Government Bullies: How Everyday Americans Are Being Harassed, Abused, and Imprisoned by the Feds

by Rand Paul

  The Pozsgais purchased the lot with the intention of expanding the family business by building a large shop for truck repairs. He sought and received all of the proper local permits from the Department of Labor and the local Department of Environmental Protection.

  Mr. Pozsgai had a plan that would both clean up a thirty-year eyesore—a worthless piece of property—as well as create more jobs in his hometown. One would think this sounds like exactly the kind of thing any government would be promoting and encouraging. It sounds like exactly the kind of property stewardship and community contribution most Americans would praise, right?

  But this isn’t what happened.

  The Pennsylvania Department of Environmental Protection gave the Pozsgais the go-ahead, including stating that their property was not on the National Wetlands Inventory map. Even if there were any wetlands, additional fill was preauthorized by the Corps under Nationwide Permit No. 26 for up to ten acres for isolated wetlands. The Pozsgais felt assured that there would be no problems and no holdups from the government.

  After this state evaluation, John Pozsgai mortgaged his house to buy the property and began to clean up and clear the site for construction.

  But instead of Pozsgai being commended by the community for his backbreaking efforts, on August 24, 1988, the Corps of Engineers and EPA sued him in federal civil court for allowing clean, nontoxic fill material to be placed on less than three-quarters of an acre on the so-called wetland area of the property.

  It was clear that these federal thugs had a vendetta: In fact, the government had been conducting aerial surveillance of the property since Pozsgai’s renovations began. They even planted a video camera in a neighbor’s house to further videotape Mr. Pozsgai’s property.

  Why did our government do this? There was no legitimate reason for Mr. Pozsgai to be targeted. It was an injustice and an outrage, clear and simple.

  And it didn’t stop there.

  Just a few days later, the U.S. attorney in Philadelphia had several federal agents surround Pozsgai in his shop and arrested him. He was handcuffed and hauled off to federal criminal court in Philadelphia. He wasn’t even allowed a phone call. Mrs. Pozsgai sat weeping, saying it was just like when the Soviets came into Hungary and took family and neighbors without any justification.

  The Pozsgais were eventually told that the EPA had made a criminal case against them. Yet in the meantime the family bailed their father out of jail and began preparing for what was to come—an attack by the federal government on their father’s most basic rights.

  After posting bail and returning home, the family found two armed agents searching their house and business for illegal firearms. Victoria Pozsgai-Khoury described the scene, saying, “It was like watching thieves burglarize your home and not being able to do anything. We felt violated for years after this experience.” The EPA officials never found any firearms—because they did not exist. Claims to the contrary by these government thugs were just as bogus as their wetlands claims had been.

  In their arguments, the Corps and the EPA spun a tale of federally regulated wetlands on this isolated property because it was adjacent to a drainage ditch that somehow connected underground to the nonnavigable Delaware Canal. They switched maps and locations or simply misread them, and misdirected the officials to the wrong coordinates. They lacked correct elevations, they falsified forensic soil data, and they lacked soil DNA—soil diatoms and anaerobes. They manufactured a phony wetlands delineation lacking proper photogrammetric aerials. Adding to this delusion and confusion, these agencies couldn’t even agree on a clear definition of what “wetlands” were or where they existed on Mr. Pozsgai’s property. It appears as though the only thing they could agree on was the target—they had their sights set on John Pozsgai and they were going to take him down regardless.

  The EPA and prosecution had somehow contrived a drainage ditch to be a stream and then marked it as such on aerial photos that were later submitted in court. The stormwater drainage ditch was filled with over seven thousand old tires, which Mr. Pozsgai painstakingly removed at his own cost. The debris and tires in that drainage ditch caused regular flooding on Bridge Street, which affected the Pozsgais’ basement as well as some of the neighboring properties. After the property was cleaned up there were no more floods. In fact, no flooding was reported on that property for the next twenty-five years, even with three epic floods taking place in surrounding areas.

