Taking A Stand For His Land
Taking A Stand for His Land —
For the past 22 years, Pennsylvania farmer Bob Brace has battled the federal government over use of his land.
A David versus Goliath confrontation that ended up energizing the state’s private property rights movement.
“..nor shall private property be taken for public use without just compensation.”-Amendment V. U.S. Constitution”
Bob Brace, a member of Cambridge Springs, Pa.- based Northwestern Rural Electric Cooperative, eases his battered Ford pickup down a rutted dirt road that bisects his 1,600acre cabbage and grain farm outside of Waterford in rural Erie County. He stops the truck and pauses to glance through the passenger-side window.
Stretching to his right are acres of neatly tilled fields sporting the bright green of spring. In the background, a red barn bears the name of his operation, Robert Brace & Sons Farms.
With the afternoon sun dappling the landscape and a soft breeze scattering bits of fodder across the fields, the scene is serenely pastoral. Brace has worked this land his entire life and gazed upon this setting countless times. Even now at 63 years old, his smile reflects the deep commitment he maintains for his land.
But turning his head, Brace’s disposition suddenly changes and a dark scowl crosses his face. On the other side of the road, in stark contrast, sprawls a 60-acre wasteland covered in knee-high snarls of dry, brown grass and dense thickets of brush.
Surprisingly, this too, is part of Brace’s farm. Once the section mirrored the well-kept, productive appearance on the other side of the road. But it has been more than a decade since this soil has seen a tractor or plow, the result of a federal court decision that and forever banned all farming activities on it.
Seeing a portion of his ground in such disarray and realizing it will never again be productive obviously upsets the farmer who once toiled long hours to make it fruitful with cabbage and potatoes.
“I don’t like to come out here very often,” he laments in a wavering voice. “The condition of this land makes me sick.”
Like a line of demarcation between two warring countries, the dirt road separating Brace’s productive farmland from federally declared wetlands has become a frontline in the nation’s increasingly heated battle over private property rights. On one side, Brace and his family fight for a principle they maintain is guaranteed by the Fifth Amendment of the United States Constitution - the right to use one’s land. On the other, a group of federal and state agencies - including the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Army Corps) and the Pennsylvania Department of Environmental Protection (DEP) - contend that farming on what they consider to be wetlands violates the Federal Clean Water Act.
Digging into Controversy
In 1975, as a young farmer looking to expand his operation Brace purchased two tracts of land from his parents. One parcel, called the Murphy Farm, consisted of about 60 acres that needed improvements to make the land suitable for producing cash crops.
Beavers had built dams on a small stream running through the property, disrupting natural drainage patterns and causing water to flood fields used for crop production. In addition, tile lines installed by Brace’s father for drainage had deteriorated from lack of maintenance. As a result, rain and snow melt often pooled in the lower areas of the field instead of draining off, making the land unproductive.
“I wanted to get the most out of the land that I bought,” explains Brace, “so the first step was getting rid of those beavers and repairing the tile lines.”
“I firmly believe in my [private property] rights guaranteed by the Constitution and have vowed to fight for them to the end. I hope the principles in which I have put so much faith will ultimately prevail.” - Bob Brace
After the beavers were trapped with the help of the Pennsylvania Game Commission, Brace excavated ditches on the land and buried plastic pipe to facilitate drainage. At the time, the U.S. Soil Conservation Service (SCS) provided Brace with plans and funding to help improve soil and drainage conditions on his farm.
“The SCS actively encouraged farmers in this area to maintain, improve and expand agricultural drainage systems,” Brace notes. “I was glad for their help, and took pride in making my property look nice and become productive.”
Over the next 12 years, Brace continued with drainage improvement work. The return of beavers to the property in 1987 prompted him to again request removal help from the Game Commission, but a senior officer with the agency balked at his request.
” He told me that my property looked like wetlands and wanted to know if I had a permit for installing tile lines,” Brace recalls. “I told him that I didn’t think I needed a permit because the U.S. Department of Agriculture and SCS had supported the work I was doing on the land.”
A few weeks later a team of officials from several state and federal environmental agencies arrived at Brace’s farm to perform soil tests. The group determined that the property in question exhibited characteristics common to wetlands, and soon an EPA order landed in Brace’s mailbox, directing him to cease and desist all activities relating to draining the land.
The EPA concluded that the stream running through Brace’s property constituted “waters of the United States” and were subject to regulation under the Clean Water Act. The agency charged Brace with violating the act by installing drainage lines because fill material had been discharged into the stream and wetland. For Brace to drain the property, the EPA stated, he needed a permit from the Army Corps - the agency in charge of enforcing wetlands regulations.
Brace had not previously applied for a permit to install drainage lines because he did not know that the soil and hydrological conditions of the property would characterize the area as a wetland, especially since the land had been farmed and drained for more than 50 years. Consequently, he had no reason to believe that the area in question fell within the jurisdiction of the federal government. Furthermore, another federal agency - SCS - for 10 years had encouraged Brace to install the drainage lines and even provided funding for him to accomplish the task.
” A section of the Clean Water Act exempts normal farming activities and soil conservation practices like the construction or maintenance of drainage ditches from regulation,” notes Brace. “But all of a sudden, EPA was accusing me of doing something illegal without a permit. I couldn’t believe what I was reading when I looked over that letter from the EPA.”
Since Brace did not have a permit from the Army Corps to install drainage lines, EPA demanded that he dismantle the system or be subject to fines of as much as $50,000 for each day the lines remained in the ground. In addition, the agency stated he could even face imprisonment for non-compliance.
