Defenders Represent PA Farmer Against EPA
WATERFORD, PA
FOR IMMEDIATE RELEASE
August 30, 2006
After a long-fought battle against the government to obtain compensation for the taking of their farmland, Robert Brace may finally see his day in court before the end of this year.
Mr. Brace’s battle with the government began in 1987 when the U.S. Environmental Protection Agency and the U.S. Corps of Engineers told Mr. Brace he could no longer farm on part of his Erie County land because it was considered wetlands. This was land that Mr. Brace had purchased in December of 1975 from his father and which he intended to use to continue and expand his family farming business. Although the soil on this land was highly productive for farming, it was considered to be poorly drained and in need of drainage to make it suitable for production of cabbage and potatoes. Thus, with the assistance and funding of another federal governmental agency, the U.S. Department of Agriculture, he arranged for and began excavation and burying of plastic tubing, “drainage tile,” to improve soil conditions for row crops. This was a common practice in Erie County during that time period and was encouraged by the USDA.
After Mr. Brace had expended considerable sums to install this drainage system and maintain it so that the land would be productive for crops, the EPA told Mr. Brace he was in violation of the Clean Water Act and brought an enforcement lawsuit against him in a Pennsylvania federal district court. Although the district court in 1993 agreed with Mr. Brace that his activities should be considered “normal farming practices,” which are exempt from the Clean Water Act’s provisions, the Third Circuit Court of Appeals reversed that decision. After the Supreme Court denied his petition for certiorari, Mr. Brace was forced to enter into a consent decree in which he agreed to remove a major part of the drainage system he had installed on his land and restore thirty acres of his land to unusable and undevelopable wetlands “in perpetuity” according to a restoration plan drafted by EPA. He was also forced to pay a $10,000 fine.
Mr. Brace then filed the present lawsuit in order to seek compensation for the taking of his land in 1998. However, before he could obtain his day in court, he was forced to face numerous motions filed by the federal government to try to keep the case from going to trial. Since 1998, the government has filed two motions for summary judgment, one in 2000 and one in 2001, alleging that it had not taken Mr. Brace’s land. Both those motions were denied. In 2002, the government filed a motion to dismiss, claiming Mr. Brace had failed to state a claim, and that motion was also denied. With no more legal avenues for the government to delay trial of the case, the parties proceeded with identification of their witnesses and discovery.
Currently, both Mr. Brace and the government have identified the key witnesses they intend to present at trial, including expert witnesses, and have just wrapped up depositions of those witnesses.
In addition to his own testimony, Mr. Brace will present two fact witnesses at trial and one expert, a land appraiser. One witness is Joseph Burawa, who is now retired, but was County Executive Director for the Agricultural Stabilization and Conservation Service (ASCS) for Erie County, part of the USDA, from 1967 to 1989. Mr. Joseph Burawa, will testify that from 1975 to 1985, the ASCS actively encouraged farmers by providing them financial assistance and technical assistance (through its sister agency, then known as the Soil Conservation Service or SCS) to maintain, improve, and expand agricultural drainage systems on their farms in Erie County. He will testify that Mr. Brace sought assistance from ASCS and SCS in 1970 to prepare a drainage plan for his land. He will further testify that SCS provided him technical assistance in preparing and implementing the drainage plan and that ASCS partly funded the project.
Another witness for Mr. Brace is John Burawa, a commercial lender with Mercer County State Bank in Erie County, who has had a financial relationship with Mr. Brace since late 1970s. He will testify to the severe impact that the government’s actions in this case have had on Mr. Brace’s farming operations and financial condition. He will also testify that it is only due to Mr. Brace’s exceptional business acumen that he has been able to keep his business afloat and provide for his family during these hard times. Mr. Burawa will further testify to his knowledge of the feasibility of farming and value of farmland in Erie County, having had decades of experience in lending to farmers in the area.
Finally, Mr. Brace will present at trial an expert land appraiser, James Lignelli of Diversified Evaluation Company in Pittsburgh, Pennsylvania. Mr. Lignelli valued Mr. Brace’s property (a 58 acre tract) at its most profitable possible use, known as the “highest and best use,” for a residential subdivision development. Based on a conceptual development of a subdivision with 125 lots, Mr. Lignelli will testify that the property in 1996 (when it was taken by the government) was worth $455,000. He will also testify that after the government took 30 acres of that land, requiring Mr. Brace to remove the extensive drainage tiles he had installed on those acres, fill in ditches, and restore the property to wetland, the entire tract has no fair market value.
The government has identified three fact witnesses and one expert. According to the government, one of its identified witnesses, Jeffrey Lapp, currently the Wetlands and Oceans Program Manager for EPA’s Region 3, will primarily testify at trial regarding his role in drafting the restoration plan for Mr. Brace’s property in his position then as Wetlands Enforcement Coordinator. In deposition, he testified regarding the extensive work that Mr. Brace was required to undertake in order to “restore” his drained farmland to unusable wetland. A second witness, David Putnam, who is currently a wildlife biologist with the U.S. Fish and Wildlife Service, will testify at trial regarding his involvement in the enforcement action against Mr. Brace. At deposition, he stated that FWS and EPA, as well as several other governmental agencies, all believed that they had a strong case against Mr. Brace in the enforcement action and that it was clear that the government had jurisdiction over the 30 acres of land that ultimately became subject to the consent decree. Finally, the government may present at trial the testimony of Lewis Steckler, the District Conservationist for the Natural Resources Conservation Service (formerly SCS) in Erie County. He stated in deposition that SCS did indeed assist Mr. Brace in preparing and implementing a drainage plan on his property. He also stated that after the consent decree, he personally observed Mr. Brace being forced to rip out the extensive drainage system on his land, only days before Christmas in 1996.
Finally, the government will present the testimony of its expert witness, George Silver, of Burlington, Vermont. Mr. Silver valued Mr. Brace’s property (135 acre tract) for a highest and best use of a diversified cash crop operation, concluding a value of $355,000 before the entry of the consent decree, despite the fact that, as he stated in deposition, he failed to talk personally with real estate developers or brokers in Erie County to see where trends toward development of such land were going. After the 30 acres were made subject to the restoration plan in the 1996 consent decree, Mr. Silver valued the property at $305,000, only $50,000 less than the value before the consent decree, despite the fact that those 30 acres were rendered completely unusable and must be kept as such “in perpetuity.”
Now that depositions of the key witnesses have concluded, the next step is for the court to set a trial date. Both sides have proposed possible trial dates before the end of the year and filed a proposed trial schedule with the court on July 2, 2004.