Protection? For Whom? No One.

[Gus Van Horn blog]

By Gus Van Horn from Gus Van Horn,cross-posted by MetaBlog

Allen Prather wrote me yesterday about a remarkable and inexcusable abuse of federal power by the Environmental Protection Agency against ordinary citizens minding their own business in our home state of Mississippi.

Wyatt Emmerich of the Greenwood Commonwealth has been following developments. His column from last week opens chillingly:

Robert Lucas, his daughter Robbie, and his engineer, [are] all in prison now for many years because they dared to fight the EPA's designation of their pine land as "wetlands."

Daughter Robbie is behind bars for seven years, separated from her 1-year-old son. 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 brought the full force of their prosecutorial power on them

. Judicial precedent forbade the court from even ruling on the key issue: whether or not their land really was "wetlands."

Emmerich, sounding a clarion call, states that, "Every landowner in Mississippi needs to understand this case and the threat to their property and freedom."

If anything, he understates the scope and magnitude of this danger. In addition to affecting citizens of every state, this threat serves as a particularly good example of the connection between our rights -- which the government is supposed to protect -- and our lives.

The Lucases had, as it turns out, depended on developing land for their livelihood, Robert having done so for half a century -- starting in high school, working his way through college, and building a spotless reputation along the way.

In the last 48 years, [Lucas] has developed over 2,000 lots, all by subdividing cutover timber land north of Pascagoula into two- and four-acre home sites with roads, electricity, water wells and septic tanks. He usually owner-financed the lots he sold and carried the loans for people who might not otherwise be able to buy a lot. Most of the housing built on the lots was of modest design.

Lucas never had any trouble with the law

, criminal or civil.

No lot owner ever sued him

. His daughter, Robbie Lucas Wrigley, mother of a young child, followed her father into business and sold lots.

They had a good reputation with lot sales to thousands of customers

.

Their engineer, M.E. Thompson, 76, designed the septic systems, following Mississippi Health Department guidelines.

The project which landed them all in jail is

called Big Hill and is located 12 miles north of the coast in Jackson County. The land is

100 feet above sea level and is full of pine. The nearest creek where you could place a canoe is two and a half miles away

. [bold added]

Or, more to the point, the Lucases and Thompson, never had trouble with proper, objective law. That changed when environmentalists perverted the law to protect the earth from human beings doing what nature itself requires us to do to survive: alter their environment. In this particular case, wetlands law doesn't just affect the freedom of these three in some minor aspect of their lives (which would still be inexcusable): It endangers their very livelihoods.

Note that the law concerning wetlands is bad enough in that its object -- the violation of man's right to property -- is improper to begin with. This impropriety is compounded a thousandfold, however, by its non-objective nature. As we follow Emmerich's narrative, this will become glaringly obvious.

On what rational basis would one conclude that a pine forest 100 feet above sea level and more than two miles away from even a small creek is a "wetland" and therefore have any reasonable hope of obeying such a law? None, and furthermore, Lucas was going out of his way to abide by the law!

After running afoul of Pansy Maddox, a state functionary in charge of septic permits, Lucas found himself suddenly having to fight tooth and nail to have nearly 100 arbitrarily rescinded septic permits for his Big Hill development reinstated. He won that battle fair and square, only to find that this bureaucrat was perfectly happy to use the apparatus of the federal government to empower her vindictive rage. (It is taking a great deal of self-control on my part to avoid using very filthy language to describe this person.)

Then one day federal officials appeared at Big Hill accompanied by [Mississippi Department of Health's (MDH)] Pansy Maddox. Involved were the Mississippi Department of Environmental Quality (DEQ), the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA). The big guns had arrived.

Shortly thereafter,

the Corps informed Lucas that Big Hill may have a wetlands issue

and directed him to hire experts to do a wetlands determination of the entire property.

Lucas hired the experts recommended by the Corps, and they drew up maps delineating areas that had wetlands features.

The experts didn't determine that these areas were true wetlands, just that the areas warranted further study. The EPA took the study and ran with it, declaring the pine land was "jurisdictional wetlands,"

thus totally under the control of the EPA.

This is where the enormous irony exists. If the EPA says your land is "wetlands," then it is wetlands.

The courts will not, as a matter of law, overrule a "scientific" determination by the EPA

. You can own perfectly dry pine land with 100-foot trees and no standing water, but if some low-level EPA staffer declares your land "wetlands," then your land is essentially confiscated. You have no legal recourse. [bold added]

Lucas, considering his predicament and getting "the best legal advice in the state" -- from somoene who is now "a top EPA official", decided to fight in court.

