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

by Rand Paul

  Although property rights supporters saw this Court ruling in a positive light, there is no question that the Rapanos decision left our clean water laws a little murkier than they were before. The decision had an immediate positive effect, though—in showing bureaucrats at the EPA that they do not simply get to imagine laws and then enforce them.

  The state of property rights in the aftermath of Rapanos v. United States was not a sea change, but rather a logical sequel to SWANCC.

  In the Rapanos decision, the Supreme Court reaffirmed the existence of both statutory and constitutional limits on the scope of federal regulatory jurisdiction over private lands and waters.

  The Supreme Court rejected the EPA and the Army Corps’ expansive interpretation of their own authority, and reiterated that federal regulatory authority only extends to those wetlands that have “significant nexus” to navigable waters of the United States.

  Since this decision was handed down in 2006, our country has seen numerous court battles over the same ambiguity that Rapanos was supposed to clear up. Our government has yet to agree on and concretely define the term “wetlands” and “navigable waters.” How can American citizens be prosecuted for something that the courts, Congress, and bureaucratic agencies cannot agree on? Furthermore, how does one know they are violating a law if the law itself is not firmly and concretely understood by all branches of government?

  Our government’s constitutional ignorance is something that all Americans should be wary of. Congress enacts broadly worded statutes threatening devastating penalties for vaguely worded violations—and leaves administrative officials to then muddy the law through drawn-out litigation with the discretion to fill in the details. The Rapanos decision was not by any means a landmark one, but it was a step in the right direction and a glimmer of hope in our bureaucratic-imposed world. Another step was taken in the more recent Sackett decision, which I covered in an earlier chapter.

  But once again, even with “victory” from the courts, there is not enough relief and certainly not enough change in policy at the EPA.

  Why?

  The answer is simple. In the Rapanos case, Justice Scalia tried to bring a simple, real-world, easily understood definition of wetlands and navigable waterways to the issue. He was not supported by his colleagues, and his words, while clarifying, are not binding on the EPA. Scalia noted this in his decision on the Sackett case, where he called on Congress to fix the problem it has created and the EPA has exacerbated, by passing into law a definition of navigable waterways.

  My bill, the Defense of Environment and Property Act of 2012, would do just that, including using essentially the definition first propounded by Justice Scalia in the Rapanos case.

  With a bill that so clearly solves a huge problem, you would think I would have an easy time moving it, or at least getting support among Republicans who say they are for property rights.

  Well, if you thought that, you haven’t yet met the United States Senate members and the army of lobbyists on Capitol Hill united.

  6

  More Heroes, More Horror Stories

  “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”

  —FREDERIC BASTIAT

  Unfortunately the aggression by our government against business and property owners does not stop with the horror stories you’ve read thus far. Here are more examples of law-abiding, hardworking Americans who’ve been unjustly targeted by the bullying agencies of our federal government.

  Ocie Mills

  Ocie Mills and his son, Carey, made their American dream a reality in 1986 when they purchased two parcels of property in Santa Rosa County, Florida. This property was covered with oak trees and Spanish moss, and was adjacent to that county’s East Bay in the Spanish Landing subdivision. It was the perfect place for the father and son to build their dream homes. As lifelong residents of Florida, they had always dreamed of owning a house on the water. In order to make this dream a reality, Ocie Mills obtained a building permit from Santa Rosa County and had state officials come survey his land, flagging the area near the shore that was protected by law. The Mills family went through all the necessary steps in order to build on their property—or so they thought.

  One day in 1986, the Millses were unloading nineteen loads of building sand onto their property when federal agents arrived with a cease-and-desist order. According to the government, Ocie and Carey Mills were in violation of the Clean Water Act for polluting the navigable waters of the United States.

  This was not the first time the federal government had intervened on Ocie Mills’s property. In the 1970s, two officials from the state’s Department of Environmental Regulations (DER)—now called the Department of Environmental Protection (DEP)—insisted on gaining access to Mills’s land. Mills asked for federal identification, but all these officials could present were business cards. These were not enough to convince Mills of their authority, so he refused to allow them on his property without a warrant. The government officials completely disregarded his requests and continued to trespass without a warrant.

  Mills recalled the scene: “The agents told me who they were and then proceeded to tell me that I couldn’t clear my property because of wetland regulations. The man and I had some heated words and I told him he was trespassing and to get off my property. I was still recovering from a previous heart attack, and when things looked like they were going to get physical, I walked over to my truck and got my gun out.”

  Mills restrained the two officers and called the local sheriff’s department. Once the police arrived, they asked the DER officials to leave the property. Three days later, the DER sued Mills for battery and reckless display of a firearm. Mills not only won the case but the presiding judge changed the precedent for the state—the state could no longer trespass on private property without a warrant. Mills was victorious, yet little did he know that this action would put him on environmental bureaucrats’ hit list. Ocie Mills had become a target.

