- WND - http://www.wnd.com -

Feds stop calling dry land 'water'

A lawsuit by a New Mexico couple whose dry, sandy homestead had been classified as a wetland by federal government regulators is being dropped after Washington agreed to stop mislabeling the land.

The Pacific Legal Foundation confirmed today the lawsuit on behalf of Peter and Frankie Smith ended after the federal decision to “stop labeling their dry land as a ‘water of the United States.'”

As WND reported, the couple had been warned by the federal government not to touch trash – tin cans, broken glass and the like – that had accumulated over the years on the 20 acres of desert land, because it could harm the Rio Grande River, 25 miles away. The couple bought the land near Santa Fe to build a retirement home.

The lawsuit claimed Washington was over-reaching in its claim that the land, which does not contain any “relatively permanent, standing or continuously body of water,” can be regulated by the Clean Water Act.

PLF recently won another major private-property rights battle at the U.S. Supreme Court over federal control of water on private property. The justices ruled landowners have a right to contest a summary order to stop using their private land because of federal wetlands regulations.

In the case, the federal government determined land in Priest Lake, Idaho, being used for the construction of a home was “wetlands.” The feds ordered the owners to turn over their records, provide detailed personal information, return the land to its natural state and leave it that way for years before seeking permission to develop it.

The high court said the EPA must provide a process through which a challenge to its decision can be made in a meaningful way. The law firm working on behalf of the land owner called the decision a “precedent-setting victory for the rights of all property owners.”

In the Smith case, the couple was told by the U.S. Army Corps of Engineers that a dry creek bed on their land was a “water of the United States” and therefore subject to the Clean Water Act.

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

Attorneys were concerned the dispute could set a nationwide precedent for property owners’ right to challenge unsubstantiated allegations by regulators operating under the Clean Water Act.

The Smiths’ land is 20 acres off State Road 14 near Santa Fe. They had been cleaning up trash, cans, glass and other debris that had accumulated before they bought the land.

The government classified the private property as an arroyo, claimed jurisdiction and ordered the Smiths to “halt any clean-up of dead trees and trash that had accumulated under a prior owner.”

“The federal government was engaged in an illegal land grab by mislabeling the Smiths’ property and misusing the Clean Water Act,” said PLF attorney Jennifer M. Fry.

“The Smiths’ desert property is bone dry, and it is 25 miles away from the nearest navigable water, the Rio Grande. On the rare occasion when there is rain at the Smiths’ property, water must pass through a second dry arroyo and then through an intermittent flowing creek and two dams before reaching the Rio Grande. So the federal government’s justification for claiming Clean Water Act jurisdiction over the Smiths’ property was nonsensical.”

Fry said she and her colleagues “are glad that federal officials have agreed to back off and stop classifying the Smiths’ dry land as ‘wet.'”

“But it’s unfortunate that it took a lawsuit to force the feds to pull the plug on their plans and leave the Smiths alone,” she said.

Fry said the case “should put the federal government on notice.”

“If they try this ploy again – if they try, in effect, to seize private property by conjuring up a mirage of water where there isn’t any – PLF is ready to fight them in court, anywhere in the country,” she warned.

In a statement released by PLF, Peter Smith said he hoped the victory “will give confidence and inspiration to property owners all across the country.”

“They, too, can fight back if the federal government tramples on their rights by misusing the Clean Water Act and failing to abide by the rule of law,” he said.

See the Smiths’ reaction to the development: