Editorials
Federal judge sentences developers to jail
By Lee Chowaniec
Dec 13, 2005, 00:21

A federal judge recently sentenced three Mississippi real estate developers to jail for illegally filling in wetlands for the purpose of building homes for low and fixed income families despite warnings from health officials that they were installing septic systems in saturated soils that would contaminate the area. Ultimately, more than 600 families bought lots in the subdivision, but later experienced massive sewage backups and overflows due to failing septic systems.

Federal judge Louis Guirola Jr., U.S. district judge for the Southern District of Mississippi, ordered Robert J. Lucas Jr. to spend nine years in prison followed by three years' supervised release. His daughter, Robbie Lucas, will spend 87 months in prison followed by three years' supervised release, and a third business partner, M.E. Thompson Jr., also will serve 87 months in prison. All three will have to pay $15,000 in restitution.

In June 2004, a Mississippi grand jury indicted Lucas and his partners with 41 criminal counts for their activities at Big Hill Acres, ultimately leading to a conviction last February in federal court in Gulfport, Mississippi.

Assistant attorney general Sue Ellen Woodridge, for the Justice Department's Environment and Natural Resources Division declared, "This landmark criminal case sends a strong message that corporations and individuals who commit flagrant violations of our environmental laws will be prosecuted vigorously and will face the possibility of lengthy prison sentences."

EPA connection

What makes this violation even more disturbing is that current Environmental Protection Agency (EPA) Southeast Regional Administrator Jimmy Palmer represented convicted developer Robert Lucas Jr. against the agency he would eventually help lead.

"Jimmy Palmer's conduct in the Big Hills Acres case raises serious questions about his fitness to continue serving as a federal official who is supposed to be enforcing the very environmental laws that his clients, following his advice, were flouting," said PEER executive director Jeff Ruch in a statement.

Palmer said he believed EPA regulators had been "heavy-handed" with his client as they pressured Lucas to cease land-disturbing activities and the selling of lots.

Ultimately, more than 600 families bought lots in the subdivision, but later experienced massive sewage backups and overflows due to failing septic systems. EPA and the Army Corps of Engineers initiated legal action against the developers in 1999, first with administrative orders and later through criminal charges brought by the Department of Justice's Environmental and Natural Resources Division.

Palmer agreed to represent Lucas in April 2000, just four months after retiring as director of the Mississippi Department of Environmental Quality, a job he held for more than 12 years. At the time of the arrangement, Palmer was working as a specialist in environmental matters.

Palmer's environmental credentials were an asset to Lucas and Thompson as their dealings with state and federal regulators soured in 1998 and 1999 over repeated warnings that the developers were illegally filling wetlands and installing septic systems in soils that were unsuitable for such sewage treatment. In 1999, both the Army Corps of Engineers and EPA's Region 4 office in Atlanta had issued cease-and-desist orders to stop the sale of lots in the subdivision and asked Lucas to sign a consent decree agreeing to the cease-and-desist terms.

The developers, however, relying on the advice of a private wetlands consultant, temporarily continued to sell lots that they believed were suitable for homes with septic systems.

Homeowner fate

When asked what recourse the homeowners have, Sierra Club Chair of the Atlantic Chapter, Liz Kaszubski declared, “The US Army Corps never makes a violator tear down a house built in a wetland. They may make a violator restore a wetland that is yet undeveloped (as is the case in North Tonawanda in the Briarwood subdivision area) but that is the extent of it. And even in the North Tonawanda case, they told them to replant a few trees, gave them an after-the-fact permit, and NO fines whatsoever.”

The real punishment is what happens to the folks who buy the homes that were built in the wetlands. If they have problems with their homes, they essentially have no recourse under the "buyer beware" doctrine.

Usually in criminal cases announcement of the penalties is more of a priority than definition of the terms for site restoration. In civil cases it’s usually the reverse.

The US Army Corps never makes a violator tear down a house built in a wetland. Future media releases will likely address the restoration issue. However, plans to restore the parcel may be delayed if individual homeowner suits are still pending in the courts.

Historically, the Corps has only been involved in a few criminal cases. Most have been civil prosecutions. When a criminal penalty is handed down it is big news. Perhaps the City of Tonawanda should pay attention

Under the Clean Water Act, a fine of $27,500/day can be assessed against the landowner who allows a violation of section 404 of the Act (which protects wetlands). If the intent is criminal or multiple times, jail time is also a possible punishment. I have never heard of any huge fines handed out in this area.

Wetland consultants

The developers, however, relying on the advice of a private wetlands consultant, temporarily continued to sell lots that they believed were suitable for homes with septic systems.

Under the Clean Water Act, a fine of $27,500/day can be assessed against the landowner who allows a violation of section 404 of the Act (which protects wetlands). If the intent is criminal or multiple times, jail time is also a possible punishment. Unfortunately, no huge fines have been handed out in our area.

Wetland cases have to be very flagrant and obvious to get any attention, especially so in the Western New York area. Unfortunately, no huge fines have been handed out in our area. The Corps is generally advised by their own attorneys and the US Attorney to go for removal or mitigation.

Like insanity pleas and similar to them wetland cases can get equally qualified multiple experts on both sides of the issue. If you have to wade through water during the investigation you breath a sigh of relief. Water is something judges can trust, but plain old vegetation and subjective soil judgments are another matter.

Good ol' US business ethics 101. Be as greedy as possible; destroy anything for a decent profit; and cover your tracks (legally, of course). Although some of us would love to see some of our shady local developer wetland consultants, municipal engineers and government administrators taken off to jail for multiple offenses of wetland laws, that just hasn’t happen here – YET!

By the way, what roll was the municipal government playing when all this was taking place? Probably supporting the developer as they do here on many occasions.




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