Cultivating Dissent; D. Porter

Wrong. In May of 1987Brace asked, as he -had done before, the Pennsylvania Game Commission to remove the beaver from his farm. When the Commission's agent arrived at the Brace farm, he scanned the property and declared that it would "make a nice sanctuary" for wildlife. The agent then Mr. Porter is an attorney in the Pittsburgh office ofBuchanan Ingersoll Professional Corporation, the law firm that represents Robert Brace in U.S. v. Brace. informed Brace that the field exhibited wet lands characteristics, and asked about his drain-refurbishing activities. Within days, several federal, state, and local bureaucrats descended on Brace's property unan nounced and began excavating soiland plant species. Soon thereafter,· Brace received notices from the Environmental Protection Agency (EPA) and Army Corps of Engineers in forming him that he had violated the federal Clean Water Act by discharging soil into a "wetlands" without first obtaining a gov ernment permit. The agencies ordered him to cease all activity on his field, which was now under their jurisdiction. Accordingly, Brace stopped all work except for occasion ally mowing hay.

In 1990 the federal government sued Brace for his clearing and draining activi ties. As punishment, the government sought a court order requiring Brace to: (1) strip off his crops; (2) remove the drainage system; and (3) refrain from disturbing the site so that it could return to its "natural state." Brace also faced the threat of a penalty of up to $25,000 per day for each day he was in violation of the Clean Water Act. Brace prevailed at trial. Given the impor tance of drainage for farming in many areas of the country, Congress had written an exemption into the Clean Water Act permit ting the discharge of fill material into wet lands if such activity is performed in the 88 cours~ of "normal farming." The trial judge found that Brace's activities fit squarely within the exemption and dismissed the suit. In November 1994, however, the Third Circuit Court of Appeals reversed the trial court judgment. In June 1995 the U.S.

Supreme Court denied Brace's petition for writ of certiorari. The trial court is now considering how much in fines and what form of remediation to impose. The Clean Water Act's penalties accrue for each day of violation rather than for each violation, so Brace faces a potential fine of more than $50,000,000. While it is unlikely that he will have to pay anything close to that amount, even one percent or $500,000would be confiscatory. More over, the remediation scheme proposed by the EPA requires Brace to plug his drainage system with concrete. Because the farm's drainage system is integrated, this "remedy" would likely destroy Brace's entire 140-acre farm. Multiple Ironies u.s. v. Brace is peppered with ironies. The beavers that caused Brace's initial wa ter problem were introduced to the area by the Commonwealth of Pennsylvania. Brace refurbished the farm's drainage system us ingplans prepared specificallyfor him by the federal Agricultural Stabilization and Con servation Service. When Brace was ordered to stop working in his field, he sought an after-the-fact permit-which the Corps re fused, citing the pending lawsuit.

Unfortunately, Robert Brace's ordeal is not exceptional. Scores of property owners have litigated wetlands disputes against the government; some have ended up in prison. And for every person who goes to court over wetlands, there are many others whose well-laid plans have been frustrated by state and federal bureaucrats. But Brace is espe cially interesting as a case study of the real world application of wetlands regulation. What we know today as "wetlands" were once referred to as swamps and thought likely to spawn "bilious fevers" if not drained. Now, of course, virtually all wet89 lands are viewed as sacrosanct due to rec ognition of the positive ecological role they play in some cases. This change in perspec tive has been accompanied by an about-face in governmental policies toward wetland areas. While state and federal governments once encouraged and subsidized the drain ing and reclaiming of wetlands, now they require wetlands preservation.

The foundation of the federal government's wetlands protection policy is the Clean Water Act, and the regulations promulgated there under. The Clean Water Act forbids the un permitted discharge of any dredged or fill material into "navigable waters," which is statutorily defined as "waters of the United States.', EPA and Corps regulations further expand federal jurisdiction while restricting the farming exemption created by Congress. Accordingto the Corps, for instance, naviga ble "waters of the United States" include "wetlands, " defined as any ground that sup ports "vegetation typically adapted for life in saturated soil conditions." The portion of Brace's property of inter est to the government does not resemble a swamp, bog, or marsh. One can walk across the field without getting wet feet. Never theless, because courts are extremely def erential to agencies' expansive statutory interpretations, the Corps' counterintuitive definition of "navigable waters" placed Brace's field under federal control. Thus, taking a stroll across Brace's field is legally equivalent to traversing navigable waters of the United States.

