01 Jan 1998 1998 Directory of Environmental and Regulatory Victims
| Introduction by Bobby Unser
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Endangered Species
Federally-Protected Bird Costs Elderly Woman Her Retirement InvestmentIn 1973, Margaret Rector bought 15 acres of land on a busy highway west of Austin, Texas as a retirement investment. In 1990, the Golden-Cheeked Warbler was listed as endangered, and the United States Fish and Wildlife Service (USFWS) classified Rector’s property as suitable habitat. Her land, located in the fastest-growing part of the county, is now unusable. Its assessed value fell from $831,000 in 1991 to $30,000 in 1992. USFWS says she might be able to get a permit to develop the property, but this would require her to finance extensive studies and to mitigate any impact on the Warbler. However, Rector views this as an option available only to large corporations engaging in multi-million-dollar developments.
Source: Competitive Enterprise Institute
State Department of Fish and Game Gives Retirement Home to CrittersDoug Bernd purchased some land 20 years ago as a retirement investment. But unfortunately for Bernd, the city of Poway, California had different ideas. The city decided to make his retirement “nest egg” a home for endangered species, effectively lowering the real value of the land.
The city of Poway, in conjunction with the California Department of Fish and Game, advised Bernd that he could use 10% of the total acreage of his parcel of land. This 10% covers everything from roads to a home. The problem is that the road currently on his land already takes up more than 10% of the acreage. The city and the Department of Fish and Game also advised Bernd that he must mitigate at a rate of two-to-one for any land used beyond the 10%. In other words, if he wanted to use two acres of his land above the specified 10%, he would have to give four acres of his land to Poway or purchase another four acres and give it to the city.
Bernd does not understand why this is happening to him. “I spent two years in the service of this country, came home, got married and lived the American dream,” he said. “[I wanted to] have kids and work and then retire with my grandkids. Now this has taken away all my hope and dreams.”
Local environmentalists are making things difficult for Bernd as well. “A local environmentalist told me that I’m selfish for wanting to use my land and [I] should give it to the creatures.”
Source: National Center for Public Policy Research
Casualties of the Northern Spotted OwlIn 1979, Barbara and Dick Mossman mortgaged their farm to buy a new International log truck to start their own logging business in the Pacific Northwest. Initially, the Mossmans experienced hard times, losing virtually everything except their truck and a few other goods during the 1980-1981 recession. In 1986, however, they landed a good job hauling logs in Forks, Washington – at the time the logging capital of the world. Things gradually improved for the Mossmans. They got rid of their debt, restored a good credit rating, started a modest savings account and bought a four-acre farm.
Then in June 1990, the United States Fish and Wildlife Service (USFWS) declared the Northern Spotted Owl an endangered species. Since the owl was found virtually anywhere there was logging, the timber industry collapsed. The Mossmans’ business was no exception. In 1990 alone, their revenue dropped by 33%. By October of 1991, less than 18 months after the USFWS ruling, the Mossmans went out of business. Because they were self-employed, they could not apply for unemployment benefits. As a result, the Mossmans had to sell their boat, trailer, welder, tools and motorcycles to get the cash they needed just to make ends meet. That was not enough, though. In the spring of 1992, they received a foreclosure notice on their farm. The electricity was turned off, leaving the couple without heat, lights and water. The Mossmans were unable to respond to collection notices and deputies began knocking on the door with lawsuits in hand. However, Barbara says the most degrading thing of all “was being forced to walk into a public assistance agency, after 13 years as independent truckers, and ask for a voucher for food, because we were hungry.”
Barbara has since become a spokeswoman for the thousands of other families whose lives were ruined by this reckless application of the Endangered Species Act. “I am not interested in pointing a finger of blame,” says Barbara. “What I am interested in is a commitment from the Members of Congress that they will change this cruel and vicious law, so that no other families, no other community will have to endure the pain we in the timber community have been forced to endure.”
Source: Barbara Mossman
Federal Efforts to Protect Endangered Bird Leads to $10 Million Worth of FloodingIn January 1993, the city of Temecula, California suffered over $10 million in flood-related damages because federal regulators, more concerned about protecting an endangered bird, refused to allow proper maintenance of the flood control system. A small bird called the Least Bell’s Vireo lived just downstream from the Murrieta Creek flood control facility. Eager to expand its habitat, the United States Fish and Wildlife Service (USFWS) refused to allow the Riverside County Flood and Water Conservation District the right to remove vegetation and other debris from control channels. It seems the USFWS wanted to use the flood channel to make a home for the bird. Riverside County Commissioners and county engineers testified before Congress that their inability to remove the debris led to a clogging of the channel which resulted in flooding that seriously damaged businesses and homes. Ken Edwards, the chief engineer of the flood control agency, said “Ironically, after the flooding, federal authorities allowed the maintenance to take place.”
Source: Field Hearing of the U.S. House of Representatives Committee on Natural Resources, April 26, 1995
Salmon Protection Sacrifices $30 Million in Agricultural ProductivityCiting the need to protect salmon, the National Marine Fisheries Service (NMFS) denied an application for irrigation water withdrawals from the Columbia River system by the Inland Land Company (ILC). ILC had proposed irrigating 20,000 acres which would produce $30 million worth of crops each year. The state approved the eastern Oregon irrigation application, but NMFS said the company could not put new irrigation intake pipes into the Columbia River unless it found ways to replace the water during the dry years.
Environmentalists are suing in state court to block the project. Columbia River Association executive director Bruce Lovelin says the denial of irrigation rights completely fails to take into account the economic needs of the region’s businessmen and farmers.
Source: National Center for Public Policy Research
Woman Shoots Bear to Protect Property; Gets FinedOn May 8, 1997, Juanita Swanke of Red Lodge, Montana shot and killed a 220-pound Grizzly Bear to protect her horse.
When Swanke saw the bear chasing her horse in its corral, she quickly picked up her .22 rifle. Initially, she shot around the bear in an attempt to scare it off. But when this failed, she realized she would have to shoot the bear in order to stop it. Swanke took aim at the Grizzly’s gluteal region in an effort to superficially wound it. This only enraged the bear, however, leaving Swanke no choice but to kill the animal. Swanke feels terrible about the whole incident, but felt she had no choice.
Despite her efforts to avoid killing a bear which obviously posed a serious threat to her and her property, a federal magistrate court fined Swanke $1,350.
Source: Resource News from Across the Big Sky, August 1997
US Fish and Wildlife Service — Shoot the Geese to Save the SnailsBrandt Child planned to build a campground on his property in Three Lakes, Utah. Neighbors in southern Utah had used the area for recreation for some time. But Child’s plans soon came to a screeching halt.
The United States Fish and Wildlife Service (USFWS) declared a pond on Child’s land to be a prime habitat for the endangered Kanab Amber Snail. They fenced off the area, ordered people off the pond’s banks, and forbade Child to work in the area. In addition, since the land was Child’s, the USFWS informed him that if he failed to report a problem he could be held accountable.
Shortly thereafter, Child realized that a flock of domestic geese had taken up residence at his pond. If any of the geese were to partake of the unsuspecting snails, Child could have faced a $50,000 fine for each snail eaten.
USFWS then ordered the Utah Department of Wildlife and Resources to shoot the geese, remove their stomachs, and forward the contents of their stomachs to USFWS to determine the number of snails eaten by the geese. But when a Utah Department of Wildlife agent arrived to kill the geese, there were so many photographers and journalists present that he decided not to kill the geese.
Eventually, it was determined that the geese did not harm the endangered snail population and the snails continue to thrive.
Meanwhile, Child has not been compensated for his loss of property.
Source: National Wilderness Institute Resource magazine
Couple’s Home Imperiled by Beetle ProtectionMr. and Mrs. Richard Bannister wanted to take steps to prevent erosion that placed their beach home in jeopardy. Unfortunately, foot-dragging by the Maryland Department of Natural Resources (DNR) delayed the project, resulting in the loss of a 15-foot section of the Bannisters’ property. The reason for the DNR delay? Concern for the welfare of the Puritan Tiger Beetle.
The Bannisters merely wanted to construct a stone revetment, or face, at the base of a 60-foot cliff in their backyard. They intended to grade the top to a more moderate slope and plant grass. They were told by the DNR, however, that any action they took should “not entail destroying [Puritan] Tiger Beetles.”
While the Bannisters wasted time and money wrestling with bureaucrats, their home was put at greater risk when a 15-foot section of their property crumbled into the beach.
Source: National Wilderness Institute
New York Businessman Spends Eight Years and $2 Million to Get Mining PermitJay Montfort of Fishkill, New York has been trying for eight years to get permission to expand a gravel mine on his own land. Montfort, whose ancestors have been businessmen and farmers in the area for 300 years, owns a company that manufactures concrete block, a popular building material. Montfort happened to own a parcel of property which could largely supply the gravel he needed for his business operations. The town of Fishkill judged Montfort to be in compliance with its zoning requirements and approved the expansion of his Sour Mountain gravel company. Trouble soon appeared, however, in the form of the state Department of Environmental Conservation (DEC). Immediately after filing his permit application with the DEC, Montfort got bogged down in a complicated and time-consuming process that has yet to end. His Draft Environmental Impact Statement (EIS) was rejected as incomplete in April 1993 – nearly six months after the state was legally required to issue an opinion. Finally, after Montfort resubmitted his EIS, the DEC approved it in 1995. But then the DEC, in league with local conservation groups, came up with new and more costly reasons to delay the project. Just when it seemed he was nearing the end of the tortuous application process, the DEC told Montfort he would have to start the process all over again because a den of rattlesnakes was “discovered” on an adjoining property owned by a conservationist group. The snakes, a protected species, were not even on Montfort’s land. Furthermore, in his previous impact statements he had addressed any potential impacts his mine would have on the snakes which everybody knew already existed in the area. Nevertheless, the DEC told Montfort he would have to spend several years studying the snakes before a decision could be made on his proposed mine expansion. Montfort says “the motivation for such abusive tactics appears to be the desire of the state” and the local conservation group, Scenic Hudson, to acquire his property for a land trust. Montfort is not giving up. In January 1998, he filed a lawsuit demanding that the state issue a final decision based on his original permit application. The permit process itself has already cost Monfort more than $2 million.
Source: Carol LaGrasse, “The Property Owner’s Experience”
Environmentalists Oppose New Bridge That Would Save LivesTwo 70-year-old bridges that adjoin Ventura and Santa Barbara counties in California are in desperate need of replacement. According to California Department of Transportation officials, one of the bridges has an accident rate twice the statewide average for rural two-lane highways. But environmentalists, concerned about trees and a small parcel of land containing a quarter of an acre of wetland, are vehemently opposed to replacing the aged structures.
According to a member of the Sierra Club, the removal of any wetland area could affect a number of endangered species and upset the migratory patterns of some species. In this case, they are concerned about the Yellow Warbler. But should not the safety and well being of humans be considered?
Of course it should, said Chuck Cesena, a California transportation planner. According to Cesena, one of the bridges has a dangereous curve and a sharp dropoff, which can be hazardous for unsuspecting motorists. “We’ve had a number of motorcycles launched from there,” he said. “They tend to end up in an avocado grove.”
Cesena says that the environmental impact of replacing the bridges has been grossly overestimated by opponents. The Sierra Club claimed that a new bridge would affect up to one mile of the creek. However, Cesena says that only 500 feet around the projected bridge would be affected. When he asked the Sierra Club newsletter editor who spread the rumor of the exaggerated length why he didn’t bother to check out the facts, the editor responded that he didn’t have time.
Eventually, the county governments approved the Department of Transportation’s plan. However, in January 1998, the state Coastal Commission struck down the request, citing the Sierra Club’s concerns over the negative impact on the Yellow Warbler.
Source: The National Wetlands Coalition
Montana Man Fined For Shooting Attacking Grizzly in BackyardIn September 1989, Montana sheepherder John Shuler discovered four Grizzly Bears on his property. He went outside and fired warning shots that scared off three of the animals. Returning to his house, he found another one blocking his path. The huge beast reared on its hind legs in an obviously menacing manner. In self-defense, Shuler shot and killed the animal. However, officials with the Department of the Interior fined Shuler $5,000, arguing that he couldn’t claim self-defense because he purposely entered a “zone of imminent danger.” That zone was his backyard. For more than eight years, Shuler fought this outrageous fine. Finally, on March 17, 1998 a federal judge found the Interior Department’s fine to be unjustified since Shuler’s life was clearly endangered by the Grizzly.
Source: Mountain States Legal Foundation
Federal Efforts to Protect Grizzly Bear Ruin Economy of Montana CommunityTen years ago, the United States Fish and Wildlife Service (USFWS) proposed a plan to increase the Grizzly Bear population in the area around Libby, Montana. Concerned citizens immediately organized themselves into a coalition and demanded the government’s assurance that the increased bear population would pose no threat to people or hurt the economy. In 1990, the USFWS and the United States Forest Service (USFS) officially stated that increasing the Grizzly Bear population from about four to 90 bears would not negatively affect the economy of Libby. Libby took the government at its word. But just one month later the USFWS changed its position, stating that human activity would infringe on the projected Grizzly Bear population. As a result, the USFWS closed 56% of the county roads and severely restricted the logging and mining activity on which the local economy depended. One of the first victims was the saw mill in Libby. It was forced to close, throwing 600-700 people out of work. Since Lincoln County, where Libby is located, has only 15,000 people, the closure of the saw mill alone severely affected the local economy. That was just the beginning, however. Bruce Vincent, a Libby resident, says the USFWS has cost the county more than 1,800 jobs. Double-digit unemployment is the norm and the Food Bank ran out of food, unable to meet the demand. Incredibly, the USFWS refused to admit that its efforts to augment the Grizzly Bear had affected Libby’s economy – although the USFS did admit as much. It wasn’t until March 1998 that the USFWS belatedly admitted that its policies probably had a negative impact on the economy.
Source: Bruce Vincent
Couple Loses Business to DeerFor more than 17 years, Patty and Findley Ricard ran a flourishing nursery business on Big Pine Key in the Florida Keys. In order to protect their property from the ravenous Key Deer, the Ricards built a fence around a three-acre tract. The fence was properly built. “All of a sudden,” says Patty, “the state’s Department of Community Affairs said that we weren’t allowed to have a fence and we had to tear it down.” When the Ricards asked why, officials responded that the fence blocked the unfettered movement of the Key Deer and caused increased auto traffic on the adjoining road. Eventually, the Ricards were asked by the state to move to a less environmentally-sensitive location. But due to the excessive land regulation in the Keys, it was impossible for the Ricards to find a buyer for their property. Protracted negotiations and threats of condemnation of their property ensued. After Findley had a heart attack, the Ricards gave up and sold their property to the state “for half of what we paid for it” says Patty. Ironically, the United States Fish and Wildlife Service took over their property and left the fence standing.
