A New Mexico couple has been warned by the federal government not to touch trash – tin cans, broken glass and the like – that has accumulated over the years on the 20 acres of desert land they bought for their retirement home near Santa Fe because it could hurt the Rio Grande River, 25 miles away.


The dispute over the Obama administration’s claim to jurisdiction over desert land belonging to Peter and Francoise Smith is heading to court now. Their lawsuit alleges Washington is over-reaching in its claim that their land, which does not contain any “relatively permanent, standing or continuously body of water,” can be regulated by the Clean Water Act.

The case is being brought by the Pacific Legal Foundation, which earlier this year won a major private property rights battle at the U.S. Supreme Court . The justices ruled that landowners have a right to contest a summary order to stop using their private land because of federal “wetlands.”

That case stemmed from a Priest Lake, Idaho, case over the construction of a home in a suburban area after the federal government determined it was a “wetlands.” The feds ordered the owners to turn over their records, provide detailed personal information, return the land to its natural state and leave it that way for years before seeking “permission” to use the land.

The high court said the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way. The law firm working on behalf of the Sacketts called the decision a “precedent-setting victory for the rights of all property owners.”

In the Smith case, the couple was told by the U.S. Army Corps of Engineers that a dry creek bed on their land was a “water of the United States” and therefore subject to the Clean Water Act.

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The Pacific Legal Foundation said the case could set a nationwide precedent for property owners’ right to challenge unsubstantiated allegations by regulators operating under the color of the Clean Water Act.

The Smiths’ land is 20 acres off State Road 14 near Santa Fe. They bought the land for their retirement home and had been cleaning up trash, cans, glass and other debris that had accumulated there before they bought it.

“Federal officials claim regulatory power over the Smiths and their property, but the law says otherwise,” said PLF attorney Jennifer M. Fry. “By labeling a dry creek bed as a jurisdictional water body, regulators are thumbing their noses at common sense and the Supreme Court.

“The Smiths’ arroyo simply doesn’t fit the Supreme Court’s tests for being a ‘water body’ subject to federal oversight and control. If the federal government can tell the Smiths what they can and can’t do on their own land, by twisting the Clean Water Act and essentially using a divining rod to conjure a ‘water body’ out of dry soil, then no property owner, anywhere, is safe from federal intrusion.”

Fry said, “We’re aiming to stop federal regulators from becoming a national zoning board with unlimited control over land use, from coast to coast.

“This case could also set a precedent by affirming that property owners have the right to their day in court, and Clean Water Act regulators aren’t a law unto themselves. They must be subject to court review when they make a ‘jurisdictional determination’ that someone’s property is covered by the Clean Water Act.”

PLF said the Smiths’ property was vacant when they purchased it several years ago.

“But it had also been used as a place to dump trash and other debris, so the Smiths began to slowly clean up the property and to manage the previously untended vegetation. However, the Corps has blocked the Smiths from further cleanup efforts,” the foundation reported.

“Without any evidence, the government asserts that clearing brush and trash on the Smiths’ property can cause a pollution flow down to the Rio Grande, 25 miles away,” said Fry.  “But mere assertions, without evidence, won’t do. Federal officials can’t take over someone’s private property, simply on their own say-so.

“They have to offer proof for what they’re alleging. Speculation isn’t enough. And even if storm water could reach the Rio Grande (itself an unlikely scenario), the impact would be far too insignificant to justify the heavy hand of federal regulation.”

In a statement released through the foundation, Peter Smith said the couple’s life savings went into the land.

“A dry arroyo runs across the land and unfortunately, the prior owner had used it as a place to dump trash. In addition, a lot of trees in the arroyo and around the property had died as a result of a bark beetle infestation,” he said.

“After retiring, Frankie and I started to clean up our land. We were shocked when one day we received a ‘Notice of Violation’ in the mail from the U.S. Army Corps of Engineers accusing us of violating the Clean Water Act by conducting unpermitted work in a ‘water of the United States.'”

He explained: “Given that we live in the high desert of New Mexico and the arroyo – like the rest of our property – is bone dry, we thought there was some mistake. We were really taken aback by the arrogance of the agency which didn’t even bother to call us or knock on our door.

“And we still can’t believe that the federal government can control what we do in our own backyard under the Clean Water Act when there is no water on our property! The real problem for us now is that we’re afraid to continue our cleanup and maintenance efforts because the Corps told us that we will be considered ‘knowing violators’ subject to civil and criminal liability if we do any more work without obtaining a permit.”

Smith said the lawsuit was launched “because we think the federal government has wrongfully trampled on our right to use and enjoy our property.”

“We don’t believe Congress ever intended to give the Corps power to regulate dry creek beds like ours and we want to help put an end to the Corps’ ridiculous interpretation of ‘waters of the United States.'”

The legal team explained that the Corps’ claim of control over the Smiths’ property violates the Supreme Court’s tests for what constitutes a “water body” subject to federal oversight.

The attorneys said in the 2006 case of Rapanos v. United States, the court rejected an expansive interpretation of the phrase “waters of the United States.”

Under Justice Antonin Scalia’s plurality opinion, which PLF argues is controlling, there must be a “relatively permanent” water flow to a navigable body of water, such as a river, lake or ocean. The Smiths’ arroyo remains dry year-round except during a rare storm, so there is no “relatively permanent” water flow. And even under the more lenient standard in Justice Anthony Kennedy’s concurring opinion in Rapanos, there must be a “significant nexus” to navigable water.

“The closest navigable water – the Rio Grande – is 25 miles away. Even when it rains at the Smiths’ property, water must pass through a second arroyo and then through an intermittent flowing creek and two dams before reaching the river,” the team said.

PLF also has had accepted by the Supreme Court another land rights case, in Florida, where a local government demanded a landowner pay thousands of dollars for a land project miles away if he wanted to develop his property.

Critics have described the requirement as governmental extortion. Koonts v. St. Johns River Water Management District is expected to be decided this year.

See the foundation’s explanation of the Santa Fe case:

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