Property Rights Foundation of America®
Founded 1994

The End Justifies the Means:
What the Federal Government Will Do to Take Away Your Property Rights

Lawrence A. Kogan, Esq.
The Kogan Law Group, P.C.
United Nations Plaza, New York, N.Y.

Twenty-first Annual National Conference on
Private Property Rights
October 21, 2017
The Century House, Latham, N.Y

 

Thank you all for waiting around. I know it's been a long day and I do appreciate being asked to return. I've always enjoyed speaking at Carol and Peter's events.

I think what we're experiencing within the United States today is an international effort to undermine the United States hegemony. This effort has been continuing for the last thirty years. It's been elevated to a higher level and I think facilitated more rapidly by countries within the European Union that wish to do away with the historical anomaly known as the United States and its Enlightenment Era founded, the principles underlying that founding which focus on humanism, the individual and what can become of opportunity, hard work and discipline. They don't like the economic advancement that we've had, the independence we have from other nations, and the ability of the United States, being as powerful as it is, to go its own way when it so chooses.

That was, at first, challenged by the Soviet Union during the Cold War following World War II. When the Soviet Union fell upon itself we had a new location for all these Eastern European Communists. It's known as environmentalism. So, what's green on the outside is often red on the inside. Let's just call it what it is. Okay? We have a very unique foundation in this country known as common law. We have to thank our English ancestors for that common law framework because it is very different than that framework on the continent of Europe. You don't have… well, let's start with what we do have here. We have here are exclusive private property rights. That means I can push you off from intruding on my rights just as I can push the government off. That's a negative right.

In Europe, they have positive rights of property, which are conditional upon the sovereign allowing you to exercise those rights. So, he or she who giveth can taketh away at will. You become their subject. Here we don't have it that way. Unfortunately, over the last thirty years with the fall of the Berlin Wall, what we have is an encroaching wave after wave of exercise of government police power to do away with the negative rights of common law. So, they codify case law into statutory law and through that grant federal agencies and state agencies powers that go beyond their mandates. You see, during the course of the last several annual meetings, that Carol and Peter have convened, anecdotes — you've heard anecdotes — of power and abuse of power.

I'm here today to talk about a couple more anecdotes that I've experienced representing people knowing what I know, having gone through the international realm and seeing what's been happening, seeing what our congressman, senators and even White Houses have failed to address head-on because it's not politically popular to do so. But it's a grinding down of the natural rights that we have as citizens of the United States of America for a public interest and that the private interest is not considered positively anymore. The gentleman that just spoke before talked about all of the negative externalities that we as individuals impose on others because we're selfish and greedy.

It's interesting how being selfish and greedy has catapulted this nation over the course of fewer than three centuries to a position of prominence in the world to which no country can aspire. The point is that what we're dealing with here is conservation versus preservation when it comes to regulation. There's a difference between conservation and preservation. Teddy Roosevelt was a conservationist. He believed in balancing between stewardship of the Earth and use of the Earth over which you have dominion and control. The greens today believe in preservation, which means "don't touch." It means we control, we determine when and how and if you can use your own private property.

I represent, and have represented, landowners out West — cowboys, irrigators, ranchers, farmers, dam owners even in the Mid-West, farmers in the East Coast. Now I represent owners of a city dump that was claimed as federal waters over the last thirty years. I have two legacy cases — what we call in the trade legacy cases — that span over three decades long. Now, could you imagine being the subject of a federal lawsuit by federal agencies for three decades? Your children grow up hearing about the garbage you're enduring and then they grow up as adults and that's all that they continue to hear.

