VINDICATION FOR DR. LARRY SQUIRES OF HOBBS, NEW MEXICO
by William Perry Pendley
October 1, 2011
In 1992, Larry Squires of Hobbs, New Mexico, veterinarian, rancher, entrepreneur, and self-proclaimed environmentalist, received unwelcomed news from the Environmental Protection Agency (EPA). The EPA, notwithstanding extensive factual presentations by Dr. Squires, determined that lands upon which he was conducting a business operation into which he sunk more than a $1 million were “wetlands” under the Clean Water Act (CWA), that his use of those lands was illegal, and that he was subject to a “cease and desist order.” Failure to observe the EPA’s order would result in fines of $125,000 a day. Dr. Squires abandoned his business, but he also went to federal court.
The EPA order was based upon a November 1986 rule that declared that the potential use of any waters—even intermittent water bodies such as those that infrequently develop on the dry sinkholes on Dr. Squires’ arid property—by migratory birds magically converts such areas into “waters of the United States.” Dr. Squires did not think his lands were “wetlands,” after all, water from occasional rains quickly evaporated; moreover, there was three feet of impermeable clay beneath the sinkholes, there was no ground water in the area, and the nearest navigable stream was forty miles away.
Dr. Squires proposed that the EPA levy a fine certain to allow him to ask a federal court to determine: did the CWA phrase “waters of the United States” unambiguously include Dr. Squires’ sinkholes; did Congress intend the phrase to include Dr. Squires’ property; and was the EPA’s rule reasonable? The EPA and its lawyers reacted with anger and hostility. Dr. Squires was threatened with criminal charges, resultant jail time, and “the full weight of the federal government.”
Subsequently, the EPA advised the New Mexico federal district court that it could not hear Dr. Squires’ case because: the EPA’s order was only a “pre enforcement decision”; the EPA had not yet taken “final” action; the United States had not waived its sovereign immunity; and Dr. Squires’ constitutional rights had not yet been violated. The district court dismissed the lawsuit. In 1995, the U.S. Court of Appeals for the Tenth Circuit upheld the district court’s ruling. Although the Tenth Circuit expressed sympathy with Dr. Squires’ plight, “[the] policy argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken[,]” the appeals court did not find the situation “constitutionally intolerable[,]” especially given its concern with “undermin[ing] the EPA’s regulatory authority.” In 1996, Dr. Squires’ petition for Supreme Court review was denied. (Too late for Dr. Squires, in 2001, the Supreme Court answered the questions he asked with a “No!” and declared the Migratory Bird Rule unconstitutional.)
In the summer of 2007, Michael and Chantrell Sackett of Priest Lake, Idaho moved dirt on their property to build a house on land with a sewer hookup, in a developed area zoned for residential construction. That November, the EPA declared the Sackett property a “wetland,” barred the Sacketts from building a house, and mandated that the Sacketts restore their land to its previous state or pay civil penalties of up to $32,500 per day. Like Dr. Squires a decade before them, they were denied a hearing and their lawsuit in Idaho federal district court was dismissed; the court held that the CWA bars judicial review of “compliance orders” before any EPA “enforcement action.” In 2010, the Ninth Circuit upheld the district court’s decision, ruling that the bar on judicial review did not violate the Sacketts’ constitutional rights. On June 28, 2011, the Supreme Court agreed to hear the Sacketts’ case.
Given that the EPA recently asserted CWA jurisdiction over isolated, intrastate, non-navigable waters and wetlands, including vernal pools, prairie potholes, natural ponds, and playa lakes, the Supreme Court must step in. In Hobbs, New Mexico, Dr. Squires is smiling at the prospect that, all these years later, he will be vindicated.
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