  The drainage ditch in question borders Pozsgai’s property and was created by the DOT prior to 1936. Even going through property deeds dating as far back as the 1800s, no wetlands were ever found on this particular site.

  At every juncture throughout this ordeal the Pozsgais kept asking, “How can we make this work? What do we have to do to have rights on our own land?” They knew this situation was a terrible misunderstanding. The prosecution had wrong addresses, wrong site maps, wrong elevations/topography, wrong slopes, and wrong soil samples that were all contributing factors to the Pozsgais’ dilemma. It turned out Morrisville has two streets with the same name, and these agencies kept mistaking one for the other. This would cause massive confusion in the courtroom.

  On December 30, 1988, the court reached a verdict—John Pozsgai was found guilty on forty counts of violating the Clean Water Act. Why? Again, all he’d done was “damage” a few acres of so-called federal wetlands by using clean, nontoxic, nonhazardous fill. He was given the maximum fine of $202,000 and the maximum sentence of three years in prison. As I mentioned earlier, this was the longest jail term in history at that time for any environmental crime, even more than for the Exxon Valdez oil spill or for dumping hazardous waste in lakes.

  The day after Thanksgiving in 1990, John Pozsgai began serving his sentence in Allenwood federal prison, about a 400-mile round trip from his home and family. By July of the following year the Pozsgai family was bankrupt.

  Where once he was a very productive citizen who paid taxes on his land, he was now a ward of the state and unable to produce anything because of the injustices visited upon him by his own government.

  Pozsgai ended up serving a year and a half of hard time; he spent another year and a half in a halfway house and was given five years’ supervised probation. His fine was later reduced to $5,000 thanks to another appeal by their attorney, Paul Kamenar. Mr. Kamenar successfully argued that the fine was excessive due to the Pozsgais’ meager finances and negative net worth.

  During Pozsgai’s incarceration, the government ordered a “restoration.” They dug up more than ten acres of the fourteen-acre site. They moved and removed twice as much as Pozsgai’s said violation, and continued digging pits and ditches all over the site. A huge hole was dug, which EPA officials said would become a wetlands pond. Ten years later the hole remained high and dry. In 2000, nearly two decades after this ordeal began and not satisfied with the dry plot of land, the government forcibly dug up another area, blocking drainage from the site.

  Now they finally have their pond.

  As recently as 2007, the EPA was still harassing the Pozsgais. A federal judge sided with the EPA to say the Pozsgais were in contempt of an EPA order and must return their land to its previous status as a wetland. Does this mean the EPA and that federal judge want the Pozsgais to redump the thousands of old tires in the drainage ditch, and return the old rusted junk they cleared out?

  None of this makes any sense.

  After all of the government’s intervention and abuse, not one dollar was paid to the Pozsgais for the loss and destruction of their land.

  It’s as though these government agencies went out of their way to ensure the financial and emotional suffering of the Pozsgai family. For example, they chased away the communications company Sprint, which wanted to build a cell phone tower on the land. Sprint evaluated the site and said the Pozsgai property had “no wetlands.” They did soil borings over 150 feet deep. The judge said the tower should be permitted, but by the time the Corps took the Pozsgais to court, Sprint had found anot
her site and the family lost yet another source of income.

  There is literally no end to the countless tragic ways in which our federal government has cost the Pozsgai family.

  On October 6, 2000, the Pozsgais were asked to testify before the House Committee on Government Reform, chaired by Congressman Dan Burton. John Pozsgai got a standing ovation and was given an apology by the chairman on behalf of the government. However, the local Corps did not show a kind face; instead, they continued their agenda and sued the family yet again. The agency then dug up their land to try once more to create a nonviable wetland pond out of an exempted storm drainage ditch.

  Currently, the Pozsgais are in legal limbo—they can only use their site for permitted parking, severely limiting their income, with barely enough to pay property taxes.

  This is madness.

