Huntress v. United States

Originally published at the Cato Institute Nov 2, 2020 by Ilya Shapiro and William Yeatman

To an unfortunate extent, the modern administrative state has expanded into criminal law enforcement. Many federal regulatory statutes—including those governing antitrust, securities, and the environment—authorize agencies to pursue both civil and criminal penalties. Thus, more than 300,000 federal regulations have been criminalized.

William Huntress became ensnared in such a “hybrid” civil‐​criminal regulatory regime. He alleges that the U.S. Environmental Protection Agency (EPA) brought felony criminal charges against him in order to increase the government’s leverage in a regulatory dispute over the reach of the Clean Water Act. For almost two decades, this controversy has consumed Mr. Huntress’s life, including more than four years of living as an accused felon. All along, he has maintained that the government has no jurisdiction over the putative “wetlands” on his property—seasonal puddles, really—and that he’s being bullied by an overbearing bureaucracy.

After the government’s felony charges against him were dismissed, Mr. Huntress decided to push back. He filed a lawsuit in federal district court, alleging that the government committed malicious prosecution. The district court, however, refused to hear Mr. Huntress’s claim, finding that sovereign immunity shields the EPA’s conduct from judicial scrutiny. The Second Circuit upheld the district court, and thereby deepened a circuit split over how to interpret the Federal Tort Claims Act’s waiver of sovereign immunity. Now, Mr. Huntress seeks Supreme Court review.

The Cato Institute, joined by the NFIB Small Business Center, Rutherford Institute, Mackinac Center for Public Policy, Competitive Enterprise Institute, and Center for Constitutional Jurisprudence, filed a brief in support of Mr. Huntress’s petition. The brief urges the Court to use this case to affirm that the Federal Tort Claims Act remains a viable check on the worst excesses of the administrative state.


Robertson v. United States

Joseph Robertson was a property owner in Montana who sometimes dug ditches from a rivulet to collect water into ponds on his property. In the course of that work, according to the Cato Institute description of the case, “some dirt got into the rivulet, which emptied into a local stream, which emptied into a state river, which entered a river that crossed state lines.” This led the Army Corps of Engineers to criminally charge Robertson with criminal sanctions for failing to get the appropriate permit for his actions under the Clean Water Act.

Robertson’s ponds hardly qualified as navigable waterways of interstate commerce, which is the general rationale that gives the federal government the constitutional authority to regulate such matters.  But the government’s theory of the case was so sweeping that Robertson’s manipulation of the dirt on his own property that may have eventually crossed state lines in a river justified a criminal prosecution. This is textbook overcriminalization.

Robertson was convicted, sentenced to 18 months in prison, and ordered to pay a $180,000 fine. He appealed his case all the way to the Supreme Court, challenging the overbroad reading of the Clean Water Act’s language. Sadly, Robertson passed away while his case was under review. The Supreme Court sent the case back to the appeals court, which eventually threw out his conviction and the fine.

You can read the Cato Institute’s amicus brief in support of Robertson here. You can also read an op-ed about the case written by one of Robertson’s attorneys in The Hill .


In Jail for Backed-Up Toilets

Originally Published at National Review by Shannen W. Coffin December 12 2011

The Wall Street Journal has a powerful illustration today (subscription required) of the problem of overcriminalization of federal law and the related problem of strict liability crimes. It tells the story of Lawrence Lewis, a maintenance engineer at a military retirement home in D.C., who pled guilty to misdemeanor violations of the Clean Water Act and its implementing regulations — all for discharging a backed-up sewer line into a city storm drain to prevent flooding in an area on the property where, according to the story, the sickest residents lived. Lewis mistakenly thought the storm drain emptied into the D.C. sewer system, when in fact it emptied into Rock Creek, a tributary of the Potomac River. 

Since the government is not required to prove guilty intent (mens rea) as part of its case for this regulatory violation, Lewis’s good faith was no defense to his “crime.” (The government’s own pleadings in his case admitted that Lewis did not knowingly dump waste into the creek). So, like many faced with the weight of a federal prosecution, he decided that taking a plea was the better course.

After a fine and probation, Lewis now has a criminal record for the first time in his 60 years (an assault arrest in his youth did not result in a conviction). He summed it up best in describing his incredulousness at being booked from such an insignificant and unintended federal crime:  “Imagine what I looked like. ‘What you in for? Backed up toilets.’”