I'm dealing with people who are shell-shocked. They're tired. They're worn out but they're still very, very angry. One of them is Bob Brace, who I met here last year. And Bob Brace, actually, his case is very famous. United States v. Brace was filed by the EPA back in 1990 because he had the temerity, audacity, and just sheer nerve to want to farm his own land. And then they came upon his land and said, "Well, you have a wetland here." This is not an issue of whether you're deep ripping versus disking versus just plowing, this is whether you could farm your own land pursuant to federal policies that pay you to farm your own land and convert wetlands to dry lands have an approved conservation plan from the USDA [United States Department of Agriculture] but you have agencies that don't get along with each other during the Reagan Administration. They just conflict with each other and cancel each other out. What we have here was an EPA that saw that under the statute known as the Farm Security Act of 1985, Mr. Brace had the ability to designate certain portions of his farm tract as prior converted crop land which means that it was excluded altogether from the definition of Waters of the U.S. and thus from federal jurisdiction. He could just do what he wanted. It was grandfathered effectively in if he met the statutory requirements, which he had done.

Then there was a quasi-prior converted cropland designation known as commenced conversion. If you had met the statutory requirements and begun converting your land that was already overseen and approved by the USDA and you had put money out to make, for instance, irrigation ditching — you create ditches you create underground tiling to move the water from the area that you wish to farm in order to make it productive.

All this was approved. He had his commenced conversion but EPA in its zeal to protect wetlands and given George Bush I's no net loss of wetlands rule, which started off as a baseless policy but began to grow through a Clinton Administration and into Bush Administration, into regulations, they effectively shortcutted, interrupted, his commenced conversion and effectively imposed Clean Water Act, Section 4, for permitting on him. Therefore, under what otherwise would be an available exemption from the permitting requirement…

Let me just take a step back. There's a difference in law between a statutory exclusion and a statutory exemption. The exclusion doesn't even get you under the statute. You are removed from the statute. You don't even enter into it. So, it's not an issue. But if you have an exemption, it's already assumed you're under the auspices of the statute and you find a way out, if you meet the limited conditions of the exemption. There's a normal farming activity exemption that Mr. Brace thought he would meet. The reason he went through the normal farming exemption rather that the exclusion, which included commenced conversion, was because the commenced conversion rules were a lot newer. The USDA didn't agree with the EPA or the U.S. Army Corps of Engineers as to how to implement them. Regulations had come out in the process, actually, that were joint EPA and Army Corps regulations where they agree on how to implement it but EPA still disagreed with its own partially authored regulation. They forced Mr. Brace into the exemption. He couldn't get to his exclusion so he's in the exemption. Then what they proceeded to do in the process of grinding down his resources, even after he won at the district court level in Erie, Pennsylvania, they proceeded to say what is and what isn't normal farming. Did you realize that you can't pasture land under a normal farming exemption? That's not considered normal farming. You have to crop. They're telling Mr. Brace how to farm. He's only been a fourth- or fifth-generation farmer. But this is what the regulatory elite do.

So, he went through the Third Circuit Court of Appeals and he lost. They defined, narrowly, what a normal farming activity is or isn't. That case was used by EPA as a federal precedent. It still lives on today, which affects the Duarte case because of the ripping. Mr. Brace wasn't satisfied. He is one bull-headed guy. I admire him for that but he also can take himself into oblivion because he doesn't say enough is enough. The point I'm making is — and I say that with admiration, especially since I'm being recorded, Bob. Anyway, he went to the Federal Court of Claims because what happened was he was forced to sign a consent decree with EPA, with the United States, representing all the agencies after having lost at the Third Circuit Court of Appeals. That consent decree imposed upon him a permanent injunction not to disturb this thirty-acre portion of a 146-acre tract and not to countermand the restoration plan, the wetland restoration plan that had accompanied this consent decree. The problem is, the consent decree had a hand-drawn map. No metes and bounds were ever delineated on his thirty-acre parcel. So, where it began and where it ended was anybody's guess. Plus, it imposed on him that he had to basically pull out some of his irrigation tiling that he spent a lot of money on and a lot of time putting in the ground. He had to take some of it out. Then he had to fill in agricultural ditches, which were constructed originally to move the water out of the crop zone so he could farm. Then he also had to, basically, construct and place a check dam at an imprecise place because it really wasn't measured on that thirty-acre parcel.

