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Feds send man to prison for protecting town from flooding

by C1ay / August 8, 2008 12:29 AM PDT

Lynn Moses will be locked up in federal prison next Wednesday. His crime? Protecting the city of Driggs, Idaho from flooding.

When Mr. Moses began to develop a subdivision along Teton Creek in 1980, Teton County required him to implement an engineer?s plan to modify the Teton Creek stream bed to prevent the flooding of subdivision property, caused by the buildup of gravel bars and downed trees, during high water flows in the spring.

In fact, the county would not allow him even to record the plat for the subdivision until the modification work had been done, and only allowed the development after requiring the homeowner?s association to maintain the flood control channel year after year...

At this point, the Environmental Protection Agency (EPA), emboldened by newly granted bureaucratic authority, jumped in and went right after Mr. Moses, indicting and prosecuting him for violating the Clean Water Act in the years 2002, 2003 and 2004 for doing nothing more than the routine maintenance on the channel he had been doing for 20 years, under requirements imposed by local government.

Presiding federal judge Lynn Winmill, who has a well-deserved reputation for judicial activism, refused to allow Teton County commissioners to testify to the original agreement, nor would he allow the aggressive Corps staffer to testify about the refusal of the U.S. Attorney to prosecute in the mid-90s.

Before the jury was dismissed to enter into deliberations at the conclusion of his trial, Judge Lynn Winmill instructed the jury, believe it or not, to disregard every bit of information from 1980 to 2002, including the Corps? denial of jurisdiction and the mandate from local government for Mr. Moses to maintain the flood channel.

Instructed by this notoriously activist judge to ignore facts, reason and legal history, the jury returned with a guilty verdict, finding Mr. Moses guilty of ?discharging? ?pollutants? into one of the ?waters of the United States.?



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We need easier ways to impeach judges
by James Denison / August 8, 2008 2:43 AM PDT

When they operate outside the law, they should be subject to arrest just like any other, and that should be for clearly erroneous rulings too. Sick of seeing judicial rule by fiat as if they have some divine right of judges similar to the old "divine right of kings".

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I belieeve it.
by EdHannigan / August 8, 2008 5:27 AM PDT

The EPA should be done away with. They have caused more trouble over the years than they're worth. They has to be a better way to protect the environment than with that oversized fascistic sacred cow.

Dump OSHA too while we're at it..

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OSHA and the EPA both are needed.
by Mike_Hanks / August 8, 2008 6:47 AM PDT
In reply to: I belieeve it.

They also both need to have their powers reigned in

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There's more to the story
by ninetywt / August 8, 2008 11:04 PM PDT

I believe there is more to this case than what your linked blog article mentions.

I found an article from last year which reports that Mr. Moses had been warned, in writing, that he needed environmental permits and that he had ignored them. I don't think this just happened overnight.

In a summary of the appeals court case, Mr. Moses' claim is that he didn't "discharge pollutants" into the stream, yet he did place material in the stream.

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is this about the judge or the prosecutor ?
by grimgraphix / August 9, 2008 12:50 AM PDT

On first read, it seems to me, that the prosecutor is the one bringing the charges. Did the judge act reasonably? At first glance it doesn't appear so. Still, this post seems to be about "activist" judge bashing, when I am forced to say that the problem actually lays at the feet of the prosecutor who originally decided to bring charges. Were it not for the prosecutor, the judge would never have been involved.

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On second read, in actions like these...
by grimgraphix / August 9, 2008 12:58 AM PDT

... are prosecutors even involved ?

Either way, it looks like the blame lays with the EPA, although the judge sounds like they are just lazy, not considering the years of previous history involved. Still, what is the deal with no actual "official" determinations having been made by TPTB ?

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One has to make application
by ninetywt / August 9, 2008 6:34 AM PDT

Ya gotta request that the COE make a determination. I've done it before; just a bunch of red-tape type paperwork. I don't think there's even a fee involved in that part.

In other words, the onus is on the property owner to make sure that he/she's not in violation of the Clean Water Act, by requesting such determination.

Now, if the COE/EPA/State DEQ finds that there *are* wetland areas, then one must apply for permission to do whatever activities you are wanting to do. I believe this requires publishing a public notice and having a public hearing. Still, lots and lots of folks accomplish this every day.

I think the aggravation felt by the linked blogger lies more with environmental regulations than it does the judge.

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