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Peter and Frankie Smith fit the part perfectly in a newly contested case in New Mexico. The Army Corps of Engineers accused the retired couple of violating the Clean Water Act in mid-2011, declaring their parched desert property a water of the United States based on aerial photos, maps, and surveillance from a neighbor’s yard. According to the feds, the Smiths owned the proverbial waterfront property, classifying dry land as wet.
“They never phoned me, knocked on the door or anything like that,” said Peter Smith, a 65-year-old retiree. “They just wrote me this letter basically saying ‘you’re guilty’ and that’s all there is to it.”
The Smiths built their retirement home on 20 acres of bone-dry scrub brush and sand south of Santa Fe. In the process of cleaning up the place, Peter cleared out hundreds of dead trees and trash littering a dry ditch the feds dubbed the Gallina Arroyo. Acting on an alleged complaint, the Army Corps shot off a violation notice warning against “conducting any additional work in any stream, arroyo or wetland” without federal permission, stunning and stopping Smith in his tractor tracks.
“Somebody’s got to stop these regulators from taking people’s rights away,” Smith said. “Sitting here looking out my window, I can see probably 15-20 little beds and banks all with dead trees and garbage sitting in them.”
A retired surveyor who made his living sizing up land, Smith says the arroyo is a drainage ditch that’s dry year-around except for the rare storm in which the precipitation evaporates or seeps into the dry sand almost instantaneously. To the Army Corps, however, it’s a tributary that theoretically drains into the Rio Grande River 25 miles away, threatening the silvery minnow, a fish on the endangered species list.
“It sure appears to me they’re just after control of land,” Smith said. “They’re using the excuse it’s a water of the United States. If I went to the real estate salesman and said, ‘OK, the government has now declared I have waterfront property’, they’d laugh at me!”
A year and a half into their ordeal, the Smiths finally turned to the Pacific Legal Foundation, filing a lawsuit against the Army Corps in December 2012. The case accused the Corps of acting as a national zoning board with unlimited control over Americans’ land use, aiming for nothing short of a nationwide precedent to curtail Clean Water Act regulators.
“If the Smith’s dry creek bed really is a water of the United States under the Clean Water Act, then so is the drain in your front yard and so is the ditch in my back yard. If this is under their authority, then so is every square inch of America and legally speaking, that is not what Congress intended,” said Jennifer Fry, the Smiths’ PLF attorney.
The Albuquerque office of Army Corps of Engineers did not respond to requests for comment. Yet soon after the Smiths case went public, the Army Corps claim came and went as abruptly as a desert derecho. In March the agency withdrew its classification of the Smiths’ property.
“This episode should put the federal government on notice,” Fry said. ”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.”
Increasingly, the case can be made that like politics, all property rights are local, regardless of the level of government jurisdiction involved. No wonder that city, state, and federal authorities across the county are closely tracking a Minnesota court ruling expected soon on the constitutional challenge brought by Dean and two other homeowners in January.
Win or lose, Dean will never get back his foreclosed house or an
estimated $50,000 he invested.
“I’ve lost my house, I’ve lost my equity, that can’t be reversed and I understand and realize that,” Dean said. “The lawsuit is to bring justice back to the citizens of Winona.”
This article originally appeared at Watchdog.org.