Source: Sean Paige, “Almost Paradise,” Insight, April 6-13, 1998, p.10
Endangered Species Law Ruining Nevada MinersRoyce Hackworth owns Hackworth Drilling Company, a company that specializes in exploratory gold mining in Elko County, Nevada. Once one of the world’s leading gold-producing areas, Elko County’s economy has been severely damaged by federal environmental regulations that has driven many companies out of business. Hackworth’s company is no exception. A main culprit has been the U.S. Forest Service’s (USFS) enforcement of species-protection regulations as part of the Humboldt National Forest Land and Resource Management Plan. Ostensibly to protect the Goshawk, the USFS has prohibited mines from doing any work within 1000 feet of the bird’s nest. Since the Goshawks nest in a particular location anywhere from three to six months, a company trying to drill has at best a mere three months to work (That assumes the USFS doesn’t find another endangered species to protect in the three-month period). What is ironic, however, is that there is no evidence that mining harms the Goshawk. In fact, according to Hackworth, the Goshawk may actually thrive when living near Man. Hackworth says that authoritative studies done by researchers commissioned to assess the impact of human activity on the Goshawk found that the bird had more fledglings when living near mines or other human activity than in the wilderness. However, the USFS ignores any evidence that Man could actually be beneficial to the bird. Due to these and other onerous restrictions, Hackworth’s business has suffered considerably. Between 1988 and 1997, the company’s revenues fell from $6.8 million to $2.5 million. Hackworth has had to reduce his work force from 78 to 30 employees and the future looks bleak. Hackworth says he has already written off this year and next in terms of earning a profit.
Source: National Center for Public Policy Research
{Note: In the opinion of The National Center for Public Policy Research, it is not proven that the Goshawk necessarily benefits by proximity to Man, but independent researchers have concluded that human activity does not necessarily harm the bird.]
Man Threatened with $15,000 Fine for Endangering Protected Species Not on His PropertyThe United States Fish and Wildlife Service (USFWS) has threatened to fine a Utah man $15,000 for farming his land and allegedly posing a risk to the Utah Prairie Dog, a protected species. The only problem is that there are no Utah Prairie Dogs on his property. Originally, the USFWS told the man that he should hire an outside expert to determine if any Utah Prairie Dogs were present. The expert prepared a report which indicated that there were no Utah Prairie Dogs, so the farmer proceeded to work his land. But the USFWS told him that they will fine him anyway. The USFWS reasons that since it is theoretically possible for Utah Prairie Dogs in the surrounding area to migrate onto the property, they have the right to issue a fine for harming a potential habitat.
Source: Mountain States Legal Foundation
Flood, Deaths Blamed on Endangered Species ActDelays in repairing California’s Feather River levee system due to Endangered Species Act (ESA) regulations contributed to a severe flood that caused three deaths and forced 32,000 people to flee from their homes. For six years prior to the 1997 flood, the Army Corps of Engineers and local flood control officials had warned that the levee in the town of Arboga needed repairs. The Corps of Engineers report specifically stated that “Loss of human life is expected under existing conditions (without remedial repairs) for major flood events.” Despite this warning, the United States Fish and Wildlife Service insisted that lengthy studies had to been done to determine the impact repair work would have on the Valley Elderberry Longhorn Beetle – a protected species. The Valley Elderberry Longhorn Beetle lives in elderberry bushes. Since 43 bushes would be cleared away on the levee, federal regulators forced local officials to spend $10 million replanting 7,500 elderberry stems on an 80-acre site. In addition, the local flood control authority, California Reclamation District 784 (RD 784), complained it was prevented from performing necessary maintenance tasks such as clearing brush and controlling rodents that burrow in the earthen dams because of ESA regulations. Officials also objected to the requirement that they build a wetland within 600 feet of the levee over concerns that water from the 17-foot-deep pond would seep into the levee and weaken it. When the levee broke on January 2, 1997, 25 square miles of property and habitat were flooded. Ironically, the 80-acre plot of newly-planted elderberry bushes was also destroyed. RD 784 officials and local congressmen said that the ESA red tape that delayed the vital repair work for so long contributed to the collapse of the levee.
Source: Testimony of Rep. Wally Herger before the U.S. House of Representatives Committee on Resources, April 10, 1997
Over a Hundred Mine Workers Lose Jobs Because of TurtleIn September 1996, the Mountain Pass mine in the Southern California desert, operated by the Molycorp Company, was the target of a SWAT-style raid by federal agents over an alleged violation of the Endangered Species Act. The mine’s egregious offense: A few months before the raid, a waste water pipe burst during routine maintenance, spilling thousands of gallons of fresh water into the desert. The Bureau of Land Management viewed this as a threat to the Desert Tortoise, a protected species. Susan Messler, an accountant at Molycorp, said that armed government agents – complete with badges, helmets and flak jackets – charged onto the mine’s property to let them know that the fresh water they had accidentally spilled in the desert is considered a toxic waste. That was only the beginning of the mine’s troubles. After a dead tortoise was discovered on the property, all 300 of Molycorp’s employees had to attend a “Desert Tortoise worker education class” even though it was never shown that any of the mine’s employees were responsible for the tortoise’s demise. To prevent harm to any other tortoises, employees were required to drive no faster than 15 miles per hour and stay at least 100 feet away from the tortoises. Heavy equipment could not be operated unless an authorized government biologist was present to make sure no tortoises were in the way. More serious, though, were the $6.2 million in fines the government assessed on Molycorp. Says Messler, “We probably didn’t make that much money in a five-year period.” As a result, the mine has had to lay off one-third of its employees with more cutbacks on the way.
Source: “American Investigator,” America’s Voice
Immigrant Threatened With Jail for Farming His LandTaung Ming-Lin, a Taiwanese immigrant, bought land in Kern County, California on which he planned to grow Chinese vegetables for sale to southern California’s Asian community. Lin says the county told him the land was already zoned for farming and that no permit was needed.
When Lin began farming, his tractor allegedly disturbed the habitat of the endangered Tipton Kangaroo Rat. It is also alleged that Lin’s tractor ran over some of the rats. As a result, Lin was charged with federal civil and criminal violations of the Endangered Species Act.
Lin, who speaks no English, suffered a stroke shortly after being charged. Yet, that did not sap his spirit. He declared, through an interpreter, that he had done nothing wrong and fought the charges.
The criminal charges carried penalties of up to a year in jail and a $100,000 fine. Fortunately for Lin, neighboring farmers started a fund-raising effort on his behalf. In a May 1995 settlement, the charges were dropped on the condition that Lin make a $5,000 donation toward endangered species protection. Said Lin, “One-half of me is relieved. The other half says I never made a mistake.”
Source: National Wilderness Institute
Lake Who-Can-Use-ItLake Koocanusa is a large reservoir in northwestern Montana that straddles the U.S.-Canadian border. When it was built in the 1970s, the Army Corps of Engineers promised the residents of Libby, Montana and the Canadians that they could use it for fishing and tourism. Eventually, salmon and other fish species thrived in the lake. As it gradually became a tourist attraction, the lake started generating significant income for Libby – which it desperately needed due to the collapse of the mining and timber industry. The demise of these industries was largely due to Endangered Species and Clean Water regulations. However, in 1992, just as things started to look good, the salmon was listed as a protected species. The United States Fish and Wildlife Service and the National Marine Fisheries Service decided to conduct a 50-year experiment where they would increase the volume of water on the Columbia River by releasing large amounts of water upstream. They wanted to know if the increased water volume would help the salmon. These water releases included Libby and Lake Koocanusa 800 miles away from the Columbia. Now, every summer – during the height of the tourist season – so much water is released from Lake Koocanusa that the shoreline recedes to 300 feet from the docks. Much of the lake is a mudflat that, ironically, leaves the spawning grounds of the salmon and other fish exposed. Not surprisingly, the tourism industry has taken a dive since no one wants to fish in a mudflat. In another ironic twist, it seems that the federal government’s efforts to save the salmon are threatening the White Sturgeon, another protected species, which dwells below Lake Koocanusa. The White Sturgeon needs low water in summer and high water in spring to thrive. But the government holds back water in the spring to release it in the summer – the exact opposite of what the sturgeon requires. Libby resident Bruce Vincent says there is a lot of “teeth-gnashing” going on among the federal regulators. Vincent says this tragedy is an all-too-typical result of federal environmental policy. “They suffer from a serious tunnel vision in which they take one species at a time. What they fail to realize is that species don’t exist in a vacuum. What you do to help one species will invariably impact another.” Vincent says that since nobody, human or fish, can use the lake anymore, the bumper sticker around town now refers to it as “Lake Who-Can-Use-It.”
Source: Bruce Vincent
Wetlands
Government Takes 96.7% of Man’s LandFrank LaDue lost the right to use 29 of his 30 acres of land – or 96.7% of it – when the Washington Department of Ecology (DOE) designated most of it a wetland.
LaDue’s troubles began when he filled four acres of his land with waste wood to build a garden and wooded area. The DOE charged that the wood dried up a wetland, seriously damaging the ecosystem. In response, LaDue removed the waste wood, pulling it towards his house. But because he failed to recover wood that had already decomposed into the soil, the DOE argued that he had not returned the wetlands to their original state and fined him $5,000.
But that wasn’t the end of LaDue’s ordeal. A specialist from another section of DOE determined that removing the waste wood could do more harm than good. So they instructed LaDue to make hammocks (elevated tracts of land) of the fill and place it all on one acre.
LaDue was allowed to use that one acre for his garden, his house, and other uses. The remainder has been designated a wetland.
Source: Citizens for Property Rights
Wetlands Ruling Costs Landowner Use of 80% of His PropertyHoward Dean owns 4.8 acres of commercially-zoned property in New Baltimore, Michigan. In 1988, Dean sought permission from the Michigan Department of Natural Resources (DNR) to fill a portion of the property in order to build a medical office. His application was denied because part of the property contained a wetland, a ruling which was later upheld on administrative appeal.
Michigan’s wetland statute ostensibly exempts wetlands smaller than five acres. However, the DNR found that, although Dean’s property is smaller than the minimum size, the wetland was part of a larger wetland “system” and thus required special protection. That ruling, however, is blatantly arbitrary. Dean’s property is the last undeveloped commercial property in the area and none of the other nearby owners were prevented from developing their tracts. The state still allowed these owners the full use of their land despite the fact that the DNR found that their properties also contained wetlands that should have been part of the same wetland “system.”
As for Dean, he can only build on the upland portion of his property, which consists of two isolated hills totaling less than 20% of his property.
Source: Defenders of Property Rights
Turning Wetlands to WaterMaryland Developer James J. Wilson has been sentenced to 21 months in prison, fined $1 million personally, and his company fined $3 million after he created lakes and open spaces on a 50-acre wetlands site he was developing in St. Charles, Maryland.
The government is pursuing this action against Wilson even though it agrees that his actions “had no adverse environmental impact.” In fact, in 1979 the Army Corps of Engineers approved Wilson’s original master plan and environmental impact statement he filed as required by law. But in 1990, the Corps changed its mind and ordered him to stop development on one parcel. Wilson halted construction and promptly filed a lawsuit against the Corps for expropriating his land without compensation.
Then in 1995, the Corps charged Wilson for criminally violating the Clean Water Act. After a seven-week trial, he was found guilty of four felony counts of violating the Act.
Wilson is currently preparing a sweeping challenge to the constitutionality of the government’s wetlands regulation. The Corps maintains that it can regulate as a wetland any land that is ever wet which can be anything from a swamp to a temporary mud puddle. The wetland that Wilson was developing in St. Charles was actually dry for most of the year.
Source: Max Boot, “The Wetlands Gestapo,” Wall Street Journal, March 3, 1997
Utah Property Owner Loses Use of PropertyA wetland designation by the Army Corps of Engineers has left a group of property owners in Centreville, Utah with a useless piece of property they had been told could be developed for commercial purposes.
The land in question was purchased by several investors in the early 1970s. The local government zoned the area industrial and even encouraged its development as an industrial park. Pooling their resources, the owners built roads and other infrastructure, and began to develop their individual lots. When one of the owners, Edward Smith, began developing his lot, the Army Corps of Engineers suddenly ordered him to cease all work because the agency had deemed it a wetland. The Corps issued its ruling when more than half the lots had already been developed.
The irony is that Smith’s wetland is actually dry most of the time and only gets wet when rain water runs off adjacent developed parcels onto his undeveloped property. Now that his parcel has been declared a wetland, Smith is unable to make any productive use of his property.
Source: Defenders of Property Rights
Elderly Woman Prevented from Building HomePeggy Heinz gets emotional when she talks about her ordeal in building her retirement home. That’s because her neighbors have been using environmental regulations to stop construction.
Heinz’s land is located in one of the driest regions of Washington state. The lot itself is typically dry. But it has been designated a wetland because the high clay content of the soil makes drainage slower than usual.
Heinz, who lives on a fixed income of $1,000 a month, has already spent thousands of dollars to secure permits for her home, including one year’s income on septic permits and a month’s wages on fill issues. But she still can’t build.
Neighbors who live in houses on similar land have testified against Heinz before the county’s Shoreline and Sensitive Areas Committee. They apparently fear that the construction would obstruct their view of the ocean. One even told her, “I don’t have to buy your land; I can just see to it that you never use it.”
Source: Citizens for Property Rights
Private Airport Caught Between Dueling Federal AgenciesThe Army Corps of Engineers wants the Indianapolis Terry Airport, a privately-run airport in Zionsville, Indiana, to build ten acres of wetlands at a cost of $200,000 even though the Federal Aviation Administration (FAA) says the airport doesn’t significantly impact the natural wetlands on the site.
Ramon Van Sickle, the airport’s sponsor, has been wrestling with this wetlands problem since 1980 when the United State Fish and Wildlife Service (USFWS) officially declared there to be two acres of wetlands on the property. The USFWS recommended the airport build five acres of wetland as mitigation. Then in 1988, the United States Soil and Conservation Service (USCS) got involved and determined that there were 37.25 acres of wetlands without doing an on-site inspection. Van Sickle was able to get the USCS to do a proper inspection and revise the acreage back to two. Relief seemed to be in sight when the FAA issued its report in 1991 which judged that the airport did not significantly impact the wetlands to warrant construction of new wetlands. However, the Corps of Engineers ignored the FAA’s recommendations and is insisting that the airport build ten acres of wetland.
Van Sickle says the whole process has been “outrageous” and a waste of time and money. He has appealed to many sources for help but has been unsuccessful.
