EPA backs down from its outrageous claims against a Nebraska property owner
PLF clients Tom and Amy Villegas have reason to celebrate after the Environmental Protection Agency (EPA) backed down from its outrageous claim that the couple violated the Clean Water Act (CWA).
An oasis in Nebraska
Tom and Amy Villegas love the outdoors. While the couple calls Colorado home, they have a deep connection with the lush meadows, green woods, and flowing streams in their neighboring state of Nebraska. So mesmerized were they by the natural wonders of the Cornhusker State, they decided to buy 80 acres of land in Lincoln, where they could enjoy hunting and all the other recreational activities they love so much.
Tom and Amy never planned on living on the land. Instead, the property would be their perfect oasis where the family could escape and enjoy the scenery.
“I always loved duck hunting and deer hunting, and it’s a river property, and it’s a recreational property that we used to use quite often,” Tom says. But the couple’s plans for the land were paused after they found themselves in an absurd legal battle with the Environment Protection Agency.
When the Villegases bought the land, it needed some work. Before they could enjoy their new property, it would need to be cleared of its dead trees and invasive vegetation, which included a noxious weed called Phragmites. The couple would also need to create a road so they could bring in their equipment.
In 2016, they began the tedious task of fixing up the land.
Their home in Colorado is three hours away from Lincoln, so the work would have to be done slowly. The couple spent a few days here and there tending to the property whenever they could—a process that took several years.
In 2021, all that work came to a screeching halt.
A federal investigation
Cleaning up their property so they could use it as they please seemed like a benign act, common for those who just bought so much land.
But a busybody neighbor had a different idea about what was going on and ratted on the Villegases to the EPA.
As Tom explains:
In 2021, the neighbor turned me in and the Army Corps of Engineers sent out investigators. I was so pissed off at the neighbor, that I put the place on the market.
At first glance, it might be confusing as to why the Army Corps of Engineers would be involved in a dispute over land. Odd as it may sound, the Army plays a big role in helping the EPA enforce the CWA, an unpleasant fact another PLF client learned.
As for Tom, it wasn’t until he tried to sell the property that he realized how much trouble he was in: A potential seller offered him a measly 50 cents on the dollar, citing his conflict with the EPA.
“And that’s how I figured out I was in trouble with the EPA,” Tom says.
Tom hadn’t heard from the EPA after the Army Corps’ site visit. But when he checked, he discovered that unbeknownst to him, the EPA had filed an administrative enforcement action against Tom and his wife.
The EPA alleged that the couple had discharged pollutants—dirt and other fill material—into “waters of the United States” on their property, in violation of the Clean Water Act. The agency sought a whopping $300,000 in penalties.
Tom is an excavator by trade and familiar with CWA regulations.
“We do commercial excavation here in the Denver Metro area, and we do a lot of utilities, water mains, sewer mains, storm sewer, and that’s what we do for a living,” he said. “I wasn’t a stranger to the Clean Water Act.”
Tom was certain that he hadn’t polluted and that nothing he did fell under CWA regulations. He was also angry that he hadn’t been informed of the EPA’s actions against him.
He’s never been one to take injustice lying down. He wanted answers.
“I started calling the Army Corps of Engineers,” he remembers. But calling didn’t do much good. Tom recalls hearing comments like, “Oh, yeah, we forgot. We sent it [notice] to you 90 days ago.”
When Tom pushed and asked for proof of certified mail, the Army stopped responding.
Tom said he felt like he was in China “and I had no rights.”
After trying to get answers from the Army, he also had to deal with the EPA.
Fighting back seemed like a no-brainer, but challenging the EPA comes with a fair share of unjust and unconstitutional hurdles.
The separation of powers
Agencies like the EPA have the power to try cases against property owners internally in what’s called agency adjudication. Unfortunately, these in-house tribunals completely ignore basic due process and undermine the constitutional safeguard of separation of powers.
Only the judicial branch should be able to try cases. When an executive agency like the EPA usurps that role, it’s acting simultaneously as prosecutor and judge—making it impossible to guarantee a fair trial. And if the EPA finds you guilty, any appeal goes to the agency’s Environmental Appeals Board (EAB), which is staffed with more EPA employees.
It should come as no surprise that the EPA has sky-high win rates whenever someone attempts to defend themselves against the agency’s allegations. Faced with this biased adjudicatory system, most people end up settling instead of defending their innocence.
While Tom was resolved to fight back against the charges against him, he knew it wasn’t going to be a walk in the park. He was also growing concerned that his first attorney wasn’t up to the task, and ultimately he decided to look elsewhere. As luck would have it, one week later he was contacted by Pacific Legal Foundation attorneys Michael Poon, Damien Schiff, and Glenn Roper, who joined his fight against the EPA and challenged the agency’s power to hold the adjudication at all.
Finding PLF meant a lot to Tom and reinvigorated his belief that justice was still possible.
Tom remembers his feelings of gratitude upon finding PLF: “You guys are full of nothing but professional people. And that was kind of the turning point. Even my wife after that, she goes, ‘We’re in good hands.’”
Tom wholeheartedly believes in the ideals this country was founded on, and that is why he decided to fight back to begin with. His family has been in military service since WWI. He is acutely aware of the importance of protecting the Constitution.
“Back in the country I grew up in, the ideals that we have of right and wrong, that’s what it’s about,” he says.
The attorney dream team working with Tom are no strangers to fighting back against the EPA. In October, Damien delivered oral arguments in front of the Supreme Court for Sackett v. EPA, which also dealt with the EPA’s enforcement of the CWA.
The Sacketts own property in Idaho. When they began to build their dream home, the EPA stepped in and told them they had violated the CWA. Their property contained a small body of water that did not connect to any larger body of water. But the EPA was trying to define that body of water as a “navigable water.”
The couple was told that if they did not stop construction and restore the land back to how it was, they would be fined tens of thousands of dollars per day.
Sackett is one of the rare instances where one single case has gone to the Supreme Court twice. The first time the Sacketts went to the Supreme Court, in 2012, they were simply fighting to get their day in court. The lower courts held that the Sacketts did not have the right to challenge the EPA’s compliance order in court.
In a unanimous decision, the Supreme Court held that the Sacketts did have the right to sue. This procedural victory allowed their case to proceed through the lower courts.
The second time around, the Sacketts challenged the EPA’s authority under the CWA to stop the Sacketts’ homebuilding project until they obtain a permit from the federal government.
Earlier this year, the Supreme Court announced that it had ruled in the Sacketts’ favor, solidifying a huge win for both the separation of powers and property rights.
The legal fight that never was
As the ball got rolling in his case, Tom was more than ready for the fight. In fact, filing the lawsuit with PLF breathed new life into him.
“I started feeling good about myself,” he says. “I don’t have very much fight in life anymore. We’re 10 years out from retirement, my kids don’t piss me off anymore. So there’s not really a fight in life anymore. And this has given me a challenge and recharging my batteries, so I’m looking forward to it.”
But that fight would be over before it even began. After PLF took the case, the EPA announced it would be dropping its charges against the Villegases.
While we may not be able to say for sure whether the win in Sackett had anything to do with the EPA’s decision to back down, it probably didn’t hurt that Pacific Legal Foundation now has a strong track record of not only helping our clients push back against this executive behemoth, but of winning as well.
Huge congratulations are in order for the Villegases, who can now continue enjoying the land they love so much.
