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Builder sent to jail for flood mitigation
Posted By Bob Unruh On 08/04/2008 @ 9:57 pm In Front Page | Comments Disabled
A park in Driggs, Idaho
An Idaho man is being sent to prison for meeting his local government’s demands during a subdivision development to fix a drainage problem that periodically had left the town of Driggs flooded, after federal officials then said their regulations banned such work.
The dire situation for developer Lynn Moses is being publicized by Bryan Fischer, the chief of Idaho Values Alliance, who said the “crime” for which Moses has been sentenced to 18 months in prison was, “Protecting the city of Driggs from flooding.”
Moses’ lawyer, Blake Atkin of Salt Lake City, confirmed the circumstances of the case, explaining that although the federal government repeatedly has denied having jurisdiction over the work involved, an opinion shared by the U.S. Supreme Court, Moses nevertheless was convicted on charges relating to his work on the streambed of Teton Creek, an intermittent runoff channel that has water in it for about eight weeks out of the year.
“Worse, Mr. Moses has been convicted of ‘pollut(ing) a spawning area for Yellowstone cutthroat trout,’ despite the fact that there have been no fish in this stream bed for more than 150 years,” Fischer wrote. “[A resident] who has lived near the flood channel for 18 years, says he has never seen fish in this stream bed. And it’s not even possible for the stream bed to serve as a spawning ground since it only has water two months out of every year in the first place.”
Atkin told WND the issue began nearly 30 years ago when Moses started developing a parcel of ground adjacent to the creek.
“The county said, ‘You have got to take care of this flooding or we will not let you build. By the way, we want a new road and while you’re building this subdivision, build us a drainage channel to make sure the water goes (where we want it),’” Atkins said.
Moses hired an engineer and contacted the federal government to obtain permission the project, and the Corps of Engineers told him there was no federal jurisdiction, since it was an intermittent stream without any regular water flow.
The same conversation took place several times over the years, including in the 1990s when a Corps of Engineers staff member tried to convince a federal prosecutor to bring a case against Moses.
“The U.S. attorney told him to take a hike since the Corps had no jurisdictional authority to initiate legal action,” Fischer said. “According to former state legislator Lee Gagner, the Corps ‘discussed his process many times with him, but could not show where they had jurisdiction on the seasonal, intermittent stream,’ Gagner adds, ‘[T]o this day they do not have written rules indicating this to be true,” Fischer said.
Atkins said that very issue has been raised several times in the course of the case against Moses, but no court ruling ever has addressed it.
Then came a new a decision to pursue the case and the conviction after jurors were told by Judge Lynn Winmill to disregard Moses’ attempts to submit the project to the Corps of Engineers and statements about U.S. government determinations regarding the channel in the 1980s and 1990s.
However, on the day Moses was sentenced to 18 months in prison, the U.S. Supreme Court released its Rapanos case, in which Justice Antonin Scalia confirmed the Clean Water Act gives the federal government jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water,” not intermittent streams.
Explicitly, he said, “The ‘waters of the United States’ does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Corps of Engineers’ rules then were modified to include that provision.
However, Fischer said, the actual determinations and conclusions didn’t matter.
“Mr. Moses has been forced to spend almost $400,000 of his own money in a losing effort to defend himself for protecting the city of Driggs from catastrophic
flooding,” Fischer said.
Now Moses is facing prison, and his daughter, 17, is facing the loss of her sole surviving parent as she approaches her senior year in high school. Moses’ wife died of a heart attack about a year and a half ago, and Fischer said friends reported the stress of the 25-year battle with the government probably contributed.
Atkins told WND that under the various government definitions, the location where Moses did work is not wetlands, not a stream or river and on uplands.
He said his latest effort on behalf of Moses is a motion that essentially asks the trial court voluntarily to reverse the conviction, since there are none of the essential elements of a crime to be prosecuted. It was a year ago when Moses lost an appeal to the 9th U.S. Circuit Court of Appeals. The U.S. Supreme Court recently decided against hearing the case.
Fischer said the longtime problem in the location was that city property several times had been flooded by high water flows triggered by the buildup of gravel bars and downed trees.
“Teton County required him to implement an engineer’s plan to modify the Teton Creek stream bed to prevent the flooding of subdivision property, caused by the buildup of gravel bars and downed trees, during high water flows in the spring,” Fischer said. Federal officials concluded they had no jurisdiction over intermittent streams.
“For years he has walked the entire length of the creek to evaluate conditions and then remove gravel bars, sand, logs and debris as necessary to keep the channel clear and satisfy the subdivision’s obligation to the county,” Fischer said.
“When Driggs flooded in the spring of 1981 – due to a clogged culvert under a county road – the county approached the Corps a second time, asking for funding and help to replace the culvert with a bridge to prevent future flooding. Once again, the Corps said, Nope, not our problem, not our fault, not our responsibility to fix, we don’t have jurisdiction,” Fischer said.
In fact, in 1984 the U.S. Forest Service needed to build a road and took about 5,000 cubic yards of gravel from the streambed.
“Although the director of the EPA in Idaho, Jim Wernitz, asserts that Mr. Moses had damaged ‘wetlands’ associated with the stream, there are no wetlands there! The very word requires that land be, well, wet, but the stream bed is bone dry for at least 10 months out of every year,” Fischer wrote.
“His attorney calls the whole thing ‘a travesty,’ which is just about the mildest thing that can be said about this unconscionable miscarriage of justice,” Fischer wrote.
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