From Tile to Trial
Although he took EPA’s threats seriously, Brace was determined to hold on to his land and continue farming the way he saw fit. After receiving two additional orders from the EPA and another from the Army Corps - which subsequently classified more than 200 acres of his property as wetlands - during the next year, he asked SCS to classify the contested area as “converted wetlands” in hopes of being exempted from the orders. Since Brace was involved in ongoing farming activities on the land for several years, SCS granted his request.
Fittingly, the next step Brace took was applying for an “after the fact” permit from the Army Corps to avoid being found in continuous violation of the Clean Water Act. However, the Army Corps informed Brace that it would not entertain the permit application because EPA was pursuing enforcement action against him.
” All along, I did not agree with EPA’s assessment of my land or my farming procedures,” Brace points out. “But federal law [unlike Pennsylvania’s] provided no way to appeal the order. I had to wait until the case went to court. My hands were effectively tied.”
Although EPA issued enforcement orders in 1987, enforcement actions - including a crushing fine of $125,000-were not filed against Brace until 1992. The case finally came to trial in 1994 before U.S. District Court. In a victory for Brace, the court held that the federal government did not have authority to regulate his activities and dismissed the entire EPA litigation. However, the story did not end there.
Not satisfied with the ruling, EPA immediately took the case to the U.S. Third Court of Appeals in Philadelphia. Basing their decision on a highly technical interpretation of federal wetlands regulations, three appellate judges overturned the District Court ruling and upheld the EPA order.
” The judges’ decision focused on specific regulatory language presented by agency lawyers involving ‘incidental fallback’ of soil from ditch cleaning and the `side casting’ of this soil onto the land,” explains Hank Ingram, Brace’s attorney. “Ironically, these technicalities have been largely discredited by other courts.”
Brace and Ingram appealed the decision to the U.S. Supreme Court, which refused to hear the case. Brace was required to return to District Court for enforcement actions where he was ordered to dismantle the drainage system and allow the property to revert back to its natural state as wetlands.
Brace estimates that he has spent hundreds of thousands of dollars in court costs since the case went to trial and has lost the same amount by not being able to use the land for production. In addition, he claims that the property affected by the EPA order, if put to its highest and best use, could have a value in excess of $3 million.
” Currently, because of the restrictions imposed on my land, it is worthless,” Brace explains. “I can’t farm it for cash crops, but I still have to pay property taxes. There is something terribly wrong with our system when the government can take over your land and not have to compensate you in some way.”
Currently, Brace is seeking compensation from the federal government under the Tucker Act. Passed by Congress in 1887, the act grants the United States Claims Court jurisdiction to render judgment upon any claim for damages against the United States.
While the Tucker Act provides a legal basis for Brace to seek redress, compensation is not necessarily guaranteed.
“The government has put up numerous roadblocks to try and prevent my claim from going to trial,” Brace points out while leafing through stacks of paperwork relating to the case. “Pursuing compensation through the Tucker Act has been called a `shuffle’ because you are constantly going back and forth between the agencies and the court. The whole experience has been very frustrating.”
Though his battle with federal agencies has been likened to that between David and Goliath, Brace has remained upbeat. He became an outspoken statewide and national advocate for landowners’ rights. The firestorm resulting from the government’s heavy handed and seemingly “unjust” dealings in his case led to formation of the Pennsylvania Landowners Association.
In November this year, Brace will finally get his say before the U.S. Court of Claims in Erie. There, he will seek compensation from the federal government under the Fifth Amendment’s “takings clause” (see beginning of this article).
” I never thought this would go on as long as it has,” Brace concludes. “But I firmly believe in my rights guaranteed by the Constitution and have vowed to fight for them to the end. I hope the principles in which I have put so much faith will ultimately prevail.”
Property Rights
Hot Buttons
Across rural Pennsylvania, a populist “landowners revolt” of sorts has erupted. Farmers, along with coal, oil and lumber producers, small businesses and sometimes homeowners -fed up with what they see as a “green jihad” by environmental activists, government agencies and preservationists-run-amok to restrict land use and development are urging state and federal legislators to “restore common sense to environmental protection. “At the core of their argument is the last line of the Fifth Amendment to the U.S. Constitution “…nor shall private property betaken for public use without just compensation.”
” Too often these days, property owners are viewed as rapers and pillagers of land, but we enjoy nature and favor conservation as much as - maybe more so - than anyone else,” contends Keith Klingler, president of the Pennsylvania Landowners Association - one of the most vocal property rights advocacy groups.”We become concerned when regulations go too far or are unfairly administered.”
He adds,”Public policy must reflect rights guaranteed by the Fifth Amendment, which means compensating individuals for land that loses value as a result of overzealous regulatory restrictions. Government should not get a free lunch at the expense of private landowners.”
Issues firing up property rightists include wetlands enforcement, wild and scenic river and stream designations,forest controls, endangered species protection and tax dollars being used to buy up development rights (through conservation easements and land trusts). All of these initiatives are seen as seizing private land or limiting its productive value under the guise of “sustainable development:’ “sound growth” and “controlling urban sprawl.” The end result - erosion of a community’s tax base and its economic viability.
” Wasting a limited resource - land - by limiting its use harms the greater good:’ Klingler concludes.”From the first settlers through the Homestead Act to today, jobs and economic growth have been generated by private landowners.”