- The Washington Times - Friday, December 29, 2000

This is a horror story and one which I hope "compassionate conservatism" will do something about after Jan. 20. The case was brought to my attention by the Pacific Legal Foundation.

First the chronology:

In spring 1989, Ocie Mills bought two small lots totaling half an acre in a Florida subdivision in Santa Rosa County, 20 miles east of Pensacola, on which to build a house for his son Carey. In preparation for construction, they dumped 19 loads of clean builder's sand on the lot. A 300-foot drainage ditch ran between the two lots. They drained the ditch to get rid of a mosquito breeding ground. The Florida Department of Environmental Regulation (FER) had ruled in advance that their actions did not affect wetlands and that no permit was needed for the work.

The U.S. Army Corps of Engineers disagreed with FER and brought father and son into federal court. They were charged and convicted by a jury under the federal 1977 Clean Water Act on four felony counts of knowingly discharging "fill material" in "wetlands" and "dredging a canal [in] navigable waters" without a federal permit.

For such monstrous crimes, father and son were each sentenced to 21 months in the federal prison camp at Saufley Field in Pensacola, each fined $5,000. Subsequently, they were denied eligibility for parole and ordered to restore the affected site within 90 days of their release.

The U.S. District judge barred testimony by FER employees that state officials had authorized placement of fill materials on the land and determined that the two lots were not a wetland as defined by U.S. Army Corps of Engineers regulations. I find it is hard to understand why the federal judge didn't indict the FER employees as co-conspirators with the Mills family.

Here is an example of a bureaucracy gone mad with power so that it corrupts a congressional law intended to protect the nation's waterways, aquifers and municipal water supplies from pollution. Under the Clean Water Act, you may not discharge dredged or fill material into "navigable waters" without a federal permit. Fine. But over the years the Corps of Engineers, says the Pacific Legal Foundation, has so broadened the term "navigable waters" that it includes "areas of dry land that need never be wet."

When the Mills were finally freed, a new ordeal began. They were hauled back to court in March 1991 charged with not having "restored" the property within 90 days to its pristine state. U.S. District Judge Roger Vinson went to the scene of the "crime" and then told the Corps of Engineers that the Millses "had complied with the site restoration plan."

In 1992, the Millses appeared before Judge Vinson and asked to have their felony convictions erased. Reluctantly, the judge upheld their convictions but in his decision he made two points:

(1) Congress had abdicated its authority by allowing the U.S. Army Corps of Engineers, an unelected administrative agency, to define environmental crimes.

(2) The Clean Water Act had been interpreted like something out of "Alice in Wonderland" by which, to quote his written decision, "a landowner who places clean fill dirt on … dry land may be imprisoned for … discharging pollutants into the navigable waters of the United States."

In 1996, an explosive event occurred. One of the jurors who had voted for the Millses conviction called the senior Mills and told a story of what is surely serious juror misconduct during the jury deliberations. The juror said Ocie Mills had threatened environmental people with a gun, an event which was not introduced in the trial but it influenced the jury which convicted.

The Millses, aided by the Pacific Legal Foundation, are going back to the U.S. Supreme Court, which had turned them down once before, requesting a new trial on the grounds that their right to a trial "by an impartial jury" had been violated. This battle against an entrenched bureaucracy has been under way for 11 years and it is time a new administration began to rein in these officials or did the Congress which passed the Clean Water Act intend that people like the Millses should be jailed for non-existent crimes? It's time the American people got an answer.

Arnold Beichman, a research fellow at the Hoover Institution, is a columnist for The Washington Times.

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