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Does anybody care?

Posted By Henry Lamb On 01/22/1999 @ 1:00 am In Commentary | Comments Disabled

Through the narrow window of his cell in the federal penitentiary at
Pensacola, Florida, Ocie stared, night after night, reliving the events
that put him there. In another cell block in the same prison, his son
struggled to understand why he was being punished. For 27 months, the
father-son team sat in prison as partial payment for their crime.

The west-Florida sky was much brighter three years earlier when Ocie
and his son decided to build a home on a 65-foot bay-front lot they had
acquired. Ocie got his building permit from his county officials. He
called the state Department of Environmental Protection (DEP), then
headed by Carol Browner who is now the administrator of the
Environmental Protection Agency. The DEP visited the property and
flagged an area near the shore that the state agency considered to be a
wetland. Ocie was told he could build his home anywhere else he chose on
the small lot. Ocie Mills was about to realize a long-held dream of
helping his son build a home of his own.

Nearly 2000 miles away, Bob Brace was about to realize a long-held
dream of consolidating his father’s farm with his own. The Brace family
had lived in the Waterford area of Pennsylvania for generations, farming
the rich bottomland. After buying the old “homestead,” Bob set out to
convert what had been a beef and dairy operation into a row-crop
operation. Fences came down, pastures were plowed, and mudholes
eliminated, using what Bob had been taught by the Soil Conservation
Service, to be “Best Management Practices.”

Both men, using their own private resources, their own initiative,
their own effort, on their own private property, discovered they were
criminals, when gun-toting officials of the federal government appeared
on their private property to announce they had “polluted the waters of
the United States.” Bob’s crime: installing drain tile under mudholes on
his own property. Ocie’s crime: dumping 19 loads of building sand on his
own property.

In America, the accused are supposed to be innocent until proven
guilty in a court of law, except for those who are accused of
environmental crimes. Ocie and Bob, and every other person whom a
federal agency declares to be in violation of an environmental
regulation, stand guilty upon declaration, and are subject to fines and
imprisonment until they prove their innocence in a court of law. Does
anybody care, that the rule of law has been turned on its head when it
comes to environmental regulations?

Ocie couldn’t believe he had done anything wrong. He re-read his
Constitution, re-examined his building permit, and his permit from the
state DEP, and decided to go to court. A team of federal attorneys
painted Ocie as a dangerous criminal who ignored the government’s cease
and desist orders, and flagrantly polluted the waters of the United
States.

Ocie smiled, and patiently waited his turn. He had his building
permits. He had his DEP permits. He had letters from the DEP telling him
to ignore the cease and desist orders, that they had been issued in
error. Ocie knew he could beat this rap. Ocie didn’t know that Judge
Arnow would rule that his evidence was not admissible because neither
the county nor the state could supersede the authority of the feds, even
though in Florida, the state DEP issued joint permits for the Corps of
Engineers in wetland matters. Ocie was not allowed to present his case,
and spent 27 months in federal prison. Ocie’s son had done nothing, but
his name was on the deed. He too, spent 27 months in federal prison, as
partial payment for his crime.

Bob Brace re-read his Constitution, that part about “… nor shall
private property be taken without just compensation,” and he took a
different approach. Bob reasoned that if the federal government was
going to prevent him from using his private property to earn a living,
the federal government would surely compensate him for the loss. Wrong!
The court battles began.

For nearly 12 years now, both Bob and Ocie have been victimized by
the federal government’s relentless effort to crush them. Each has spent
nearly three-quarters of a million dollars in court costs and legal
fees, trying to prove that they are innocent. But the deck is stacked
against them. While there is no end to the tax-dollars available to the
federal attorneys; there is a definite end to the hard-earned dollars
available to Bob and Ocie. The battle must be fought in federal court,
according to the rules and terms of the federal government. Bob could
not even begin to sue the feds to recover his loss until he had first
exhausted every other administrative and legal avenue — at his own
expense. His “takings” case was just filed in federal claims court last
November, almost 12 years after the alleged violation. He has no hope of
a hearing for at least two more years. Then, should he win, he must
anticipate that the federal agency will again appeal the decision, as
they
have done at every step along the way. Justice delayed is justice
denied.

Ocie’s 27-month sentence carried a 6-month probation period, and a
requirement that he not only restore the land (which would have required
the removal of 19 loads of sand), but to lower the elevation of the
property 24-inches to insure that there could be no future use of Ocie’s
private property.

Ocie’s case took a peculiar twist after a local television interview
upon his release from prision. Two individuals who had served on Ocie’s
jury contacted him after the interview. The foreman of Ocie’s jury had
two sons who worked for the DEP. The jury was being fed daily reports
through the foreman of his son’s appraisal of what a terrible person
Ocie was. Moreover, Ocie learned that the federal prosecutor knew that
the foreman’s sons worked for the DEP, but failed to reveal that
information to the court. Armed with sworn affidavits from the two
jurors, Ocie filed a motion to set the conviction aside, and petitioned
for a new trial — seven years ago. There has
been no ruling. Justice delayed is justice denied.

Both Bob and Ocie are exhausted. For nearly 12 years they have spent
their retirement money, their efforts, and virtually every waking
moment, seeking justice from the federal government. Their experiences
are similar, but unique. Both are victims of excessive environmental
regulations; both are victims of abuse of government power; both have
been demonized as “criminals” by federal agencies; both have seen their
neighbors grow indifferent.

“People just don’t believe this kind of thing can happen in America,”
Bob says. “There must be more to the story than what Ocie says, the
government just doesn’t put people in jail for dumping sand on their own
property,” is a frequent response to Ocie’s case.

In Ocie’s case, there is more to the story. Nearly ten years before
Ocie’s wetland crime, he had ordered two state officials off his
property, when they had appeared without invitation, announcement or
warrant, to conduct an inventory for environmental protection. The two
officials took Ocie to court, and Ocie won. The state had to change its
policy and ask permission to make such entry. When Ocie’s wetland
problems began, those same two officials worked for the federal agency
that prosecuted Ocie, and were instrumental in bringing the charges
against Ocie. That’s the rest of Ocie’s story.

Were it just Ocie and Bob, the country could survive. But it is not
just these two. These are but two examples of thousands, perhaps of
hundreds of thousands of cases that go unreported in the media,
unnoticed by the public. And the number of victims is growing. Most
victims have neither the money, nor the stomach to fight the feds.
Consequently, the feds grow bolder and prosecute, not only wetland
violations, but infringement of critical habitat, streambanks, scenic
viewsheds, historic places, and other segments of private property which
the federal government deems to be of public value. No private property
is safe from a declaration of federal jurisdiction. So entrenched is the
trend to “protect” whatever the government decides needs to be
protected, that private property has lost much of its meaning.

The government already owns 40 percent of all the land in America,
and currently proposed legislation supporting the President’s Lands
Legacy Initiative would dedicate $1 billion a year to the acquisition of
the remaining private land until it is all transferred to the
government. Until that happens, the government is tightening its control
over the use of the private property by imposing its regulations on
people like Bob and Ocie. No private property is safe; no individual is
immune. Does anybody care?


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