He was demolished by federal officials who had decided to make an example of him in a process that makes my recent adventure in postmodern civics seem like a high school field trip by comparison:

The jurors were led along this fantasy trail by

Jeremy Korzenik, senior trial attorney for the Department of Justice's environmental crimes division

.

The

seven-week trial

was

presided over by Judge Louis Guirola, a former federal prosecutor appointed to Mississippi's Southern District in 2003

. Last year, Guirola led the entire nation in white collar criminal cases.

Guirola made news when he hired

Dickie Scruggs

to represent him in a Katrina lawsuit over damage to his home

.

One can imagine that

professionals of higher education were either excluded from jury selection or begged off

. Few successful people with significant jobs can sacrifice seven weeks of their lives on a trial that should never have taken place.

So you are left with less-educated jurors who are satisfied with the per diem jury duty compensation. These jurors know not to bite the hand that feeds them. They are easily led along by the overwhelming power of the prosecution, which has the entire array of the federal money and bureaucracy behind them.

It was a kangaroo court

.

...

Seeking ammo for the trial, the

FBI,

the U.S. Attorney's Office and four environmental agencies

began holding meetings in a local gym

attended by the Big Hill homeowners. At these meetings, homeowners were told by

six believable authorities that they had been defrauded by the Lucases

. Despite the federal dog and pony show, the government persuaded only 10 percent of the Big Hill lot owners (36 out of 300) to join in their criminal case against the developer.

The local hearings were laying the groundwork for a federal lynching in the name of saving the environment. It made great PR, exemplified by the boastful press releases sent out immediately after the conviction. The bureaucrats, the prosecutors and the judges all jumped on board this gravy train of political correctness.

There was just one small problem. The Lucases were innocent

.

They were accused of building on wetlands

, but they were

never allowed in court to contest the validity

of the wetlands designation. How can pine land be wetlands? In fact,

when Lucas was selling some timber off the land, the Corps approved the sale stating

in its report that

"no waterway existed" and "no wetlands had been built"

and "no action required." They were

accused of not obtaining EPA septic permits. In fact, no such permit has ever been required or given anywhere

in the U.S.A. [bold and link added]

Emmerich's list of false charges goes on and on, and he closes by noting how prophet-like our Founding Fathers were:

This is what John Adams and Thomas Jefferson feared -- an out-of-control, out-of-touch, unaccountable federal bureaucracy wreaking havoc on ordinary citizens. Their fears, first conceived 250 years ago, have proven to be remarkably on target.

And what accounts for their remarkable ability to foretell such tyranny? Their understanding that each man owns his own life, and that the proper purpose of the government is to protect the individual. This understanding, if only implicit, was much more common among the general public in their time than it is now. It must become much more common again before we will begin to stop hearing of such atrocities or, worse still, having them visited upon ourselves.

I strongly recommend reading both of Emmerich's columns soon, as his paper seems to remove them from open access after a couple of weeks.

-- CAV

http://ObjectivismOnline.com/archives/003861.html

[EC]

This has to be the worst story I've read in a long time or ever. Yesterday flipping through the channels I saw that some guy had "kidnapped" his own daughter, and everyone was supposedly bent out of shape at this "criminal". But something as horrible as the above story happens in the United States of America and this is where I here it from? The whole worlds officially gone crazy.

[softwareNerd]

... some guy had "kidnapped" his own daughter, and everyone was supposedly bent out of shape at this "criminal".

The vast majority of legal abductions of children are carried out by a non-custodial parent. Statistics vary, but we're talking of a few hundreds of thousands of such parental abductions each year, compared to under 1000 long-term stranger-abductions and a few thousand short-term stranger-abductions.

[eriatarka]

One can imagine that professionals of higher education were either excluded from jury selection or begged off. Few successful people with significant jobs can sacrifice seven weeks of their lives on a trial that should never have taken place.

So you are left with less-educated jurors who are satisfied with the per diem jury duty compensation. These jurors know not to bite the hand that feeds them. They are easily led along by the overwhelming power of the prosecution, which has the entire array of the federal money and bureaucracy behind them. It was a kangaroo court.

This seems a fairly strange statement since it applies to pretty much all long jury trials. Is he opposed to jury trials in general, or is there some compelling reason why the jury in this case would be less educated than the average jury? Also what does it mean to say that juries are reluctant to 'bite the hand that feeds them' - is he implying that juries are more likely to rule for the government than against it? Edited July 31, 2008 by eriatarka

[brian0918]

This is quite an idiotic situation. They first said it's not wetlands, but then are free to change their minds - and have their opinion rendered unquestionable in court - on a whim.