  A decade later in 1989, Mr. Mills found himself in court again, fighting for his rights against the federal government. He saw this as an open-and-shut case. He never imagined that the judicial system would rule against him, so due to the rationality of his case and his lack of finances, he decided to represent himself in court. In contrast, the feds appeared in court with three attorneys from the Justice Department, the Army Corps of Engineers, and the Environmental Protection Agency.

  In court, the prosecution argued that Mills’s evidence was not permissible. They claimed that since federal law superseded local and state law, his building permit and state documents were irrelevant. The judge ruled in favor of the prosecution, putting Ocie and his son Carey in a federal prison for twenty-one months. Not only were they imprisoned, but they were forced to pay $5,000 in fines plus $250 in special assessments, and were required to restore their land to its “original” wetland elevation. Ocie and Carey Mills were the first to serve time in prison as “environmental criminals.” Let me reiterate this: The Millses obtained every state and local permit necessary to build on their land. Yet the government in court trumped those permits and these men were forced to serve time behind bars. However, the injustice does not end there.

  After serving roughly two years behind bars, Mills returned to his property and began excavating it to its “original elevation” as ordered by the federal agencies. But he refused to lower the land on his property at the request of the federal government. They were demanding he bring it down to eleven inches lower than it was when he originally purchased the lot. Removing that much soil from the property would undoubtedly turn it into a soggy marshland or pond.

  Though Mills tried to prevent his property from being ruined by government regulation, the lot no longer resembled the same plush piece of real estate he had originally invested in.

  So in 1993 Mills secured an “evidentiary hear
ing” to solve the elevation discrepancy. This time there was a new judge behind the bench, U.S. district judge Roger Vinson. Judge Vinson described the content of the Clean Water Act as something “worthy of Alice in Wonderland.” It is the source of most regulatory perils being faced by property owners. The ambiguity of the broadly worded act mandates that “a landowner who places clean fill dirt on a plot of subdivided dry land may be imprisoned for the statutory felony offense of discharging pollutants into the navigable waters of the United States.” According to Vinson, the plot of land belonging to Mills “does not have the appearance of what most lay people think of as wetland.”

  Although Judge Vinson believed that the Millses’ land was most likely not a wetland, he could not clear them of their conviction because the elevation issue had not been used as evidence, or even discussed, in the original trial.

  The plot thickened in 1996 when Quentin Wise, a juror in Mills’s original trial, came forward and informed officials of ethical violations performed by the jury foreman. The jury foreman from Mills’s original case sought to sway the jury’s view of him by disclosing information about his previous clashes with government officials. He was, of course, referring to the 1970s indiscretion with the DER. In a sworn affidavit, Wise stated:

  From the beginning of the trial, Mr. Smith [the jury foreman] kept telling me about Ocie Mills’ prior cases. He told me that he was familiar with Ocie Mills’ prior problems and wrong doings because his son was employed with the State of Florida Water Management. During the course of the trial, Mr. Smith told me that Mills had threatened environmental people on his property with a gun and that Mills was wrong for his actions. I felt threatened and intimidated by Mr. Smith during the trial. I feel that the jury was prejudiced against the Mills’ by information which we received from Mr. Smith, which was not part of the evidence shown in court.

  Ocie Mills spent every dime he had with the simple intention of saving his reputation. After this drawn-out legal battle with his government, he and his family are no longer proud of their property in Santa Rosa County. It has caused them nothing but shame and stress—all due to the perils of overregulation.

  Marinus Van Leuzen

  Marinus Van Leuzen was a small business owner from Galveston Bay, Texas. He owned a 0.4-acre bait camp, located on a plot of land tucked between two commercially developed properties. Van Leuzen decided to build a home on his property. As he was completing construction, the Army Corps of Engineers intervened, telling him he needed to have the appropriate permits to continue building. Why? You guessed it—his property, too, had been designated a “wetland.”

  The Corps informed Van Leuzen that he needed to obtain six different permits in order to finish building his home. Van Leuzen found this permit process ridiculous and continued to build anyway.

  Like John Pozsgai, Van Leuzen emigrated to America in order to escape a harsh dictatorship, escaping from Holland just before the Nazi invasion during World War II. He fought alongside U.S. forces in the war. His neighbors described Van Leuzen as a “hard-headed Dutchman.” So it came as no surprise to anyone when he ignored the orders of the government and finished building his home without first obtaining the supernumerary permits.

  As his house was nearing completion, four members of the Corps posted themselves across the street from Van Leuzen’s property and recorded the last stages of construction. With the video footage as evidence, the Corps ordered a public apology from him. And “public” might be an understatement when describing the apology the government forced out of Van Leuzen.

