In this week when we remember how much government takes from us, we should also remember what they do with that money. In this case study, what they did was harrass and imprison a man who most people would say hadn't committed a crime at all.
John Pozsgai came to the US from communist Hungary in 1956. He worked as a mechanic to support himself, his ailing wife and his two daughters. In the 1980s, Mr. Pozsgai lived in an industrial area of Morrisville, PA, across the road from a landfill site. His property was bordered by major roads, a tire dealership and an illegal auto dump. In 1987, he bought the property on which the dump rested and proceeded to clean it up, removing 7000 tires and innumerable rusted auto parts. He prepared to add clean fill and topsoil to complete the cleanup of the site.
This cleanup activity, however, attracted the attention of bureaucrats from the EPA and their armed wing, the Army Corps of Engineers. The officials claimed that the site contained some wetlands, and therefore he needed permission from the Army Corps before adding fill to the site. Mr. Poszgai was puzzled, because local officials told him he was okay.
To most of us, a wetland is clearly a wetland – a stream, a marsh or a flood plain. To the EPA and Army Corps, however, virtually anywhere that has some sort of connection with a wetland is itself a wetland. That is because the EPA has seized powers under Section 404 of the Clean Water Act that was written to control the discharge of fill material into navigable rivers. Edward Hudgins of the Atlas Society explains how:
[I]n 1975, the Natural Resources Defense Council, in NRDC v. Calloway, challenged the common-sense definition of "navigable" as something you can float a boat down, and federal judges rejected both common sense and the Constitution by ruling that Section 404 covered all "waters," including what are now called "wetlands."
In subsequent years, the Army Corps of Engineers, Environmental Protection Agency, and assorted judges expanded the definition of "wetlands" to mean almost any piece of land. Even a parcel that's dry for all but one week of the year but includes plants that are associated with wetlands can fall under federal control.
(More about what we should do about this here.)
John Pozsgai was about to discover just how much control the bureaucrats had over his land. The property he had bought was adjacent to a drainage ditch that was dry most of the year. However, on occasion the stream would flood part of the property because of an artificial dam created by the old tires, which he had now removed. Without these tires, the property was only a wetland in the imagination of EPA and Army Corps bureaucrats. That, however, proved enough.
Pozsgai received visits from these bureaucrats, who told him he needed a permit to place any fill on the site. He discovered that, under an Army Corps regulation, he did not need a permit to dump fill on an isolated wetland, which his property certainly was, but the Army Corps insisted he apply for one. He found the paperwork, like so many others, confusing and complicated. The Corps also demanded that he redam the stream so that his property would continue to be flooded. That was bad enough. Paul Kamenar of the Washington Legal Foundation, which helped Pozsgai, relates what happened next:
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 filling activity. 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 Pozsgai’s property, but the adjacent dump site that had been determined to contain “wetlands.” Mr. Pozsgai had removed dirty old tires from the stream, never placed any fill in it, but rather erected a protective silt skirt fence along the stream’s edge to prevent erosion.
Pozsgai’s daughter, Victoria Khoury, later told a committee of the House of Representatives that two EPA officers even searched the family home for weapons. Pozsgai was found guilty at his trial and sentenced to three years in prison – the maximum under the law, originally intended to be applied only to navigable rivers, remember – and fined an astonishing $202,000. Pozsgai spent one and a half years in prison, one and a half in a halfway house, and was under supervised probation for five years. The family was made bankrupt and was unable to pay its property taxes on the site.
As Pozsgai’s daughter, who also lost her job because of her father’s notoriety, said,
At the time my father was sentenced, he was the 'worst environmental violator' in the history of the United States. No one had gone to prison for the Exxon Valdez disaster. No one went to prison when EPA noted 22,348 pounds of toxic TRI chemicals were released into the water in Essex, N.J. But John Pozsgai went to prison for Clean Water Act violations on 14 acres of an illegal dump in Morrisville, Pa.
The astonishing fine was reduced to $5,000 in 1991. This, however, was not the end of the Pozsgai family’s troubles. First, in 1993 the US Court of Appeals for the Third Circuit affirmed Pozsgai’s liability under the Clean Water Act. The judge’s decision makes for astonishing reading. Only a lawyer or a bureaucrat could agree with the Court’s reasoning that tied Pozsgai’s punishment to the US Constitution.[i] Moreover, the Court used a particularly objectionable doctrine, whereby it defers to the definition of what a regulation encompasses used by the agency responsible for enforcing the regulation. In other words, if a bureaucrat says you’ve done something wrong, courts are very unlikely to disagree. That’s what constitutional government has come to in this age of the robber barons.
Furthermore, in 1990, a civil court also ordered Pozsgai to restore the wetlands. In March 2007, the United States District Court found Pozsgai and his wife in contempt for failing, essentially, to return the tires to the site. This happened even after a 2006 Supreme Court ruling had appeared to restore some sanity to interpretation of the Clean Water Act. The District Judge somehow found that the drainage ditch met the new definition of a wetland that “either alone or in combination with similarly situated lands in the region, significantly affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” This is obviously some new interpretation of ‘significant’ that I haven’t encountered before.
To cut a long story short, for committing the crime of offending a bureaucrat’s definition of what constitutes a wetland, this refugee from communism has been subject to governmental persecution for over twenty years, including the loss of the liberty he came to the US for. In its page on wetlands criminal enforcement, the EPA says that the Pozsgai case demonstrates that “EPA and the Corps reserve their criminal enforcement authority for only the most flagrant and egregious Section 404 violations.”
Flagrant and egregious behavior, certainly, but not by John Pozsgai.
[You can find more on the EPA and what should be done about it here.]
[i] United States of America v. John Pozsgai, Gizella Pozsgai, Mercer Wrecking & Recyclingcorporation, J. Vinch & Sons, Inc.john Pozsgai and Gizella Pozsgai, Appellants - United States Court of Appeals, Third Circuit. - 999 F.2d 719. Argued Jan. 8, 1993.Decided June 25, 1993.Order Denying Amendment and Rehearing Aug. 10, 1993