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

by Rand Paul

  The EPA claims that its ability to protect the environment would be “substantially undermined if compliance order recipients could immediately halt the agency in court,” and that compliance orders “obviate the need for judicial intervention by inducing compliance.” So in other words, your constitutional right to due process does not exist in the eyes of the EPA.

  The government cannot take your liberty or property without first giving you due process of law. This is not my humble opinion. This is the law of the land, known as the U.S. Constitution. The EPA violates people’s constitutional rights every day—and what do they say justifies it? The agency says that it does not have to go to court and it should never have to do so to defend its actions, no matter how much they infringe on the rights of American citizens. To which I shake my head and think, “What has this government come to?”

  As I mentioned earlier, the EPA gives individual agents far too much power over American citizens. The Clean Water Act and other environmental statutes allow individual bureaucrats to issue orders without probable cause. Instead, their claims are supported by “any information,” such as staff reports, newspaper clippings, anonymous phone tips, or pretty much anything else you can imagine. Timothy Sandefur of the Pacific Legal Foundation describes this anomaly: “What the EPA calls flexibility to compel behavior without ‘defensive litigation’ is, in reality, a daunting power over ordinary citizens. The agency issues over 1,000 compliance orders each year, without hearings or public proceeding, and property owners are not given notice or an opportunity to be heard.”

  Rather than applying a more skeptical eye to autonomous entities such as the EPA, courts generally take a deferential attitude, allowing the agencies to act as they please, except in the most extreme cases. The tragedy is that a large part of this book is dedicated to cases most Americans would no doubt consider extreme—and yet our government saw fit to let the abuse continue.

  This lack of oversight and accountability is dangerous. In the words of one former Army Corps of Engineers official, “For regulatory purposes, a wetland is whatever we decide it is.”

  Obviously, this is a problem, and it has become an even bigger problem since the definition of wetlands used by government regulators has changed nearly ten times in thirty years. It is both a moving and amorphous target.

  Courts have taken the deferential attitude to another extreme, indicating that they cannot question the “science” of what is or is not a wetland, only allowing themselves to take up whether or not the EPA has followed their own moving-target rules.

  But there is some hope on the judicial front, and there is promise that checks and balances might finally be imposed on the EPA.

  After the Sacketts fought for years, the Supreme Court agreed to hear their case. The Sacketts were represented by Attorney David Schiff of the Pacific Legal Foundation, which has argued that “administrative convenience should not be an excuse for dispensing with basic principles of the rule of law and striking citizens of their constitutional rights.”

  Court hearings began in January 2012, and the Supreme Court justices did not seem to possess the same mindset as the circuit court judges. Schiff described the first few days of litigation by saying, “I was certainly pleased. During several points during the EPA attorney’s presentation, he was interrupted by very searching and suspicious questions from the justices.”

  Justice Samuel Alito was most skeptical while questioning Malcolm Stewart, the Justice Department’s deputy solicitor general and legal counsel for the EPA, exclaiming, “Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to.”

  And Alito was not the only justice to raise an eyebrow over the case. Justice Stephen Breyer implied that the EPA was thumbing its nose at seventy-five years of judicial precedent, during which “the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite.”

  Mike Sackett was pleased with the initial hearings and said that he had not expected the members of the Supreme Court to skeptically question the EPA the way they did. “It was quite obvious that they were not happy with the EPA or how we’ve been treated,” he said. “Eight out of the nine justices were asking questions [of the EPA attorney]. It was amazing, especially since we’re the ones who have been going through this nightmare with the EPA for almost five years.”

  It was with great pleasure that we saw the Supreme Court rule 9–0 in favor of the Sacketts in this case. Every member of the bench saw what was wrong with the EPA and our federal government giving no recourse to its citizens. But will every family that has been treated like the Sacketts have to take their case all the way to the Supreme Court to find justice?

  Many problems remain. The courts rule very narrowly, simply allowing an appeal earlier in the regulatory process to give some temporary relief. The unjust rules that the EPA used to go after the Sacketts and other citizens are largely still in place. The same agency guidance methods are still being used. Similar new rules are still being written.

  But the Supreme Court was unusually blunt in its opinion. The justices stated clearly and definitively that Congress must do its job and fix this mess. Until Congress explicitly defines what navigable waterways are, government abuse of this process and harassment of citizens will continue. Some states—including Idaho, in fact, where the Sacketts live—have defined “navigable waters” with commonsense definitions like whether or not you can float a log in the water, while the federal government’s definition remains at best murky.

  The Sackett case moved me, emotionally and intellectually. I knew there were problems regarding the EPA before, but meeting these folks and hearing their full story pushed me to write the bill that will hopefully stop such unconscionable government abuse.