One of the comments on that article noted the following:

Check the judicial financial disclosure filed with the Mississippi secretary of state. No one audits these in Mississippi. My guess is the judge either was prejudice, exhibited partiality or will profit. Judicial corruption is rampant in Mississippi.

Edited July 31, 2008 by brian0918

[Qwertz]

The "wetlands" issue didn't go unquestioned. It was reviewed by the jury, the trial court, and the Court of Appeals. The jurors found, based on the evidence presented at trial, that the lands in question met the statutory jurisdictional definitions beyond a reasonable doubt, and the trial and appellate courts both found that there was enough evidence presented that the jury could reasonably have come to that conclusion.

The idea that courts should accept a wetlands designation unquestioned comes from the dissent in Rapanos. The Court of Appeals made reference to the Rapanos dissent, but didn't hang their hat on it. Also, under the Rapanos dissent, it is the Army Corps of Engineers' determination that is binding, not the EPA's.

I left a longer comment addressing this issue over at Gus' blog.

~Q

[Qwertz]

Re: Jury selection in long trials --

Yes, it is very likely that professionals will be unable to sit for a long jury. However, the Constitution guarantees a jury drawn from a representative pool, not a representative jury.

I don't think the jury-related arguments the article makes are relevant. Juries are supposed to be common-sense rational finders of fact. The idea of intentionally placing specific kinds of people (e.g., people of a certain background/age/gender/race/profession/education/income/&c.) on a petit jury runs counter to that. And the idea that jurors who are compensated for their time by the government will be less likely to acquit is absolute bull, based on my personal experience with juries and discussing this exact issue with judges, jurors, and attorneys. Most jurors who get seated on a petit jury take the role very seriously. I do not think juries, as such, are bad; even in long cases.

Hard cases are different. Where there is a factual question, or in some cases a hybrid question of law and fact, that is epistemologically complicated, e.g., the jury is asked to decide between two competing scientific theories and then evaluate the evidence under their chosen theory, there is a problem. Because the jury is asked to choose a theory based solely on the evidence at trial and then to evaluate the evidence at trial under that theory, there can be no rational basis for their decision. Cases like Daubert and Markman have helped reduce these situations immensely, but courts need to recognize what the epistemological problem is, rather than avoid them on the basis of "complexity," as they have been doing.

The overriding problem with the jury system today is the culture. Bad philosophy. A few weeks ago, I saw a juror talking with a judge after a criminal case had been dismissed because the state failed to present enough evidence that the jury could have convicted. She told the judge that she couldn't have convicted on the evidence presented because the eyewitness testimony presented was "just his [the witness'] perception" and had nothing to do with reality, because perception is unreliable. And just today, in a high-profile rape case, defense counsel asked the forensic witness whether it was "possible" that, during the time between the alleged incident and the time the DNA evidence was collected, someone "could have deliberately placed" the blood at the scene to frame his client. It was an arbitrary suggestion - one for which the defense has no evidence at all, and yet the witness testified that "anything is possible." As long as the culture accepts these kinds of epistemological fallacies, any judicial system can only ever approximate justice.

~Q

[K-Mac]

Thank you for the clarification, Q.

My question is this though, who gives a rat's ass if it's wetlands or not?! The fundamental issue at stake here is property rights. This family owns property, develops it, then sells it. Their clients have no complaints and they do not seem to be doing anything to interfere with the rights of others, so there is absolutely no reason for any government intervention of any sort. This is one of the most asinine things I've heard in a very long time. It literally made my stomach hurt to read it. I don't care if their property is wetlands, dry lands or Disney Land...it's their property and they should be able to do with it what they please.

I'd like to know more about this Pansy Maddox person as well. What kind of horrible events must have happened in a person's life to make them behave like such an ass? I just keep thinking of Ellsworth Toohey. Pansy Maddox even sounds like the name of an evil character out of a Rand novel, doesn't it? It might be funny if it weren't so sick.

[Qwertz]

You're absolutely right about the real problem being the CWA itself, and its total disrespect for property rights. But our legal system prohibits questioning well-settled law, and the constitutionality of CWA, w/r/t its regulation of designated wetlands, is well-settled law, which only the Supreme Court can correct (since it settled the law in the first place). My point isn't that this situation is any less wrong, but merely that the problems run deeper than the article Gus cites suggests.

~Q