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

by Rand Paul

  Herein lies the most frightening aspect of this entire debacle: The law says that a wetland must have a steady flow to a navigable body of water. As noted, this property was over two miles away from the closest stream, and the Army Corps of Engineers itself had declared it wetland-free. So how did the Wrigleys’ case fall under the jurisdiction of the federal government and violate the Clean Water Act?

  I am convinced that the EPA intentionally set out to make an example of Robbie Wrigley and her father because they chose to make a stand, because these hardworking, decent, and upstanding American citizens would not go down on bended knee. They refused to submit. Robbie and her father were clearly singled out to prove a point. The federal government wanted not justice, but to send a clear message: Do not question us, do not defy us, do not cross us—we are the government.

  From the government’s perspective, a fire had been ignited, and so the agencies turned a complicated wetlands legal issue into a kangaroo court. Judge Louis Guirola, renowned for prosecuting white-collar crimes, presided over the case. The odds were against Lucas and Wrigley from the beginning of the seven-week trial. The jury was composed of twelve working-class people. These jurors were an honest representation of the American population, and they were hard pressed to understand the complex EPA regulations that even Supreme Court justices admit they can’t figure out. The prosecutors demagogued their court audience, inflaming the jury by portraying Lucas and Wrigley as rich, greedy, corporate-minded individuals who had set out to exploit and hurt their working-class clients.

  The EPA had a very weak legal argument—so instead they used verbal smoke and mirrors to paint a falsified image of Lucas and his family. The prosecutors portrayed Lucas as an arrogant and heartless individual who sat high upon his golden throne, while his clients lived in filth due to septic tank failures. They wanted the jurors to view Lucas as a greedy businessman who was knowingly taking advantage of poor people living in manufactured housing. Nothing could be further from the truth.

  The prosecution sought out the Big Hill Acres homeowners and tried to convince them that they had been defrauded by Lucas and his daughter. These prosecutors encouraged the homeowners to join the government’s side in criminally charging their developer. The government even held a town hall, trolling for anyone willing to register a complaint against the Wrigleys.

  Despite their bullying, only thirty-six out of three hundred homeowners decided to legally pursue the Lucas family. Nearly 90 percent of the homeowners refused even this level of government coercion. That’s because the residents of Big Hill Acres knew better. These people had a conscience—and refused to wrongfully portray Lucas and Wrigley under oath.

  Lucas and Wrigley argued that there was no proof they had violated the Clean Water Act and that they had never conspired to do so. Randy Wrigley, Robbie’s husband, makes a legitimate argument on his wife’s behalf when he points out, “They accused her of a conspiracy. It’s preposterous. They did not conspire about this, but [in a court of law] you have to prove that you didn’t conspire. How do you prove that?”

  After the arguments were presented, the jurors were instructed by the judge to deliberate. This type of deliberation should have taken several hours of discussion before a vote was held. There were over forty counts of wetland charges that needed to be carefully muddled through. This was obviously not a simple decision that could be made hastily. But the jury, exhausted and bored with the seven-week trial, appeared before the court with a decision after just three hours of deliberation. They found the defendants guilty on all counts.

  Lucas’s two corporations were sentenced to five years’ probation and were subject to $1.4 million in costs for mitigating the Jackson County wetlands. The corporations also faced more than $5 million in fines. Robert Lucas was sentenced to nine years in federal prison, while Thompson, the engineer behind Big Hill Acres, and Robin Wrigley were sentenced to seven years each.

  The verdict was reached just after Hurricane Katrina destroyed the Gulf coast. The Wrigleys and many of their neighbors were tragically affected by the hurricane. Many of their homes were destroyed. Yet Big Hill Acres—the government’s purported “wetlands” that would bankrupt the Wrigleys and land them in jail—did not flood during or after Hurricane Katrina.

  For days after the natural disaster, Robbie and her husband spent time visiting various homeowners in need and filling up generators, so that elderly and ill neighbors on respirators would not die.

  Yet immediately after the cleanup, Robbie had to move out of her family’s FEMA trailer and straight into a federal penitentiary. “You try to do everything you can to help your neighbors and then the government ends up prosecuting you. It makes you want to get in a shell and hide,” she says.

  Though educated as a teacher and nurse, Robbie Wrigley found herself working in the kitchen of Marianna federal prison, while her nineteen-month-old son grew up without a mother. What did she do to deserve this? She ran errands for her father and helped him maintain his development property. Governor Haley Barbour, Lieutenant Governor Phil Bryant, and Mississippi secretary of state Delbert Hosemann all wrote letters to President George W. Bush asking for clemency for Robbie Wrigley. President Bush did nothing.

  Former U.S. attorney Dunn Lampton was disgusted by the government’s acrimonious actions against Robbie Wrigley and her family and took it upon himself to contact the federal prosecutor on the case and argue for Wrigley’s freedom. The prosecutor apparently had a change of heart after the trial was over. He felt that Robbie’s sentence was too harsh, and by the grace of God, he found his sense of compassion and used an arcane rule to have her released. Still, Robbie served over two years in prison before she was released.

