Landowners Challenge EPA Authority

The authority of EPA officials to essentially act as judge and jury when it comes to enforcement of the Clean Water Act (CWA) has been challenged by Colorado couple Tom and Amy Villegas and Pacific Legal Foundation attorney Michael Poon.

The issue is over 80 acres of undeveloped recreational land the Villegases bought in rural Lincoln County, Nebraska, in 2015.

Poon spoke with DTN about recent developments in this case, which may have far-reaching implications for federal agencies and their handling of alleged violations of the rules they are charged with enforcing.

EPA fined the Villegases nearly $300,000 and ordered them to make extensive compliance changes to land they had been renovating for four years. The agency claimed those renovations dumped silt and other debris into area waters, violating the CWA. The couple disagreed but wanted their case to be heard before a judge and jury. In April they filed a complaint against the EPA and its officials in the U.S. District Court for the District of Kansas.

Essentially, the couple and their attorney challenged the EPA enforcement process where agency employees determine fines and punishments for alleged CWA violation. Poon said the process, called "administrative adjudication," violated the U.S. Constitution's Appointments Clause.

This week the EPA abruptly ended their administrative adjudication, terminating their action against the couple which was dismissed "with prejudice" by the Kansas court. The agency also withdrew its compliance order against the Villegases on July 13.

EPA's reversal "was a testament to how unconstitutional that type of procedure is," Poon told DTN after the dismissal. "This doesn't mean the EPA will stop pursuing all enforcement actions; they have other options they may go forward with. But for now, the administrative adjudication is over, and they won't bring another."

CROSSING THE CWA LINE

The Villegases bought an undeveloped lot in December 2015, intending to use it for outdoor recreation. Tom Villegas, a professional excavator familiar with CWA regulations, said they worked on the property over the course of some four years, removing dead trees and invasive weeds. He contends they never violated the CWA.

At some point, their land restoration was reported to the EPA. The agency filed an administrative enforcement action against the couple, alleging they had discharged dirt and other fill materials into Waters of the United States (WOTUS), violating the CWA.

WHAT IS ADMINISTRATIVE ADJUDICATION?

Many federal agencies, including the EPA, allow such enforcement actions to be decided by its own employees in what's known as an administrative adjudication. If charged individuals such as the Villegases want to appeal that decision, they must do so in front of the Environmental Appeals Board, also made up of EPA employees.

In an administrative adjudication, any actions or decisions are to be made by someone named as an administrative law judge. Federal agencies review and judge a variety of matters, usually with the goal to resolve a dispute between it and a private party. Federal agencies often use these proceedings to implement policy, without going through the courts.

In the Villegas case, Poon argued the adjudication was assigned to EPA employee Susan Biro in her capacity as an administrative law judge. However, he pointed out that Biro was not appointed to the position of ALJ properly under the Constitution's Appointments Clause, which is the "exclusive method of filling ALJ positions," according to the complaint. Therefore, Poon said, Biro lacked the authority to decide the Villegas' fate.

"Separately, the claim against the Villegases may be adjudicated only in a court constituted under Article III of the Constitution, both because the claim seeks to deprive the Villegases of their private rights in their money and in reasonable use of their real property, and because the Villegases are entitled to an impartial and independent adjudication of the claim," Poon told DTN.

The compliance orders in the case were issued by another EPA employee, David Conzad, in his capacity as director of enforcement and compliance assurance for the agency's Region 7. Conzad alleged the couple violated the CWA and as a result, the property would require extensive and costly improvements. Poon stated that, like Biro, Conzad also had not been appointed pursuant to the Appointments Clause and therefore lacked powers of the director, including the power to issue a compliance order.

THE APPOINTMENTS CLAUSE

Under the U.S. Constitution, any position vested with "significant authority" must under federal law be filled following the rules of the Appointments Clause. "Even if an official is an inferior officer," said Poon, "he or she must still be appointed by presidential nomination and Senate confirmation unless Congress by law has vested that appointment in the president, a head of department, or a court of law."

Any decisions made by officials not properly appointed are void, explained Poon.

"The whole idea is that anyone with significant authority has to be appointed this way, so they are accountable to people who are accountable to the president, who is accountable to the electorate. The Appointments Clause forms a chain of accountability for anyone with significant power," said Poon. He insisted that positions held by both Biro and Conzad were vested with "significant authority" and should fall under appointment rules.

Poon said the issue has created a lot of frustration across regulatory agencies where decisions are not coming from elected officials where compromise and negotiation is supposed to be taking place.

"The framers of our Constitution already thought of this, and we should be applying the Constitution, and doing so rigorously in matters like this," he added.

Poon said the Pacific Legal Foundation looks for cases where the government has overreached, and they represent clients free of charge. The Kansas Justice Institute joined PCL on this case. Inquiries can be submitted through the PLF website found here: https://pacificlegal.org/….

Victoria Myers can be reached at vicki.myers@dtn.com

Follow her on Twitter @myersPF

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