Bureaucracy for bureaucracy’s sake

Earlier this week, the Boston Globe reported on the bureaucratic nightmare that a New Hampshire retailer experienced with he caught the attention of bureaucrats from the U.S. Fish and Wildlife Service. The retailer imported several items without first declaring them to the federal government or obtaining a permit, which he reportedly did not know or have any reason to know was required.

According to the story, the items were obtained legally, posed no threat to anyone, and could have been lawfully imported, if only the retailer had known a permit was required and obtained one. Federal bureaucrats nonetheless imposed significant delays, forced him to destroy several of the items, and generally put him through hell because he didn’t comply with the bureaucracy.

In an earlier post, I explained how this story highlighted three major problems with modern bureaucratic enforcement.

This story is, sadly, all too common today. It highlights three fundamental problems with the power that countless federal bureaucrats wield over all of us: (1) “Ignorance of the law” has been perverted into a means of punishing us at random for innocent acts that we had no reason to think might violate a regulation; (2) Bureaucrats grossly overreact when you fail to fill out the paper work that you have no idea you might need and they make little effort to advertise; and (3) The most important factor in determining whether the government will punish you and how severely is which bureaucrat happens to be reviewing your case.

As promised, this post will address that second problem. [Update: the third post is here.]

Although massive federal bureaucracies are justified on the theory that they will only use their awesome power for good, the reality is that they often bring the hammer down on innocent people simply because they did not know about and comply with bureaucratic requirements. It’s bureaucracy for bureaucracy’s sake.

At PLF, I recently represented a Wyoming man who learned this out the hard way. Andy Johnson built a pond on his private property by building a spillover dam on a small stream. The pond was intended to provide safe, reliable water access for his livestock. According to a wetlands expert, and former U.S. Army Corps of Engineers’ enforcement officer, the pond was an unqualified good for the environment. It created wetlands, provided habitat for fish and wildlife, and cleaned the water that passed through it.

Nevertheless, EPA bureaucrats decided that this small, environmentally beneficial pond violated the Clean Water Act. They issued a compliance order demanding that he rip out the pond and restore the area to its prior state. The order also threatened him with $37,500 in fines for every day that he did not comply. In the nearly two years he spent negotiating with and suing EPA to challenge the order, he racked up roughly $20 million in potential fines, an absurd amount for an ordinary property owner like him.

Andy Johnson’s crime? By placing dirt in the stream without a federal permit, he had “discharged” a “pollutant” into a “navigable water” (all of those terms are interpreted absurdly broad by federal bureaucrats). The story gets even more ridiculous when you consider that a federal permit automatically exempts projects like this that involve less than 25 cubic yards of dirt. Everyone acknowledged that the dam was well under this threshold.

However, under that permit, you have to provide prior notice to the Army Corps of Engineers if you’ll be placing between 10 and 25 cubic yards of dirt. According to his expert, the dam contained about 9 cubic yards of dirt. According to EPA, it was almost 12 cubic yards. So, according to the bureaucrats, he violated the law by failing to fill out the proper paperwork. Of course, Johnson didn’t know about this notice requirement—almost no one does.

On the basis of that discrepancy alone—and not any environmental concern—EPA put this father of four through hell, threating him with financial ruin and possibly even imprisonment. All because he didn’t comply with red tape that he had no reason to know about. They only backed down after being sued, at which point they agreed to a settlement allowing Johnson to keep the pond and pay no fines.

No matter what your position on the environment, this should offend you. Government exists to serve the people and protect their liberty, the people don’t exist to serve the government and expand their power.

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