Moreover, in Brace's case, government attorneys argued that he was not eligible for the farming exemption because: (1) his field was a wetland; (2) the land was not part of an ongoing farming operation; (3) his activ ity was not' 'farming" ; and (4) even if Brace was engaged in farming (and therefore ex empt), his activity was "recaptured" by a regulation prohibiting landowners from bringing their property into a use in which it was not previously engaged. Despite the fact that Brace and his ances tors never conducted any activity on the farm except farming, the government argued that he was not entitled to Congress's farm90 THE FREEMAN • FEBRUARY 1996 Robert Brace (center) and his sons, Ronnie (left) and Randy. ing exemption because his field was not part of an ongoing farming operation. Rather, the government contended, Brace's activity merely brought the site into farming use. No matter that pasturing livestock and growing crops are both archetypal farming activities: the government argued successfully that even if the field was previously part of an established farming operation when it was used for pasture, it lost farmland status in 1978 when Brace began preparing it for crops. The trial court commonsensibly con sidered Brace's activities in light of the history of the Brace homestead farm, and in the context of normal farming practices in its vicinity. By contrast, the court of appeals measured Brace's activity solely against regulatory definitions of "farming" and "ongoing farming operations," which en tailed an unduly narrow definition of farm ing. As a result, federal bureaucrats and judges have ended up dictating to farmers what does and does not constitute' 'farming."

The government's finalargument was that even if Brace's fi.eld were part of an "estab lished farming operation,;' he lost his ex empt status by interrupting and the~ "re suming" his farming operations. The government contended that the site became something other than farmland the moment Brace stopped using it as pastureland. By planting crops, the argument ran, he brought the area into farming use once again, but by then it was too late, for the Corps' "recap ture" regulation made his activity non exempt. In short a farmer cannot interrupt his operations lest he risk losing his legal right to continue in the future. Presumably Congress recognized the problem of imposing unreasonable burdens on the many farmers across the country whose normal farming activities, specifi cally including drainage, would otherwise subject them to wetlands regulation, which is why it wrote the farming exemption into the Clean Water Act. As Senator Edmund Muskie noted in 1977, the permit require ments of the Clean Water Act had become "synonymous with federal overregulation, overcontrol, cumbersome bureaucratic pro cedures, and a general lack of realism. " The farming exemption was Congress's attempt to mitigate those problems; however, envi ronmental bureaucrats have eviscerated that Congressional intent.

Debates over environmental regulation often center on the expected public costs and benefits of particular legislative propos als. But the story of United States v. Robert Brace is a poignant reminder that such regu lation, whatever the supposed cost-benefit ratio, erodes freedom and undermines inde pendence. "Regrettably," says Robert Brace, "I've gotten to know the ways of the legal, legislative, and judicial systems since I got into this snarl. They aren't much help to ordinary citizens like me. We're simplyover whelmed by raw government power." Wetlands reform billsare currently moving through Congress and Pennsylvania's Gen eral Assembly which would, among other things, categorize wetlands according to their relative value and function, strictly define wetlands so that they are more easily recog nizable to ordinary landowners, and require compensation for individualswhose property has been adversely affected by regulation.

Such measures are a step in the right direc tion, but they willlikelybe too little and come too late to save the Brace family farm. D THEFREEMAN IDEASON UBERTY Is SocialSecurityPro-Family? by Daniel Lin W henever politicians fear that the pub lic believes a program has outlived its usefulness, they re-categorize it to make it seem relevant. How else could worthless vanity projects become "jobs programs"? And minimumwage laws that make un skilled workers too expensive to hire be called "poverty fighters"? Now leaders of both parties routinely drape a "pro-family" mantle over any government folly which they desire to protect. For instance, Social Security is being promoted as perhaps the government's most sacred pro-family program. The reasoning is simple: poverty destabi lizes the family, so a program that alleviates poverty must be pro-family. By guarantee ing a retirement income for every worker, Social Security keeps the elderly out of poverty. In addition, Social Security sup posedly offers working adults relieffrom the emotional and financial burden of support ing elderly parents. What could be more pro-family than government using its enor mous power to take care of Mom and Dad for you?