Source: National Center for Public Policy Research
Pennsylvania Farmer Punished For Trying to Protect Land from BeaversRobert Brace, a farmer in Erie County, Pennsylvania, was fined $10,000 and lost the use of 30 acres of his farm because he tried to reclaim some of his property from a beaver dam. The problem started in 1987 when beavers constructed a dam across a drainage ditch. Because the dam made the surrounding area marshy, Brace took steps to reclaim the land. Then one morning he noticed several men inspecting his property. It turns out they represented the United States Fish and Wildlife Service, the Army Corps of Engineers and the Environmental Protection Agency. Even though Brace was simply trying to protect his farm, which had been in the family for four generations, they accused him of damaging a wetland and threatened him with fines of up to $68 million. Brace went to court arguing that the government had trampled his Fifth Amendment property rights. Although he won the first round of his federal suit, Brace lost on appeal. Besides paying the fine, he has had to spend thousands of dollars in legal fees. Says Brace, “It’s been worse than a nightmare.”
Source: David Brown, “10th at Heart of Suit over Land Use,” Pittsburgh Tribune-Review, July 4, 1997
Wetlands Regulations Make Life Miserable for Elderly CoupleStephen White, an elderly farmer in upstate New York, owned two lots totaling 140 acres, both about 70 acres in size. His home was on one of the parcels while the other lot was vacant. White had no desire to develop the vacant parcel of land, so he decided to sell it to help fund his retirement. At the time, he was paying taxes on land that he was not utilizing, so he decided that it made good sense to sell the property and lose the tax burden.
Unfortunately, along the northern border of the two lots White owned was a wetland that was less than one acre in size. The corner marker that divided his two lots sat in the middle of this wetland. Unsure of whether he needed any kind of permit, White contacted the Adirondack Park Agency (APA). The APA advised him that he did not need a permit. Still unsure, White had an APA enforcement officer come to his land and sign a note stating that he had evaluated the site.
About four years after the sale of the vacant lot, the APA notified White that he was in apparent violation for illegally subdividing a wetland. The APA alleged that the two lots were in fact one. But that was not the case because White had bought the total 140 acres a quarter century before as two separate lots. He simply sold the lot exactly as he had originally purchased it over 20 years before. He changed nothing but the name on the deed.
Since the APA initiated action against him, White has suffered from insomnia and appetite loss. The troubles he has had with the APA have come to dominate his life.
“[As I spoke to them], I’ve never felt such a gut-wrenching feeling in all my life,” said Howard Aubin, an advisor to the couple. “Their anguish and pain was so very real.” The case is still pending.
Source: Howard Aubin
Man-Made Pond Declared a WetlandIn the 1960s, a resident in Urbandale, Iowa installed a one-acre pond on property he owned in the center of the city. It served as a family recreational area where he, his children and grandchildren could go fishing. In the 1990s, the owner decided to sell the property to a developer who wanted to build a commercial office project. The owner took steps to fill in the pond. However, the Iowa Department of Natural Resources intervened to stop the pond from being filled, claiming it was a federally-protected wetland. After one year of negotiation, the state settled the issue by allowing the owner to fill in the pond with the proviso that he contribute money to a group that was developing a wetlands area outside the city. The new wetland would serve as a replacement wetland for the property owner’s man-made pond.
Source: Testimony of Robert Layton before the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, U.S. House of Representatives Committee on Government Reform and Oversight, February 9, 1996
EPA Insistence on Wetlands Threatens Airport SafetyIn 1988, the management at the Richard I. Bong Airport in Superior, Wisconsin wanted to construct a second runway to increase safety. This new runway was designed to point into prevailing winds, allowing pilots to take off into the wind rather than having to take off in a dangerously strong crosswind. “Our big push for the project is safety because we’ve had numerous accidents,” said Bill Amorde, manager of the airport.
The approval of the Army Corps of Engineers was required because the runway would use about 35 miles of wetlands.
But the Environmental Protection Agency (EPA) ignored the safety considerations and opposed the plan because it would threaten the wetlands. “The red clay wetlands on-site are recognized by municipal, state, and federal governmental agencies as being an excellent environmental resource,” according to the EPA’s Chicago office.
Tom DeWinter, airport development engineer in the Wisconsin Department of Transportation’s Bureau of Aeronautics, disagreed with EPA’s conclusions. He countered that the Federal Aviation Administration (FAA), the expert agency on airport safety, endorsed the runway plan in 1994. According to the FAA, “. . .based on the environmental assessment, the alternative of expanding the existing airport is the preferred alternative. Although this alternative adversely impacts wetland and floodplains, it is the most practicable alternative for. . . safety reasons.”
After nine years of bureaucratic wrangling, the airport was finally given permission by the EPA and the Army Corps of Engineers to construct the runway. Amorde says this process should have taken no longer than four years but the EPA’s wetlands objections needlessly stretched out the construction of this vitally-needed runway, increasing costs and threatening safety.
Source: The National Wetlands Coalition
Corps of Engineers Tries to Set Example – But Instead They are Made an Example OfIn 1964, Gaston Roberge of Old Orchard Beach, Maine purchased a 2.8 acre commercial lot “as an investment for our retirement years, when we wouldn’t be earning anything.” Over a decade later, Roberge gave local officials permission to dump excess fill on his lot.
In 1986, Roberge tried to sell his land, but was informed by the Army Corps of Engineers that the lot was an illegally filled wetland. The buyer who was considering Roberge’s parcel decided against purchasing the lot upon learning of the Corps of Engineers’ assertion.
Roberge then had to spend $50,000 on consultants to apply for an “after the fact” permit which would have allowed him to develop the property. It was denied three years later. Subsequently, Roberge filed suit alleging a temporary taking of his property.
Eventually, it was discovered that the Corps had never adequately surveyed Roberge’s property. According to internal Corps documents uncovered during Roberge’s fight, the Corps attempted to use Roberge as an example to chill development in the area. “Roberge would be a good one to squash and set an example – Old Orchard is heating up these days,” wrote Corps official Jay Clement in an internal memo.
Embarrassed by Clement’s remarks, the federal government opted to settle the case with Roberge, paying him $338,000. This eight-year long legal battle marked the first time the federal government has ever paid for a temporary wetland taking.
Source: Jonathan Adler, “Property Rights, Regulatory Takings, and Environmental Protection,” Competitive Enterprise Institute, April 1996
Florida Family Keeps Deathbed Promise by Winning Wetlands CaseIn 1985, Billie Vatalaro purchased an 11-acre plot in Orange County, Florida for $130,000. In 1989, she planned to build two homes on the lakefront property. However, the Florida Department of Environmental Protection (DEP) denied Vatalaro’s request, claiming that her property was a wetland. Denied of all use of her property, Vatalaro then filed for compensation. An eight-year legal fight ensued. The DEP insisted that the property still had economic value and Vatalaro suffered no loss. On her deathbed in 1991, Vatalaro asked that her family fight on. Vatalaro’s lawyer, Michael Jones of Winter Springs, Florida said he was a “sucker” for that kind of resolve. “I’d have died before I quit this case,” Jones said.
After initially losing in a state trial court, Vatalaro’s family appealed the case. The state Fifth District Court of Appeals reversed the trial court’s ruling and held that the designation of Vatalaro’s property as a wetland amounted to a taking. The DEP was ordered to pay the family $130,000 for the land’s purchase price plus $92,000 in interest that would have accrued over the course of the legal battle.
Source: Florida Trend, September 1997
New York Farmer Sees Property Rights Put Out to PastureThomas Cogger owns an 11-acre farm in the town of New Castle, New York. He has farmed this land since 1976. But Cogger has been forced to wage a major legal fight against local ordinances that deny him the full use of his property. One of these ordinances prohibits property owners from allowing their animals to graze within 250 feet of the lot line of their property. Another prevents owners from allowing animals, other than livestock, from grazing on land judged by the town to be a wetland.
Cogger was convicted in September 1996 of violating both of these ordinances. His “criminal” conduct consisted of allowing two sheep and a goat to graze within 250 feet of the lot line, and allowing two horses (not considered “livestock” by the court) to graze in a brook deemed by the town to be a “wetland.” The trial court disregarded evidence presented by Cogger that the effect of these ordinances is to restrict the allowable area for grazing to a mere 19,000 square feet – not enough to support even one animal.
Cogger is currently appealing his conviction to the Supreme Court of New York on the ground that these ordinances are illegal because they take property for public use without providing just compensation.
Source: Defenders of Property Rights
Small New Hampshire Town Required to Create 300 Acres of WetlandThe town of Bow, New Hampshire wanted to build a new high school facility for its children. Unfortunately, the proposed school is facing problems before construction even begins.
The site where town officials hope to build the facility is home to about 2.3 acres of wetlands. Because the town will be filling in the wetland for the school project, the state is requiring the town to set aside 300 acres of other land for conservation to mitigate the loss of 2.3 acres. That is a mitigation rate of 130-to-1. These 300 acres of land will no longer be in productive use and will be unavailable for the generation of revenue for the town. The town is currently negotiating with the state in an attempt to develop a less burdensome plan.
Source: The National Wetlands Coalition
Designation of Property as Salt Marsh Costs Florida Woman $60,000Nine years ago, Regina Gonzales, a sales engineer from Coral Springs, Florida, paid $60,000 for two lots in the Florida Keys. She intended to build a house for herself and another for her parents. However, her lots have since been declared a “salt marsh” even though the parcels are completely landlocked and seemingly dry. Furthermore, says Gonzales, her plots are directly across the street “from a $500,000 home with a tennis court and swimming pool.” Although she is prohibited from building, Gonzales still has to make $688 monthly mortgage payments for the useless property.
Source: Sean Paige, “Almost Paradise,” Insight, April 6-13, 1998, p. 10
Baptist Preacher Faces Jail Term for Filling in a Horse PastureJames Headd, a retired Baptist preacher, faces up to one year in jail after being convicted for filling in a horse pasture on his property that the state claimed was a protected wetland. Headd says that when he purchased the 4.6 acre plot for $4,200 from the state Department of Natural Resources (DNR) in 1987, the DNR never said anything about a wetland. Furthermore, he said, it had already been used as a farm. Headd then built a three-bedroom house, dog kennels and a barn. The tiny plot in contention is an area where he cut down trees behind the house to make a pasture for his horses. Eventually, he noticed water started collecting in the pasture. He started dumping rubble at the edge of the collecting water but never filled it. “That’s when my troubles began,” says Headd. The Michigan Department of Environmental Quality charged Headd with purposely destroying a wetland. As far as Reverend Headd is concerned, “The state has perpetrated fraud against me and my family. We have not been prosecuted – we’ve been persecuted.” In February 1998, Headd was found to be criminally guilty of filling in a wetland. He could get a year in jail, be ordered to pay thousands of dollars in fines and be forced to pay for restoring the wetland. Legal experts were surprised by the criminal sanction. Says David Favre, an environmental law instructor at Michigan State University, “Penalties like this aren’t common. Filling wetlands isn’t like drunk driving.” Headd plans to hire a lawyer to appeal the conviction. He represented himself originally because he never thought he would lose. “You can’t go to jail for a wetland that was never there.”
Source: Jeremy Pearce, “Land Owner’s Conviction Puts Focus on State’s Fight to Preserve Wetlands,” The Detroit News, February 5, 1998
82-Year-Old Retiree Loses 50-Acre Property To Wetlands RegulationsMilo Folley purchased a 50-acre parcel of property in Pennellsville, New York 44 years ago as a retirement investment. The plan was to construct homes on the wooded ridges and sell them. But since then the land has been declared a wetland. Now, at age 82, the retired architect is stuck with a piece of property that is of no economic value to him but on which he must still pay taxes. Says Folley, “If the government feels that my land is important, then buy it. I have invested my savings and the efforts of my retirement. I will expect to be paid the cost of the purchase, the loss of expected income and the cost of expenditures for taxes paid including the loss of investment income.”
Source: Carol LaGrasse, “The Property Owner’s Experience”
Turf Fight Between Two Federal Agencies Deprives California Farmer Use of PropertyDave Pechan, a farmer near Linden, California, wanted to convert 40 acres of his land into a vineyard. In accordance with the law, Pechan asked the United States Soil and Conservation Service (USCS) to evaluate his property for possible wetlands. The USCS is one of the federal agencies charged with enforcing wetlands regulations. After inspecting Pechan’s land on two occasions, the USCS determined that only a 0.3 acre swale could be considered a wetland. He was instructed to go ahead with his vineyard plans as long as he plowed around the tiny wetland. That seemed to settle the matter until one week later, when Pechan saw representatives from the Army Corps of Engineers and United States Fish and Wildlife Service on his property taking pictures. They told Pechan that he may be violating the law by farming in wetlands. When Pechan produced documentation from the USCS showing that he was in compliance with regulations, the agents rudely rejected the claim. It seems that the Corps of Engineers and USCS are locked in a bureaucratic turf fight over which agency should have the lead role in enforcing wetland law. In 1994, the Corps of Engineers signed a Memorandum of Agreement that ostensibly recognized the USCS as the lead federal agency. However, the Corps of Engineers reneged on the agreement because they refuse to give up any power over wetland enforcement. The end result is that Dave Pechan is snared in the middle of a bureaucratic turf fight. The Corps has told him that regardless of what the USCS has determined, he will be subjected to civil and criminal penalties if he continues to work his land. He is now in limbo while the Corps conducts its own wetlands evaluation of his property.
Source: Pacific Legal Foundation
Wetlands Designation Costs Construction Worker $38,000In 1994, Nick Chiusolo of Park Ridge, Illinois decided he wanted to sell a plot of property he owned in the community. His most recent tax assessments showed the property was worth $40,000. However, the Lake County Assessor told Chiusolo that the Army Corps of Engineers claimed the lot was a wetland. As a result, the property was worth no more than $2,000. Chiusolo was astounded. When he bought the parcel in the mid-1970s, nobody told him it was a wetland. Furthermore, he couldn’t understand how the property, which measured 100 feet long and 275 feet deep, could possibly be a wetland. Surrounded by homes on virtually identical land, Chiusolo’s property simply had a few trees and grass, nothing that could distinguish it as a wetland. Chiusolo contacted the local authorities to get help. Chiusolo says he never got a straight answer from anyone as to why his property was deemed a wetland. Officials claimed at one point that he knew it was a wetland when he bought the property. Chiusolo says this is untrue. He is currently talking to his state and federal representatives in an effort to get the ruling reversed.
Source: National Center for Public Policy Research
Controversial Enforcement of Wetlands Law Poses Threat to Public Safety in Los AngelesFor three years, the Los Angeles County Department of Public Works has been unable to perform vital maintenance work on its flood control system because the Army Corps of Engineers claims that this work could violate wetland regulations. The county operates one of the most complex flood control systems in the world. To prevent the choking of flood control channels, it is vital that the county be able to clean debris from catch basins and clear vegetation and other obstructions. Without such maintenance, the county can not ensure its ability to withstand a major flood – especially in an El Nino year. However, the Corps will not issue the necessary permits because of the possibility that some of the debris or dirt that would be taken out could fall back into a piece of wetland. A federal judge recently rejected this “fallback” rule, saying it represented a serious case of regulatory overreach by the agencies. The actual law was intended to prevent people or businesses from purposely dumping dirt into wetlands. It did not cover dirt removed from a wetland which accidentally fell back. However, the case is still working its way through the courts. In the meantime, Los Angeles County officials cannot perform their vital maintenance work and can only hope a major flood threatening life and property doesn’t occur.
