"Oren" wrote in message
...
On Thu, 22 Mar 2012 19:34:34 -0400, "Robert Green"
wrote:

"Oren" wrote in message
.. .
On Wed, 21 Mar 2012 15:11:41 -0500, Hell Toupee

The SC ruled that property owners have the right to contest the EPA's
ruling that their property falls under the Clean Water Act. They now
get to have their day in court. That's all this ruling gave them.

Right. Now people are no longer at the mercy of the EPA. They can
challenge in court; instead of having the EPA have the final word.

If you've ever been involved in a lawsuit with a Federal agency, you
might
reconsider the words "no longer at the mercy." Maybe "not completely
SOL,
but still pretty close" applies. The EPA has a virtually endless legal
and
investigatory staff. They can, in legal parlance, "turn on the taps" so
that the legal fees a litigant faces might in many cases outweigh the
cost
of the property in question. They can paper a citizen to death with
motions
and look into all the deep, dark corners of their lives. SCOTUS just
closed
a loophole, and not very tightly. A private citizen facing the array of
resources the Feds can bring to bear in various legal actions is still in
a
very, very shi++ty place.

I stand by the "mercy" comment.

As I understand it, the EPA didn't really have the final word before, but
they could delay a court confrontation for quite some time. I think of it
this way. Before, citizens had no right to a speedy trial and now they do.
That's still no guarantee of a FAIR trial. What's absent from this decision
and what many people sought was a much clearer definition of what a
"wetland" really is. That would have been a lot more helpful to litigant
like Harry K in the final analysis than getting a speedy trial or hearing.

An old lawyer friend had a saying I took very much to heart. "If you have
to go to court over an issue, you've already lost and only the lawyers win."
A very clear definition of what constitutes wetlands would have been a far
greater victory. I think that real victory will come eventually. It's in
the nature of bureaucracy to keep trying to increase their power and the
scope of things they regulate. That's a process that needs constant
countering to keep in check.

You are singing to the choir, barking up a tree. I know how the feds
operate. I been yelled at, spanked on the hand, called on the carpet
for a refresher course, given marching orders, read the riot act, but
they never had the balls to kill me and eat me.

Yet. (-: I'm betting you're in somebody's cookbook. "To Serve Oren" for
you TZ fans.

Bobby, I have boxes of legal papers. Some times you get the bear,
sometimes the bear gets you. I've taken on feds ensuring my rights.

I have no doubt of that. You're no shrinking violet.

One day I was asked (by the top boss) "what is that?" "That's a tape
recorder!" Don't lie to me... Spent years with regular back ground
checks. I've refused entry into my home by Asst. U.S. Inspector
Generals. See me in the office, when I get back to work.

BTDT, which is why I believe that even though disputes can now be forced
into court, it's not going to change the outcomes much. You just get into
the sausage grinder sooner than later. Ironically one of the things that
colors my thinking on this is Head Start. Looks like a great idea, should
be a great idea, but when you look at the metrics and final outcomes,
nothing really changed for the kids. I believe it was the Evil Kurt who
forced me to reassess my ideas about HS. (-: I fear that nothing will
change much for the people accused of polluting wetlands by the EPA. Maybe
a few cases will swing a different way but the the fix is still in.

Judges, as part of the government, tend to defer to government experts,
perhaps far more than they should. Unless you get a judge who's an
ecologist or hydrologist, he's likely to side with the EPA on the issue of
"what are wetlands?" Heybub's quote of Scalia's oral arguments "I didn't
see any ships" gets to the heart of the matter. The EPA still has great
latitude in declaring what lands are "wet" and that's going to determine the
outcome of any litigation, reached speedily or not.

Even been accused of brutality by a Nigerian Prince.

Who, you? What happened? Aren't all Nigerians princes or oil heirs,
looking to share their wealth with anyone who can cash a $20M check?
Nigeria's two greatest exports are oil and fraud scams. Or was it the old
joke: "How many prison guards does it take to push a Nigerian prisoner down
a staircase? NONE! He fell!"

Once a co-defendant with near one hundred co-workers. Still in contempt
of
court in one court, from '83. The feds teach labor law about me :-\

Are you saying that you are contemptuous? (-: Who would have guessed?

Point:

Now the winner can contest the EPA for a sunny day in court.

To me, that translates into: "Congratulations, now you can get to a "fixed"
outcome sooner than later. The real issue that got mostly got ducked
(groan) is "what are wetlands" and does the government have the basic right
to protect them by taking your property or limiting its "enjoyment?" That's
what needs to be determined and probably will mapped out through case law,
and not statute. That's like playing connect the dots and is a slow,
arduous process that will have very different outcomes depending on the
Circuit where the case is heard. Count on more cases to bubble up the the
Supremes as more cases reach lower courts on a now expedited basis. The
French have a saying about how it's probably better to drive slowly to your
own execution. Sadly, I think all that this case did was to provide some
people with a faster ride to the same bad outcome.

Does the EPA have some administrative remedy, instead of some bean
counter having final word. Otherwise this should not have gotten into
court?

I don't know. But I believe in sunset laws and the need for every
government organization to justify their existence every couple of decades
or so. There's way too much "fire and forget" in government where it's easy
to get laws passed (good and bad) but very hard to rescind any of them. The
Feds have way too many agencies like the FAA that have cross-purposes. To
ensure airline safety, for example, but to promote air travel as well.
Well, if you report on how badly maintenance is being performed by some
airlines, you're gonna spook air travelers - hence the problem. Which
master do you serve?

The SEC is facing the same sort of issues, obtaining settlements without any
admission of criminal liability by any individual actors. They're being
forced to change their tune and MO by judges who don't want to sign off on
"Nobody did nuttin' wrong, here's a check for 1/20 the damage we really did,
have a nice day" settlements.

In any event, I agree with the analysts that say this could have and should
have been a much stronger victory that included precise statutory
definitions of wetlands that draw limits around the power of EPA. Leaving
it up to a panoply of federal judges across the nation still seems to be a
pretty big crap shoot for someone under the EPA's magnifying glass. I'd
rather see a concrete list of what makes up a wetland. Are there nesting
waterfowl? Does the land drain directly into some estuary or drinking water
source? Things that people can understand without hiring experts to make
semi-educated guesses based on previous enforcement actions and not
clear-cut definitions that a property owner or purchaser can understand.

--
Bobby G.