  Before I ran for office, when I would hear of government abuse like this, I would fume and perhaps throw something at my TV. Now I can actually do something about it. I plan to use the platform I have as a U.S. senator, for however long I have it, to fight for people like the Sacketts. They deserve better. All Americans do.

  The Sacketts won their case but are still fighting for the rights of others who’ve been treated in the same unforgivable manner by their government. It is reassuring to know that our judicial system still has some interest in actual justice—even when Congress threatens devastating penalties for these ambiguously worded violations, leaving the detailed discretion to administrative agents. There is a reason why our Founding Fathers instituted the concept of checks and balances, and when they are not used, tyranny always emerges.

  I would like to believe it impossible that any member of Congress could have imagined that the Clean Water Act would apply to a case like the Sacketts’. The act is supposed to deal with “navigable waters”; however, this case deals with “wetlands,” or the lack thereof. The Clean Water Act is emblematic of, as Sandefur describes it, “the constitutional sloppiness of modern administrative agencies.” This characteristic sloppiness is something all Americans should be weary of as bureaucrats run amok and bully American citizens with abandon.

  The Sacketts did not deserve what their government did to them. No American does.

  4

  Living Every Day in Fear of Your Government

  “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.”

  —THOMAS JEFFERSON

  Robbie Wrigley is a nurse and a mother who lies awake each night in fear of her government.

  Why does Mrs. Wrigley fear her own government? Because she was sentenced to eighty-seven months in prison for the “crime” of placing fill or dirt on a low-lyi
ng area of her father’s land. After serving twenty-six months in a federal prison, she is now free—but still lives in constant fear that the EPA might revoke her probation and send her back to prison.

  Her father, age seventy, and her father’s engineer, age eighty, are still in prison. Robbie fears that if she speaks out against this injustice—even if she speaks to a congressional hearing—the government will toughen its stance and insist that her father and his engineer serve their entire prison sentences.

  How did this happen in America?

  Robbie Wrigley doesn’t live in some third-world dictatorship. She doesn’t live in Communist China. So why, in the United States of America—supposedly the best example of freedom and liberty in the world—is she both persecuted by law enforcement and living in fear of retaliation should she dare to speak out?

  This wasn’t always so.

  In their community, the Wrigley family were known as a hardworking and well-respected Mississippi family. They went to church, gave to charity, and were involved in many of the local civic and school associations. This was the quintessential all-American family. The Wrigleys did everything right.

  They worked hard and played by the rules. We hear such praiseworthy phrases often, especially from politicians. Americans are told time and again that if they work hard and play by the rules they can be free and prosperous. The Wrigleys can tell you that this isn’t always true. In fact, they were punished precisely because they did all the right things and dared to pursue the American dream.

  Like millions of Americans, the Wrigleys were honest small business owners who worked to improve their community, but being upstanding, hardworking pillars of one’s community apparently does not mean you are safe from the wrath of the federal government. Robbie Wrigley and her father, Robert Lucas, were wrongfully prosecuted in precisely the tyrannical manner the Founding Fathers once feared our federal government could become capable of.

  John Adams, Thomas Jefferson, and Benjamin Franklin all feared an out-of-control, out-of-touch, and unaccountable federal bureaucracy that might one day acquire the power to wreak havoc upon ordinary citizens. Based on unfortunate breaches of power, as seen in Robbie Wrigley’s case, the fears of our Founders have proven to be remarkably on target. They foresaw such tyranny and abuse. The men who fought to create this country would no doubt be outraged and ashamed of today’s overbearing and overregulating federal government.

  So what great crime did Robbie Wrigley and her father commit to attract the attention of the federal government?

  Robbie Lucas Wrigley grew up in a household that was sustained by land development. Her father, Robert Lucas, began developing land in high school, continued doing so to finance his college education, and it became his livelihood.

  Over the past fifty-two years, Lucas has developed over two thousand lots and has maintained a spotless reputation his entire career. He made his success by subdividing timberland north of Pascagoula, Mississippi, into two-and four-acre home sites. These sites were complete with roads, electricity, water wells, and septic tanks. Lucas was known throughout his community for personally financing the lots he sold, and he even carried the loans for people who otherwise would not have been able to buy a lot. Most of the houses on his lots were of modest design, low-income homes and trailers. Think of George Bailey in It’s a Wonderful Life, only when the government got involved things didn’t turn out so wonderful for Mr. Lucas.

  Not one lot owner ever sued Lucas. He had never even had so much as a brush with the law, and was established as a well-respected and valued member of his community. Lucas’s daughter, Robbie Wrigley, also lived up to her family’s reputation, a schoolteacher, nurse, and mother. In her spare time, Wrigley would help her father in selling his developed land to lower-income families who were looking for affordable housing. She was on the board of the local tennis association and founded her school’s booster club. Mrs. Wrigley was the classic soccer mom, who had never even gotten a speeding ticket.