  Bureaucratic agencies like the EPA have proven themselves to be highly corrupt, choking out all efforts by small business to grow or expand. This has been going on for three decades and is no small part of our current economic depression. These agencies must become unaccountable to the American people and to Congress. They have instead become self-serving autocratic rulers, lording over any property owner they set their sights on. These rogue agencies bleed our economy and citizens dry. The Pozsgais came to this country for freedom. What they got instead was abuse. No American should ever have to go through what they experienced. Ever.

  Mr. Pozsgai has since passed away. However, while her father was still able to speak, his daughter Victoria asked him, “Daddy, what should we do with the land?” He muttered in broken words, “Build a hospital and fix people like me.” So that is what they plan to do. They want to partner with Alzheimer’s and autism research groups around the country to build a learning and living facility on their property—paying tribute to their father, while trying to heal from their exhausting fight.

  But sadly, the same restrictions on development are still there.

  These out-of-control agencies—our own federal government—turned the Pozsgais’ American dream into a nightmare. I feel it is my responsibility as a United States senator to make certain that no American will ever be stripped of their rights due to unlawful and despicable government overreach. My goal is to insist on implementing the necessary legislation to rein in these rogue government agencies and to stop tragedies like this from ever happening again.

  3

  From American Dream to Nightmare

  “As a man is said to have a right to his property, he may be equally said to have a property in his rights.”

  —JAMES MADISON

  In the northernmost reaches of the panhandle of Idaho you will find Priest Lake, a quaint and quiet home to more than forty thousand people. Mike and Chantell Sackett were hoping to join this community and make Priest Lake their home. Mike Sackett had dreamed of building a house on this beautiful lake ever since he camped there with friends as a high school student.

  When he returned from his camping trip, Mike told his mother in no uncertain terms, “I am going to live on Priest Lake when I am older.” She laughed off her son’s grand declaration, at which point he reassured her, “Mark my words, I will build my home on that lake.”

  Chantell Sackett also had a special place in her heart for Priest Lake. Growing up, she spent her summers there. Chantell explains, “In the summertime, there is no other place you’d rather be. It’s so peaceful and calm and pristine.” So in 2007 the couple bought a piece of landlocked property in a preexisting subdivision on Priest Lake for $23,000. It appeared as though their American dream was coming true. They were finally going to become homeowners on the property they both grew up fantasizing about. “This was where we were going to live for our entire lives as far as we were concerned. This was going to be our home home,” Chantell said.

  The Sacketts owned a small construction company and were therefore very informed about the building permit process in the area. They applied for and received the proper local permits for their project, as they had done countless times in the past. For the Sacketts, this was routine. It was business as usual. Yet once they began preparing their land for construction, simply adding gravel and landfill, the EPA decided to get involved. The EPA showed up out of the blue and ordered them to stop working. The representatives did not have any particular credentials, nor did they have anything in writing charging the Sacketts with any violation. They were unwilling to explain why the Sacketts could not build their dream home on land that they owned.

  The agency later claimed that the family had violated the Clean Water Act by placing fill materials onto wetlands. But this did not make sense. Their property was completely landlocked in a preexisting subdivision. So when the agents appeared on their land and ordered them to cease construction, Chantell Sackett went looking for an explanation.

  She describes her conversation with the EPA: “I asked them if they had anything in writing. They said no. I asked if they had a stop-work order or anything. They said no. I asked if they had any proof or documentation saying that our property was a wetland. They said no, they didn’t need any of that.”

  There is even an EPA website where you can find out if your land is designated as a wetland. The Sacketts’ property did not appear there. (The EPA would later claim, by way of explanation, that “the website isn’t perfect.”)

  The Sacketts demanded that the EPA provide details, in writing, spelling out what they had done wrong. After they sent two certified letters to the agency, they finally received something in writing—seven months later.

  What they received was an EPA-issued compliance order, which subjected the Sacketts to a fine of $75,000 a day for violating the Clean Water Act. According to the agency, the Sacketts’ property was designated as a wetland, yet their neighbors have built houses on either side of their lot, and the lot already has established sewage lines. The lot does not harbor a lake, pond, or stream. The EPA’s wetland claims just did not add up. With the $75,000 fines accumulating every single day, the Sacketts felt hopeless.