He complied with the requirements, was able to get a reduced fine, and you would think he could farm the rest of his tract with out interference from the thirty-acre parcel. But, you know, the story doesn't end up that way. As soon as he started trying to farm the other portions of his farm tract, he noticed that water was encroaching on those drier portions, the uplands. Was it because a particular feature of the restoration plan had malfunctioned? Or was it designed that way from the get-go. One couldn't discern that. He tried to get in touch with EPA and the Corps and try to fix this and come to some solution and they always continued to put him off year after year. So, he went to the Court of Claims and figured, "Well, I can't use this land. Most of it has been inundated with either surface flooding or subsurface erosion. I'm going to try to file a takings action."

As prior speakers today have said, a takings action is quite difficult and it really is for those with very deep pockets. It takes many years. It's a very complicated case to bring. Even if it's a physical takings case, it's still not a sure thing. Well, the problem he had was that it's how, in part, you define what the property parcel that has been taken is. There's a little nuance here and there as to how you define the parcel. And then the extent to which it's taken. What percentage of take is enough to constitute a physical taking. To briefly state, he lost that decision. The water kept on inundating the rest of his tracts for twenty subsequent years.

He tried, thereafter, to talk with EPA and with the Corp. They said, "Well, we'll try to consider what was going on here, what we didn't see, maybe, when we designed it." There were beaver dams on and around his property. Everybody knows that beaver dams can clog up waterways. If waterways are fed into underground tiling and underground tiling also backs up because of a beaver dam, a waterway will back up into the tiling which will then back up into the land. That's one source of flooding. Another source of flooding could be the problem with culverts that go under roads that get clogged. These plastic pipes do crack and break and there are growth areas throughout. EPA maybe didn't anticipate all of this. Or did it? Maybe they tried to take all of his land back because he is in Erie County. Erie County is, for all intents and purposes, a wet place. It was something that under the initiative of the Enlightenment Era-thinking, farmers took back from nature. Nobody thought anything of it. The whole Erie community was tiled in order to drain the land. This was against the edict of the Clean Water Act. You needed permitting. It wasn't your land anymore because the wetland happened to be adjacent to a creek which went fifty miles into Lake Erie and therefore you connect the finger bone to the wrist born to the elbow bone and you have half of an arm. That's the way they view it. Especially after the Rapanos decision in 2006. All you need is something adjacent which can mean, what, a couple of hundred feet is adjacent? So, therefore, his wetland became their wetland and he has basically given the federal government federal waters under which he is now regulated and must be permitted. The problem is they won't grant the permit. If they did grant the permit it would be quite expensive and an arduous task to secure.

So, Mr. Brace comes here last year, tells his story, I'm sure a lot more colorfully than I have and he and I meet. He asks me, "Can you help me?" I said, "Well, I don't think so. This looks like it's a heavy lift. It's a thirty-year-old case. The odds are against you. You have to spend a lot of money because there's no way that this could be done unless you have a pro bono legal association. Those guys are already overworked because there are too many demands out there." So, we eventually came to an agreement where I want out there to see his land and to see what I can gather forensically from thirty years worth of documents. He had local counsel and when you practice federal law even in a different jurisdiction you have to have local counsel who is licensed in the federal court of that district and then you can come in as supporting counsel. We did that. Fortunately, we've been able to stop the juggernaut. The interesting thing is that the federal government, nine days before President Trump's inauguration, filed two new lawsuits claiming that Mr. Brace had violated the Clean Water Act again trying to farm his dry lands, his uplands. He had to clean out ditches, but they said there were side casts that went into the creek that fed into the larger water body that fed into Lake Erie. He didn't have a permit for that.

You see, under the Clean Water Act, which is a strict liability statute, you can have dirt emitted — discharged — into a muddy-bottom water course, and that's pollution even thought it's part of nature. We're not talking toxic pollutant here. We're not talking chemical foreign substance. We're talking the substance that is in the water body. You can cut off grass and throw grass into a water body and they'll consider that a discharge of a pollutant for which you need a permit if it's beyond a certain point. But, suffice it to say, these two suits were filed on January 9. President Trump was inaugurated January 20. Do you think it was a political statement to file those two lawsuits at that time?

