THE FOURTH AMENDMENT DOESN’T APPLY

 

I have had the distinct displeasure of being the subject of a government wetlands violation enforcement action in the past few days. When I posted my blog that chronicled the experience of the Colorado man’s fight with the Federal Government over the Colorado State Government permitted wildlife pond he built on his private property, I did not have any inkling of the bureaucratic storm headed my way. Those familiar with these pages know that I am a shareholder in, and one of the founders of a manufacturing business. The 2008 economic collapse hit our customers very hard and resulted in the cancelation of signed contracts totaling about two years work for our company. Our story mirrors that of many businesses in this country that narrowly escaped complete failure. Our work force dropped from 107 employees down to six. We have pioneered some new products in markets outside of our traditional ones. The new markets are in orchard based agriculture and construction, with moderate success it has become necessary to add to our workforce and increase the size of our facility. A simple building permit application for a 40 ft. by 136 ft. structure resulted in the discovery, by a county planner, of a wetland designation on our property that we were not aware of. We learned that the county building department had notified the State wetlands authorities of the application, as they are required to do, and that the Division of State Lands was opening an enforcement file. It soon became obvious that a gravel parking lot installed seven years ago fell within the borders of an area designated by the State as a wetland. The fully permitted construction of the parking lot that the county planning department had required us to build seven years ago was determined to be a violation by us of State law. The State did not stop there; 18 years ago at the request of the county we built a new road access to our facility to eliminate truck traffic from entering the road in a dangerous location. The new, in 1996, road also fell partly within the boundaries of the hitherto unknown wetland. I called the State enforcement officer and she required me to meet her on the site last Thursday which meant I had to drive nine hours. The on site visit concluded with our having a choice of signing a confession, paying a fine, and funding a seventy five thousand dollar per acre mitigation or contesting her findings which might include an additional 94 thousand dollar fine and notification of the Federal Government wetlands authorities. The officer requested that we sign an affidavit admitting to the wrongdoing and grant a waiver of due process so that they could determine our fines and mitigation without the right to contest their findings. This waiver would need to be signed before the final determination of the costs would be made available to us. With only her off the record opinion of the extent of our costs we had to sign a blank check or she would be compelled to contact the Federal wetlands authorities. We chose option three, we requested that she  give us the contact information of the Federal wetlands authorities so that we could contact them ourselves or that she contact them now herself.

In our meeting with the State wetlands violation enforcement officer I asked her how it was not a violation of our fourth amendment rights guaranteeing against unlawful search and seizure when the State contractors trespassed on our land and took the samples for the wetland survey without our permission. She explained that the Fourth Amendment did not apply as this was not a case of the government “taking our private property”. I attempted not to sound belligerent or condescending when I reminded her that taking was a Fifth Amendment issue and that I had referred to an unlawful search and seizure of private property under the Fourth Amendment. She said that she didn’t think that the Fourth Amendment applied and that her findings were based on a valid State Statute. She further offered that the county building department officials who granted the last building permit had no culpability as the knowledge of and compliance with State regulation is the sole responsibility of the property owner.

We did not sign her affidavit confessing to the violation and in fact have since discovered that most of the “violation” occurred 11 months prior to the State issuing the public notice of their wetlands survey. Once the 1996 road work is recognized as being in place prior to the wetland designation and therefore grandfathered as legal, the remaining 2007 violation is less than 50 cubic yards of fill. The State statute requires that the fill exceed the 50 cubic yards to be a violation. We do not know the final resolution of this issue with the State as yet or the position the Federal Government will take but it is distressing to be put in the position of being guilty until proven innocent. The distress is even more pronounced given that the local county officials whose poor work failed to identify the wetlands existence bear no responsibility.