U.S. Court of Federal
Claims Hands Down Brace Wetland Decision
September 01, 2006
Robert Brace, a Waterford, Pennsylvania
farmer who has been fighting the government for 19 years to protect the right
to farm on his own land – land which has been in his family for three
generations – lost his long-fought case against the United States
government on Friday, August 4, 2006.
Mr. Brace's battle with the government began in 1987 when the
Environmental Protection Agency and the U.S. Army Corps of Engineers told Mr.
Brace he could no longer farm on part of his Erie County land because it was
considered “wetlands.” This was land that Mr. Brace had purchased in
December of 1975 from his father, which he intended to use to continue and
expand his family farming business. Although the soil on this land was highly
productive for farming, it was considered to be poorly drained and in need of
drainage to make it suitable for production of cabbage and potatoes. Thus, with
the assistance and funding of another federal governmental agency, the U.S.
Department of Agriculture, he arranged for and began excavation and burying of
plastic tubing, "drainage tile," to improve soil conditions for row crops. This
was a common practice in Erie County during that time period and was encouraged
by the USDA.
After Mr. Brace had expended considerable sums to install this
drainage system and maintain it so that the land would be productive for crops,
the EPA told Mr. Brace he was in violation of the Clean Water Act and brought
an enforcement lawsuit against him in a Pennsylvania federal district court.
The Honorable Judge Mencer of the federal district court ruled in his favor,
saying everything should have fallen under ”normal farming practices”
exemption and that the thirty acre site was an integral part of the farm’s
drainage system. Although Judge Mencer ruled in Mr. Brace’s favor in 1993,
the Third Circuit Court of Appeals reversed his decision. After the Supreme
Court denied his petition for certiorari, Mr. Brace was forced to enter into a
consent decree in which he was required to remove a major part of the drainage
system he had installed on his land and restore thirty acres of his land to
unusable and undevelopable wetlands "in perpetuity" according to a restoration
plan drafted by EPA. Mr. Brace was then forced to record this decree at the
Federal Courthouse, ensuring that he or any future owner be held in contempt of
court should any attempt to alter or utilize the property ever occur. He was
also forced to pay a $10,000 penalty.
Mr. Brace was hoping that this time around the court would see it
differently. Unfortunately it didn’t! “I think the judge in this case
did a poor job,” he said bluntly, “he didn’t even look at the
past cases.” Mr. Brace said that the judge, rather than relying on
previous cases which upheld constitutionally protected property rights,
referred in his decision to cases where no regulatory taking had occurred when
the government took “only” 88-90% of the owner’s property.
“In other words,” Mr. Brace said, “the mindset of the court was
that I owned other property that I could still use. Had those thirty acres been
my only land holding, it would have been ruled a taking.”
“What kind of a society are we living in,” said Mr. Brace,
“when our government thinks it’s ok to steal ‘a little’ as
long as they don’t steal it all? I certainly don’t think this
decision speaks well for the principles this country was founded on, including
the right to own and use property.”
Asked if he will appeal the decision, Mr. Brace said defiantly,
“The 5th Amendment to our U.S. Constitution states in part ‘…nor
shall private property be taken for public use without just compensation’;
therefore, I will fight to protect my own property until I run out of
options!”
For more information, please refer to our website at
www.palandowners.org or phone us at
(814) 796-4023
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