So, we look at the lawsuits. One is on the old parcel. One is on the contiguous new parcel. We come up with a theory. Government cut off his prior converting cropland exclusion. It doesn't want to acknowledge its own law, its own regulation. "Your honor the consent decree is hopelessly ambiguous, which requires new discovery to find out what it really meant." We were lucky. The judge bought it, so far. The problem is that the government has since been fighting us tooth and nail, not to give us that discovery. They make us sign an electronic discovery document agreement wherein they say they'll put identifiers on the files — the electronic files — so you can know what you're getting. They put numbers on the files but they don't tell us what's in them. They give us thousands of them. Now, there are only two of us. He's got some staff and I'm not using any staff. I'm using his staff. The government, the DOJ in this particular case, the Department of Justice, there must be ten to twenty lawyers working on this one lawsuit. So, we're in deposition. They've got ten other people filing briefs that after the deposition we have to now answer those briefs. This is the way they play the game. It's truly a David and Goliath scenario.

But the fun thing is that I learned with the international environmental regulatory work that I've been performing over the last fifteen years that you've just got to use and harness their energy and throw it right back at them. When you do, they don't like it too much. Large law firms usually dump on small law firms by dumping a lot of paper briefs on them and research and files so that they have to go run and respond. So, that's what I do then. I throw in a couple of hundred pages with the exhibits just so they have to read. They don't like that too much and they ask for a reply opportunity from the court, which is what we're doing here. We're looking to go back and find information twenty years ago back in 1996 and before so we can understand what that consent decree was actually intended to do that he signed in 1996. They don't want to allow that extrinsic evidence in because that would allow the judge to say, "Hey, maybe there's more information that you should be entitled to so we can really understand what this document was meant to do." I've deposed six of these witnesses so far. I've had a great time. I have to tell you. Mr. Brace actually had a knife and a fork he was going like this as I was cutting and slicing these people and finding contradictions in what they said. They actually made some admissions that will be very valuable going forward. Mr. Brace is not one to smile, as you know. He was kind of chuckling on this one. I think I earned my fee those days.

There's no end to this, though. As many times as we can depose and file briefs in response to their motions to deny us discovery, they can then seek "leave of court," which is extra time to basically craft a reply to our response to their original denial of our discovery. It's obstructionism. It's basic non-transparency. You deal in a deposition with the Department of Justice lawyer who has a sanctimonious, self-righteous air of arrogance and they obstruct you by interrupting almost every question you ask as poorly formulated, compound, complex, leading. It ends up taking up your seven hours of deposition time with that one witness. You can read the transcript and you can see the argumentation between the lawyers, which can take up almost one-third or one-half the time that you actually would use to depose the witness. The fact is that we have a trajectory that he didn't have six months ago, eight months ago, nine months ago. We have an open-minded judge, at least at this particular point, which is much more than he expected nine months ago because they wanted to close this off in May what they filed in January. There's no issue of fact. It's effectively a summary judgment motion at the get-go. But we've been able to raise enough issues of fact that the judge and even the mediation settlement judges wanted to know more about it.

This is the farmer case. It's very important because what happens is when you have rules like the Clean Water Act that deny a farmer the ability to farm, guess what happens? Where do we get our food from? We get it from foreign sources. If we get food from foreign sources, which are not as safe as our sources we put ourselves at a national security risk level.

I also inherited another thirty-year-old case this year. This is the case dealing with, of all things, a Hungarian freedom fighter: that Pozsgai case. The famous United States v. Pozsgai case, which was three years earlier than the Brace case. It started in '87. He was a Hungarian freedom fighter who had been present during the invasion of the Soviet Union in the '50s, was then enlisted in the Soviet Army as a mechanic, and then found his way to serve as an informant to the US CIA. He came to the United States in the '60s with the skills of a mechanic. He started his own garage. He obviously didn't have a vertical trajectory but he did well for himself. He made enough money, provided for his family — his wife and his two daughters — and saved up enough money so he could buy a 15-acre lot across the street on a diagonal in Morrisville, Pennsylvania.

Morrisville is historic because of Mr. Morris who was one of the signers of the Declaration of Independence. Morrisville at that time was up and coming in the '50s and '60s. They were developing the town. They were concreting over things. More and more people started to migrate to that town. It's right across the river from Trenton, New Jersey, which is not one of the most lovely places on this planet. It's along the Delaware River, which now is one of the green corridors of the East Coast. They're actually building a fourteen-hundred-mile bicycle lane from Maine to Florida and with that they're going to elaborate on the Pennsylvania Canal in Pennsylvania. Actually, I'm going to a parade next week to walk the Pennsylvania Canal with all the greens. Just so I know who my enemies are.

But they have this approximately 14- or 15-acre lot. This lot had been used from the '50s, or maybe from the '40s, through the '80s as a city dump. There were things that were put in the ground and buried. Fill, as they would call it in the trade. Then there was also what EPA thought were wetlands. Along one of the four sides of this property because it's almost like a square give or take some odd shaped sides, along one of the sides was a stream. That stream, above the property farther north of the property where the topography or the elevation of Morrisville had been higher was a stream that ran from the higher elevation of Orangetown south to and through his parcel. When they were developing Morrisville they took that stream and encased it in a drainage pipe so that it can go under the streets as they were developing the area. That stream ended up on the eastern side of his property and since the property was used as a dump the water would back up and flood from time to time. This supposedly created the three necessary factors for a wetland: Hydric soil, obligate vegetation, which is wetland vegetation, and then we have hydrology, a sufficiently high water table most of the year during the growing season so that this would meet the three factors of the 1987 U.S. Army Corps of Engineers wetlands delineation manual.

We tried to get surveys undertaken back in the '80s to show that this wasn't a wetland but he never knew that the borough of Morrisville and the township of Falls Township — because his property sat on the border of the two — had taken a good portion of storm drain water and routed it on to his property. We only found this out when he had tried eventually to apply for a permit, further into his case, and the Morrisville borough and the Falls Township municipality filed comments objecting to the permit admitting that the water was drained from several places in Morrisville into his little stream. So, you have unnatural water flow there. Then you had more water coming in from the side off the township. They basically created a sink in his land for which you could easily conclude, or mistakenly conclude that it was a wetland.

Let me back up a little bit. He came from a Communist nation. He believed this was a country of opportunity. He bought this land with his hard-earned money. He could do with that land what he wanted and they had to prove to him that it's a wetland rather than just say it's a wetland. They didn't prove anything. They just made allegations and since EPA believed that the burden of proof is on the landowner, it was his duty to prove them wrong. So, he was guilty as charged before he could even mount a defense. They found dump trucks bringing refuse in. When I say refuse, I'm talking dry, clean fill, which is like concrete, or dirt or even metal. We're not talking chemicals. There are no toxic chemicals at all here. They didn't declare it a superfund at all.

They took videotape. They claimed it was him even though they couldn't prove it was he on the video since the videos in the 1980s were granular, were not very granular. First case was a criminal case. When you have a strict liability statute and they can prove that you intended to violate it or knowingly violate it, you can go to jail for that. He went to jail. Three years incarcerated in federal penitentiary. One year supervision in a halfway house. Five years probation. They gave him a million dollar fine, which my colleague at Washington Legal Foundation, Paul Kamenar, was able to get him off to, I think, $10,000 because he was without means by that point. So, he goes to jail in November of '89. The land is still sitting there. This is an open lot. He didn't really have it fenced in. What he did do is he rented portions of the surface area out to tractor-trailers to make badly needed cash. But what the government did was not just be satisfied that there was a federal case, they then brought a civil action against him on top of all this. Then they found the owners guilty of authorizing the filling in of approximately 7,000 cubic yards of dirt, of fill, that's equal to about 350-360 dump truckfuls at 60 cubic yards apiece.

He happened to have two tenants at that point who were found guilty of actually putting the fill in and he was found guilty of authorizing them to do so. He's already in jail or just about to go into jail. He's going through the civil trial. He's found guilty on all counts of everything. Forty-one counts on a criminal indictment. So at this point, the two parties that were tenants were the ones that were obligated under the court order in the civil action to remediate, to restore the fill. To, basically, to remove the fill and put it back to its prior wetlands state. In the ensuing years they satisfied this. It was about one acre out of the fourteen or fifteen acres. In the mid-'90s, all of a sudden, the Army Corps decides for the first time to do a survey of the land. How old were these fills? Were these new fills from the date he owned the property? We know that one acre was new fill because they recorded the dump trucks coming in. But there apparently was an agenda from the Corps of Engineers to show that every bit of fill in those fifteen acres over the course of the last thirty or forty years was his fill, even though it was probably old fill, either pre-Pozsgai or even pre-Clean Water Act 1977. These are important facts because the Corps of Engineers has to establish federal jurisdiction over the property. That means it either has to establish to a wetland delineation and what they call a jurisdiction termination that this wetland is part of federal water, which means that they have to show it's adjacent to a navigable waterway, which is a water of the United States. What they did was, they figured out that the wetland, because it flooded because of the fill backing up and the water coming in off the borough, was a wetland that was adjacent to the Pennsylvania Canal because it eventually got put through a little pipe, that stream, and that Pennsylvania Canal went about ten or twenty miles into the Delaware River.

The feds established jurisdiction in the 1992 suit and now in 1995-96 is the first time they figured out that they didn't have a real metes and bounds of the property with their jurisdiction. They bring in a soil survey company from New Jersey they do their first soil survey and wetland delineation because the court is suing because they can connect the wetland to the stream to the PA Canal to the Delaware they had jurisdiction. But the court never really proved it. Now, they went out there to try to prove it. But when they did the soil survey and they wanted to know what was put in the soil as fill they never, ever, dated the fill. In fact, all of the fill on the property, we found out, was presumed to be new fill. There was no scientifically-proven new fill here. They just established it as an administrative presumption. While he's sitting in jail or he's under supervision or he's on probation, they come up with this cockamamie idea that they put into a memorandum from the agency that there were 23,000 additional cubic yards of fill that had occurred sometime between 1990 and 1995.

Remember, the court had already issued an order regarding the 7,000 cubic yards of fill. All of a sudden, they came up with another 23,000. The court didn't authorize this but they came up with it under their exercise of administrative discretion and expertise. They proceeded to move against the property again and came up with a whole diagram of what now needs to be remediated after it had already been remediated according to the 1990 court order.

Audience member: No res judicata applies?

Mr. Kogan: No. Take it also as a fact that, unfortunately, the Pozsgais had ineffective counsel all these years. One of them is somebody that I still have to deal with that I don't want to mention by name due to I don't want to embarrass the poor guy. But he's still there. He's been there since 1988 or '89. They can't seem to get anybody better and they don't know much better of who to get. They've only had a few good counsel there. The problem was that in the mid-'90s they claimed that there was 23,000 cubic yards additional that were put in the land. They assess this against the property. It's his fault because somehow through the jail cell bars he authorized this. He's a kingpin in jail and he knows how to get that done.

Then they come up with a new restoration plan to take into account these additional 23,000 cubic yards. A little passage of time goes by and they fine new fills that they identify. The remediation area keeps on growing. It takes up ten and a half of the fourteen and a half acres. He's left with three acres that are uplands and by the grace of God thank goodness the U.S. Army Corps wasn't so greedy. Three acres is what he had. So, we're now into the 2000s. He just got off probation and he's in the 2000s and all of a sudden they're finding new fill in the early 2000s. One of the conditions of his sentencing was he had to meet the new restoration plan of the U.S. Army Corps of Engineers or he could be sent back to jail. He would have to have been insane to have violated this either directly, himself, or indirectly through authorization. But his lawyers never argued anything.

Now we're in the mid-2000s and we have entry of an NGO [non-governmental organization]: Delaware Riverkeeper. Has anyone ever heard of the Delaware Riverkeeper? They're behind the anti-fracking campaign in northeastern Pennsylvania. They're behind the PA Canal rehabilitation project. They're behind the 1,400-mile bicycle lane in the East Coast. They just want that property to turn into a green museum. In fact, we found plans of the rehabilitation of Morrisville, which is a socio-economic demographic negative. It's blue collar or less. It's really not going anywhere demographically and they need to rehabilitate it some way. They figured out that through this green plan incorporating the borough and the township into it, may improve property values because there is a depressed property value even in Langhorne, Pennsylvania, in that whole area.