  Today, this nightmare is far from over. Mrs. Wrigley still lives in fear of her own government. She worries that the EPA might revoke her probation and send her back to prison. She is afraid to utilize her freedom of speech. She has had all of her rights unmercifully stripped from her once and now fears it could happen again.

  Robbie has already missed her daughter’s first words and first steps. She can’t vote. She can’t exercise her Second Amendment rights. The abject fear in her life, every day, means she does not feel safe exercising her First Amendment rights either.

  It is understandable that Robbie fears that if she speaks out—even if she speaks to a congressional hearing—the government will make her father, Robert Lucas, and his engineer, M. E. Thompson, serve their entire prison sentences (which they likely will, because most federal crimes are not eligible for parole).

  Wrigley describes her daily nightmare: “It’s crazy. You cannot believe the things the government can do to you. I was so in the dark about why I was being convicted. They like to take people like me and make an example of them.” No American is safe from the ever-extending and always-strengthening grasp of these federal agencies.

  But now Robbie Wrigley’s main concern is freeing her father and M. E. Thompson, both still serving unjust sentences. These people deserve to have a voice. Their story should be shouted from every rooftop. What the Wrigleys have been forced to go through should be a national outrage.

  After all, this is America, land of the free, right?

  5

  American Hero

  “The true soldier fights not because he hates what is in front of him, but because he loves what is behind him.

  —G. K. CHESTERTON

  Where are our heroes today?

  We speak often of those who fight for our freedom overseas, and we should. There are many sacrifices made by our men and women in the military to spread the flame of freedom around the world. Thanks to them, America has been a beacon of liberty and a grand example of freedom for people all over the world for 236 years.

  Our Founding Fathers spent, and often gave, their lives to build a new country, where men could truly be free, a nation where the rights granted to us by our Creator could not be trampled on or taken by government.

  Unfortunately, this is w
hat government too often tries to do. When it does, what exactly can an ordinary citizen do to fight back? Too often the threat of a long, expensive, and exhausting battle against one’s own government is enough to stop anyone in their tracks.

  Not so for John Rapanos.

  Seventy-seven-year-old Rapanos is a grandfather to six grandchildren and a longtime property developer in Midland, Michigan. He has spent two decades of his life fighting against the out-of-control bureaucrats in the EPA and Army Corps of Engineers.

  From 1988 to 2006, John Rapanos and his wife, Judith, fought daily to keep their most basic rights. They had to fight for their freedoms in a country that has always prided itself as being “the land of the free.”

  The EPA was ruthless in its aggression toward the Rapanoses. The government set out to make an example of this family, but the Rapanoses did not falter or succumb to government pressure. They did not live in fear. They pressed forward bravely and relentlessly for their basic constitutional rights. This twenty-year saga began in 1989, when Rapanos began preparing a property in Midland for development. After he broke ground, the EPA intervened and ordered him to obtain a costly federal building permit before resuming construction.

  Like any good developer, Rapanos had already obtained the necessary local building permits. However, he refused to obtain the irrationally expensive and unjustified federal permits dictated by the EPA—he knew he was not violating any law or even any known regulation.

  The EPA agents claimed his land was a wetland. Rapanos contested this, however, pointing out that his property was twenty miles away from the closest navigable water in Saginaw Bay.

  Let me reiterate that. Mr. Rapanos’s property was twenty miles away from the closest navigable waterway. Still, the EPA thought it had regulatory oversight of the property and designated it a wetland.

  As a professional developer, Mr. Rapanos knew the ridiculousness of the EPA’s claim and continued building. The EPA then criminally charged him with violating the Clean Water Act. This began an exhausting twenty-year legal battle.

  The case was first heard before a judge in 1993. Government attorneys sought criminal charges against Rapanos and wanted him imprisoned. However, Judge Lawrence Zatkoff condemned the government and its agenda against Rapanos, rejecting the EPA’s call for an absurdly long sixty-three-month prison sentence.

  Judge Zatkoff saw this sentence as too harsh, and for good reason. Earlier that same day he had overseen the trial of a local drug dealer—a true criminal—who was being sentenced to ten months’ jail time. Judge Zatkoff was outraged at the ruthless and personal attack on Rapanos, calling him “the kind of person the Constitution was passed to protect.”

  John Rapanos, an upstanding American citizen, was facing-sixty three months behind bars, $10 million in fines, and $3 million in mitigation fees. He would also lose eighty acres of his property if the court did in fact declare it a “wetland.”

  Judge Zatkoff summed up the injustice best when he stated, “So here we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for ten months. And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and the government wants me to give him sixty-three months in prison. Now, if that isn’t our system gone crazy, I don’t know what is. And I am not going to do it.”

  The EPA attorneys were determined, however. John Rapanos was their target and they were not going to let him beat them. They had set their sights on his successful prosecution, one way or another, and they were not going to give up that easily.

  Luckily, neither was Rapanos.

