Judge Issues Scathing Opinion Punishing EPA and Federal Government for “Oppressive and Dishonest Conduct.”
United States District Judge Lynn N. Hughes issued an opinion dismissing the case of United States of America v. Lipar, Civil Action H-10-1904, pending in the United States District Court for the Southern District of Texas – Houston Division. Michael P. Fleming represented some of the defendants in the civil litigation matter which began over almost ten years ago. In dismissing the case, Judge Hughes also took the extraordinary action in ordering the US government to pay all of the attorneys fees incurred by the defendants due to the egregious conduct of the United States Environmental Protection Agency (“EPA”) in handling the matter.
In 2007, EPA officials visited some large, premier real estate developments underway in Montgomery County, Texas. The developer had followed all regulations in permitting and had engineers advise on all aspects of the development including whether jurisdictional wetlands appeared on the property. They did not. However, the EPA investigator disagreed with the licensed engineer and the EPA ordered the developer to close his construction down and basically go out of business. At the time, when an agency such as the EPA issued such an order, there was no avenue of appeal or recourse whatsoever. Developers faced with such an order – even if completely unjustified as in this case – could either comply and go out of business or defy the government and face prosecution and crippling fines. The developer here took the courageous stand and continued with his lawful development. For that, the EPA went after him with a civil lawsuit seeking millions of dollars in fines for developing his own property.
In dismissing the lawsuit, Judge Hughes notes that there was no evidence that there were any jurisdictional wetlands on the property and that the EPA actually sought to regulate land that was completely dry all year except when it rained.
In issuing sanctions punishing the EPA, the court stated that,
“For ten years the government has investigated whether the two sites contained jurisdictional wetlands. It gathered data for five years before it sued. In ten years, the government has discovered no fact to show that the developed areas were jurisdictional wetlands. Despite this, it has been intractable, uncooperative, and defiant.”
Worse yet, Judge Hughes found that the real reason the EPA sued was because it disagreed with the defendants interpretation of United States Supreme Court cases and were worried that other developers would align with this interpretation.
Finally, on top of all this misconduct, the court found discovery abuse and that the government “abused its power in an attempt to brow-beat the defendants and discourage their colleagues and competitors from developing similar areas. This conduct is reprehensible.”
Michael P. Fleming, attorney for some of the defendants stated, “This is a significant win for private property ownership in this country but it also exposes some of the abuse that can occur when the federal government power is unchecked. Thank goodness Judge Hughes stopped them in this case.”