By Carol W. LaGrasse
It was approximately two years since Dick Senter watched in shock as armed enforcement agents of the Department of Environmental Conservation (DEC) charged into his dairy farm, climbed up on an excavator and threatened the operator with arrest if he continued digging. But in June 2000, the Stephentown man filed a claim with the State of New York for damages amounting to $200 million.
His burly physique testifies to the fact that Dick Senter has worked hard all his life. A strong believer in the American tradition of private property rights, he believes that he has an inherent right to improve his farm by leveling the land and to sell the gravel and sand from the surface deposit being removed. He has worked all his life as a farmer, lumberman, truck driver, and excavator. Leveling was another important project to improve the land and manage the farming enterprise.
The semi-retired farmer was shocked when DEC pulled into his farm and climbed on the loader, intimidating the operator. Later his buyer in Massachusetts told him that DEC had called to stop him from accepting the material because Mr. Senter was mining without a permit. Mr. Senter believed that this interference was outside of their governmental power.
DEC stated on their notice that they were responding to a complaint. However, when he asked DEC for the name of the person who had reported him, the name was withheld. This is the customary practice with that agency.
The DEC aggressiveness was ironic because the land has served as a source of gravel since at least as far back as 1945, when the State Department of Transportation opened a borrow pit in the area where Mr. Senter's grain complex now stands. The borrow pit furnished material to repair damage from the 1945 flood.
In 1968, Mr. Senter had started to set up contacts with sand and gravel users to excavate away the ridge to reduce the slopes and the droughty and leachable soils. This would enhance the agricultural viability of his land. Not only was the material from the glacial deposit valuable for commercial use, but it was essential that the material be hauled away, because there was no place on his property to deposit it. In 1972, he had contracted with a local company to begin moving the aggregate, but he later learned that, unknown to him, DEC had scared the company away.
In 1976, Senter arranged to sell gravel to a new buyer. Unknown to Senter, however, the buyer moved in two processing plants, making ready to operate. This resulting in the permits being delayed long enough so that the gravel for the original need had to be supplied from a different source, eliminating Senter's sale.
In 1998, he had the first real opportunity for the volume excavation to proceed. The sand and gravel would be used to cover the Pittsfield, Massachusetts, landfill.
But DEC put his three decades of planning to a stop. Convinced that he should not accept this infringement on his freedom, he sought help. But everywhere he looked, there was no one to help defend his rights. He telephoned the Property Rights Foundation of America and described how he suddenly faced this problem with land he had owned since 1958.
"As we have just celebrated 'Independence Day,' it seems bizarre that we need to fight for those conditions and freedoms set forth on the first enactment," he wrote later that summer.
Like so many New Yorkers caught in DEC's grapples, he sought help from his representatives in the State Legislature. His assemblyman referred him to the late Senator Charles Cook, who was very interested in the situation, having been involved in the problems that gravel operations in the Catskills have had with the DEC Minerals Division. The senator was sympathetic. But finally, with no assistance from the legal foundations and no practical alliance forming with neighboring businesses or farmers, Mr. Senter finally decided to go it alone.
Meanwhile, DEC acted aggressively. They threatened him with $1,500 per day in fines. After a suspenseful delay, they served him in August with a consent order fining him with a civil penalty of $20,000, with $7,500 payable immediately and the remaining $12,500 suspended for as long as he complied with the conditions in the order. He would have had to agree that he'd indemnify the DEC for the financial losses from his failure to fulfill the contract to supply gravel for the landfill.
Mr. Senter turned to Lewis Oliver, an attorney in Albany who is known for taking unusual cases related to environmental issues.
In June 2000, after Mr. Senter waited the required period for New York State to respond to his notice of claim, his lawyer finally filed the completed lawsuit with the State Court of Claims. Mr. Senter demanded compensation for deprivation of property rights without due process of law, deprivation of liberty without due process, deprivation of the mineral and surface estates of land without due process, deprivation of all economically viable use of land without due process, unconstitutional temporary and permanent taking of property without just compensation, unconstitutional interference with interstate commerce, unconstitutional impairment of the obligation of contracts, de facto appropriation, de jure appropriation, trespass, illegal search and seizure, malicious prosecution, negligence and gross negligence, failure to train, reckless disregard, and violations of civil rights.
Mr. Senter has demanded compensation for violations of his rights under several Constitutional Amendments, the Fourth (protection from unreasonable searches and seizures), Fifth (the "takings" clause), Ninth (the rights not enumerated are retained by the people), and Fourteenth (the privileges and immunities clause, due process clause, equal protection clause). He also demanded compensation for violations under the Constitution, Article I, Section 8, Clause 3 (the Commerce Clause) and Section 10, Clause 1 (which prohibits states from impairing the obligation of contracts).
Violations of the New York State Constitution for which he demanded compensation include abridged rights under Article I, Sections 6 (the right not to be deprived of life, liberty or property without due process of law, and other protections), 7 (the state "takings" clause), 11 (equal protection clause), and 12 (security against unreasonable searches and seizures).
His claim points out that DEC's actions and the application of the Mined Land Reclamation Law (MLRL) permitting requirements to his agricultural activities of extracting sand and gravel are "without a rational basis because claimant's agricultural activities of extracting sand and gravel and selling the sand and gravel for commercial use will cause no environmental problems of groundwater, surface water, run off, discharge, noise, dust or truck traffic and the like."
The lawsuit also points out that, "The MLRL permit requirements and DEC's enforcement of same against claimant are inimical to the State's policy and the public interest in preserving agricultural lands for agricultural uses."
In submitting his claim for over $200 million in damages, Mr. Senter has lodged a defense of the fundamental rights to possess, use and control his property; the right to exclude uninvited persons from his property, the right of privacy, the right to be free from warrantless search and seizure without probable cause, and the right to be free from prosecution without probable cause. These rights, which many people do not think of when they focus on private property rights, are fundamental privacy and property rights. These protections provided for in the United States and New York State Constitutions are just as important as his rights to the value of his sand and gravel contract and the right to develop the full value of his farmland.
Many people who are not involved in business do not think of the importance of the right of contracts. Yet the preservation of private contracts was provided for in the original Constitution of New York State and is also a fundamental federal right. The right of association for business purposes is fundamental. Without this right, the country would become a communist state.
Dick Senter's commitment of his resources to this lawsuit culminates a life lived independently in the American spirit of freedom. In a way, he represents many other people who have lacked the circumstances or perhaps the courage to stand up to what many refer to as the DEC "Gestapo." His success could restore lost freedoms to many people.
Carol W. LaGrasse, July 2001