From the same litigation group that helped narrow up the scope of the government’s claim to regulate every last puddle of water in the United States, another victory against omnipresent government.
The Villegases had property in Lincoln County, NE. They were in the earth moving business and moved a bunch of it on the property to improvement, within what they believed the rules allowed. The EPA leveled a $300,000 fine and ordered them to restore the land. The owners disagreed and asked for a federal district court to take the matter up.
Specifically, they challenged the EPA structure that allows the EPA field office to levy a fine and then your appeal is heard by employees of the EPA under a term called Administrative Adjudication. It’s a lot like being told by the teacher that you are expelled because you violated the school board’s rules, and you have to appeal it to a judge who is an employee of the school, selected by a board that the school board pays for, employees and selects.
The challenge pointed out that the that under the Constitution, the appointments clause requires anybody with significant authority to be appointed a set of rules that include presidential nomination, congressional approval and senate confirmation unless some law provides otherwise. Here the EPA admin law judges (ALJ) were not appointed by that process nor did another law allow their appointment. The challenge essentially said the ALJ had no power to decide the matter.
EPA backed down, terminating the enforcement action and dismissing the federal case. That is believed by some to be clear sign of how far afield the agency’s policies were.
In other moves, Colorado has inserted itself into the water regulation gap created when the Supreme Court indicated the federal government’s wet blank of regulation wasn’t all encompassing. Colorado state regulators have issued temporary guidance which includes farm group (like Farm Bureau) endorsed exemptions for irrigation, plowing and the like. Power does abhor a vacuum.
In other western water fights that might have application in Iowa at some point, an 80 year fisherman who walked up a river claiming that because it was navigable by boat in 1876 when Colorado became a state, that it was open for wading and fishing as in individual or that the state had an interest in the navigable water. The adjoining landowner threw rocks at him and got sued. With the hundreds of pages of filing by various pro public and pro private landowners on file, the court used Occam’s razor and decided the issue on the simplest way. The court found that the old fishermen was all wet didn’t have standing to claim a protected interest to pursue individually or on behalf of the state.
It was a move that we should expect from courts.