  The government attorneys successfully appealed Judge Zatkoff’s ruling. The Rapanos case was then ordered to the court of appeals, where the case would be considered based on the court’s earlier decision in the Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers (SWANCC) case. In that case, the Supreme Court had ruled against the government’s broad authority under the Clean Water Act in 2001.

  The Supreme Court had rejected the Corps’ claim that it could regulate an isolated intrastate lake in Illinois merely because migratory birds used it. Isolated intrastate waters lacking any meaningful connection to navigable waterways, the Court held, did not constitute as “waters of the United States” and were not subject to CWA and federal regulation.

  Basically, the Corps and EPA argued that if a bird could conceivably have flown from a designated wetlands area in another state and landed on your cattle pond, then somehow your cattle pond was now “connected” to the interstate wetlands. This argument makes even President Obama’s stretch of the commerce clause seem almost quaint.

  What is more insulting and dangerous is that for years this stretching of the imagination concocted by an unelected bureaucrat was enforced as law until the court struck it down.

  Finally, using the SWANCC decision as a guide, the Supreme Court struck down this lunacy and ruled that Rapanos should not be convicted.

  But as I noted earlier, the EPA was on a mission to ruin Rapanos. For the agency this wasn’t about justice, but revenge. They were not going to give up their prosecution of this innocent American citizen. Federal prosecutors changed their argument and began claiming that they had authority over the Rapanoses’ property because the land was “hydrologically connected” to navigable waters—even though the property is twenty miles away from said waters. The court again ruled in Rapanos’s favor, but on appeal the Sixth Circuit harbored a narrow interpretation of SWANCC and reinstated his conviction.

  The EPA ruthlessly danced with glee from court to court, vehemently pursuing the prosecution and conviction of John Rapanos. The agency was determined to bankrupt him and take possession of his property. His ordeal lasted four more years.

  Then, on October 11, 2005, the Supreme Court announced it would finally hear the tragic story of Mr. Rapanos—a case in which federal regulators sought for two decades to throw a seventy-year-old grandfather of six in prison and demand he pay millions in fees and fines all because he failed to get a federal permit before moving sand on his property.

  I wish I were making this up.

  In June 2006, a divided Supreme Court, in Rapanos v. United States, ruled that the U.S. Army Corps of Engineers must show a “significant nexus” between a wetland and navigable water in order to assert regulatory control under the Clean Water Act.

  But the ruling, which attempted to define navigable waters, was still murky. With a 4–4–1 split, it lacked a clear directive to the EPA.

  What is the definition of navigable waters?

  According to the Corps, the “waters of the United States” include “all waters used for intrastate commerce,” “all interstate waters and wetlands,” “all tributaries or impoundments of such waters,” and, most significantly, “all other waters such as intrastate lakes, rivers, streams (including intermittent streams, mudflats, sandblast, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds) the use, degradation, or destruction of which could affect interstate or foreign commerce.”

  “Wetlands adjacent to waters (other than waters that are themselves wetlands)” are also included in the Corps’ definition. Yet even according to that broad, ambiguous definition, Rapanos was not in violation of the Clean Water Act. Again, the closest stream was over twenty miles away. The injustice and abuse orchestrated by the EPA simply does not make sense.

  During the Supreme Court battle, the EPA premised its enforcement proceeding on a “hydrological connection” between navigable water and Rapanos’s property. The hydrological connection test, formulated by some field office of the Army Corps of Engineers, postulates that federal authority extends to any channel through which water flows into navigable waters—whether the channel is on the surface or in the ground, supports intermittent or steady flows, carries molecules or floods. Based on this outrageous test, the federal government brought criminal charg
es against Rapanos because the sand he moved on his property “backfilled” intermittently saturated bits of land on his property, and because of the hypothetical threat that some of that sand might be carried by rainwater through old runoff drains and, after a journey through culverts, creeks, and ditches, end up in the Kawkawlin River, twenty miles away.

  The prosecution’s argument was far-fetched, to say the least.

  The Court was split in its decision. Five justices—Scalia, Thomas, Roberts, Alito, and Kennedy—were not convinced of Rapanos’s conviction and rejected the arguments presented by the prosecution. But the justices had varying opinions and interpretations of the definition of “navigable waters” and the federal jurisdiction granted through the Clean Water Act.

  Justice Scalia, on behalf of four justices, determined that the Clean Water Act’s definition of “navigable waters” applies to “relatively permanent, standing or flowing” waters “with a continuous surface connection” to navigable waters.

  Justice Stevens also wrote an opinion on behalf of four justices, asserting that the Clean Water Act’s definition of “navigable waters” applies to any parcel of land or water that drains to or is in the extended watershed of navigable waters.

  Justice Kennedy defined “navigable waters” as applying to any land or water that has a “significant nexus” to navigable waters, and the plot of land or water must be significant enough “to perform important functions for an aquatic system incorporating navigable waters.” Kennedy’s definition did not go on to explain the process of the “significant nexus” test, thus placing more ambiguity and broad power in the hands of the government.