So, they want this 14-acre to 15-acre parcel green. They want it as a fishbowl museum. It's 2002. We have the motion to intervene by Delaware Riverkeeper unopposed by counsel. The U.S. Government, because they found all this new additional fill, said, "Well, the Pozsgais need to remediate it. They failed to remediate it. They violated their 1990 order. Now we wish to seek a contempt order and hold them in contempt for not remediating." The remediation plan just changed unilaterally by the U.S. Army Corps unopposed by my client's attorneys. Now, the Army Corps of the Unites States, with the United States Department of Justice as the lead, seek to perfect that new restoration plan and the new map of remediation that they've concocted by obtaining a contempt order and then have the court adopt the new map in place of the old map.

Audience member: Doesn't due process require the requirements of an injunction of order to be specified?

Mr. Kogan: Well, you would think that there would be scientific evidence and a hearing. There wasn't much opposition here. The motion for contempt order was filed by the United States. The Delaware Riverkeeper then seconded the motion for sanctions. The ineffective counsel filed an "intent to oppose" and never went through with the opposition motion. Never appealed. He opposed it only on the grounds that there was a Rapanos decision in the intervening years in 2006. The court said, "Okay, we'll brief on Rapanos. Does that effect my decision as to whether we should issue a contempt order or not?" Suffice it to say, he issues a contempt order, ineffective counsel files notice of appeal. Never appeals. Appeals lapse. The government moves to dismiss the case. The case is put in suspension, into a deep freeze in 2007, where it lie until this year. That's where I enter.

Now, what I've been trying to do was, first of all, try to get them to a settlement conference to really see whether we could settle this. I tried to meet individually with Army Corps and EPA. They were gracious to me and said, "We will give you three acres, but that's all we're going to give you." I said, "Okay." We did this twice. The EPA biologist said, "I don't care whether it's their property, it's now wetlands." They had scheduled water. We have a settlement conference coming up on Friday. But, also, what we have is position papers. What I had found going through thirty years of worth documents is that that 23,000 cubic yards of fill was never scientifically substantiated. I think it was fabricated. What I think what we're dealing with here is fraud, government fraud. Any litigator knows that you don't have many ways out of a case that has languished for so many years unless you find something that was hidden that was only recently disclosed. It's under a 60(b) motion federal civil procedure or it's a 60(d)3 motion, which is fraud on the court. They don't grant fraud on the court motions very often because it's more than just the agency officials being fraudulent as to the court in their filings and their testimony, the lawyers putting together the case have to plead it knowing those facts are fraudulent. It's a heavy lift. We're trying to do it. Whether we succeed or not will depend upon whether we have a sentient judge or not. The lengths to which the federal bureaucracy and even the federal bureaucracy lawyers will go to make the case based on an agenda is unbelievable. I never thought I would ever have to face this in this country having been in foreign countries and seeing it there. I really appreciate you giving me the time to at least talk about two of those cases and I'd be happy to answer any questions you have.

Thank you.

Yes sir?

Audience member: I had a case in which a government witness said a road had gone through a piece of land that was private property. I found an old tree stump that was at least fifty years old right square in the middle of where he said the road was. That physical evidence proved the witness was a liar and the argument was fraud. I did win that factual point. Can you find a tree stump or a tree sapling or date a tree on this building to claim it's very old because if you can do that by field work you have physical evidence at least of the fact of how many years before was that fill put there.

Mr. Kogan: We have other facts that we have found where they have manipulated maps. They went back to old U.S. Geologic Survey maps, redrawn where the stream was and we have topographic and aerial photographs that the stream was always there. We can already prove that.

Thank you.

Back to:
PRFA Property Rights Conferences PRFA Home Page

© 2018 Property Rights Foundation of America ®
All rights reserved. This material may not be broadcast, published, rewritten or redistributed without written permission.