Private Property Rights: An Endangered Species; P. Kamenar

No, Mr. Pozsgai wasn't the captain of the Exxon Valdezthat ran aground in Alaska spillingmillions of gallons of oil, nor did he dump toxic or hazardous wastes into any river or stream. His crime? Pozsgai was sentenced for placing topsoil and clean fill on his own property without permission of the Federal authorities from the Environmental Protection Agency and the U.S. Army Corps of Engineers. Sparing no expense to nab this "criminal," the EPA even staked out the property with secret surveillance cameras and took several aerial photographs to capture the "crime" on film. Unless the decision is reversed by the United States Supreme Court, the Environmental Protec tion Agency will begin using the case of United States v. Pozsgaias a precedent to send property owners to jail for two to three years if they dare put topsoil on their own property without the federal government's permission. Already another Flori da man and his son have been sent to prison for two years for putting a few truckloads of clean sand on their property without EPA approval.

In another case in New Jersey, a retired couple was prevented from developing a lot they pur chased years ago for retirement because environ mental officials recorded the sound of an owl on their property. The property owners' suggestion Mr. Kamenar is Executive Legal Director of the Wash ington Legal Foundation. that the owl could easily fly across the street to 16,000acres of preserved wildliferefuge didn't faze the authorities. The message the government wants to send by these cases is that private property rights and eco nomic development are rapidly succumbing to bureaucratic regulation at the Federal, state, and local level, all in the name of the environment -regardless of the actual environmental impact. The clash between environmentalists and private property owners promises to be one of the major issues of the 1990s. John Pozsgai, who immigrated from Hungary in 1956, works seven days a week out of a small garage behind his house fixing trucks to support himself, his ailing wife, and his two daughters. His home is locat~d across the street from a 14-acre dump-site in an industrial area of Morrisville, Pennsylvania, near Trenton, New Jersey. The area has been used as a dumping ground and landfill for over 20 years. Pozsgai's property is bordered on the north and south by major roads, to the east by a tire dealership, and on the west by an automobile salvage yard. Mr. Pozsgai saw that property not as a dump, but as an opportunity to fulfill a lifelong dream of buying a piece of land on which he could build a garage to expand his small repair business.

Having saved enough money for a down pay ment, he bought the property in June 1987 and mortgaged his small wood-frame house to finance the purchase. He then began the Herculean task of cleaning up the property by removing over 7,000 used tires that had been dumped there over the years, along with other accumulated junk such as rusted auto parts, before placing clean fill and top soil on five acres of the site.

Meanwhile, the Environmental Protection Agency and Corps of Engineers paid several visits to Mr. Pozsgai, claiming that the dump site con tained some "wetlands," and therefore required a permit from the federal government before fill could be placed on the land. The site, however, isn't listed on the Department of Interior's National Wetland Inventory Map. In addition, Pozsgai claims that local officials who coordinate the per mit program with the Corps of Engineers indicated that no permit was needed if clean fill (earth, sand, dirt) was placed on the property. WhatIs a "Wetland"? The EPA claims it had jurisdiction over this so called "wetland" because the land is adjacent to a tiny stream which borders the property on the east. This "stream," which was dry most of the year, had a tendency to flood a portion of the site after heavy rains because of the damming effect of the old tires. Once the tires were removed, the flooding would cease. To the EPA and the Corps, however, the cause of the "wetland" conditions is irrelevant.

It also is irrelevant that Pozsgai didn't put any fill into the stream. Indeed, he had installed a protec tive silt skirt fence along the stream after consult ing county officials. As far as the EPA and Corps are concerned, once they determine that a. property is a wetland, Federal jurisdiction comes into play.Yet the famil iar types of wetlands are estuaries, marshes, swamps, and bogs near open bodies of water that can serve as fish and wildlifehabitats, or as filtering areas for pollutants that might harm water quality. Pozsgai's property is in an industrial area of town, far from any ocean, bay, or river. It isn't a marsh, swamp, bog, or anything close to it. Nor does it serve as a fish or wildlife habitat, unless you want to count the thousands of mosquitos that used to breed in the water standing in the old tires. Never theless, the Corps' soil sample of the site, as well as the presence of such "rare" vegetation as skunk cabbage, indicated that most of the dump site was technically a "wetland."

Indeed, the Corps has a regulation which autho rizes placing fill on 10 acres or less of "wetlands" that are essentially isolated. If a citizen wishes to take advantage of this general permit, the regula tion specificallystates that no application for a per mit is required. Yet the Corps was demanding that 165 Pozsgai fill one out! With the help of his daughter, he tried in vain to get several engineers to com plete the confusing and complicated paperwork. The Arrestand Trial The EPA had enough of Pozsgai placing topsoil on his own land, so they set up secret surveillance video cameras to record some of the fillingactivity. Armed with this evidence and aerial photographs, the EPA had Pozsgai arrested and indicted in September 1988 for "discharging pollutants into waters of the United States." Keep in mind that the "pollutants" consisted of earth, topsoil, sand, and clean fill. (Under the Clean Water Act, a child at the beach dumping a bucket of sand into the ocean is technically "discharging a pollutant into waters of the United States" and can be arrested for doing so without an EPA permit!) The EPA readily admits that no toxic or hazardous wastes were involved in this case.

