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

by Rand Paul

  We would like to pretend that nothing like this ever happens in America, land of the free. But in reality, situations like this have occurred and will keep occurring thanks to the Supreme Court decision Kelo v. City of New London.

  Susette Kelo owned a house in New London, Connecticut. She had purchased the home in 1997 and through a labor of love completely restored it, making it truly her own. Kelo’s pink house was located in a family-friendly neighborhood that was the quintessence of an ideal American community.

  A year later in 1998, the pharmaceutical giant Pfizer began construction on a new plant in New London. The corporate giant convinced the city that it deserved the land in Kelo’s neighborhood more than she and her neighbors did. The city utilized its power of eminent domain, which enables the local government to take private property and designate it for public use. Though Kelo was compensated, the government seized her property in the name of “local economic development.” Thus the City of New London provided the New London Development Corporation with a blank check and free rein over these private homes. Kelo and her neighbors received a notice of condemnation from the NLDC in November 2000.

  The members of the community fought for their rights and took their case all the way to the Supreme Court. In a horrific turn of events for private property owners across the United States, the courts ruled in the favor of the City of New London and the NLDC, thus giving local governments the right to seize private property under eminent domain in the name of the broadly defined term “economic development.” This was a dangerous landmark decision in U.S. law.

  In his dissenting opinion, Justice Clarence Thomas wrote:

  Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.… So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes.

  Justice Sandra Day O’Connor also expressed outrage in her dissent on Kelo v. City of New London:

  [The] fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

  On the seventh anniversary of the Kelo decision in June 2012, I cosponsored a bill with Senator John Cornyn that would strengthen private property rights and limit the government’s power of eminent domain, the Protection of Homes, Small Businesses, and Private Property Act of 2012. Our bill sought the “protection of homes, small businesses and other private property rights against government seizures and other unreasonable government interference is a fundamental principal and core commitment of our nation’s founders.”

  In the end, Pfizer wished to build a hotel and offices that were meant to improve their corporate facilities. While Kelo and her neighbors lost their homes, the local and state governments spent $78 million to bulldoze the private neighborhood to clear space for “desirable” and economically stimulating facilities. To this day, the neighborhood sits vacant—no hotel or office facility was ever built.

  All of this happened not in China, or North Korea, or the old Soviet Union. This happened in the United States of America.

  These personal testimonies and stories of government abuse illustrate the uphill battle all Americans face when it comes to protecting our constitutional rights. Our private property rights are under attack. Mills, Ellen, and Van Leuzen have all been fined, publicly shamed, or even imprisoned for “wetlands” violations. But these three Americans have even more in common than just their petty violations against a dense and ambiguously regulated law—these three Americans all stood up for themselves. They put their foot down. They did not succumb to the abuses of power and they did not simply pay a fine and walk away with their tails between their legs. Mills, Ellen, and Van Leuzen all fought for their basic constitutional rights, only to be prosecuted in an even harsher manner for doing so. These citizens were specifically targeted for standing up for their rights as opposed to turning the other cheek to government overregulation and power-hungry bureaucrats.

  This is not the United States of most Americans’ perception and loyalty, and yet it is the United States. Our Founding Fathers must be rolling over in their graves at the injustice our government perpetrates against its own citizens every day.

  7

  How Can We Solve the Problem?

  “The men who administer public affairs must first of all see that everyone holds on to what is his, and that private men are never deprived of their goods by public men.”

  —CICERO

  My blood boils when I think of what our government is doing to our own people.

  When I began my campaign for the U.S. Senate one of the first people I met was Matth Toebben of northern Kentucky. Matth came to America as a teenager from Germany, with nothing but the desire to work and belief in the American dream. His success and his desire for the next generation to find the same success is precisely what we should all be extolling—not the divisive politics of envy being practiced by the president and many in the Democratic Party.

  Matth told me countless stories of the government placing obstacles in his way, but one in particular captured my attention. Matth told me about a busybody neighbor of his who reported him to the EPA. What was Matth doing wrong, exactly? He was riding around on his bulldozer. He was trying to conserve the integrity of a cattle pond that was being lost to erosion.

  A praiseworthy effort, right? Not if you’re the EPA.

  The EPA decided to visit Matth with a phalanx of lawyers, demanding that he cease and desist improving his pond. These government agents wanted his pond returned to its previous state. They threatened to fine him $25,000 a day.

  Now, Matth had not become a success by being a shrinking violet. These agents no doubt intended to charge him with something, but they really didn’t realize who they were messing with. Although he could afford many attorneys and even employs in-house counsel, he arrived at the meeting on his land, alone, armed with only one thing: the original legislation.

