My two-year battle with the United States Army
The following is PLF client Peter Smith’s retelling of the events leading up to and including his lawsuit against the U.S. Army Corps of Engineers.
My wife, Frankie, and I bought 20 acres in the high desert of New Mexico just south of Santa Fe in 2005. This property was vacant and had been used by the locals to dump garbage. Also as a result of the pine beetle, there were approximately 600 dead pinons on it. In 2006 we finished building our retirement home and set about the long task of cleaning up the land. We bought a small tractor with a bunch of attachments to help with this cleanup work. After chipping several acres of dead pinons, I turned my attention to the small dry arroyo that crosses the property. Over the years a lot of trash had accumulated there and the area was starting to get clogged with salt cedar. The area was also laced with ruts from water runoff over the years. In February of 2011, I started to cleanup this area. I cut down the salt cedar, picked up the garbage and smoothed out the ruts so that I could get the tractor and brush hog in to maintain the growth. This is when it all started.
I received a certified letter dated June 14, 2011 from the Army stating that I had violated the Clean Water Act because I had failed to get a Department of the Army permit to clean up my arroyo. Nobody phoned or tried to contact me, I just received a certified letter out of the blue. Apparently, a neighbor who used to walk his dog in my arroyo complained to the U.S. Army Corps of Engineers about my cleanup efforts. This letter gave me until June 30 to provide information to the Corps’ officials so they could decide whether to bring an enforcement action; if I didn’t respond to the letter, they would decide my fate without the benefit of my input.
That is when I started to worry. Apparently the U.S Army had been in my arroyo looking for “Water of the United States.” Why didn’t they come to the house? Or try to call me? Anyone from around here knows that the water only flows in arroyos after a cloudburst, which only happens once or twice a year—and even then it only lasts for an hour or so. When we do get one of these cloudbursts, water flows over every square inch of my 20 acres, so what area were they claiming that I had to get their permission to work on? I had no idea what this “Clean Water Act” was but figured that I had better find out quickly. There were no easements or notes on our title policy when we bought the land, but I only had a few days to get my response in the mail.
On June 17, 2011, I sent them my response, trying to explain what I had done and why. I asked what areas of my property they felt were “Waters of the United States” subject to their permit requirements.
On June 28, 2011, I received their decision. They wrote “the Corps has determined that restoration of the arroyo channel to its original condition is not practicable and, therefore, the Corps will not pursue any further action at this time.” They went on to say that “this violation will be kept on record” and “failure to obtain the required permit prior to starting work could result in legal action, including applicable penalties and fines.” With regard to my question about what other areas of my property were subject to their permit requirements, they indicated that they had not looked at the rest of the property but anything with a bed and a bank would be considered a “Water of the United States” and require that I get a permit from them. They did say that “rain falling off your roof is not a water of the United States.”
Wow! Thank goodness they didn’t want me to restore the arroyo to its original condition, I had already taken the garbage to the dump and chipped up the dead trees. ut now, I was considered a knowing violator and if I disturbed anything with a bed and a bank again, I would be fined and sent to jail. I have little beds and banks all over my property. According to them, the only part of my 20 acres that I could enjoy without fear of going to jail was my roof!
I decided what they had done was not right and that I would appeal their decision. In order for them to accept my appeal they required that I first sign what they called a “tolling” agreement. This agreement would extend the time that they had to levy fines and put me in jail for the violation should they decide to do so. Included in this agreement, I had to agree that I would not sell my property without their permission. So, before they would allow me to appeal their decision, I had to put my house up as security. That ended my attempt at an appeal, so after reading my copy of the Constitution, I decided that I would look to our courts for protection.
This is not as easy as it might sound. I would have to fight not only the U.S Army and their Corps of Engineers, but the entire Justice Department with their army of lawyers. I figured that I would have to represent myself but quickly realized that I knew very little about the law. I enrolled in a legal course at the local community college which did not help much. During my research at the college, I became aware of cases similar to mine that had been decided in the Supreme Court, in particular the Rapanos and Sackett cases. Both of these cases involved the Pacific Legal Foundation.
After doing a little research, I discovered that the Pacific Legal Foundation took cases like mine where the private property and constitutional rights of individuals had been ignored by the government. Their website has a “submit your case” section and I decided to try it. To my surprise they contacted me.
Pacific Legal Foundation agreed to represent me free of charge and on December 11, 2012 they filed a complaint in federal court in Santa Fe. They warned me that this case would probably go back and forth between the district court and the court of appeals and might eventually wind up in the Supreme Court. They said that it could take years to resolve.
To my surprise, just days before the Corps of Engineers had to file their response to the complaint, Jennifer Fry, one of the Pacific Legal Foundation lawyers handling the case, phoned me with some news. Apparently the Corps had decided that they had made a mistake and that my dry arroyo was no longer a “Water of the United States.” They cited “new evidence” as the reason for the change. This new evidence was that they had searched the internet and could find no supporting evidence that my land was a “Water of the United States.” It is obvious to me that the only “new evidence” was that they got sued and realized that they were going to lose in court so they changed their mind instead of responding to the complaint.
I am so grateful to the Pacific Legal Foundation for their efforts in my case. Without them, I would have had to give up. I had the opportunity to attend their 40th Anniversary party recently and met some of their other clients who, like me were being bullied by various government bureaucracies. It made me feel that I was not alone. This type of government abuse has become more rampant in recent years. The Pacific Legal Foundation is involved in similar cases all throughout the United States. I spoke with some of the trustees and donors at the anniversary party and must say that I have never met a group of people more dedicated to the preservation of individual rights and freedoms. It is people like these that ensure that our Republic will survive.