  The compliance ordered required that the Sacketts remove the gravel they had placed on their land, put the site back the way that it was, plant supposedly wetlands-friendly plants that were not native to the site, fence the site, and maintain the property for five years. Then they were eligible to apply for a building permit. Obviously, these requirements are absurd and hypocritical, to say the least. The EPA demands that you return the site to its “natural” state, but then add plants that are not native to the site? Not to mention that the Sacketts were forced to fulfill these dictates on their own time and expense.

  This family was being bullied by their own government. “You go to bed with that on your mind every night,” said Mike Sackett. “It’s been painful personally. It’s been painful on our business.” But the Sacketts continued to stand up to the bullying. Just like David, they did not let the Goliath-like agency walk all over them. They were not going to stand idly by while their rights were unjustly stripped away. So they went looking for answers.

  When Chantell Sackett asked for evidence that their property was indeed a wetland, the EPA directed her to the Fish and Wildlife National Wetlands Inventory, which clearly showed that their lot was not on an existing wetland. When the EPA refused to show proof or evidence of their claims, the Sacketts hired wetland specialists, soil scientists, and hydrologists. These specialists all concluded that there were no wetlands of any type on their property. So not only was the property not registered in the official Fish and Wildlife National Wetlands Inventory, but all of the specialists agreed that it did not harbor any wetland molecules whatsoever.

  Amazingly, the power-hungry agency continued to demand compliance. The EPA still required that the Sacketts obtain a building permit if they wished to continue with construction. As you can imagine, getting a Clean Water Act permit is a timely and costly process. On average, these permits cost $270,000 and take about two years to obtain. The permit the Sacketts required cost over ten times more tha
n the value of the land. It appeared as if this couple’s American dream was never going to come true—all because of invasive and tyrannical American bureaucracy.

  But the Sacketts did not give up. They continued to demand explanations. They continued to fight for their rights.

  One of the most alarming problems with the EPA is the amount of power that it allows a single bureaucrat to possess. Compliance orders can be issued by a single EPA official on “any evidence.” This rarely constitutes a probable cause, as seen in the Sacketts’ case. Without any physical evidence of wetlands and without any designation on the Fish and Wildlife National Wetlands Inventory, it was simply the EPA’s word against theirs—the government verses the governed.

  It is often said that you can’t fight city hall—but what if you can’t stop city hall from constantly fighting you? The Sacketts literally had no choice.

  They requested a hearing before the EPA where they could challenge the agency’s claim that their property was a wetland. The EPA refused. According to the agency, the Clean Water Act does not give property owners any right to a hearing regarding compliance orders. Compliance orders are more or less just threatening letters, not enforcement actions. So the Sacketts would be forced to wait for the EPA to file an enforcement action. Throughout this waiting process, the daily $75,000 fine continued to accumulate. Seventy-five thousand dollars a day! It appeared as if the Sacketts were permanently stuck in bureaucratically controlled limbo. By the time their case was heard by the Supreme Court, their fine would total in the millions.

  However, they filed their own lawsuit in federal court, arguing that the Administrative Procedure Act entitled them to a hearing before a judge. They also argued that the Clean Water Act’s compliance order violated their constitutional right to due process of law. Yet the Sixth and Fourth Circuits rejected any possibility of judicial review. The courts attempted to justify the EPA’s actions by stating that “Congress intended to allow the EPA to act to address environmental problems quickly and without becoming immediately entangled in litigation.” Is this not a complete violation of the separation-of-powers principle? Does the EPA report to no one? Is it the be-all, end-all of regulatory action? These circuit courts essentially handed the EPA free rein over innocent Americans and their private property. The complete absurdity of this is hard even to grasp. Our government was literally telling the Sacketts that in the United States of America, you are free—unless the EPA decides to get involved, at which time your right to due process and private property becomes null and void.