Last December, I wrote about Peter and Frankie Smith, a New Mexico couple that own 20 acres of land near Santa Fe about 25 miles from the Rio Grande River. After cleaning trash and debris out of a dry desert arroyo (dry creek bed) on their property, the Army Corp of Engineers swept down upon them and told them that the dry arroyo was officially designated a ‘water of the United States.’
Furthermore, the Army Corp of Engineers informed them that their cleaning and smoothing out the arroyo amounted to illegal dredging and pollution flow problems that could affect the Rio Grande River. By declaring the dry arroyo a ‘water of the United States,’ it placed it under the rules and regulations of the Clean Water Act, which according to the Army Corp of Engineers, the Smiths were now violating.
Like most Americans, the Smiths did not have a ton of money to spend trying to fight the federal government so they turned to the Pacific Legal Foundation for help. The PLF specializes in land issues, especially those involving government agencies versus private citizens. On December 11, 2012, PLF filed a lawsuit on behalf of the Smiths.
PLF attorney Jennifer M. Frey explained the legal grounds for the lawsuit:
“The federal government was engaged in an illegal land grab by mislabeling the Smiths’ property and misusing the Clean Water Act. The Smiths’ desert property is bone dry, and it is 25 miles away from the nearest navigable water, the Rio Grande. On the rare occasion when there is rain at the Smiths’ property, water must pass through a second dry arroyo and then through an intermittent flowing creek and two dams before reaching the Rio Grande. So the federal government’s justification for claiming Clean Water Act jurisdiction over the Smiths’ property was nonsensical.”
I am happy to announce that PLF has just posted a notice saying that the federal government has backed down and removed their illegal and illogical designation of the dry wash. Frey explains:
“We are glad that federal officials have agreed to back off and stop classifying the Smiths’ dry land as ‘wet.’ But it’s unfortunate that it took a lawsuit to force the feds to pull the plug on their plans and leave the Smiths alone.”
“This episode should put the federal government on notice. If they try this ploy again — if they try, in effect, to seize private property by conjuring up a mirage of water where there isn’t any — PLF is ready to fight them in court, anywhere in the country.”
Peter Smith expressed his gratitude to PLF saying:
“We’re very grateful for PLF’s defense of our rights. We hope our victory will give confidence and inspiration to property owners all across the country. They, too, can fight back if the federal government tramples on their rights by misusing the Clean Water Act and failing to abide by the rule of law.”
It’s so rare to see a private citizen win a legal battle with the federal government, and even rarer to see the feds back down before the case goes to court. Hopefully, this will send a message to the Army Corp of Engineers and other federal agencies that they can’t continue to bully private citizens by making illegal and illogical designations and restrictions on their private land.
If you have a personal hero list, I suggest you put the Pacific Legal Foundation on it as they deserve it for standing up to the federal government for the rights of citizens.