Trials and Tribulations of Landowners

Bring up the name John Pozsgai with Henry Lamb and he is all but ready to propose Pozsgai for sainthood.

To Jessica Landman, however, Pozsgai is hardly the “innocent victim of an abusive legal system” as he is sometimes portrayed, but a shameless criminal.

The strikingly different portraits of Pozsgai are drawn by two warring factions: Lamb’s private property rights movement and Landman’s environmental lobby.

Pozsgai, 58, who is serving a three-year prison sentence for violating the federal Clean Water Act, serves as a rallying point for both sides in the tug of war between property rights and environmental protection.

To property activists such as Lamb, executive vice president of the 7-million-member Environmental Conservation Organization, Pozsgai and other defendants inalleged environmental crime cases symbolize a growing backlash that has brought together an increasing number of small-scale property owners fed up with what they view as governmental interference in the name of environmental preservation and land use planning.

“It does not make sense to err on the side of caution (in protecting the environment) when we know the cost of that error is unacceptable,” Lamb said.

To their critics, Pozsgai represents a myopic arrogance that refuses to recognize an individual’s responsibility to larger public interests, such as protecting the health of the environment.

In 1988, a jury in Philadelphia found Pozsgai guilty of destroying ecologically sensitive wetlands by dumping fill dirt on a plot of land that Pozsgai owned across the street from his Morrisville, Pa., truck repair business.

Besides Pozsgai, there are at least eight other people facing the prospect of jail time or hefty fines for environmental offenses as the federal government works to send a message that it will not tolerate such affronts to the country’s ecological resources.

“You violate (the country’s environmental) laws at some risk and you willfully and flagrantly violate those laws at some greater risk,” said John Meagher, director of the Environmental Protection Agency’s wetlands division.

In the view of Landman, a senior attorney at the Natural Resources Defense Council, the attitude that “this land is my land” actually flies in the face of the property rights of others when neighboring owners suffer as a result.

“Filling in wetlands is not a victimless crime. They provide critical flood protection for adjacent property owners. You fill in your wetland at their peril,” Landman said.

A situation in Statesboro, Ga., is a case in point. While the private property rights movement consists of “moms and pops” who have joined together to fight to use their land as they see fit, a group of residents there has likewise banded together to fight actions they perceive as damaging to the environment.

Statesboro Citizens for the Protection of Wetlands was formed two years ago after developer Ray Hendley filled in cypress wetlands to build five rental houses, leading several nearby homes to flood, said George Butterfield, the group’s chairman.

Hendley, a repeat wetlands violator, according to the EPA, reached an agreement with the agency to remove two of the houses a year ago as part of the effort to restore the site, according to EPA officials. However, the houses have remained standing since then, much to Butterfield’s consternation. In April, EPA officials announced that the agency was now ready to enforce the agreement and expected removal of the houses by July.

John Pozsgai has already found out the government means business.

The EPA’s Meagher contends that Pozsgai negotiated a $20,000 purchase price reduction after learning from engineers that there were wetlands on the property, refused to go through the government permitting process and then proceeded to fill the wetlands despite repeated warnings from the government to stop.

In the face of a temporary restraining order, Pozsgai was videotaped by government officials dumping 32 more loads of fill at the site, Meagher said.

Pozsgai’s attorney, Paul D. Kamenar, executive legal director for the Washington Legal Foundation, a conservative advocacy group, denies virtually all of the government’s points. Rather, Kamenar claimed Pozsgai was unfairly imprisoned for cleaning up an old landfill by removing tires and rusted auto parts and replacing the debris with clean fill dirt.

Pozsgai, interviewed during a recent eight-hour weekend home visit, said the ordeal has bankrupted his family. Yet, he said, “I am proud to go to jail. I am going to jail for the truth,” adding that he feels he was “railroaded” by the government.

The severity of Pozsgai’s sentence is particularly unjust, Kamenar said, considering his client did not poison the ground or kill any wildlife with toxins.

“Whether or not Mr. Pozsgai, with reckless abandonment, put top soil on his own property, the question is whether you punish him with jail,” Kamenar said.

Kamenar is appealing the sentence and is pushing for a presidential commutation.

Pozsgai was not the first to go to jail for an environmental offense. That distinction belongs to Ocie Mills, 57, of Navarre, Fla. and his son, Carey Mills, 33, who completed 21-month prison terms in November, 1990, and were fined a total of $10,000. The Mills are appealing the fine.

The elder Mills planned to build a home for his son on some land he owned. After dumping 19 loads of sand on a quarter-acre lot near a bay--with the State of Florida’s permission--the two men were arrested and convicted by a federal jury in 1989 for illegally filling in wetlands.

Ocie Mills claims his arrest was in retaliation for speaking out against environmental officials. “If going to prison and serving the 21 months has added anything back to the validity of our Bill of Rights, then I assume our Founding Fathers would have believed it was worth it,” he said.

According to the EPA, however, Ocie Mills was charged in large part because he bought the property from an owner with a pre-existing wetlands order to cease filling the lot. “Mills was adamant he wanted to take on (federal wetlands officials) about the violation,” said an EPA official.

Marine engineer William Ellen of Mathews, Va. is waiting to hear whether the U.S. Supreme Court will overturn his 1990 conviction and sentence of six months in jail and six months of home detention for a wetlands violation.

Ellen was prosecuted as the supervisor on a 3,200-acre project to build a hunting preserve and wildlife sanctuary on Maryland’s eastern shore for Wall Street futures trader Paul Tudor Jones II. Jones escaped going to trial by agreeing to pay a $1-million fine and make a $1-million contribution to a wildlife refuge.

Ellen was unfamiliar with the non-tidal wetlands he was accused of destroying while dredging a pond at the site, said his attorney, Benjamin Sharp.

The government, however, contended that Ellen knew what he was doing because of his prior work experience with the wetlands permitting program.

Although the tide of wetlands decisions appears to be going against the private property rights viewpoint, proponents say they are heartened by the not-guilty decision returned in the case of Rothville, Mo., farmer James Allen Moseley, 37, and his wife, Mary Ann, 34.

In what is believed to be the first loss experienced by federal wetlands prosecutors, the Moseleys were acquitted of destroying 41 acres of forested wetlands by rebuilding a levee without securing a federal permit.

The Moseleys claimed they were trying to protect their farm from the flooding of an adjacent creek that feeds into the Missouri River.

The jury did not accept the government’s claim that construction of a levee on farm land amounted to the discharge of a pollutant into the navigable waters of the United States, as specified in the Clean Water Act, said their Fayettesville, Ark., attorney, John Arens.

“In my heart of hearts, I cannot imagine losing one of these wetlands cases, as long as the jury knows the truth,” Arens said.