American Elephants


Private Property Rights Seem Unimportant Until They’re Yours, and They’re Gone. by The Elephant's Child

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Andy and Katie Johnson own a small 8-acre ranch near Bridger, Wyoming, on which they run 10 head of cattle and 4 horses. A creek runs through the property. Mr. Johnson wanted to build a stock pond to water his animals. He got approval from the local government and from the State of Wyoming, and they invested most of their savings in building the stock pond. Birds, fish and other wildlife came.

So did the EPA, who went after the family for violating the Clean Water Act. EPA Director Gina McCarthy used the Johnson family to test the power of the EPA in advance of the passage of their harsh new rules. The rule wasn’t even passed when Ms. McCarthy took out her pen and her phone.

McCarthy
EPA regulators showed up at the Johnson property in 2014, and announced that the Johnsons were facing a “very serious matter.” The EPA claimed the Johnsons violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. The EPA claims the pond discharges into other waterways. Mr. Johnson was ordered to restore the property to its pre-pond state, according to EPA rules for restoration, and pay a fine of $37,500 a day until it was completely restored, and face criminal charges as well.

The EPA’s new rule is a power grab, clean and simple. When Congress created the Clean Water Act, they neglected to define “water.” Big mistake. The Supreme Court defined “the waters of the United States” as “navigable waters” which the EPA promptly redefined as anything that flowed into the navigable waters, and believed they were justified in tracing the “navigable waters” right back to your downspout. Imagine! I’ve used a picture of a trickle in a roadside ditch to point out what they are after. Ms McCarthy wants to be a Commissar of the EPA’s own Empire.

The Johnsons refused to cave in, and enlisted the help of Wyoming Senators Barasso and Enzi, and Louisiana Sen. David Vitter, and the Libertarian Pacific Legal Foundation. The Clean Water Act specifically excludes stock ponds. No matter.The fines had reached $16 million when Mr. Johnson’s counter lawsuit against the EPA reached the courts.

More than two years later, Johnson won. In a settlement reached with the EPA, he gets to keep his pond, he won’t need to get a federal permit, the EPA fines have been removed, and all Johnson agreed to do was plant some willow trees and limit access to a portion of his pond for a while.

Pacific Legal Foundation attorney Jonathan Wood called the settlement “a win for the Johnson family, and a win for the environment.”

The federal government stormed onto private property, threatened  a family with massive fines (could $37,500 a day be any more absurd?) and walked away only after being countersued. While the Johnsons were being harassed, the EPA was finalizing their new rule to cover anything from prairie puddles to power plants.

A lawsuit filed by several states came to a halt when a federal judge in North Dakota blocked the EPA from enforcing the rule, which the judge said was “arbitrary and capricious.” The judge ruled that the injunction be applied to all 50 states, but the EPA decided that they would go ahead and enforce the rule in the states that hadn’t sued, until an appeals court stepped in and blocked that runaround.

The EPA has been slapped down by the courts repeatedly for overreaching , but they are zealots — intent on power. “The environment” has become a magical word to which  every business is careful to genuflect. That’s power. Packages and papers come with a notation to ‘please recycle’. Laws protecting the people from polluted air or polluted water are in place.

The EPA is reduced to scanning archives for old studies, not necessarily valid, that will give them a legal leg to stand on. Words are parsed for other possible meanings. Your freedom and property rights depend on a lawyer asking the right questions to get you off whatever hook the EPA decides to impale you with. The agency has long outlived its usefulness and needs to be disbanded permanently.

This is how you suddenly wake up one morning to find yourself resident in a tyranny — with no rights at all. Democrats are quite up front about their contempt for the Constitution and the Bill of Rights. The Constitution provides only Impeachment as a remedy for “high crimes and misdemeanors” — not for overreaching with executive orders and pardon powers and the regulations handed down by agencies established by the executive. We’d all better pay real attention. Government is not a spectator sport.


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