  The Corps ordered Van Leuzen to create and publically display a ten-by-twenty-foot billboard carrying a message of apology to his government. Aside from attempting to publicly shame him, the Corps fined Mr. Van Leuzen $350 per month for twelve years, required him to dig a two-foot-deep moat around his home, and ordered him to restore his land to its “original wetland” state. Yet since this land was never truly a wetland, Van Leuzen was forced to “restore” his land and “re-create” a wetland that had never really existed. This process made for an incredible expenditure that he could not afford. Then, after the “restored wetland” had been intact for eight years, Van Leuzen was forced to evacuate his house.

  The government forced this liberty-seeking, freedom-fighting immigrant to pay an obscene amount of money and restore property into an unnatural and costly state; it evicted him from his home, stole his property, and then publicly shamed him for disobeying the government. The power-hungry Corps mirrors the dictatorship that Van Leuzen sought to escape by emigrating to America. The irony of his ordeal should put a bad taste in the mouth of anyone who has read the U.S. Constitution.

  Bill Ellen

  Bill Ellen is a well-respected environmental engineer who works in the coastal region of Maryland. In 1987, he was hired to construct duck ponds on thirty-two hundred acres on the Paul Tudor Jones II estate, on Maryland’s Eastern Shore. Ellen jumped through many hoops to obtain the proper permits to build these ponds, in all obtaining thirty-eight different permits, as well as assurance from the Army Corps of Engineers regarding one action that would’ve affected the wetlands of Maryland. The Corps gave him their approval and he began construction.

  The first discrepancies arose in 1989, when the Corps changed its definition of “wetlands.” The new definition established that “acreage in the county from 84,000 acres to 259,000 acres will be classified as a wetland.” Thus the Corps ordered Ellen to cease construction. But he was not even violating this new definition—plus he had preapproved consent from the Army Corps. Ellen had a representative from the Soil Conservation Service of the Department of Agriculture inspect his construction site. The SCS representative cleared him, saying that he was not harming any wetlands.

  If only this were the end. Several days passed and a member of the Army Corps appeared with the SCS official to order him to stop construction immediately, insisting that Ellen was filling wetlands. If this is not a prime example of government intimidation, I don’t know what is.

  An outraged Ellen argued that the government’s own expert from the SCS had given him the green light just days prior. He informed them that contractors had already begun the building process. Permits were obtained and he had been given the go-ahead by various government agencies several times before he broke ground on construction. To stop at that point would’ve resulted in costly penalties to the construction companies and property owners.

  The government workers threatened to tie Ellen up for decades with expensive litigation, so alas, he finally ceased construction. After the cease-and-desist order was received and abided by, Ellen had workers move two truckloads of dirt from one end of the property to the other, as a means of cleaning up the work site. So the Army Corps of Engineers indicted him, charging him with contaminating a wetland by moving the dirt and thus violating the cease-and-desist order he was given in 1989.

  The well-respected environmental engineer from Maryland was convicted and served six months in prison, while his employer and owner of the property, Paul Tudor Jones II, avoided trial by paying $1 million in fines and donating $1 million to the National Fish and Wildlife Foundation. So you can have your rights, if and only if you can afford to pay the government for them. Coincidentally, to this date, the Corps employee who initially cleared Ellen’s construction plan cannot be found for comment.

  The Seashell House

  This story, although not directly related to wetland issues, also portrays the outrageous lengths landowners often have to go to in order to simply build on their property. Sometimes these require interactions so baffling that they are almost humorous, as author James V. DeLong explains in his book Property Matters. This was the case for one landowner in Pacific Grove, California, who wished to build a home on a 1.1-acre lot on the Monterey Peninsula. In order to have his building plans approved, he was required to attend twenty-plus public hearings and obtain the approval of the architectural review board, the planning commission, the city council, and the C
alifornia Coastal Commission. According to the records, this process took over three years and cost over $600,000.

  During one of the dozens of hearings held regarding this property, an architectural review board member said, “In my former life as a seagull, I was flying up and down the California coastline and saw your house built shaped as a seashell.” And because his house plan did not match the seashell-shaped house this board member envisioned in her previous life as a bird, she voted against approving any of his plans.

  Some would argue this board member to be certifiably insane. Others would say the insanity charge isn’t even arguable. But since this person who holds a position of government authority believes to have seen and enjoyed the view of a seashell-shaped home on the property in question, the landowner did not receive approval. This landowner’s American dream and basic constitutional right to private property was stifled due to a person in a position of power who is delusional at best. This is literally crazy—and if this story does not illustrate the perils of power-hungry government interventionists, then I do not know what does.

  Kelo v. City of New London

  In 2002, Steven Greenhut of thefreemanonline.org published a story describing the culture shock his sister-in-law had experienced while visiting Poland. Upon returning home, she furiously explained the injustice practiced by the former communist country. According to the story, a friend of hers owned a lavish country home in the Polish countryside. The home was so lovely that it caught the eye of a Polish government official, who entangled the homeowner in litigation so he could seize the property for himself. The government official wanted the home, so with the help of the court system, he simply took it.