Source: Pacific Legal Foundation
Kansas Farm Ruined By U.S. Soil and Conservation ServiceIn 1988, Kansas farmer David Worth purchased 320 acres of land. At the time, the United States Soil and Conservation Service (USCS) determined that there were nine relatively small wetlands on the property which could not be farmed. In 1993, a severe flood washed away the alfalfa crop which Worth used as a covering crop to protect his land against erosion. The next year Worth needed to replant a new covering crop, so he asked the USCS to come to his property and tell him where the wetlands were located (It was hard to remember the location of the wetlands on such a large tract of land). However, the USCS initially refused the request. When they finally came out in October to flag the wetlands, Worth had already lost a whole growing season at a cost of $25,000. Even worse, though, was that the USCS increased the number of wetlands it believed was on the property to 19, for a total of 25 scattered across the land. Worth was angered that the wetlands were not only growing in number but were also changing location. Even more ridiculous, only three or four of the original nine matched up with the 19. He filed an appeal on the USCS’s new determination. In the meantime, Worth had to knock over the flags indicating the location of the wetlands as part of the normal process of maintaining the land, a practice which doesn’t violate wetland regulations. In the spring of 1995, he once more sought to plant a covering crop and needed the USCS to come back out and reflag the wetlands. Again, it was difficult to remember the precise location of the wetlands. The USCS district manager told Worth they wouldn’t reflag the land until he dropped his appeal over their wetland ruling. Not interested in responding to this blackmail, Worth got the United States Department of Agriculture to order the USCS to do the markings. Again, it wasn’t until October 1995 that the Service marked the land, costing Worth another growing season. Incredibly, when they remarked Worth’s land, the number of wetlands had increased to 26. And once again, they had changed location. Worth continued to appeal the USCS’s questionable wetlands designations. Then, in April 1996, a severe storm blew away a foot and a half of the topsoil, virtually ruining the land for farming. This was directly due to the USCS preventing Worth from planting covering crops for two consecutive years. Worth has been trying to sell the land ever since but has few takers due to the wetlands designations. Ironically, in 1997 the USCS cited Worth’s rutted farm as an example of what bad farming does to the land. Worth estimates that the dispute has cost him approximately $300,000.
Source: National Center for Public Policy Research
Veteran Finds Himself Fighting Domestic Threat to Freedom on His Own PropertyIn 1980, James Fritch purchased approximately 50 acres of lake property in Michigan. Shortly thereafter, Fritch contacted the Michigan Department of Natural Resources (DNR) to determine whether he should build a bridge or a culvert to access the property. The agency did not respond. Fritch decided to build a bridge rather than filling up a portion of the river for a culvert. His rationale was that the bridge would disturb less land than a culvert. Unfortunately, the bridge was not built to DNR standards, so Fritch was taken to court. He was fined.
After putting a road on the property to reach the lake front, Fritch settled in and lived undisturbed on the land for about five years. About this time, he began to sell off parcels of the land, all with the appropriate permits.
A short time later, an employee from the DNR visited Fritch and explained to him that until he removed the driveway that he had built from the road to his home, he would not be given any more permits to sell parcels. The official said the area could be considered a wetland. In addition to having to spend thousands of dollars to get rid of his road, he lost the use of nearly all of his property.
“Being an ex-serviceman from the Korean War, I couldn’t believe this. I went to service to save some other country from having their land confiscated only to come home and find my own government taking my land,” said Fritch.
To make matters worse, because Fritch relied on this property to fund his retirement, he has virtually no means of generating income.
Source: National Center for Public Policy Research
Mud Puddle On Man’s Property Earns Wetland Designation and Slashes ValueBill Roberts owns a four-acre property in Happy Valley, Oregon just outside of Portland. In 1997, city officials hired a wetlands expert to drive around town examining mud puddles to determine which ones could be officially designated as wetlands. Unknown to Roberts, the expert found a promising mud puddle on his property and summoned additional experts to take samples of dirt for analysis. They determined that Roberts’s mud puddle was indeed a wetland and informed Happy Valley City Hall. Roberts had no idea what was going on until he decided to sell the property when his health prevented him from maintaining the land. A potential buyer told him he would offer far less than the market price because the property was a wetland. Roberts is angry at the city because someone not only trespassed on his property but never bothered to inform him of the status of his land. What he finds most galling, however, is that the so-called wetland was actually the city’s fault. The mud puddle, it seems, is formed during the rainy season because a culvert next to a nearby public road gets filled with garbage and the city fails to clean it up. Roberts contacted one of the experts who examined the puddle and asked him to come back for a second opinion. The expert replied that he wasn’t in fact sure if it was a wetland but if Roberts would pay him $2,500 he would do another study.
Source: Oregonians In Action
When We Said to Build – Just KiddingJohn Mauk of Redmond, Washington calls his experience with King County government “the worst case of botched-up bureaucracy” he has ever seen.
In 1990, Mauk and his wife purchased five acres to build a home. The land was zoned for single-family dwellings. Because the land had two streams running through it, the Mauks paid $1,700 for a geological survey to find the best place on the land to build the house so as to not disturb the streams.
Two years later, Mauk decided to clear some blackberry brambles and dead alder trees in preparation for building their home. That’s when his troubles began.
Unaware that he needed to get a permit to clear weeds from his own land, Mauk was cited by the King County Department of Development and Environmental Services (DDES) for a grading violation, and a lien was placed on his property.
In order to clear the lien, the Mauks were told they would have to restore the land and plant 40 tree saplings. They did so, but the DDES refused to lift the lien. Based on a report written by a county biologist, the Mauks’ land was then declared a wetland.
The Mauks were being fined daily until King County Administrator Gary Locke intervened, ordering the fining to stop, and the DDES to lift the lien. But DDES still refused.
The Mauks do not know yet what they are going to do with the land, the taxes on which have gone up. Mauk says, “It is absolute and total incompetence. . . They approve everything then they change the rules.”
Source: Citizens for Property Rights
Water-Related Regulation
Michigan Man Held Responsible for Beaver DamsIn December 1997, the Michigan Department of Environmental Quality (DEQ) threatened sanctions against a land owner for building dams without a permit. David Price, District Representative of the DEQ’s Land and Water Management Division wrote in a letter to Stephen Tvedten that “The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris and flooding at downstream locations.” Price went on to say that “We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all unauthorized activities at this location and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the strewn channel.” Tvedten would have been only too happy to oblige the DEQ. The only problem is that he had nothing to do with the dams. Had DEQ officials bothered to check, they would have realized that the dams were constructed by beavers, not Tvedten. Apparently, the construction materials – wood debris and brush – didn’t tip off these “experts.”
Source: Stephen Tvedten
Clean Water Act Costs Poor Montana Town 400 Jobs and Hurts Endangered TroutLibby, Montana seems to be the favorite whipping child of federal environmental regulators. The town has lost 1,800 jobs due to efforts to increase the local Grizzly Bear population and the once-budding tourism industry has dried up because the federal government releases too much water from the reservoir. As if that was not enough, the Clean Water Act robbed the community of 400 much-needed mining jobs. In the early 1990s, a large vein of world-class silver and lead was discovered in the area. A mining company came in to do exploratory work with the intent to create a fully-operational mine employing 400 people. The exploration work alone provided jobs to 75 Libby families. Then, trouble appeared in the form of the Clean Water Act. Determined to rigorously apply the federal law, the state of Montana ordered the mine to shut down its operation because they discovered tiny amounts of nitrate in the stream running by the mine. The nitrate came from explosives used in the mine. However, the shutdown was totally unnecessary because the nitrate level did not harm wildlife. The nitrate count was only seven parts per million. Federal law considers 40 parts per million safe for drinking water. Furthermore, a fish biologist with the United States Forest Service (USFS) wrote the state telling it that the nitrate level not only did not pose a threat to fish, but that it was actually beneficial. Nitrate in the right amounts stimulates fish growth by encouraging the production of algae, a critical part of the food chain. The USFS biologist noted that the stream has a declining population of Bull Trout and an increase in the nitrate level would help the trout population recover. The state ignored this advice even though the Bull Trout is a federally-protected species. The mining company has since moved to Venezuela.
Source: Bruce Vincent
New York Couple Threatened With Jail Over Leaky Septic TankOn January 7, 1997, Kent and Glenda Duell of Minerva, New York were sentenced to six-month jail terms and ordered to pay $340,000 in fines for “intending to pollute” a stream after their septic tank leaked. The Duells were owners of a six-unit apartment house which they rented to low-income families. Over a period of nine years, the Duells performed repair work at least 30 times to fix leaks in the septic tank system, a system that had been designed and approved by the Department of Housing and Urban Development. On one occasion, Kent Duell personally installed a new septic tank. Nevertheless, the couple was hauled into court on two occasions over charges of willful pollution. In both cases, the Duells were acquitted after it was determined that there was no negligence on their part, given they had even sought the assistance of the local environmental agencies in addressing any pollution problems. However in 1996, at the request of the New York State Department of Environmental Conservation, the county District Attorney (DA) brought yet more charges against the couple. He charged the Duells with 164 counts of polluting or intending to pollute a stream abutting their property. The DA alleged that raw sewage from the septic tank had frequently been discharged on purpose into the stream. In blatant disregard of the Duells’ right to due process, their attorney, Ben Conlon, was not allowed to see the official list of charges so he could prepare a defense. Conlon was also not allowed the right of discovery to examine the evidence against his clients. During the trial, neither the judge nor the prosecutor could determine what laws the Duells had broken. Nevertheless, a jury issued its verdicts and the couple was sentenced to six-month jail terms. During the sentencing, a tearful Glenda Duell requested that she serve her jail term first so her husband could keep his job and health insurance for another six months. The Duells have two young children. An appellate court granted the Duells a stay pending their appeal. To pay the legal bills, the Duells sold their apartment complex and have had to sell their house to cover the $100,000 bail.
Source: Liberty Matters
Federal Government Refuses to Compensate Farmer for Flooding it CausedNorth Carolina farmer Roy James has lost 40% of the productivity of his land because of the United States Fish and Wildlife Service (USFWS). A drainage problem in the Pocosin Lakes National Wildlife Refuge bordering James’s farm causes severe flooding every year. In addition to losing the full use of his farm, James suffers further losses from erosion and the cost of having the water pumped off the land. Although the USFWS admits to causing the flooding, they refuse to do anything about the problem.
James offered to exchange land with USFWS, but USFWS declined because the land “does not have significant enough wildlife values to be advantageous.” After two years of flooding, he got the United States Soil and Conservation Service to draw up specifications for a dike to protect his property. He then built the dike using fill from the refuge land. Ironically, USFWS immediately sued James for physically invading its property. To avoid costly litigation, James was forced to compensate the federal government but has yet to receive a dime from the government for its destruction of his property.
Source: Defenders of Property Rights
A River Runs Through Pennsylvania Landowners’ RightsKenneth and Patricia Mann own a 5.2-acre parcel in Forks Township, Pennsylvania. The Manns live in a two-story house, but Mrs. Mann’s back problems necessitated a move to a single-story house. Accordingly, the Manns sought township approval to subdivide the property to allow them to build the single-story home.
The township, however, conditioned approval on the granting of a stream easement running down the middle of the Manns’ property. This easement would reduce the value of the property by at least $600,000 because it would prevent any further development on the site. The “stream” which the township claims it needs to protect is barely a swell or depression in the ground with no regular water flow. Furthermore, the township never proved that the Manns’ building proposal would adversely affect the swell in any way. Kenneth Mann believes the real reason for the easement requirement is that the township wants to acquire part of their property for a highway without having to pay for it.
The Manns challenged the stream easement exaction in the Northampton County Court of Common Pleas, but the court dismissed the case. Currently, the Manns are waiting to see if the Pennsylvania Supreme Court will review their case.
Source: Defenders of Property Rights
New Classification Takes 70% of LandEino Gronberg grew up on the six acres of land along Washington state’s East Hoquiam river that his mother and father cleared by hand. He and his wife, Bertha, were married for over 50 years. Together they gradually purchased several hundred acres of land. Every now and then they logged a few acres to pay the bills. Eino, following the advice of his father to “leave the land in better condition than when you acquired it,” always planted three trees for every one he cut down.
Eino and Bertha had five children, whom they put through college. In 1994, the couple applied for permission to harvest some of their trees to help with their grandchildren’s college expenses as well as to supplement their own retirement fund.
As part of the petition process, the Gronbergs were required to arrange “show and tell” for eight different government agencies and environmental organizations, including the state Department of Ecology and Natural Resources and environmentalists from Seattle.
During the petition process, however, the Gronberg’s land was reclassified, downgraded from a “1 classification” to a “1+ classification.” The original classification, which prevented them from harvesting trees within 100 feet of the river, was not a problem because the Gronbergs would never have logged there. However, the new classification prohibited logging within 200 feet of either the river or one of the four sloughs that run into the river. That meant the couple could not harvest 70% of their own trees.
Eino conservatively estimated that he and Bertha lost $200,000 as a result of the reclassification. Eino died in 1997. Bertha says that the years spent fighting the regulators hastened his death. “We’ve lived a good life but we still feel as if we’ve been ripped off. It isn’t even the money, it’s the idea of government going too far. It’s time someone started to fight back,” concluded Bertha.
Source: Citizens for Property Rights
New Mexico Man Spends $350,000 to Fight Federal VendettaDick Manning owns the Challenge Mining Company in Catron County, New Mexico. However, he has not been able to earn an income from it for five years because of federal and state regulators. As part of his business operation, Manning runs a mill that refines silver. After opening the mill in 1976 on private land, federal regulators asked him to move it to a different location on federally-owned land because of concerns over effects on nearby water. At great expense, Manning moved his mill to the new location and everything seemed to be fine. The United States Forest Service (USFS) repeatedly cited Manning’s mill as an example of how to operate a business in an environmentally-sound manner. This good relationship with the USFS turned sour in 1989 when Catron County officials asked Manning for assistance in preventing the USFS from forcing a saw mill to shut down. The county, which only has 2,500 people, is dependent on a handful of businesses and faced bankruptcy if the mill was closed. Manning publicly challenged the USFS on this issue. After that, says Manning, “I became a marked man.” He says his nightmare began in October 1993 when the USFS and state environmental regulators broke into his silver refining mill and alleged that he didn’t have proper operating and reclamation plans. In fact, he had had all the proper plans in place since he started the mill in the 1970s. Through a Freedom of Information Act request, Manning later found out that the Forest Service had illegally given written permission to the state to go on his property without his consent. Since 1993, Forest Service and state environmental officials have conducted 21 on-site inspections alleging all kinds of violations from soil contamination to having too much of a naturally-occurring substance in a pond. Not one of these inspections indicated that Manning had violated any regulation. Nonetheless, he is unable to operate his mill. On top of that, Manning has spent $350,000 in legal fees fighting the USFS’s violation of his property rights. In this legal fight, the federal government maintains that privately-owned businesses on federal land do not have basic constitutional protections. He is currently waiting for the Tenth Circuit Court of Appeals to hear his case.