  He pulled it out of his pocket and asked them, in his German-American accent, “Have you read the bill?” The government bullies simply scoffed and looked away. He repeated, “Have you read the bill?” No one answered. Complete silence. So Matth proceeded to read them the pertinent passage: “farms are exempt.” He then added, “And you can get the hell off my land!” Mr. Toebben later went on to help make changes in the state law to protect landowners from this kind of harassment.

  The case of Jim Starr illustrates how Big Brother not only obstructs progress but also saps the spirit of entrepreneurs. As Peyton Knight writes for the property rights advocacy group the Property Rights Foundation of America:

  Jim Starr purchased eleven acres of beautiful agricultural property on the Long Beach peninsula, located in Pacific County, Washington. It was here where he would settle with his family and pursue his passion of farming. The conditions on the peninsula were perfect for cultivating certain types of mushrooms. Full of entrepreneurial spirit, Jim planned to grow and harvest a diverse variety of mushrooms for sale in multiple markets. He spent $100,000 of his own money to renovate an old barn, thereby creating an office, laboratory and shop. Jim would have gourmet mushrooms for restaurants and mushrooms that produce the anti-carcinogenic Taxol for the medical industry. He would even produce mushrooms that contain a certain proprietary enzyme, that when added to straw, becomes an essential tool in cleaning up oil spil
ls. Everything was set. He had jumped through the necessary hoops, purchased a work permit and filed a Pacific County Development Application. Jim was ready to begin his venture. That was five years ago. It is 2003 and Jim has yet to harvest a single mushroom or groom a single spore, and likely never will.

  Instead, Jim has been mired in a five-year battle with the Army District Corps of Army Engineers of Seattle, Washington—fighting for the right to farm on his officially designated “agricultural” property. The Corps claims that Jim’s property, although historically used for farming and even classified for tax purposes as “agricultural,” is in fact a wetland, and therefore off-limits to any sort of external disruption. But this is no ordinary wetland. This wetland is the result of the local government’s neglect and mismanagement.

  The peninsula where Jim lives contains a series of drainage ditches, which when properly maintained, are essential to flood control on the low-lying peninsula. The ditches were originally constructed 80 years ago by the Civilian Conservation Corps to collect excess rainwater and carry it safely out to the surrounding ocean and bay. The Pacific County government now owns the easement for these ditches, and residents of Long Beach peninsula (including Jim) pay a “flood control” tax, ostensibly for maintenance of these channels. However, Pacific County neglects to care for the ditches, leaving them clogged and virtually inoperable. The result of this neglect is overly saturated farmland—which of course the Army Corps of Engineers considers a wetland.

  The Corps came out to inspect Jim’s operation and told him that a thorough environmental impact study would have to be conducted on his land. The study, of course, would be funded out of Jim’s pocket to the tune of a few thousand dollars. Reluctantly, Jim agreed to the arrangement.

  He was subjected to repeated bullying by the Corps and the county government, Jim said, including a threatening letter from the Assistant Director of the Pacific County Department of Community Development, who told Jim: “You will need to immediately cease all work in the wetlands and apply for review and permits. Failure to do so within the next 15 days will result in formal enforcement action against you and the contractor.” Having already sought numerous permits and reviews only to be ignored by the District Corps of Army Engineers, Jim slowly began to give up the fight to farm mushrooms. When the Corps finally did take action on Jim’s case, they told him that his farm would violate the rules governing wetlands because of the gravel foundation required for mushroom beds.

  Jim was dejected but not content to merely live out his life on a large piece of property that the government was trying to render useless. Moreover, even though Jim’s land is officially designated as agricultural property, Jim must pay a “best use” property tax until he can show an income from crops produced on his land. This means that the failure to utilize his land for growing crops for profit would result in roughly a 60% increase in his property tax burden.

  Ever resourceful, Jim decided that he would build a vineyard on his farmland instead. Finally, reaching the height of his frustration, Jim decided to forge ahead. He began to preliminarily work the property in preparation for his vineyard.

  Shortly thereafter, the county and the Corps returned to Jim and demanded that he once again cease and desist or face further action. They explained to Jim, this time with more than a hint of finality, that his property was a valuable wetland, and therefore, is barred from agricultural use

  Jim Starr said that he did not know what else he could do. He has given up trying to farm his land.

  In his obituary, Marinus Van Leuzen is described as “not solely a World War II hero. He was also a hero of the 1990’s. He was one of the rare victims of the environmental police who did everything in his capacity to let the country know about the injustices imposed on him and to seek retribution in the courts for the violation of his civil rights.”