  So how did these normal, everyday, and exemplary Americans end up locked away in federal prison?

  It began with the development of a 2,600-acre subdivision in Vancleave, Mississippi, known as Big Hill Acres. This development is twelve miles north of the Gulf coast in Jackson County, and the nearest navigable creek is over two miles away. The property is a hundred feet above sea level and covered with pine trees. The development housed over six hundred low-income families and provided them with electricity, roads, water wells, and septic tanks.

  M. E. Thompson was the engineer responsible for designing the development’s septic systems. He acquired the appropriate permits and went through all the appropriate measures. Mr. Thompson was an experienced engineer and all of his septic tanks followed Mississippi Health Department guidelines.

  Yet these state-approved septic tanks are the reason why the Lucas family’s world was turned upside down. A state functionary who oversaw the issuing of septic permits seemed to subjectively revoke one hundred of Lucas’s permits, and he suddenly found himself fighting tooth and nail to have them reinstated. He was successful in the reinstatement—but this was just the beginning of a long uphill battle.

  You see, in typical arrogant bureaucratic fashion, the health department functionary was not happy that her revocations had been overruled. So what did she do?—run to the federal government so she could use them as enforcers for her personal agenda. I, as an elected official, as a U.S. senator, don’t have this kind of power. Why do we allow it to unelected bureaucrats?

  This type of behavior coming from a federal bureaucracy is bullying at its worst, which caused complete devastation for this family.

  The government enforcers brought in were none other than the Mississippi Department of Environmental Quality, the U.S. Army Corps of Engineers, and the Environmental Protection Agency. The Corps informed Lucas that Big Hill “may” violate the Clean Water Act, endangering possible “wetlands.” Yet previously, when Lucas was selling timber off of the same piece of property now in question, this same Corps of Engineers approved his sales, stating in their report that “no waterways existed,” “no waterways had been built,” and “no action was required.”

  The Corps couldn’t have been any more explicit. Lucas couldn’t have been any more assured that he was free and clear.

  However, this time the Corps suddenly claimed there was a problem. Lucas was accused of not obtaining an EPA septic permit. However, there is little evidence that this permit even exists, as no such permit has ever been required or issued anywhere within the United States. So the EPA faulted Lucas for developing on wetlands that the agency had previously said were nonexistent, and targeted him for failing to obtain a permit that didn’t even exist and had never been required of anyone in the history of this country. This is insanity. This is completely outrageous. This is completely unacceptable. There had been no reported problems with the septic tanks. In fact, the septic tank failure rate at the Big Hill Acres development was significantly better than the county average.

  Jesse Beasley and his family bought a cottage in Big Hill Acres after Hurricane Katrina and have lived there ever since. The Beasleys considered themselves fortunate to have obtained the property and viewed it as helpful alternative housing for a family like themselves, who were trying to recover from a devastating natural disaster. When asked about the status of his septic tank by a government official, Mr. Beasley replied, “Our septic system is working fine. We have not had any issues.”

  As noted earlier, the development itself was not a wetland. It was twelve miles inland from the coast, over two miles away from a running creek, and one hundred feet above sea level. By no reasonable definition—by no government definition—was this property in any way a wetland.

  But the EPA does not like being questioned. This agency gets annoyed when homeowners dare stand up for their rights. These bureaucratic tentacles of the federal government had made their decree, and the EPA was determined to make an example out of Lucas and his
family—even if Lucas hadn’t violated a single law. This wasn’t about justice, but power and government control. Lucas fought this bureaucratic army with all his might. Unfortunately, his daughter was caught in the cross fire.

  Robert Lucas, Robbie Lucas Wrigley, M. E. Thompson, and two affiliated corporations, Big Hill Acres Inc., and Consolidated Investments Inc., were convicted of “conspiring” to violate the Clean Water Act. Let me be clear—these people were not convicted of actually violating the act; they were convicted of conspiring to violate the act. The EPA went on to convict them of mail fraud.

  Instead of succumbing to the convictions of the EPA, these “conspirators” pleaded innocent and chose to fight. They refused to surrender their rights and their private property. But their taking this stance for liberty and justice only exacerbated the EPA’s vendetta.

  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 unleashed the full force of their prosecutorial power on them.

  However, judicial precedent forbade the court from even ruling on the key issue at hand: whether or not their land was really “wetlands.” To this date, no one—“expert” government officials, the agencies themselves, no one—has truly been able to define “wetlands” consistently. It is an ambiguous term that the EPA twists to fit whatever situation they deem appropriate. “Wetlands” are simply whatever the EPA says they are, a definition that can change dramatically without rhyme or reason. Even the Supreme Court criticized the existing wetlands laws as vague and impossible to comprehend.