Source: National Center for Public Policy Research
Town of Ogden Dunes Endangered by Army Corps of EngineersIn 1995, the residents of Ogden Dunes, Indiana had reason to worry. The Lake Michigan beachfront of many residents’ houses was receding, and the water was approaching several of the homes.
After a storm washed away what was left of the beach in front of one man’s house, the waves lapped up against the $30,000 steel wall he had built in an attempt to save his property. Another resident had to build a set of stairs from his house down to the beach. Two weeks after he built it, the bottom step was five feet above the sand. Commenting on his neighbors’ plight, one resident says that “the spray from the waves is so close and so high to lakefront residences that they have ice an inch think on their windows.”
Who or what is responsible for the erosion of the beach in Ogden Dunes? The United States Army Corps of Engineers. It turns out that a series of breakwalls, constructed by the Corps at the mouth of a nearby waterway, block the normal east to west flow of sand which in turn causes the erosion of Ogden Dunes’ beaches.
“If this had been done by a private corporation, we wouldn’t be here today,” said attorney John O’Connel, who was brought in to advise the town on legal action. “The government doesn’t make it easy to sue them. . . But we will.”
Source: Joyce Russell, “Residents Prepared to File Lawsuit,” The Times (Ogden Dunes, Indiana) November 13, 1995
County Tries to Seize Dairy Farmer’s PropertyIn 1990, Philip Marble bought a 16-acre dairy farm in Whatcom County, Washington for a nursery. Six months later, the area was hit with a devastating flood.
The next year, a local construction firm needed a place to get rid of some soil and approached Marble with the idea of depositing the soil on Marble’s land which would help in the reclamation of his property. To Marble, the proposal seemed ideal. He cleared the plan with the Soil Conservation Department, and the construction company received a permit to proceed from the county engineer’s office.
Soon after Marble started the reclamation of his farm in 1993, the county issued a stop-work order. The county claimed Marble was filling a floodway, and demanded that he build a flood channel seven feet deep, 200 feet wide, and 1,200 feet long.
The construction of such a channel would have required Marble to cede one-third of his property and would have rendered the land useless in terms of generating income.
To fight the county, Marble commissioned an engineering study which definitively showed that a floodway had never existed on the land. Whenever the county threatened Marble with criminal action, he insisted they show him the code violations that justified the threats of prosecution. The county never responded.
Eventually, Marble filed a suit against the county for violation of his Fifth Amendment property rights. The county has since given up its persecution of Marble but refuses to admit it did anything wrong. Marble says he thinks what is going on is that the county has a deliberate policy of “using stop work orders [to acquire] private property without having to pay for it.”
Source: Citizens for Property Rights
Widow Deprived of PropertyIn 1972, Bernadine Suitum and her husband purchased a lot in Washoe County, Nevada. In 1987, Mrs. Suitum, by then widowed, applied to the Tahoe Regional Planning Agency for permission to construct a house on the lot. The agency rejected her application on the grounds that the property was within a Stream Environment Zone (SEZ). A SEZ is an area that carries run-off into watersheds. To compensate Suitum, the agency allocated her Transfer Development Rights (TDRs). Theoretically, Suitum could sell these TDRs to other property owners in the area who wanted to build on their land. The problem is that nobody wanted to buy TDRs. The rules governing their use were so restrictive and complex that the vast majority of property owners could not use them. Suitum filed a lawsuit in federal court charging that the regional agency had effectively deprived her of the use of her property without just compensation. There was no question that the TDRs would only compensate Suitum for a fraction of her economic loss – if at all. However, the agency argued that TDRs nonetheless represented compensation. In the opening round to her long legal fight, a federal district court ruled that Suitum couldn’t claim an unconstitutional taking because she refused to make use of her TDRs. Calling TDRs a “sham,” Suitum took her case to the United States Supreme Court which ruled that the District Court had to disregard the worthless TDRs and consider her takings claim on its merits. Suitum is currently waiting for the court to rehear her case.
Source: Pacific Legal Foundation
Small Oil Producers Driven Out of Business By Unnecessary RegulationsIn the last 15 years, thousands of small oil producers in southwestern New York have gone out of business due to overregulation by the state. Allegheny City Councilman Thomas Allen, whose family has operated oil wells in the area for more than 100 years, says the state Department of Environmental Conservation (DEC) avoids taking responsibility for the demise of independent producers by blaming low market prices. However, Allen says, “The industry has weathered low price cycles since its infancy” but always survived. The difference this time is a barrage of regulations that impose onerous burdens on strapped well owners. For example, the state makes it so expensive to start a new well through special bonds and permits that drilling new wells is no longer feasible. In addition, producers have to adhere to costly regulations that are completely unnecessary. The DEC requires producers to use expensive pipe to handle high pressure when the pressure in New York’s oil fields is low. Also onerous is the requirement that producers store all the water that comes up with the oil in storage tanks instead of being able to dispose of it. The cost of storing and hauling the water to a special site is too high for small producers. The state is also very strict about requiring producers to permanently plug inactive wells, which is yet another costly procedure. Ironically, the state owns 70 abandoned oil wells in Allegheny State Park but has never bothered to have them plugged.
Source: Carol LaGrasse, “The Property Owner’s Experience”
Clean Air Act
Blue Grass Growers Destroyed by Environmental RegulatorsThis year, hundreds of Blue Grass growers in Washington state are being run out of business over misplaced concerns that they are harming the environment. Every year, Blue Grass growers outside of the city of Spokane would burn their fields because burning served to invigorate seed growth. As the city grew, many people began moving into the area. These new residents objected to the smoke created by the Blue Grass fires. In response, the state and the Environmental Protection Agency (EPA) began imposing strict regulations on how growers could burn their fields. The rules got so stringent that growers had only a one- to two-week window of opportunity each year to burn. Still, that was not enough to satisfy federal regulators. Then, the EPA and the American Lung Association filed several lawsuits which prompted the state to ban all burning after 1998. As a result, Blue Grass growers who have operated for decades are either going out of business or switching to different lines of work. There are numerous ironies to this situation. To begin with, the United States Soil and Conservation Service widely praised Blue Grass growing when it started 50 years ago because burning served to replenish the rich but thin topsoil one inch every decade. In contrast, other responsible farming methods replenish one inch of topsoil every century. However, the most bitter irony of all is that the United States Department of the Interior has just announced a new policy of deliberately burning a million acres of trees in the same region as part of a land management program designed to avoid serious forest fires. The growers wonder how their burning no more than 40,000 acres of fields per year posed a cancer risk yet the federal government says its okay to burn a million acres of trees.
Source: National Center For Public Policy Research
Doing the Right Thing Cost Coors $2 MillionIn 1993, company officials at the Coors Brewing Company discovered that fumes from spilled beer were more potent and more harmful than originally believed.
Although Coors could have pretended nothing had happened, they instead tried to get to the bottom of the problem. They spent $1.5 million on an 18-month environmental audit, which they turned over to the Colorado Department of Public Health and Environment.
The department thanked Coors for finding and correcting the problem and then fined the company $1.05 million for violating emissions standards under the Clean Air Act. Fining a company for trying to do the right thing is apparently the government’s idea of promoting responsible stewardship of the environment. Even more galling is that Coors had been in full compliance with the law until its own researchers discovered that the governmental estimates on beer fumes were wrong.
So, in the end, Coors paid $2.55 million for doing a good deed. $1.5 million for doing the deed – and $1.05 million in fines for it.
Source: The Washington Times, March 18, 1997
Houston, We Have a ProblemWes Houston is the Safety and Hazard Control Manager for Johnson Machine Works in Iowa. Houston has experienced first hand the nightmare of Environmental Protection Agency (EPA) regulations.
He estimates that in 1995 alone, Johnson Machine Works spent almost $30,000 trying to comply with EPA regulations. “I find it hard to believe there are people that can actually think up some of these regulations,” said Houston. Specifically, he has had trouble complying with the Clean Air Act.
“The Clean Air Act is the most bizarre thing I have ever tried to understand. EPA, I think, is having a great deal of difficulty understanding it themselves,” Houston added. In determining potential emissions for a company, the Iowa Department of Natural Resources (DNR) explained at a seminar that if the business owned a spray paint gun, then the business was to assume that they would use the paint gun 24 hours per day, seven days a week, 365 days a year. Houston said that when one employer objected that it is physically impossible to continually operate a paint gun for a whole year, the DNR representative agreed that it makes no sense but the regulation had to be followed.
In another instance, Johnson Machine Works had to file an enormous amount of paperwork just to say they would restrict operations on Sunday – which they did anyway. “The amount of paperwork and figuring which the environmental engineer had to do for us to get to that point to say we will not do something that we are not doing anyway was ridiculous. It just makes no sense whatsoever,” Houston said. “Regulations seem to be written in such a way that common sense is removed from the process.”
Source: Testimony of Wes Houston before the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, U.S. House of Representatives Committee on Government Reform and Oversight, February 9, 1996
Zoning Ordinances
Elderly Couple Bankrupted by City Zoning LawsIn 1985, Harold and Iris Stone decided to sell the auto repair business they had operated in Lynn, Massachusetts for 40 years. They intended to use the money earned from the sale of the property to pay off their mortgage and enjoy retirement. However, city regulators have made this seemingly simple plan a 13-year-long nightmare that has yet to end for the couple. Lynn officials wanted to turn the area into a development for condominiums. That was all well and good except they coerced the Stones into selling to a favored developer for $400,000, which was well below the property’s actual value of $725,000. Lynn city planners were so determined to pressure the Stones into an unfavorable sale that they resorted to using what the local press called “an illegal zoning ordinance” to scare off potential buyers who offered a higher price. The Stones used all of the $400,000 to pay off their mortgage and business accounts. The developer was supposed to pay the Stones an additional $325,000, but went bankrupt soon after the purchase – leaving the couple nothing for retirement. In 1989, the Stones decided to repurchase their property. A real estate boom was in progress and they hoped to resell the land for a significant profit. They took out a $500,000 loan to buy back their property. Again, the city would not let them resell. City planner Kevin Geaney cut off water to the Stones’ buildings and closed off the curb cuts to make it inaccessible. Despite these unscrupulous tactics, a car dealer offered the Stones $920,000. This would have been enough for them to pay off the bank loan and still have plenty for a comfortable retirement. The City Council refused to permit the sale and the bank foreclosed on the property in March 1992. Although a jury awarded the Stones $720,000 for an illegal taking of their property, a state appeals court overturned the decision. In April 1998, the couple went bankrupt and will soon lose their home of 38 years. Iris says, “We are just decent, hard-working people who wanted to enjoy our retirement.”
Source: National Center for Public Policy Research
Resort Hotel Scuttled By State RegulatorsIn 1989, Guiness Enterprise announced its intention to build the $200 million Gleneagles resort in the town of Lake Placid, New York. The resort would have been a major economic boom to the area, creating 500 jobs and bringing in significant new tourist income. But the state of New York subverted the project before it ever got started. The Adirondack Park Agency (APA), a state regional planning authority charged with regulating six million acres of private and public land in upstate New York, required the company to go through a multi-year process just to get permission to build the resort. The area of Lake Placid where the hotel was to have been built was zoned for commercial purposes and the APA ostensibly wanted to encourage tourism. Yet, the APA forced Guiness Enterprise to spend three years and $30 million just to get permission to build. When Guiness finally submitted its 2,000-page application, the APA responded with a 64-page request for more information. The APA made unreasonable demands such as requiring a written plan for removing horse manure from equestrian paths, an analysis of the economic impact of the resort’s gift shop on downtown Lake Placid stores, a plan for handling grass clippings, etc. In 1992, the company announced it was canceling the project, citing the long and costly permit process.
Source: Carol LaGrasse, “The Property Owner’s Experience”
Zoning Flipflops Cost Property Owner More Than $11,000In 1965, Phil Kensinger purchased a lot in a subdivision in Harris County, Texas. He had purchased the land as an investment and leased the house on the lot for several years.
In the early 1980s, the owners in the subdivision signed a petition that would prevent the land from being restricted solely to single-family dwellings.
In 1986, the city of Houston improved Rice Avenue, one of the roads serving Kensinger’s lot. The city widened the street and installed curbs and gutters. The lots in the neighborhood were not assessed for the street improvement as the city council believed the lots were single-family dwelling lots that did not commercially benefit from the improvement. However, they did assess Kensinger $3,212 for the improvements affecting his lot because the property was considered the premier commercial lot in the area – even though the lot was still used for a house.
To make matters worse, a few years later, another street that bordered Kensinger’s lot was widened and curbed. This time, Kensinger was assessed $8,008. Then, a few months later, he was informed by the City of Houston that the property had now been zoned as residential. Although Houston technically does not have zoning, the city creates special districts where it can implement zoning laws.
“After paying street assessments twice for a commercial lot, I am now being told my property is going to be a single family residence property. What a great location for a home,” noted Kensinger sarcastically.
Source: National Center for Public Policy Research
Fear of Government Makes Man Give Up His LandUpon finishing school, Ken Bougard got a job and started a family. Ken’s sister gave him half of her land so that he would have a lot for his trailer.
Ken and his sister went to see an attorney to take care of deeding the land. They trusted the attorney to take whatever steps were necessary to divide the land appropriately.
Unfortunately, eight years later, Ken was accused of creating an illegal subdivision by the Adirondack Park Agency (APA) in upstate New York. The APA threatened Ken with fines of up to $500 per day and possible action by the Attorney General’s office. Needless to say, Ken was frightened. He was on land that he thought had been subdivided properly and yet he was being threatened with fines of $3,500 per week.
In a state of desperation and fear, Ken decided to move his family from their home of eight years and deed it back to his sister. Because the APA was so tyrannical, Ken did not even want to fight the agency; he merely wanted to get off the land and be relieved of any responsibility.
Source: Howard Aubin
California City Costs Retirees $40,000 of their SavingsPaul and Doreen Burchett are retired professionals. He spent 35 years teaching mechanical engineering at Pasadena City College while she taught health education. They asked the city of Newport Beach in 1990 for permission to tear down their 1941 home and replace it with two condos. The plan was to sell the rear condo unit while they would live in the front. Although city regulations did not permit new construction that would break the curb, city officials told the Burchetts they would make an exception in their case by grandfathering the ordinance. With what seemed like a go-ahead from the city, the Burchetts spent a year looking into the design and working out the plans. In 1991, they presented their construction proposal, which Newport Beach formally approved. Over the next year, the Burchetts hired an architect and a general contractor, and expended many hours getting the requisite permits and setting up the financing with the bank. By this time, the Burchetts had spent $40,000 of their savings. However, the city reneged on its previous agreement waiving the ban on breaking the curbs and rejected the Burchetts’ building permit. The Burchetts tried to arbitrate with the city. At one point, they appeared on TV before the city board members – all to no avail. One city official callously made the remark, “They won’t be around very long anyway,” a reference to the couple’s advanced years (Paul is 82). The Burchetts hired an attorney but made it known they were only interested in getting back the $40,000 they spent on the basis of the city’s initial approval of their building plans. Nevertheless, the city spent nearly a year fighting the Burchetts. To date, Newport Beach has spent more than $40,000 on attorney fees just to avoid giving the Burchetts their just compensation. Asked why the city is being so irrational, Paul Burchett says it’s a case of one bureaucrat making a stupid decision which all of his colleagues feel compelled to defend out of solidarity.
Source: National Center for Public Policy Research
City Targets Hog FarmerFor three generations, Earl Warren’s family has raised hogs in Chesapeake, Virginia. Now that same city is trying to use abusive ordinances to drive Earl Warren right out of business.
Over the years, residential development gradually closed down the other hog farms in Chesapeake, but the Warrens were able to adapt by downsizing their operation.
Then, in 1992, the city determined it wanted to drive Warren out of business for good by adopting a new swine-control ordinance. Although Warren made a good faith effort to comply, many of the ordinance’s mandates were so arbitrary that full compliance was impossible. The city has even openly stated that its goal in adopting the ordinance is to specifically close the Warren farm.
If Warren does not fully comply he faces being shut down as a “public nuisance.” This, however, is in direct violation of the United States Supreme Court’s ruling in Lucas v. South Carolina Coastal Council, which essentially says that a government entity cannot pass a law that shuts down a legally-operated business.
Source: Defenders of Property Rights
Poster Child Turned CriminalAt one time, Jack Yetiv was a poster child for what the city of Houston calls “responsible renovation.” He was an upstanding property owner who renovated dangerous buildings to create quality low-income housing for disadvantaged people, especially minorities.
Yetiv owned two low-income apartment complexes in Houston. He had purchased dilapidated units, renovated them, and given disadvantaged people an opportunity to live in low-cost, quality housing. Yetiv was in good standing with the City of Houston until he purchased a third complex called Spring Branch.
Soon after purchasing the property in late 1993, Yetiv ran into numerous problems in simply getting permits to make the necessary repairs. Initially, the building inspector told Yetiv that the property had to be inspected before the permits could be issued. Then, one month later, the inspector told Yetiv he first had to put up a $2,200 bond before the inspection could be conducted. However – in a classic catch-22 dilemma – Yetiv could not get the bond until he made a commitment to make the “necessary repairs” which could not be identified without an inspection.
“You can either assume that they are totally out to lunch, or else there was a deliberate reason they are playing games with me,” Yetiv said. Yetiv suspects the city was receiving complaints from neighbors and decided to try to get rid of the problem by refusing to give permits.
In the end, Yetiv finished renovating the apartments. However, the city is suing him for violating building code by renovating without a permit. Yetiv has filed a counter-suit for $2 million in actual and punitive damages caused by the delay of the renovation.
Source: Dr. Jack Yetiv
Property Owner Caught in Catch-22Norbert St. Pierre applied for a permit to build a home and to operate an electronics repair business from his basement on a lot that he owned in New York state. As he was building his home, St. Pierre decided to operate his electronics repair business out of a trailer on the property. He needed to do this to finance the construction of his home.
Over the next few months, St. Pierre built a road to the property. He dug the cellar, put in the foundation, and installed the septic system and the water well. When winter came, St. Pierre halted construction. Construction during the winter in the Adirondacks is not commonly done since the winter tends to be quite severe.
As the winter season began to change into spring, St. Pierre received a notice from the Adirondack Park Agency (APA) saying that he was in violation of the permit. The reason? He was operating a business from the property. The APA claimed that the permit was specifically issued for a home and a business and he could not operate just a business. St. Pierre had not completed the construction of his home prior to moving the business onto the property.
Fortunately, one of the commissioners that was charged with resolving the case was more reasonable. She wondered how the APA could expect St. Pierre to build his home if they were going to take away his means to earn money.
Source: Howard Aubin
Rob from the Poor to Give to Donald Trump“You may be required to move within 90 days after you receive this notice. If you remain in possession of the property after that time, New Jersey Casino Reinvestment Development Authority (CRDA) may be able to have you and your b elongings removed by the sheriff.”
Vera Coking, a resident of Atlantic City, New Jersey found this ominous notice tacked to her house of 36 years.
Donald Trump wanted her land, and the CRDA agreed to condemn the property and transfer it to the casino Trump was building. Coking’s former home will become a limousine parking lot for the new Trump Plaza.
The government is perpetrating this outrage by seizing the property through the process of “eminent domain,” which allows the government to condemn properties “for public use.” Eminent domain, however, was meant to allow the government to construct public works, like roads and harbors.
This use is clearly not public. The property will be used solely for the benefit of the Trump Plaza, and therefore, will bring only personal gain to Donald Trump and his business partners.
Source: Institute for Justice
[Editor’s note: On July 20, 1998, after this directory went to pess, a New Jersey court ruled in Vera Coking’s favor, saying that a state agency had no authority to to take Mrs. Coking’s land. The judge ruled that under eminent domain, land must be taken for a public purpose, a threshhold which was not met in this case. Donald Trump and CRDA were given 45 days to appeal the decision.]
Retiree Harassed By Town Zoning LawsSix years ago, Robert Altschuler retired to the village of Cortland Manor, New York. There he hoped to devote his time to his favorite hobby, working on his modest collection of automobiles. However, the village soon passed a nuisance code outlawing Altschuler’s right to park his vehicles at his house. The village took this action even though he made an effort to park his cars in a way they weren’t too visible. Additionally, his neighbors did not mind his cars. For five years, Altschuler had to pay rent to store the vehicles in other people’s buildings. In 1997, he applied for a building permit to add a garage for the autos. It took the town another year just to approve the addition. It seems that his request to build a relatively inexpensive pole barn separate from the house violated the local building code. He had to build a far more expensive garage attached to the house. To make matters worse, he was not allowed to do much of the construction he was capable of doing on his own because the town required that he hire only “licensed” experts. Altschuler is afraid that by the time the building is completed he will be too old to work on his cars.
Source: Citizens Against Repressive Zoning
Paraplegic Targeted by Local Bureaucrats for Operating Business Out of HomeRobert Cole is a paraplegic man who lives on a small parcel of land in upstate New York. Twenty years ago, Cole contacted the Adirondack Park Agency (APA) to get permission to sell cars from his lot to make extra income and hire someone to help him around the house. The APA said it had no jurisdiction, so Cole proceeded with his plan.
A few years later, someone bought the land that was adjacent to Cole’s property. Because the land had a sizable hill, the new owner had the top of it flattened so he could build a home. Upon his moving into his new house, however, he didn’t like having to look at the cars down below in Cole’s yard. Consequently, he complained to the APA.
The APA began to investigate Cole and decided that his small business was not an accessory use of his land but a commercial use. He did not have the acreage needed for a commercial use. After several months of harassing Cole, the APA, conscious of the political implications of targeting a disabled man, decided to drop the case.
Source: Howard Aubin
Regulatory Incompetence Subjects Man to Baseless LawsuitAlex Yanolavich, of upstate New York, purchased a parcel of land in 1972. Throughout the ’70s, Yanolavich replaced his septic system and made a number of additions to his home.
Seven years after completing this seemingly routine work, the enforcement staff with the Adirondack Park Agency (APA), which is charged with regulating development in upstate New York, approached Yanolavich and accused him of several code violations. These included expanding his home by more than 25% without getting a permit and placing a septic tank in a wetland. The only step they took though was to send him a “notice of apparent violation.” The APA decided not to pursue the case and dropped the matter. Yanolavich also assumed that was all there was to it.
A few years later, Yanolavich sold his home. The new owners were in the home for a short time before they too decided to move. Upon trying to sell the home, the new owners were notified by the bank that because there was an apparent violation on the property according to the APA, the bank refused to give a mortgage on the property.
Consequently, the owners filed a lawsuit against Yanolavich claiming fraud. After learning that a fraud lawsuit had been brought against Yanolavich, the APA decided to prosecute him as well. However, in 1992 the APA withdrew their case because Yanolavich’s attorney effectively argued against the seven alleged viollations. For example, the charge that Yanolavich placed a septic tank in a wetland was rejected because he was simply replacing a leaky septic tank that had been in the same location – an environmentally responsible action and clearly permitted by the APA’s own rules. Consequently, the fraud suit against Yanolavich was dropped as well.
“Both Alex and the individual that he sold the home to went through a large legal expense that was totally unnecessary,” said Howard Aubin, an advisor to Yanolavich.
Yanolavich spent 18 months defending himself against the baseless charges. He died a year after all of his legal troubles were over.
Source: Howard Aubin
Massachusetts Town Bankrupts Dairy FarmerIn 1981, Joe and Maria Hill filed a request with the Town of Dartmouth, Massachusetts to remove gravel from a small hill on their 1,100 acre land holding to help finance improvements in their dairy farm. After suffering a series of heart attacks, Hill wanted to purchase automatic milking machines that would make it physically easier on him to continue running his dairy operation. By selling gravel, Hill hoped to raise enough money to purchase the equipment. Since three dairy farmers within one mile of Hill’s proposed site had done the same thing, it seemed like a logical step. The Town of Dartmouth, however, denied their permit.
Since the Hills weren’t permitted to remove gravel, they decided in 1985 to sell some of their woodlands for residential lots. In early 1986, the Hills drew up plans for a subdivision containing one acre house lots. They filed their application at noon on the same day a town meeting was to take place that evening at 7 p.m., providing plenty of advance notice time for the council. But the council denied the Hills’ plan on the grounds that it should have been filed the day before the meeting was to take place.
Consequently, the Hills filed suit in Massachusetts Land Court over Dartmouth’s ruling. On April 6, 1989 the court ruled that the town was in error in denying the Hills their subdivision plan. The town appealed three times, allegedly using private money funneled into a special account. The town lost each appeal.
The legal fees incurred by the Hills during their struggle to preserve their property rights cost several hundred thousand dollars and drove them into bankruptcy. Thanks to the generosity of good friends, they were able to keep their home – but just barely. Joe Hill commented that the problem with Dartmouth is that they think they have a right to tell people how they should live.
Source: National Center for Public Policy Research
Family-Owned Restaurant Harassed by Town CouncilFor more than 20 years, Jim and Ruth Dove have operated a small restaurant in the town of Dayton, Virginia. As the restaurant was a popular eating establishment in the area, everything seemed to be going fine for the Doves until trouble appeared in the form of harassing zoning regulations that now threaten to bankrupt the couple. In 1991, the town council wanted to change the Doves’ zoning permit from a commercial to a residential classification. If the land was zoned residential, the Doves’ ability to run their restaurant would have been severely limited. The Doves fought back and hired a lawyer to fight the town in court. They won that round. However, in 1992, the town council struck back with a proposed historic ordinance that again would have severely hurt the Doves’ restaurant. The restaurant is on the edge of Dayton’s historic district. Once more, the Doves went to court and defeated the proposed ordinance. Unfortunately, the Doves continue to be harassed by local officials. They are even suing to hold the town accountable for its unethical behavior. But the price for the couple’s brave struggle is steep: Legal fees are threatening to cripple the family.
Source: Pat Callahan
Fordham University’s Towering RegulationsFor 15 years, Fordham University has been trying to build a new tower for its non-commercial radio station. But bureaucratic red tape has turned this seemingly simple project into a regulatory nightmare. The New York City Buildings Department granted Fordham the right to build the tower in 1983 because it represented a major function of its educational mission. In approving the tower, the city ruled that the latice-steel structure would not block light and air and thus did not have to be set back from the street.
Then, in 1994, the New York Botanical Garden (which is across the street from Fordham) decided that the tower was ugly and persuaded the Buildings Department to withdraw its approval. Now the city wants the university to move the location of the tower 25 feet to accommodate the Botanical Garden. This is no easy task as the tower is 260 feet in height and cost Fordham more than $1 million to construct. During the ensuing litigation, a state trial judge upheld the university’s right to build the tower, but agreed that it still had to be moved 25 feet. Construction has been delayed for four years while Fordham and the Garden try to resolve their differences through mediation. Joe Muriano, a lawyer with the university, commented that the whole dispute is really quite unnecessary. Separated by a six-lane road, the tower is hardly visible from the Garden. Nevertheless, Muriano says that Garden officials believe the fleeting image of the tower could somehow affect their ability to book wedding receptions.
Source: James DeLong, Property Matters
Occupational Safety and Health Administration
OSHA Exhausts WorkersIn 1995, Indiana had a particularly vicious heat wave throughout much of the state. Those particularly effected by the heat were workers on road construction sites who had to work long, grueling hours in the sun.
The Indiana Occupational Safety and Health Administration (IOSHA), however, made their job even harder. IOSHA told the companies that all employees were required to wear long pants due to the fact that they were dealing with hot tar. It got so bad that workers were falling over with heat exhaustion, and employers were sending workers home because it was the only safe thing to do.
Eventually, some of the workers (not the employers) called their Congressman, Rep. David MacIntosh, to try to get him to do something. They said they would much rather be working and earning money, and that they could do it in shorts. They said they knew how to stay away from the hot asphalt, and could get the job done if only they were not forced to wear long pants.
The Congressman contacted IOSHA, but no immediate response was given. Fortunately the heat wave broke, but what will happen next time it gets hot in Indiana?
Source: Rep. David McIntosh, Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, U.S. House of Representatives Committee on Government Reform and Oversight, February 9, 1996
What These Eyes Have SeenJames B. Meehan, owner of James B. Meehan Engineering Consulting, has seen a lot of stupid things in his lifetime. Most of them relate to the Occupational Safety and Health Administration (OSHA). He has dealt with OSHA for years in his business, assisting clients with industrial safety, OSHA compliance, OSHA citations, and abatement of citations.
One manufacturer Meehan helped was cited for not tagging a defective ladder which two employees had thrown out. The employees disposed of it in a garbage dumpster for construction debris but this wasn’t enough for OSHA inspectors. They insisted that the ladder had to be tagged and that disposal had not been specified as an alternative to tagging in the regulation.
“We have found the policies and the behavior of OSHA personnel to be abusive and activist with little regard for real hazards,” said Meehan in a letter to Congressman Greg Ganske. “Each and every cited employer should be reimbursed when OSHA has been proved wrong.”
Source: Letter from James Meehan to Congressman Greg Ganske
Hazardous Materials
Asbestos False AlarmIn 1995, Bill Stoyles wanted to expand his Mason City, Iowa graphics company, Stoyles Graphic Services, by 18,000 square feet. During the expansion, an inspector with the state Department of Natural Resources (DNR) visited the site, noted the presence of asbestos in the roof shingles, and ordered them removed at a cost of $2,000 to $3,000.
Stoyles called in a local roofer who found that, in fact, there was no asbestos in the shingles. Not satisfied with Stoyles’s results, the DNR ordered Stoyles to send a sample to Iowa State University for testing. The report confirmed Stoyles’s claim, but it wasn’t without cost.
Stoyles had to pay $500 for the report and delayed construction. He feels that the problem could have been handled at the local level, saving both time and money. “This was a case of. . . a very difficult solution to a very easy problem,” said an exasperated Stoyles.
Source: Letter from Bill Stoyles
Paid Informant Frames Small BusinessOn August 23, 1991, 18 Environmental Protection Agency (EPA) agents raided Higman Sand and Gravel with guns drawn. They burst into the secretary’s office, pointed a gun in her face, and yelled “don’t move!” After 53 years in business and a spotless record, the owners of the Akron, Iowa-based business were shocked.
What precipitated such action? A paid informant had alerted the EPA that Higman was illegally storing hazardous waste. After searching the premises, the EPA agents did find a small quantity of paint thinner dumped on the property. That was enough for the EPA to file charges and send the case to a federal court in Sioux City. But during the course of the trial, it was discovered that the EPA’s paid informant had planted the paint thinner on Higman Sand and Gravel property. Had the company been convicted on the charges, the informant stood to profit handsomely: He was promised $24,000 on top of the $2,000 he had already received for tipping off the EPA. Who says that the EPA doesn’t know how incentives work?
Source: Testimony of Harold Higman before the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, U.S. House of Representatives Committee on Government Reform and Oversight, February 9, 1996
EPA Sues Pennsylvania Restaurant Owner for Sending Garbage to Legally-Approved SiteBarbara Williams, part owner of the SunnyRay Restaurant in Gettysburg, Pennsylvania, is being sued by the Environmental Protection Agency (EPA) for $76,000 after she hauled garbage to a state-approved landfill.
As it turns out, that landfill was classified as a toxic site under the federal Superfund law. Even though Williams did not know her garbage was going to a Superfund site and was following the law as she then understood it, the EPA considers Williams just as liable for the clean-up costs as someone who intentionally polluted. Under Superfund law, the government does not have to prove that an individual knowingly polluted, only that they disposed of waste at that site. Furthermore, the law is retroactive so that someone could be liable for dumping waste at a location years before passage of the Superfund law.
Thus far, Williams has spent thousands of dollars on attorney’s fees to fight the lawsuit.
Source: Human Events, June 27, 1997
Iowa Pest Control Industry Wishes Government Would Bug OffThe Iowa pest control industry wishes the government would bug off. Unnecessary regulations regarding hazardous materials, originally intended for large interstate carriers, burden the industry significantly with unnecessary costs.
Although the chemicals being transported are identical or nearly identical to pest control products sold in home supply stores, their transport is heavily regulated when carried by pest controllers, requiring container marking, shipping papers, record retention, commercial drivers licenses, insurance, and training.
The Iowa Pest Control Association conservatively estimates the cost of these regulations to be about $135 million, close to 3% of the industry’s total revenue.
Source: Testimony of Edward Swanson before Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, U.S. House of Representatives Committee on Government Reform and Oversight, February 9, 1996
National Parks and Forests
Woman Wages Costly Legal War with Forest Service to Save Property RightsFor more than 50 years, the Stupak family rented cabins and boats to vacationers on Crooked Lake in Michigan’s remote upper peninsula – that is until the United States Forest Service (USFS) told the Stupaks they could no longer use the lake for boating. It seems that all but 40 of the lake’s 600 acres were made a part of the Sylvania Wilderness Area, which had been established by Congress in 1987. In 1990, USFS officials claimed that all boats, whether gas-powered or sailboats, would be prohibited to protect the wilderness area. Kathy Stupak-Thrall argued that the wilderness act violated property owners’ right to use the lake for recreational purposes. Michigan law has clearly stated for more than 170 years that every owner along a lake, including Stupak-Thrall and the USFS, has the right to use the entire lake. A tortuous legal fight ensued that still rages to this day. In the case involving the use of sailboats, a federal district judge ruled for the USFS. The Sixth Circuit split 7-7 on the validity of the ruling, thereby upholding the district judge’s decision. Stupak-Thrall even asked the United States Supreme Court to hear the case. It declined in the fall of 1996. However, another federal judge recently ruled that the USFS’s attempt to deny waterfront property owners access to the lake represented a clear violation of the Fifth Amendment. Stupak-Thrall has had to spend nearly $300,000 to fight what amounts to a government seizure of her property. Commenting on the USFS’s action, she says: “This is ridiculous. . . These people are civil servants. They are not tyrants. They work for us.” Another waterfront owner is Michael Gajewski. A retired Army major suffering from multiple sclerosis, Gajewski says that if the prohibitions are upheld, he and his wife will probably go bankrupt. “It will cost us 95 to 98 percent of our business,” he said.
Source: Mountain States Legal Foundation
Forest Service Places Higher Value on Wildlife Than Human LifeWhile hiking with his scout troop in the New Mexico wilderness, a 14-year-old boy became separated from his troop. As it turns out, the youth was attempting to run away from home. Upon discovering his absence, the troop alerted the authorities so that a helicopter could conduct a search.
A helicopter did locate the youth. Incredibly, however, the boy had to spend an extra day in the wilderness because the United States Forest Service (USFS) denied the helicopter the right to land and bring him to safety. USFS bureaucrats believed that regulations implementing the Wilderness Act precluded the helicopter from landing even if it was a rescue attempt. The next day, rescue personnel reached the boy on foot.
The USFS shows a markedly different attitude when it comes to saving protected species, however. Recently, in Idaho, ranch hands notified park rangers that a Gray Wolf had been injured inside the Frank Church River of No Return Wilderness area. A recovery biologist with the United States Fish and Wildlife Service determined that a helicopter would be needed to transport the wolf to safety. The USFS wasted no time in immediately granting the request.
Source: Testimony of Perry Pendley before the Subcommittee on Forest and Forest Health, U.S. House of Representatives Committee on Resources, April 15, 1997
Efforts to Save Two Lives Earns Indy Winner a FineThe United States Forest Service (USFS) threatened to fine three-time Indy 500 winner Bobby Unser $5,000 because, in saving his life and the life of a friend in a dangerous blizzard, he allegedly took his snowmobile through a federally-designated wilderness area. Unser’s ordeal began in December 1996 when he and a friend went snowmobiling in the Rio Grande National Forest, an area where snowmobiling is permitted. Without notice, a terrible blizzard moved in, and the two men quickly got lost in the 60- to 70-mile an hour winds. While the men were driving around in circles trying to escape, one of the snowmobiles broke down. Then, a few hours later, the second snowmobile broke down. With darkness approaching and the temperature falling, Unser and his friend knew they needed to find shelter. The two dug a snow cave where they slept for the night. The next day, the two managed to walk out of the woods and call for help. Both Unser and his friend had to be hospitalized for exposure. After leaving the hospital, USFS officials invited Unser to come to their office, ostensibly to offer assistance to him in finding one of the snowmobiles that was still missing. Incredibly, they instead served Unser a citation alleging that, in the course of his harrowing experience, he had taken his snowmobile into a wilderness area where such equipment is prohibited. Unser was told that, because he is a celebrity, the Sierra Club pressured the USFS to cite him if they thought he may have been in a restricted area. What Unser finds most galling is that not only was the USFS oblivious to the fact that he was lost and trying to save his life, they don’t even have evidence he entered the wilderness area. Unser’s snowmobile was never recovered, leaving no evidence where he was that night. He is currently fighting the fine in court. The government is so determined to prosecute Unser it has taken the highly unusual position of arguing it doesn’t matter if Unser had “criminal intent” when he allegedly entered the wilderness area.
Source: Subcommittee on Forest and Forest Health, U.S. House of Representatives Committee on Resources, April 15, 1997
U.S. Forest Service Antics in South Park, ColoradoSouth Park County, Colorado, the setting for a popular cartoon, is also the scene of the latest attempt by the United States Forest Service (USFS) to ruin hardworking miners. The Forest Service decided to designate a longstanding mining district in Park County as the Hoosier Ridge Natural Resource Area (NRA). This prohibits all multiple-use activities such as mining from taking place within the NRA. However, in establishing the NRA, the USFS completely ignored federal regulations which state that only “virgin” or “unmodified” lands are eligible for NRA status. The USFS had no legal right to create a resource area out of land that is clearly not virgin. The small miners who stand to be run out of business by this capricious act are suing the government to have the ruling overturned. In the first round of the legal fight, a federal district court sided with the USFS, which maintains that although the land is not virgin or unmodified, the land could be managed as if it were virgin in the future. Obviously, this interpretation makes a mockery of the regulation and would allow the government to run off anybody it wanted from federally-owned land. The case has been appealed to the Tenth Circuit Court of Appeals.
Source: Mountain States Legal Foundation
Interior Department Violates 200-Year-Old Land GrantIn the early 1980s, the federal government took several hundred acres of land that the Beggerly family owned on Horn Island, Mississippi. Implementing a law passed by Congress, the Interior Department wanted the land to create the Gulf Island National Seashore Park. However, Interior refused to compensate the Beggerlys on the basis that the federal government already owned the land through the Louisiana Purchase of 1803. In 1982, the government compensated the Beggerlys for a sum equivalent to $200 an acre. The family judged this to be completely inadequate since the property was worth at least $6,000 an acre. Not giving up, the Beggerlys hired a genealogist to research the validity of the government’s prior ownership claim. They discovered that the land was actually private property at the time of the famous 1803 purchase. In 1781, 22 years before the purchase, the Spanish colonial governor issued a land grant establishing private ownership of the property. The Interior Department, however, refused to recognize the Beggerlys’ title. The family filed a lawsuit in 1994 asserting that the government had violated their Fifth Amendment rights. The Fifth Circuit Court of Appeals held that the family owned the property and ordered the government to pay just compensation. The government appealed the decision to the United States Supreme Court, which ruled against the Beggerlys, saying that the Fifth Circuit did not have the jurisdiction to rule in the Beggerlys’ favor.
Source: Defenders of Property Rights
National Park Service’s Refusal to Surrender Land Threatens LivesLocal officials in Prince William County, Virginia are angry with the National Park Service for refusing to cede land to widen a dangerous intersection within the Manassas National Battlefield. The Route 29/234 intersection, which is in the middle of the largely rural park, has become increasingly dangerous in recent years due to a population boom in the area. In fact, the teenage daughter of a Prince William supervisor lost her life in a crash at the site. After state and federal transportation officials designated the intersection as “very hazardous,” Prince William County’s congressman, Frank Wolf, sought permission to add turn lanes. But the Park Service is opposed to releasing historic land for development and refuses to cede any property. Park officials claim that adding turn signals is unnecessary. Congressman Wolf sharply criticized the position as irresponsible. “I don’t want to see someone’s child get killed or maimed just because the Park Service won’t be reasonable on this,” said Wolf.
Source: Dan Eggen, “History and Traffic Battle in Manassas,” Washington Post, March 30, 1998
Small Business
When Honest Living is a CrimeGarland Allen, a barber in Lebanon, Tennessee for more than 30 years, came to work one day last July to find himself under arrest for practicing without a license. Although Allen learned his craft by his father’s side and dutifully took over the family business, the Tennessee Board of Barber Examiners insists he is guilty of “impersonating a professional” because he never obtained an official license. Allen does not have a license because he can’t afford to pay the $5,000 fee and leave his shop for nine months to take the required courses. In addition, Allen couldn’t go to barber school because, at the time he started working, there were no barber schools admitting blacks. What is most outrageous, however, is that nobody, including the board or the rival barber who turned him in, questions Allen’s skill. The problem is that the Tennessee Board of Barber Examination acts as a cartel and insists that only “approved” barbers be allowed to practice. As a result, Allen was charged with committing a felony. This is a penalty usually only applied to those who impersonate doctors or lawyers. He could have faced up to six years in prison had not a sympathetic grand jury refused to indict him. However, Allen is still without a license and is currently trying to get the board to reverse its position.
Source: Institute For Justice
Illegal Federal Regulations Driving Miners Out of BusinessIn 1993, the United States Department of the Interior issued new regulations governing the use of mines on federally-owned property that has severe adverse effects on small mine owners. Specifically, the new regulations require miners to pay $100 for every 20 acre parcel of federal land they drill. This is in blatant violation of federal law but the Interior Department doesn’t care. Most miners can’t afford to pay the new fee and conduct business at the same time. As a result, the number of mining claims by private individuals and other operators has dropped from 700,000 to 400,000 in five years. This has caused a major depression in the Nevada mining industry. Gene Gustin has experienced this first hand. He owns a modest drilling company that specializes in exploratory gold mining for other companies. In 1997, Gustin employed 25 workers and operated seven drilling rigs. That year, Gustin Incorporated generated $2.5 million in revenue. This year, Gustin will earn only $600,000. He has cut his work force to only nine workers and three drilling rigs. Still, Gustin says he can’t keep his workers busy. To compound matters, Gustin says the United States Fish and Wildlife Service now wants to add three new species in his area to the endangered species list, which would further hinder his ability to conduct business.
Source: National Center for Public Policy Research
Private Van Operators Being Driven Out By Public Transportation MonopolyHector Ricketts is the owner of a successful van service, Queens Van Lines, in New York City that provides thousands of commuters safe, economical and efficient transportation to and from work. Ricketts, who has a wife and three children to support, started the van service after losing his job as a hospital administrator six years ago. He currently employs 53 men and women. The Metropolitan Transit Authority admits that companies like Ricketts’s “are strong competitors with the Transit Authority’s bus routes. They appeal to riders because they offer more frequent service, are faster, charge less. . . [and] can be more passenger-sensitive than large buses. It is not uncommon for vans to drop off and pick up passengers at their residences. . . Many riders perceive [public] transit as a poor alternative.” It is because of this competition that the Transit Authority and the unions are determined to drive Ricketts out of business. The city recently passed onerous regulations prohibiting private vans from picking up commuters coming out of the subway at rush hour unless commuters called the companies in advance. Worse still, the city used its political clout to take over regulation of private vans from the state. Since 1994, the city’s Taxi and Limousine Commission has rejected the vast majority of new applications for private vans. Ricketts believes he and others like him who got their licenses before 1994 will be denied a license when they reapply in 2002.