  Author Carol W. LaGrasse describes Van Leuzen’s story in “How Environmentalism Is Being Used as a Tool to Instill Terror into American Citizens” (published by the Property Rights Foundation of America): “After his modest, attractive house is in place on a lot where a decrepit bait camp was situated, his septic system installed, with all local building permits, on land the U.S. Army Corps of Engineers designated ‘uplands’ on a prominent highway in a developed area,” the EPA “discovered that Marinus Van Leuzen violated the law,” then cited him for a “wetlands” violation. After being forced to pay an obscene fine and do ridiculous things to his property by government decree, came the coup de grâce: Van Leuzen was ordered to erect a giant ten-by-twenty-foot billboard of apology on State Highway 37. For eight long years, the federal government harassed an eighty-eight-year-old World War II veteran who fought for his adopted country and forced him to to apologize, when he’d done nothing wrong.

  Reining in Government Bullies

  Instead of just fuming against our out-of-control federal bureaucracy, I vowed to do something to end the harassment of ordinary Americans. The bullying of job creators and property owners must end.

  So many of the existing EPA rules are bad, and they are getting worse. Some in Congress have stressed to me that we should either let the problem be solved by the courts, in cases like Rapanos and Sackett, or fight the EPA rule by rule, guidance by guidance.

  There are many problems with this approach, not the least of which is that “wetlands,” “navigable waters,” and other such phrases and definitions will serve as the basis for rulings, legal discussions, and further regulations. These are definitions that should have been made by Congress years ago, not by unaccountable government agencies.

  What is a “navigable stream,” exactly? Well, as one Corps agent admitted, “whatever we say it is.” The Supreme Court didn’t define navigable waters, but it did say, at least, that citizens have the right to contest in court the Corps’ assertions concerning what constitutes a wetland.

  It remains a dangerous situation, though, because the definition of “navigable” is still nebulous and arbitrarily decided by the Corps. Congress has abdicated its responsibility to provide clear laws and guidelines for regulators and citizens to follow.

  And if the problem exists because of Congress, only Congress can truly solve it.

  The courts can give small victories to property rights activists who are willing to stand up and fight. This happened in March 2012 when the Supreme Court ruled that the Sacketts had the right to challenge the EPA’s compliance order in court.

  But in a concurring opinion, Justice Samuel Alito noted that to truly fix this problem, Congress must “do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.… Allowing aggrieved property owners to sue under the Administrative Procedures Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

  I could not agree more with Justice Alito.

  That’s why I have introduced the Defense of Environment and Property Act of 2012, in order to do precisely what Justice Alito asked—bring common sense back to federal water policy.

  The bill will do the following:

  It will redefine “navigable waters” to explicitly clarify that waters must actually be navigable, or “permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers and lakes that are connected to waters that are navigable-in-fact.”

  Ephemeral or intermittent streams—the streams that sometimes form when rain falls—will be excluded from federal jurisdiction

  The EPA and the Army Corps will be stopped from regulating or “interpreting” the definition of navigable waters without congressional authorization.

  States will once again have primary authority over the land and water within their borders.

  My bill will stop federal agents from entering private property without the express consent of the landowner.

  In order to give pause to agencies and bureaucrats, I will also force
the government to pay double the value of the land to any landowner whose property value is diminished by a wetlands designation.

  This bill is simple and clear, while still broad and far-reaching. It is a commonsense approach that has garnered support across the country from property rights advocates, farmers, miners, liberty activists, developers—you name it. The American people have had enough and want action.

  I believe that environmental protection must not unnecessarily trample on the fundamental American right to private property. The Defense of Environment and Property Act of 2012 will restore common sense to federal jurisdiction over navigable waters and place reasonable limitations on agencies that have become dangerously out of control.

  My thanks to the many activists and groups who are lending their support to the Defense of Environment and Property Act. The Pacific Legal Foundation, which represented the Sacketts, writes approvingly of it:

  Given the Corps and EPA’s inability or unwillingness to acknowledge any limits to their authority over non-navigable waters, a bill of this type was perhaps inevitable. Even if Senator Paul’s bill is not the last word on the subject, it will certainly enliven the debate over the scope of federal authority and perhaps result in clearer regulatory standards that would benefit both the regulating agencies and the regulated public.

  FreedomWorks, one of the nation’s largest Tea Party groups, has announced their support:

  Landowners should be free to do as they please with their own property. Americans have a fundamental right to private property… support S.2122, today.

  The free market political advocacy group Americans for Prosperity also expressed their support: