Thomas and Amy Villegas bought a patch of undeveloped property in Nebraska, intending to use the land’s robust mix of meadows, woods, and streams for hunting and other recreational activities. Now they are being pursued by a federal agency, not in a court of law, but within its own walls, under its own rules, and before its own employees acting as judges.
After buying the property, the couple’s first order of business was to clear the property of dead trees and invasive vegetation—including Phragmites, classified under state law as a “noxious” weed. The Villegases also needed to create a road to bring in the equipment.
Unbeknownst to Thomas and Amy, a disgruntled neighbor reported their land-restoration activity to the Environmental Protection Agency (EPA). The agency then filed an administrative enforcement action claiming the Villegases discharged pollutants—dirt and other fill material—into “waters of the United States” on their property, in violation of the Clean Water Act. The EPA sought $300,000 in penalties, for good measure.
Thomas is an excavator by trade and familiar with CWA regulations. He had determined that no pollution took place and thus nothing he did fell under CWA regulations.
In a just process, Thomas could fight the accusation and ruinous financial penalty in a court of law before a neutral judge and a jury.
But the EPA has the option, which it exercised here, of keeping its entire enforcement process within its own walls and under its own rules. That is, the agency brings the case before one of its own employees—rather than a judge—and asks the employee to determine how to punish people. Any appeal of that decision goes to the agency’s Environmental Appeals Board (EAB), which is staffed with more EPA employees.
As a result, agencies cakewalk through a court-like process of their own making. Their sky-high win rates are unsurprising as the accused usually settles rather than face the near-insurmountable hurdle of fighting bureaucrats in a process stacked in their favor.
The Constitution guarantees basic principles of fairness, including the right to a fair trial before an impartial judge and jury. This means a real court of law, not court-like procedures set by executive agencies.
If that weren’t enough, the ALJs and members of the agency’s appeals board are not properly appointed.
These administrative judges wield tremendous power to make final, binding legal judgments that can destroy lives—like the Villegases’ proposed $300,000 penalty. Because this power is so significant, the Constitution permits only highly vetted officials—those nominated by the president and confirmed by the Senate—to wield it.
Represented at no charge by PLF, the Villegases are fighting back with a federal lawsuit challenging the EPA’s improperly appointed administrative “judges” and the sham courts that strip their right to a fair trial and determine their punishments.
Kansas Justice Institute is joining Pacific Legal Foundation on this case.