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U.S. Court of Federal Claims Hands Down Brace Wetland Decision

Robert Brace, a Waterford, Pennsylvania farmer who has been fighting the government for 19 years to protect the right to farm on his own land – land which has been in his family for three generations – lost his long-fought case against the United States government on Friday, August 4, 2006.

Mr. Brace's battle with the government began in 1987 when the Environmental Protection Agency and the U.S. Army Corps of Engineers told Mr. Brace he could no longer farm on part of his Erie County land because it was considered “wetlands.” This was land that Mr. Brace had purchased in December of 1975 from his father, which he intended to use to continue and expand his family farming business. Although the soil on this land was highly productive for farming, it was considered to be poorly drained and in need of drainage to make it suitable for production of cabbage and potatoes. Thus, with the assistance and funding of another federal governmental agency, the U.S. Department of Agriculture, he arranged for and began excavation and burying of plastic tubing, "drainage tile," to improve soil conditions for row crops. This was a common practice in Erie County during that time period and was encouraged by the USDA.

After Mr. Brace had expended considerable sums to install this drainage system and maintain it so that the land would be productive for crops, the EPA told Mr. Brace he was in violation of the Clean Water Act and brought an enforcement lawsuit against him in a Pennsylvania federal district court. The Honorable Judge Mencer of the federal district court ruled in his favor, saying everything should have fallen under ”normal farming practices” exemption and that the thirty acre site was an integral part of the farm’s drainage system. Although Judge Mencer ruled in Mr. Brace’s favor in 1993, the Third Circuit Court of Appeals reversed his decision. After the Supreme Court denied his petition for certiorari, Mr. Brace was forced to enter into a consent decree in which he was required to remove a major part of the drainage system he had installed on his land and restore thirty acres of his land to unusable and undevelopable wetlands "in perpetuity" according to a restoration plan drafted by EPA. Mr. Brace was then forced to record this decree at the Federal Courthouse, ensuring that he or any future owner be held in contempt of court should any attempt to alter or utilize the property ever occur. He was also forced to pay a $10,000 penalty.

Mr. Brace was hoping that this time around the court would see it differently. Unfortunately it didn’t! “I think the judge in this case did a poor job,” he said bluntly, “he didn’t even look at the past cases.” Mr. Brace said that the judge, rather than relying on previous cases which upheld constitutionally protected property rights, referred in his decision to cases where no regulatory taking had occurred when the government took “only” 88-90% of the owner’s property. “In other words,” Mr. Brace said, “the mindset of the court was that I owned other property that I could still use. Had those thirty acres been my only land holding, it would have been ruled a taking.”

“What kind of a society are we living in,” said Mr. Brace, “when our government thinks it’s ok to steal ‘a little’ as long as they don’t steal it all? I certainly don’t think this decision speaks well for the principles this country was founded on, including the right to own and use property.”

Asked if he will appeal the decision, Mr. Brace said defiantly, “The 5th Amendment to our U.S. Constitution states in part ‘…nor shall private property be taken for public use without just compensation’; therefore, I will fight to protect my own property until I run out of options!”

For more information, please refer to our website at www.palandowners.org or phone us at (814) 796-4023.

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