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Contact: Damien M. Schiff
Principal Attorney
Pacific Legal Foundation
(916) 419-7111
Jennifer M. Fry
Pacific Legal Foundation
(916) 419-7111

Santa Fe couple sue over federal land grab that labels their dry land as a “water body”

Santa Fe, New Mexico; December 11, 2012:  A Santa Fe area couple today sued the U.S. Army Corps of Engineers for labeling a dry creek bed on the couple’s property a “water of the United States” covered by the federal Clean Water Act.  The case could set a nationwide precedent for property owners’ right to challenge unjustified claims of control by Clean Water Act regulators.

Peter and Frankie Smith, who live on 20 acres off State Road 14 outside of Santa Fe, sued in Federal District Court in Santa Fe.  They are represented by attorneys with Pacific Legal Foundation, a non-profit watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations.  As with all its clients, donor-supported PLF is representing the Smiths free of charge.

PLF Podcast Now PlayingListen to a discussion of the Smith case with PLF's Jennifer Fry.
Don't have iTunes? Listen to the podcast online.

“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.”

Smith case follows up on PLF’s 2012 Supreme Court victory for the Sacketts – and for property owners’ right to their day in court

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

This lawsuit follows up on PLF’s victory earlier this year in Sackett v. EPA.  The U.S. Supreme Court held, unanimously, that Idaho residents Mike and Chantell Sackett — and by extension, all property owners — have a right to bring a court challenge to a federal “wetlands compliance order.”  The Smith case, in turn, argues that property owners may seek court review if the federal government designates their land as subject to the Clean Water Act.

Feds block the Smiths from cleaning and maintaining their own land

The Smiths purchased their property, about 19 miles southwest of downtown Santa Fe, in 2005.  It was vacant, and they proceeded to build their dream home.  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.  “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.”

Statement by Peter Smith:  Feds have “wrongfully trampled on our rights” and “we were shocked by the arrogance of the agency.”

Frankie & Peter Smith, PLF Environmental Regulations clients“My wife Frankie and I bought a parcel of property just outside of Santa Fe for our retirement,” said Peter Smith.  “We invested our life savings in the property and in designing and building our dream home.  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.

“After retiring, Frankie and I started to clean up our land.” Smith continued.  “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.’  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.

“We are bringing this lawsuit because we think the federal government has wrongfully trampled on our right to use and enjoy our property,” said Smith.  “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.’  We heard about Pacific Legal Foundation when it helped Mike and Chantell Sackett win their lawsuit at the U.S. Supreme Court.  We are bringing our  lawsuit to get the feds off our property and also so that we, like the Sacketts, can help property owners across America stand up against federal government bullies.”

The Corps’ claim of control flunks the Supreme Court’s tests for Clean Water Act jurisdiction

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.  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 the 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 a navigable water.  That standard, too, is inapplicable to the Smiths’ property.  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 case is Smith v. U.S. Army Corps of Engineers.  Read the complaint, video, and podcast.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation ( is a nonprofit legal watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country.

PLF’s recent victory in Sackett v. EPA was its sixth precedent-setting victory for liberty and limited government at the U.S. Supreme Court.  Less than seven months after the unanimous ruling in Sackett, the Supreme Court recently accepted another PLF property rights case for review — Koontz v. St. Johns River Water Management District.  Oral argument in Koontz is scheduled for January 15, 2013.