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BILL ELLEN ALL OVER AGAIN

THE DEFENDERS OF PROPERTY RIGHTS LEGAL FOUNDATION is preparing a brief amici curiae (friend of the court) in the case of United States v. Interstate General Company and James J. Wilson, requesting that the United States District Court for the District of Maryland dismiss criminal charges against the defendants. Mr. Wilson and Interstate General Company (IGC)stand accused of violating wetlands rules by adding "fill" dirt to four privately owned parcels of land during the course of residential and commercial construction. According to the U.S. Army Corp of Engineers, these parcels allegedly contained "wetlands."

At issue is whether the Federal Government may prosecute a property owner for engaging in the constitutionally protected use of his property.

At It Again

The U.S. Army Corp is at it again civilly and criminally prosecuting an individual and his company for the unintentional disruption of wetlands on private property despite a lack of evidence proving environmental harm occurred! In fact, the government prosecutor__Jans Barrett__ is the same person who sent Bill Ellen to jail in the 1980's.

Over the past thirty years, Mr. Wilson (the president of IGC) has presided over the design and continues development of St. Charles, a small planned community on the eastern shore of Maryland . When completed , it will be one of the most environmentally sound communities in the state of Maryland. The entire project has been carried out in conjunction with the U.S. Department of Housing and Urban Development (HUD), and cost over $150 Million.

IGC followed 1977 Environmental Impact Staterment (EIS) guidelines which definitively stated that the 9100 acre St. Charles development contained no jurisdictional wetlands with the exception of seventy-five acres that IGC and HUD proposed to preserve. The EIS was submitted to the Army Corps and the Environmental Protection Agency (EPA). The Army Corps concluded that the planned development of St. Charles would have "no impact" on their area of responsibility. Likewise the EPA concluded that the St. Charles development contained no jurisdictional wetlands outside the designated 75 acres. Nevertheless, these very agencies are now criminally prosecuting Mr. Wilson and IGC.

Lawsuit Filed, Withdrawn

In March 1990, IGC received a violation notice for the five acre "Parcel L." IGC halted the project and began to negotiated a resolution. It went as far as partially returning the site to its original form by creating wetlands and removing some of the fill at a cost of $150,000. Still no agreement could be reached. Instead, the Army Corps chose to shut down permanently the project, informing IGC that it could never develop Parcel L (even though it is an isolated wetlands) until the site was totally restored and that any after-the-fact permit would be denied until that time. Accordingly, IGC brought a taking claim against the Army Corps in 1991 to obtain just compensation for Parcel L. The federal government then argued that the lawsuit should be dismissed because the case was not "ripe"___IGC had not applied for a variance __ and that it was not clear what IGC could do with the land.

Feds Retaliate

After negotiations over Parcel L broke down in 1994 and 1995, the Corps issued nine violations notices for parcels throughout St. Charles alleging violations of wetlands regulations. Ironically, the federal government is now seeking to put Mr. Wilson in jail for carrying out a project that was fully endorsed by HUD, the EPA, and even the Army Corps itself and for a use that the government still considers and open issue.

In our brief, we argue that a statute requiring a permit to engage in constitutionally- protected use of one's property contravenes the Fifth Amendment's just compensation clause and is therefore invalid as applied. If the Army Corps did not have the legal power to require a permit, then the disturbance of the wetlands without a permit is simply not a crime.

For more information please contact MATTHEW MCGUIRE or DAVID ALMASI of Defenders of Property Rights at (202) 686-4197.
Reprinted with permission from
Land Rights Letter.PO Box 1111
Gloverville, NY 12078