Mountain States Legal Foundation Logo
Action Update

Environmental Protection Agency (EPA) Is Out Of Control! Ignoring the Law, Falsifying History, And Making Up Rules, The EPA Wars Against Private Citizens; MSLF Fights Back!

Jun 15, 2014 | by William Perry Pendley

Recently, Fox News headlined a huge story out of Wyoming that the Environmental Protection Agency (EPA) had locked its cross-hairs on a Fort Bridger (population 345) welder for violating the Clean Water Act and had threatened to fine him $75,000-a-day unless he restored a “wetland” it said he altered without a permit and therefore contrary to federal law.  Andy Johnson—who owns eight acres in Uinta County in southwestern Wyoming on which he runs horses and watches his three daughters play—told Fox News that the stock pond he built, filled with crystal-clear water, and then used to create brook and brown trout and duck and geese habitat, was permitted by the Wyoming State Engineer’s Office.

The timing could not have been worse.  Wyoming was still fuming over the EPA’s December 2013 decision to put a million acres, including the town of Riverton (population 10,000), inside the Wind River Indian Reservation.  Purportedly, the EPA’s action was required by the Clean Air Act’s provision allowing tribes to obtain the authority available to States to regulate their air quality programs but, in doing so, the EPA put land long known to be outside the Reservation under the jurisdiction of the Northern Arapaho and Eastern Shoshone.  Thus, the EPA made unmitigated hash of undisputed history. 

The Reservation was established in 1868, but, in 1904, the Tribes entered into an agreement with the United States to cede 1.48 million acres of land in exchange for per capita payments to tribal members and capital improvement projects within the Reservation.  In 1905, Congress ratified the agreement, declared the lands were “ceded, granted, relinquished, and conveyed” to the United States, and referenced the new Reservation as “the diminished reserve.”  In 1906, the ceded lands were opened for settlement by Presidential Proclamation; the land was sold to non-Indians, including land that became Riverton.  In 1939, some unsold ceded lands were restored to the Reservation, but no lands inside the Riverton city limits were ceded.

Over the decades, Congress, the Supreme Court, and the Wyoming Supreme Court wrote of “lands formerly embraced in the [Reservation],” of a “diminished reservation,” and of lands “ceded, granted, and relinquished.”  Challenges by tribal members of their convictions in state court for crimes committed in Riverton—putative “Indian country”—were all rejected, on one occasion with amicus support for Wyoming from the United States.  In 1998, a unanimous Supreme Court rejected a tribal attempt to void a similar grant.

Needless to say, Mountain States Legal Foundation (MSLF)—on behalf of the Wyoming Farm Bureau Federation and its members who own property, work, and/or live in the now disputed territory—filed a federal lawsuit!

The EPA is not finished with Wyoming or its citizens as is clear from the EPA’s most recent action against Andy Johnson, which drew a demand from Wyoming’s Republican senators that the EPA withdraw its Compliance Order, which they called, “a draconian edict of a heavy-handed bureaucracy” that puts “each and every landowner throughout the country” in mortal fear.  Johnson for his part did not back down.  “I have not paid them a dime nor will I….  If you need to stand up and fight, you do it.”

Things will get much worse for landowners like Andy Johnson; the EPA is in the process of rewriting federal rules that define “waters of the United States,” which is the term of art for determining when federal officials have jurisdiction over private property under the Clean Water Act.  Although the original statute covered only 88 pages, the EPA regulations now stand at 370 pages, not counting hundreds of pages of appendices.  Like the Supreme Court justice who quipped as to hardcore pornography, “I can’t define it, but I know it when I see it,” the regulations allow a federal bureaucrat to issue a cease and desist order if he “sees a wetland,” even when he views the land, not with boots on the ground, but via Google Earth satellite imagery.

President Obama’s EPA is an agency out-of-control, one totally without adult supervision, and one that Congress simply refuses to rein in or to hold accountable.  Not only is the EPA waging a three-pronged “war on coal” after Congress refused to pass “cap and trade,” but the EPA also is killing mines all across the country.  After the U.S. Army Corps of Engineers, after ten years of study, issued a permit to a West Virginia coal mine, the EPA, asserting it had previously unknown powers, revoked it.  In Alaska, the EPA’s attack now appears to have mortally wounded the world class Pebble Mine.  Likewise, the EPA has targeted for the death of a thousand paper cuts:  a copper mine in Arizona and the nation’s only primarily nickel mine in Michigan.

That is not all.  After being humiliated for shoddy analysis and Chicken Little clucking over hydraulic fracturing (HF)—the EPA ignored its guidelines in testing Wyoming water wells for fracking-related contamination and had to abandon its study and hand it over to the State of Wyoming—the EPA just announced plans to regulate HF.  Never mind that the process is six decades old, is used to produce 95 percent of oil and gas wells in the country, and is regulated by State agencies today, the EPA is on a job-killing mission.

Fortunately, thanks to its litigation in defense of a New Mexico man targeted by the EPA, MSLF helped pave the way for the Supreme Court’s ruling in 2012 that those hit with EPA cease and desist order can fight back.  As it has done for nearly 40 years, MSLF will defend citizens against the EPA!  

Thank you for your support of this vitally important undertaking by MSLF against the most powerful and lawless agency in the country.

Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate Here