The Kogan Law Group, P.C. Reports How a Federal Court’s reopening of a 1990 EPA-Farmer Wetlands Case for New Discovery and the Filing of $8 Million of Administrative Claims Against the Government May Facilitate the Resolution of a Very Costly Legal Dispute.
Erie County, PA, July 12, 2017 — (PR.com) — The Kogan Law Group, P.C. reports how a Federal Court’s reopening of a 1990 EPA-Farmer Wetlands Case for new discovery and the filing of $8 million of administrative claims against the government may facilitate the resolution of a very costly legal dispute for its client, Robert Brace.
On June 15, 2017, a Federal Magistrate Judge from the Western District of Pennsylvania issued a ruling that could possibly end 30 years of U.S. Environmental Protection Agency wetlands-related litigation against a small Erie, PA. farmer and his family.
As previous court (Federal District Court and Third Circuit Court of Appeal) documents indicate, EPA first filed this Clean Water Act (“CWA”) Section 404 lawsuit against Robert Brace in 1990 (United States v. Brace) with respect to one of his three integrated farm tracts.
CWA Section 404 prohibits the dredging and filling of “Waters of the United States” (“WOTUS”), including adjacent wetlands, without a U.S. Army Corps of Engineers (“Corps”) permit. Congress and the agencies, however, subsequently limited this provision’s impacts on agriculture with the enactment of the Food Security Act of 1985 and implementing regulations and guidance. Prior converted croplands do not qualify as WOTUS and are not covered by CWA 404 at all, while normal farming activities are exempt from CWA 404 permitting requirements.
More recent court documents reveal that, on January 9, 2017, EPA reopened the 1990 case (1-90-cv-00229-SPB) to enforce an 8-page EPA-drafted Consent Decree that Brace had executed with the U.S. Justice Department in 1996. These court documents also show that EPA simultaneously initiated a second action (1-17-cv-00006-BR) against Brace alleging new 404 permit violations on another of his contiguous and adjacent farmlands.
The Consent Decree required Brace to restore 32.5 acres of one farm tract designated as wetlands to its prior 1984 condition. EPA acknowledges in its court documents that Brace complied with the Consent Decree until 2015, but the parties differ concerning whether he allegedly violated it thereafter.
Brace’s responsive pleadings to both actions describe the Consent Decree as “ambiguous and nondescript,” and allege that EPA’s over-enforcement of the Consent Decree transformed the 32.5 acres into nonfarmable wetlands by causing surface flooding and subsurface erosion of between 67 and 92 additional acres of Mr. Brace’s three farm tracts, from 1996 to 2016.
The Judge’s order is significant because, while it directly relates to the reopened 1990 case, it also affects the court’s disposition of the new 2017 case. It requires EPA to grant Robert Brace’s attorneys six months of new discovery and the opportunity to engage in additional briefing to clarify for the Court the true purpose of the disputed Consent Decree and how its enforcement by EPA has impacted all three Brace properties.
According to Brace, “The Magistrate Judge should be given due credit for recognizing the weaknesses in the Department of Justice’s portrayal of this case, and EPA’s over-enforcement of the ’96 Consent Decree to the detriment of my family and its generations-old farming business. I truly thank the Judge for being fair and understanding the hardships we have long endured as the result of runaway government regulation and enforcement practices. I thank the Judge, as well, for identifying in prior proceedings the need to conserve the environment while preserving our constitutionally protected private property rights, including our right to farm to earn a living, against the tyranny of an ever-expanding administrative state. Justice may yet be served.”
To further encourage this result, on July 3, 2017, and July 7, 2017, respectively, Brace filed and then notified the Court of $8 million of administrative claims he has since brought against the EPA, the Corps and the U.S. Fish & Wildlife Service under the Federal Tort Claims Act. The administrative claims indicate that Brace seeks compensation for, alleged, property damages to his farmlands and for 20 years’ worth of lost harvest revenues resulting from the flooding and erosion caused by EPA’s “improper, wrongful and/or negligent” over-enforcement of the Consent Decree.
The Brace Family sincerely hopes the information revealed from the new discovery and the recently filed administrative claims will lead to a fair and workable resolution of this three-decades-old wetlands dispute that also can benefit other small farmers throughout the nation. According to the Braces, “If the DOJ and EPA are unwilling to settle, they should be required to justify to Congress and the White House why they need to devote even greater human resources and taxpayer funds to further prosecute/persecute this small Erie, PA. Family farm.”
Mr. Kogan is Managing Principal of The Kogan Law Group, P.C. New York, NY and President of the Princeton, NJ-based nonprofit Institute for Trade, Standards, and Sustainable Development. He currently serves as defense counsel representing the Brace family in EPA-re-initiated litigation.