Keep also in mind that the "waters of the United States" in question wasn't the tiny stream on Pozs gai's property, but the adjacent dump site that had been determined to contain "wetlands." Mr. Pozs gai had removed dirty old tires from the stream, never placed any fill in it, but rather erected a pro tective silt skirt fence along the stream's edge to prevent erosion. Pozsgai's arrest and indictment were trumpeted in a press release issued by the U.S. Attorney for the Eastern District of Pennsylvania in Philadel phia, who now heads the criminal division of the Justice Department. The government was going to spare no expense in criminally prosecuting Mr. Pozsgai, although there are ample administrative and civil remedies available to the EPA to handle such regulatory matters. Violent criminals would have to wait the prosecutor's attention. The trial took place during the Christmas holi days, December 26-30,1988.The lead prosecutor, Assistant U.S. Attorney Seth Weber, was so con fused by the Clean Water Act's requirements him self that he mistakenly thought that Mr. Pozsgai needed a National Pollutant Discharge Elimina tion System permit from the EPA, which is required for factories discharging wastes into water, rather than a simple fill permit from the Corps of Engineers. If an educated prosecutor doesn't know which permit Pozsgai is required to have, certainly Pozsgai, a Hungarian immigrant 166 THE FREEMAN • MAY 1990 with little schooling, could be forgiven if he found the morass of regulations a little confusing. Never theless, the jury, obviously impressed with the videotapes and the government's expert witnesses, found Pozsgai guilty.

John Pozsgai was sentenced on July 13,1989. At the urging of the prosecutor, U.S. District Court Judge Marvin Katz sentenced Pozsgai, who has no criminal history, to three years in jail, the maxi mum sentence under the Clean Water Act, fined him $202,000,ordered him to be placed on proba tion for five years after he serves his three-year prison term, and to restore the property not to what it was, but to a pristine wetland according to plans by the Corps of Engineers. The judge and prosecutor ignored the probation report that this "crime" wasn't serious, that Pozsgai's wife, also a Hungarian immigrant, has a heart condition and that jailing her husband, her sole support, would likely kill her, and that the fines would impoverish Mr. Pozsgai who has a negative net worth and a meager income. Rarely do we see such examples made of the most violent criminals. Pozsgai then asked the Washington Legal Foun dation, a pro-free enterprise, public interest law and policy center, to represent him before the United States Court of Appeals for the Third Cir cuit. Incredibly, the court upheld his conviction on January 12, 1990, without holding oral arguments and without stating any reasons for its decision. If the Supreme Court doesn't reverse the case, the sentence imposed on Pozsgai would be the longest prison term ever served for violating the Clean Water Act or, for that matter, any other U.S. envi ronmentallaw.

Research by the Washington Legal Foundation of all environmental crimes from fiscal years 1983 1989shows that the usual disposition is a moderate fine and probation. In the rare case, a small jail term may be imposed for a dangerous polluter's dumping toxic or hazardous wastes. Sendinga"Message" Why was Pozsgai targeted for the most serious penalty the law has to offer for simplyputting clean fill on his own property? To quote the prosecutor, "a message must be sent to all land owners, the cor porations, the developers of this country" that fines, probation, and short prison terms are a thing of the past for environmental offenses, especially those involving wetlands, because of President Bush's "no net-loss of wetlands" policy. The government means business, at least when it comes to prosecuting the little guy. For at the same time Federal prosecutors were going after John Pozsgai, they were prosecuting another "water polluter" in Florida. Ocie Mills, a 58-year old retiree, and his son were convicted and sen tenced to two years in jail for placing 19 loads of sand on his property without a permit, even though Florida officials told him that none was required.

Mills, who defended himself, proved no match to the threeFederal prosecutors assigned to the case. Unlike Mr. Pozsgai, who was luckily placed on bail pending appeal, Mr. Mills was ordered incarcerat ed while his appeal works its way through the courts. Mills already has served a year of his sen tence in a Federal penitentiary. In short, the government intends to use the Pozsgai case as a precedent to start imprisoning corporate officers and other businessmen for envi ronmental offenses, even though heretofore wet land cases have been prosecuted only in civil pro ceedings. As for explaining how a typical arsonist would receive a much more lenient sentence than that meted out against John Pozsgai, the Justice Department responds in its appeal brief that arson "is directed at a limited number of victims," where as the victims of Mr. Pozsgai's so-called crime "include the public at large."

The government also takes great offense at the Washington Legal Foundation's other arguments on appeal. For example, we point out that the statutory definition of "pollutants" means a dis charge of earth or sand into "water" not "wet lands." The word "wetlands" is nowhere defined in the Clean Water Act..Therefore, since Pozsgai didn't dump anything into water, no crime took place. The Justice Department characterizes our interpretation of the word "water" to mean "liquid water" as an "innovative reading of the Clean Water Act." Only to government bureaucrats at the EPA and Corps of Engineers, with an ever increasing jurisdictional appetite, would the plac ing of earth on other earth constitute a discharge of pollutants into water. As for failing to prove at the trial that the stream was a tributary of the Pennsylvania Canal, or that the canal was used in interstate commerce (both of which, in this case, are prerequisites to Federal PRIVATE PROPERTY RIGHTS: AN ENDANGERED SPECIES 167 jurisdiction), the government blithely responds that the dictionary defines "canal" as a waterway used in navigation, and the jury can simply assume it was used in interstate commerce.