Source: Institute For Justice
County Seizes Man’s Water Company Without CompensationIn 1995, David Yinger of suburban Baltimore had his water company unjustly seized by county authorities who did not provide him with compensation. The seizure came at the end of a tortuous struggle between Yinger’s Braddock Water Company and several state and local regulatory authorities. The dispute, which began in the 1980s, started over a minor request by Braddock to repair a broken pipeline. A two-mile pipeline owned by Braddock was inadvertently damaged by the work of both construction and power companies. To repair the pipeline, Braddock needed to acquire major financing which required the approval of the Public Service Commission (PSC). For 14 months, the PSC inexplicably failed to act on Braddock’s request for permission to take out a loan. In the meantime, the Maryland Department of the Environment fined Braddock for having a damaged pipeline – which Braddock was quite willing to repair if it were not for the PSC’s refusal to act. Braddock was fined more than $10,000 and was forced to pay more than $30,000 in legal costs. Eventually, the Department of the Environment told the PSC to revoke Braddock’s right to provide water. Frederick County then took over the company without any compensation for Yinger. It turns out that state and local authorities were engaged in a campaign to take over all of Maryland’s privately-operated water companies. In 1970, there were 600 such water companies in Maryland. In 1995, there were only 27. Yinger is currently involved in litigation to get the state to at least pay him for seizing his company.
Source: National Center for Public Policy Research
Woman Could Go To Jail For Operating Unlicensed Hair SalonFor 14 years, Faith Carey of Canton, North Carolina has operated a successful hairbraiding business. Carey learned the popular hairstyling skill from her godmother. Initially, Carey worked out of her home. When her clientele grew too large for her home, Carey and her sister Cassandra leased space at a beauty supply shop. Again, Carey’s business grew so much that it required even larger space. She obtained a business license, opened shop in a three-story building and began remodeling. Then trouble started in the form of the Board of Cosmetology. Inspectors claim that Faith was operating her salon without a cosmetology license and want the local prosecutor to press criminal charges against her. She is in an impossible situation. Cosmetology boards do not teach or even recognize the hairbraiding technique. However, they do require hairbraiders to pay thousands of dollars to take a nine-month course on hairstyling that has nothing to do with hairbraiding. Carey is still open for business. However, she has halted her remodeling and cancelled her plans for a hairstyle show. Although she has the ability to hire six additional employees, she is afraid to expand her business or even to advertise.
Source: Institute For Justice
Maritime Trade
Rerouting NightmareA ship with the Pioneer Leader-NYK Line carrying 3,060 cars, trucks and buses from Yokohama, Japan to ports in Latin America had to divert to Hawaii when two of its propeller blades fell off. This forced layover quickly led to a costly bureaucratic entanglement. It seems that 573 of the vehicles were bound for Puerto Rico. Under a trade law known as the Jones Act, a foreign-flagged ship is permitted to move cargo from a foreign port to a U.S. port, but not between two U.S. ports. Because of the propeller accident, Customs Service officials decided that the 573 vehicles bound for Puerto Rico from Japan were now moving between two U.S. ports, which is prohibited under the Act.
Thus, even though the ship only stopped in an American port due to an emergency, Customs officials ordered the 573 vehicles offloaded in Honolulu, placed onto a U.S.-flagged ship, and taken to the West Coast of the United States. Since the port at Honolulu is not well-equipped for loading automobiles, this was a difficult task. But the rerouting nightmare didn’t end there: from the West Coast, the vehicles had to be put on trains bound for the East Coast, where they were then loaded onto another U.S.-flagged ship bound for Puerto Rico.
Source: Jones Act Reform Coalition
Protectionist Law Makes Domestic Loggers Uncompetitive In American MarketBen Thomas operates a logging company in Kodiak, Alaska. Last year, he shipped 90 million board feet of logs to Asian markets. He couldn’t ship any to the American market, however, due to protectionist trade regulations. The culprit is the Jones Act, which requires that all U.S. timber companies use American-built and American-crewed ships for transporting logs within the United States. The problem, says Thomas, is that there aren’t any American ocean-worthy ships capable of transporting logs. In order to transport logs from Kodiak, Alaska to a West Coast port, Thomas has to use barges, which are costly and very inefficient. In addition, it can sometimes take as long as six months to even get a barge, driving costs up more. Thomas says that it costs double to transport logs from Alaska to Seattle than it does to transport logs from Alaska to Japan. He would like to be able to sell in the U.S. market, especially now, given the economic downturn in Asia. But the Jones Act prevents him from doing so. As a result, Thomas’s company is completely idle, waiting for an upturn in the Asian markets.
Source: Jones Act Reform Coalition
Trade Regulation Costs Hawaii Cattlemen $3 million Per YearHawaii’s cattle ranchers are placed at a serious competitive disadvantage by federal laws regulating shipping. The Jones Act requires that Hawaiian ranchers use only American-flagged ships to transport their cattle to the United States mainland. The problem is that American carriers do not have the type of specialized ships that can transport cattle in the most cost-efficient manner. Foreign fleets, which own 164 specialized livestock carriers, would gladly serve the Hawaiian market. However, the Jones Act prohibits them from doing so. This imposes great costs on ranchers. For instance, Hawaii’s largest cattle ranch, the Parker Ranch, spends 30 cents a pound to transport its cattle to the mainland. If allowed to use foreign livestock carriers, the Parker Ranch could cut that shipping cost to 15 cents per pound. Overall, Hawaiian cattlemen spend $6 million a year on shipping. If allowed to use foreign carriers, they could cut those costs in half to $3 million.
Source: Jones Act Reform Coalition
Miscellaneous Abuses
Affirmative Action Runs Black Entrepreneur Out of BusinessJim Goode, a 51-year old black businessman in Austin, Texas, lost his barbeque restaurant because he refused to participate in the city’s minority set-aside program. Goode established Mr. Bones BBQ in 1989 and soon earned a subcontract to provide concessions to the City Coliseum. With the exception of his first year, Goode did not take advantage of Austin’s set-aside program for Minority Business Enterprises (MBEs). This program requires city contractors to set aside a certain percentage of business to minority-owned firms. Over seven years, Goode made his Mr. Bones BBQ into a profitable operation through hard work and long hours. Then, in 1995, Goode’s original contractor was replaced by another contractor, Fine Host Corporation. To meet its MBE requirement, Fine Host told Goode that they would only continue his contract if he certified himself as an MBE. Goode didn’t want the preference. He wanted to simply compete on his own merits. Fine Host would have none of that. Although Goode, as an African-American, represented an excellent example of a successful minority-owned business, Fine Host couldn’t use him to meet their quota and cancelled his contract. Currently, Goode is unemployed and in danger of losing his home. Commenting on his situation, Goode says: “Here’s a black man making it on his own, but now he’s being told that if he doesn’t ask for special privileges, the contractor and the city can’t. . . use him.”
Source: Institute For Justice
Americans With Disabilities Act Regulations Add $1,750 to Cost of Office RenovationJack Gullo’s problems with the Americans with Disabilities Act (ADA) began when he decided to renovate his law office, which is located in a turn-of-the-century carriage house, in New Windsor, Maryland. Gullo hired an architect to prepare drawings to meet the requirements of the building codes and the ADA. Even though the plans were approved by the necessary agencies prior to the commencement of construction, an ADA inspector immediately began finding problems after construction started. To begin with, he said there were too many doors (two office doors, the outside door and a bathroom door) opening into the office foyer. He required that the design of the entire building be changed so as to relocate the entrance to the bathroom. The door relocation cost $750 and an additional two weeks of construction time. That was only the beginning of his troubles, however. Although Gullo installed a handicap ramp at the curb in front of the building as mandated by the ADA, ADA officials ruled it was not up to code. The ramp needed to be six feet long but when the ADA inspector measured it, it was only five feet, eleven and three-quarters inches long – one quarter of an inch from the requirement. Gullo had to pay $1,000 to jack hammer the newly-constructed ramp and spend another month building a ramp with the precise six-foot length.
Source: Testimony of Jack Gullo, Subcommittee on Regulatory Reform, U.S. House of Representatives Committee on Small Business, March 18, 1998
Mother and Daughter Threatened With Jail For Refusing to Let Housing Inspectors Enter HomeThe Village of Park Forest, Illinois conducted warrantless “safety” searches of families’ homes under its housing inspection program. Families who rented rather than owned their homes could not legally prevent city officials from entering their houses to inspect personal areas like bedrooms and bathrooms. In one case, the Village threatened to jail Debra Taylor and her 12-year-old daughter when they refused to allow inspectors into their home. The Taylors and other tenants filed a lawsuit challenging the legality of these intrusive searches on constitutional grounds. In 1998, Federal District Judge Joan Gottschall struck down the inspection policy, ruling that the inspection policy was “unquestionably invasive” and violated the Fourth Amendment.
Source: Institute For Justice
Car Dealers Fined $200,000 for Violating Labor Regulation They Didn’t Know ExistedIn the state of Washington, automobile dealers frequently employed 16- and 17-year-olds to serve as lot attendants. As attendants, the youths occasionally had to drive the cars to get gas and perform other simple errands. The United States Department of Labor permitted this use of teenage labor under a child labor regulation called Hazardous Occupation Order No. 2 (HO 2). The regulation specifically allowed teens to drive on the job, with certain restrictions, if such driving was “incidental and occasional.” However, in 1994, the Labor Department suddenly changed its interpretation of the regulation to permit teen driving “only in rare and emergency situations.” The problem is that the government didn’t inform auto dealers of the change. Fifty-nine dealers in Washington were shocked to learn that the Labor Department planned to fine them a total of $200,000 for violating a child labor regulation they never knew existed. The fine resulted in protracted litigation and the loss of thousands of jobs that offered teens an opportunity to gain valuable work experience and save money for school.
Source: Testimony of Douglas Greenhaus, Subcommittee on Regulatory Reform, U.S. House of Representatives Committee on Small Business, March 18, 1998
A Road Runs Through ItEarly this year, homeowners in Yachats, Oregon were shocked to find out that a road planned by the county government over a century ago – but never actually built – could lead to the loss of their homes. The road was dedicated by the county in 1890. However, it was never built and no one ever used the land as a road. In 1953, the county allowed the Ocean Crest subdivision to be constructed over the land where the road would have stood, had it been built. Years later, upon discovering that the county still had a road right to the property, residents asked Lincoln County to relinquish its right to the road. However, a group of environmentalists, the Oregon Shores Coastal Conservation Coalition (OSCCC), objected and claimed that the county had no legal right to vacate the road and that it must remain available for public access. Confronted with the obvious fact that the road ran through people’s living rooms, the OSCCC said that owners could maintain a life estate in their homes but as soon as they died, their homes would be torn down so the road could be reopened. (OSCCC covets the neighborhood because they see it as an opportunity to increase the number of public access points to the nearby beach. However, there are already several beach access points throughout Ocean Crest.) Unfortunately, the state Department of Land Conservation agrees with the OSCCC and sent a letter to Lincoln County Commissioners urging that they reject the homeowners’ request to vacate the road.
Source: Oregonians In Action
Beach Home Construction Delayed for a YearIn 1996, the Inland Development Group purchased the 25-acre Topsoil Island off the North Carolina coast to build beach homes. Inland’s Richard Carlton said the company’s attorneys did the necessary environmental impact studies to make sure Inland was in compliance with all regulations. But the state Department of Archaeology held up construction for a year, costing the company millions of dollars. Unknown to Inland or the general public, the Department of Archaeology had registered the island as a site of possible archaeological significance because a pre-colonial Indian tribe may have lived on the island at one time. The state archaeologist wanted Inland to pay for the archaeological investigation of the site, which Carlton refused to do because such research was not the company’s responsibility. He asked state officials why he had not been told that the island was of potential archaeological significance before Inland purchased it. The state archaeologist said the state didn’t make the designation public for fear that graverobbers might go to the island. After long negotiations, Inland agreed to pay $65,000 for a study that yielded no artifacts of significance.
Source: National Center for Public Policy Research
County Tells Couple to Cut Down Trees to Meet Forestry RequirementWhen Larena Anderson and her husband wanted to build a house on their 30-acre plot in Washington County, Oregon, county officials initially declined to issue the necessary dwelling permit. Their property is officially zoned as an “Exclusive Forest and Conversation” area. While 18 acres are covered by natural forest growth, a mature walnut orchard covered the remaining 12 acres. The county eventually relented and issued the permit, but only on the condition that the Andersons cut down the 12 acres of walnut trees and reforest the cleared area with approved seedlings. To get around this wasteful and counterproductive requirement, the Andersons obtained an official waiver from the Oregon Department of Forestry. The Department said that state and county laws permit agricultural uses in forest zones and the Andersons’ walnut orchard is thus allowable. Inexplicably, the county still refuses to change its position and insists that the Andersons get rid of their walnut orchard. The Andersons have filed a lawsuit in an effort to force the county to issue the permit.
Source: Oregonians In Action
Massachusetts Man Loses Millions Due to RegulationsIn 1962, Francis Daddario purchased a 70-acre parcel of land in Falmouth, Massachusetts with the goal of removing the valuable mineral deposits. At the time of the purchase, there was virtually no regulation on this activity, and many neighboring property owners have similar mining operations.
In 1994, Daddario Gravel Mining Operation applied for a special permit to remove sand and gravel. The Cape Cod Commission, which has jurisdiction over such matters, reviewed Daddario’s application. After two public hearings, the commission denied Daddario’s plan to mine 35 of the 70 acres. Their reasoning was that Daddario did not preserve the unusual environmental qualities of the property. The commission suggested a different mining plan that at best would have yielded a modest economic gain.
Daddario rejected the commission’s plan and appealed to the Massachestts Land Court. The Land Court judge sided with Daddario, stating that even though the property had value for other development, the magnitude of the loss as a sand and gravel operation constituted a regulatory taking.
But the Massachusetts Supreme Judicial Court disagreed and found that the property retained residual value for other uses. Thus, although Daddario stands to lose $10 million over the next ten years, the possibility that the land might still be worth a couple hundred thousand dollars means he suffered no regulatory taking.
Douglas Errico, Daddario’s attorney, plans to take Daddario’s case to the United States Supreme Court.
Source: Daddario v. The Cape Cod Commission, Supreme Judicial Court for the Commonwealth of Massachusetts, No. SJC-07329, July 11, 1997
Special thanks to Chad Cowan and Ryan Sager, who played a major role in preparing the second edition of the National Directory of Environmental and Regulatory Victims.
Thanks also to the following organizations and individuals who provided valuable assistance in identifying victims for inclusion in the Directory: “American Investigator” television program, American Land Rights Association, American Loggers Solidarity, Howard Aubin, Pat Callahan of the American Association of Small Property Owners, Citizens Against Repressive Zoning, Citizens For Property Rights, Competitive Enterprise Institute, Defenders of Property Rights, Free Congress Foundation, Office of Representative Wally Herger, Institute For Justice, Jones Act Reform Coalition, Carol LaGrasse of the Property Rights Foundation, Liberty Matters, Mountain States Legal Foundation, National Federal Lands Conference, Oregonians In Action, Pacific Legal Foundation, Pennsylvania Landowners’ Association, The National Wetlands Coalition, The National Wilderness Institute and Bruce Vincent of the Alliance for America.