Regulators Take Aim at Property Rights in Santa Fe


Federal overreach and the unending growth of Washington’s power has been a real problem for decades. That may be a trite statement these days with Washington now in firm control of Americans’ health care, but a real-world example from right here in New Mexico should give us all pause.

In 2005 Peter and Frankie Smith purchased 20 acres of property located 19 miles south of Santa Fe, New Mexico. The retired couple found much of the land in desperate need of maintenance, stating that when the property was first purchased, truckloads of garbage and debris littered the area. During the cleaning process, the Smith’s smoothed out a portion of an arroyo in order to safely remove the trash.

What may seem to be good stewardship of one’s land and an effort to “Keep America Beautiful” has gotten the Smith family into a very big fight with a very powerful, albeit largely-unknown in New Mexico, federal agency called the U.S. Army Corps of Engineers. The agency, rather than being pleased with the cleanup effort, viewed it as a transgression, stating that the couple had violated the 1972 “Clean Water Act”.

The letter sent by the federal agency claims that the Smiths had violated the act by “dredging and filling a water of the United States”. The agency declares that the bone dry arroyo is under government jurisdiction, and cannot be cleaned until the couple procures a federal Clean Water Act permit. In response to the agency’s egregious assertion that the sandy trench constitutes a “water body”, the Smiths have decided to sue the U.S. Army Corps of Engineers in defense of their property rights.

With the assistance of Pacific Legal Foundation (PLF), a non-profit watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations, the couple is challenging a potentially dangerous precedent concerning the future of private property rights for Americans. The ability of a government agency to arbitrarily thwart the benign actions of individuals as well as dictate how they are to use their property is the antithesis of individual liberty.

In economics, the term “negative externality” is defined as a cost that is incurred by a party that is outside of the given transaction. No such “spillover” effect exists in this case. Despite the government’s accusation that cleaning the property will allow pollution to reach the Rio Grande River 25 miles away, the reality is that the agency has yet to present any evidence to support this claim. Far from being a threat to the well being or property of others, the Smiths have become victims of state paternalism that continues to grow in the U.S.

One of the primary roles of the government of the United States is protect the property of its citizens. The actions of the U.S. Army Corps of Engineers against Peter and Frankie Smith contradict this role, providing just another example of the importance of challenging the ever-increasing unjustified actions of the state.

Organizations like PLF are sometimes all that stands between average citizens and an overreaching government. And, while we all wish that our government served us and represented the people of this great nation, the reality is that our government has expanded far beyond the boundaries of both the Constitution and simple logic.

The Rio Grande Foundation supports PLF in its efforts and hopes to help to spread the word throughout New Mexico about this case and to educate and reiterate to citizens of our state on the need to remain vigilant the next time someone says, “I’m from Washington and I’m here to help.”

Ben Sugg is a policy analyst with New Mexico’s Rio Grande Foundation. The Rio Grande Foundation is an independent, non-partisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility.