hitherto unknown search terms to work with -- and a good resource to consult on legal matters such as this in the future.

ScotusBlog discusses the case here, saying in part that:

"[The Justice] Department will have a chance to respond even sooner because of a pending appeal in a case from the Fifth Circuit (the U.S. reply is currently due Aug. 6). That new case is Lucas, et al., v. U.S. (07-1512, see the petition and appendix here). In the meantime, Justice Antonin Scalia has pending before him a plea (docket 08A70) asking him to release from prison the three individuals convicted in that case of violating the Clean Water Act. That application was filed Thursday. Scalia could act on it alone, or refer it to the full Court. (Both documents contain large files.)" [links and formatting omitted]

I only joke about being a lawyer, so I could be wrong, but it sounds like the Supremes may hear this one.

Gus Van Horn said...


Missed your comment on the first review of the queue....

Yes. And in addition to this being such a horrendous story, why on earth am I the one breaking it outside of Mississippi?

That, too speaks ill of the state of our culture.

z said...

I wish I could post this to my facebook.

Jim May said...

Someone needs to compile these Little Dictator horror stories and publish them in a book.

Gus Van Horn said...


I think it's possible to at least post links on Facebook. However, I don't do Facebook, so I could be wrong....


A book? At my current clip of one per week, I'm not so sure one book would have enough room.


Kyle Haight said...

I think books like this have already been written, e.g. James Bovard's Lost Rights: The Destruction of American Liberty.

Gus Van Horn said...

Hmmm. That's one for an already overfull hopper!