Waterford farmer loses another federal wetland case

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  • Robert Brace, now 82, has been fighting the federal government over wetlands since the 1990s
  • In the most recent decision, the judge finds he violated the 1996 consent decree with the work he did on a 30-acre section of his farm
  • In June, the 3rd United States Court of Appeals ruled against Brace over wetlands on a 20-acre section

WATERFORD – Robert Brace lost another court ruling in the decades-long farmer-federal fight over wetlands.

For the second time in four months, Brace has lost a challenge to government findings that he violated environmental regulations by altering wetlands on his property in southern Erie County near Elk Creek.

In the latest ruling, released by a federal court in Erie on Friday, U.S. District Judge Susan Paradise Baxter agreed with the Department of Justice that Brace violated a 1996 consent decree by clearing, draining, plowing and planting land. wetlands that the decree was designed to protect.

Baxter also rejected Brace’s motion to rescind the consent decree and deny sanctions related to its enforcement by the government. She concluded that the Environmental Protection Agency‘s notice of violation against Brace, filed in 2016, was valid and that Brace had waited too long to ask the courts to overturn the consent decree.

The consent decree must remain in place to protect the environment, Baxter wrote. The executive order applies to a 30-acre parcel of Brace’s 130-acre farm, and the parcel includes four unnamed tributaries, each of which flows into Elk Creek at various points within the parcel, Baxter wrote in a notice from 86 pages. Elk Creek flows into Lake Erie.

“Although Brace has maintained that he has attempted to work in good faith with the government to resolve the water accumulation issues on his farm, his conduct regarding the consent decree area has been reckless at best. and, at worst, cheeky, “Baxter wrote.

“His involvement in the drainage, clearing, plowing and agriculture of jurisdictional wetlands thwarted the objectives of the consent decree. modified or canceled. Overall, the Court finds that any difficulty that the Consent Order created for Brace is outweighed by the environmental benefits that would result from its continued existence. “

Wait for the fines, for now

The government recently asked Baxter to enforce the consent decree in March 2019, and Brace responded in May 2020 by asking Baxter to rescind the consent decree, thus setting the record for a judge’s ruling.

Although she ruled against Brace, Baxter gave her a stay. She did not decide to comply with the government’s request to penalize Brace up to $ 1,562,250 under the consent decree.

The Executive Order provides for fines of $ 750 per day for Brace violations. The Justice Department asked Baxter to agree to apply the daily fines for a total of 2,083 days – from January 11, 2016, when the government informed Brace of the environmental violations, until the date of the Baxter’s decision.

Baxter wrote that she will postpone a decision on penalties and costs pending the development of a plan between the government and Brace on how Brace will restore wetlands that have been the subject of violations.

“The Court will defer the final decision on monetary penalties until the costs of the corrective measures are determined and adequate financial resources have been allocated for the completion of those measures,” Baxter wrote.

It’s the same approach that another federal judge, Barbara A. Rothstein, took in a previous ruling against Brace that concerned wetlands on another section of her property.

Previous decision:Robert Brace case: Waterford farmer loses appeal and must restore wetlands in feud with federal government

Rothstein in 2019 rejected Brace’s challenge to the government’s claim that he violated environmental regulations by clearing these wetlands without a permit in 2012. The 3rd US Court of Appeals in June confirmed to the unanimously agreed Rothstein’s decision, including his unusual finding that former Brace attorney Lawrence A Kogan of New York City had handled the case so badly that the government won by default.

Brace accuses “the deep state”

While discussing Rothstein’s decision, Brace said he plans to challenge Baxter’s decision. In an interview on Monday, he said he had spent “millions and millions” of dollars fighting the government over wetlands since the 1990s.

His initial fight for the use of his property, where he grew corn and soybeans, turned into one of the country’s best-known property rights cases and led to the formation of the Pennsylvania Landowners Association.

“Environmental law is the same as Sharia law,” said Brace, referring to the legal system of Islam.

Robert Brace has fought the federal government for over 30 years for compensation for his land he cannot use due to federal wetland rules.  This 2007 file photo shows a sign that Brace made 12 years earlier, hoping it might make some sort of difference to his fight for compensation.  The sign remains on his property at the corner of Lane and Greenlee Road in the Township of Waterford.

He said he and his family had “done everything right” with the wetlands, and he blamed the “deep state” and the “administrative state” for creating an unjust legal situation to which he has said he couldn’t escape.

“The administrative state shouldn’t be the fourth branch of government,” Brace said. He said he was “innocent” and would continue to believe that a proper reading of the Constitution by the courts would bring him relief.

“Without the Constitution, we are no better than Venezuela and the other failed nations,” Brace said.

Brace said he was discussing what to do next with his lawyers. Options include asking Baxter to reconsider his decision or appealing to Philadelphia-based 3rd Circuit.

“We are obviously very disappointed with the decision that has been taken,” said one of Brace’s attorneys, Neal Devlin. “Mr. Brace is a farmer who tries to use his land in the way we think the law allows. We respectfully disagree with the court’s decision and are evaluating our next steps. “

“Extraordinarily prolonged” litigation

Brace’s fight with the government case arose out of a 1990 lawsuit the government brought against him in U.S. District Court in Erie.

Brace has objected to the US Fish and Wildlife Service over its right to repair drainage pipes on its 30-acre parcel of its farmland, a U-shaped section called Murphy Farm. This area is located near Lane Road in the Township of Waterford.

Extension of the case:Despite negative decision, Waterford farmer vows to keep fighting

The second case, which Justice Rothstein dealt with, involves 20 acres that Brace owns alongside the 30 acres. The 20 acres, known as Marsh Farm, are located in the townships of McKean and Waterford, immediately east of Sharp Road, north of Lane Road, and south of Greenlee Road.

In the 30-acre Murphy Farm case, Federal Judge who heard the case for the first time, Glenn Mencer, ruled in Brace’s favor in 1993, ruling that Brace had done nothing but to follow normal and accepted agricultural practices.

The 3rd Circuit overturned Mencer’s decision and ruled in favor of the government. The United States Supreme Court refused to hear the case in 1995, leaving the 3rd Circuit ruling in effect.

After the 3rd Circuit decision, Brace signed the consent decree, entered in 1996, avoiding a fine of $ 125,000 by agreeing to pay $ 10,000 and tear up the drainage system that once used to cultivate the land.

Since then, Brace and the government have been at odds over whether it has complied with the consent decree and environmental laws regarding wetlands. The result was the decision, both against Brace, of Judge Rothstein and then Judge Baxter.

U.S. District Judge Susan Paradise Baxter, sitting in Erie, is the latest federal judge to rule against Waterford farmer Robert Brace.

In asking Baxter to enforce the consent decree, government lawyers said Brace and his co-defendant, Robert Brace Farms Inc., ignored the rules they agreed to follow.

“These obligations are clear,” according to a government file in March 2019. “However, the defendants brazenly violated them.”

Baxter, in its ruling, commented on the length of the litigation.

“To state the obvious, this litigation has been extraordinarily protracted, consumed a disproportionate share of judicial resources, and has been costly to both the government and Brace,” Baxter wrote. “The government and the general public have suffered harm to the extent that they have been deprived of the environmental benefits that the government negotiated under the Consent Order. “

Brace is committed to continuing the litigation.

“Don’t you think we’ll let this sit?” he said. “I will never stop.”

Editor-in-chief Jim Martin contributed to this report.

Contact Ed Palattella at [email protected]. Follow him on twitter @ETNpalattella.


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