The U.S. Federal Claims Court decided on October 25 that the Fish and Wildlife Service (FWS) does not need to compensate a Nevada property owner for damages when it diverted a Nevada stream that had flowed onto the property. Flooding followed four times, but the court concluded that the diversion and the floods were not necessarily linked.
The owner is a 40-acre church camp, Ministeria Roca Solida. Located in the Mojave desert, the camp is an inholding in the Ash Meadow National Wildlife Refuge. The camp is owned by Pastor Victor Fuentes and his wife, Annette. Fuentes, a Cuban resident, swam 7 miles to Guantanamo Bay Naval Base in 1991 where he received asylum. He later became a church pastor. The Fuentes bought the camp in 2006, calling it Patch of Heaven because its stream (now gone) made the area a green oasis in the desert. .
It is “a sanctuary and ministry for troubled Las Vegas youth,” writes the Mountain States Legal Foundation (MSLF), which represented the Fuentes in court. But in 2010, the Fish and Wildlife Service diverted the stream, presumably to an earlier flow path. Subsequently, the camp was flooded four times. The case has been litigated ever since.
“[T]he case shows the immense and unfair advantage federal agencies enjoy when they set out to exert their will over frequently underfunded and outgunned average citizens,” wrote the MSLF.
In the court’s decision, Chief Judge Elaine D. Kagan seemed initially sympathetic.
“It is undisputed that as a result of the [FWS] project, the Patch of Heaven lost one of its most attractive features—the supply of spring water that had flowed through the property in a man-made ditch and which the Ministry had used for recreational purposes and to perform baptisms. . . .
“To make matters worse, in December 2010, just a few months after the bulk of the work on the restoration channel was completed, the area experienced five or six days of very heavy rainfall. Stormwater coming down from the upper watershed of the Carson Slough flooded the Patch of Heaven, damaging camp buildings, impeding access to the property, and sweeping away grass, trees, and other vegetation.”
Nevertheless, the court concluded:
“In short, the Ministry failed to prove that the restoration project caused the flooding of its property. To the contrary, the weight of the evidence shows that the property would have flooded even if the berm and restoration channel had never been built. The Ministry has therefore failed to meet its burden to show causation.”
Furthermore, the judge drove home this point:
“It was the Ministry’s burden to prove that the project caused its property to flood and also that the floods would not have occurred were it not for the berm and restoration channel.”
The 24,000-acre Ash Meadows National Wildlife Refuge has a relatively short history. It was created in 1984 by the Fish and Wildlife Service with funds provided by the Nature Conservancy (TNC). The conservancy bought 13,320 acres in 1983 and turned them over to the federal agency. TNC subsequently bought a 9-acre property for the FWS. While small, the Nature Conservancy says purchase of that 9-acre inholding has “huge conservation importance for Ash Meadows” because it will allow the FWS to remove a road that may have affected a stream’s flow.
As Mountain States points out, the Fish and Wildlife Service has been seeking to oust private owners from the refuge. The refuge was created in 1984 to forestall a housing subdivision. Now the agency appears to be preventing the full operation of a church camp for youth.
Ash Meadows National Wildlife Refuge by TravelNevada is licensed under CC BY-NC-ND 2.0
3 thoughts on “Watch Out for the Feds, Even If It’s Your Property and Even If It is a Church Camp for Troubled Youth”
Should the law be differently applied because this is a church camp instead of a private club or spa? The “Even if it’s a church camp. . . ” suggests some special status for a religious owner. So, if I, as a non-believer, ran a camp for troubled children, would I have less of a claim to keep the stream or receive damages for flooding?
If the question of liability for flooding rested on proof of causation, and if there were no proof, why should the owner be compensated except by flood insurance? Did anyone examine historical records of flooding? Before and after the stream was diverted to the camp property?
If the water course through the camp was a “man made ditch”, returning the water flow to its natural course could be justified as ecological restoration. Was there the possibility of a negotiated compromise with the camp having some access to the natural stream or a right to divert part of its water?
Maybe I’m reading this wrongly, but the argument as phrased suggests special legal status for religion and in any case a rather weak argument that the government acted unfairly. Government often takes property rights or causes disturbance and devaluation of private lands through eminent domain or regulations like the Endangered Species Act, and gets away without compensating private owners. Those cases are much more illustrative of abuse of power.
No, Wallace, the outcome should not be different because the camp was owned by a hard-working religious couple, one of whom fled Communist Cuba, and who run a camp for troubled young people from Las Vegas. The outcome came after years of litigation and multiple witnesses; as the decision indicates, the judge had to choose one.
Rather, the case illustrates the difference between two people who bought property thinking it had flowing water on it (yes, through a “ditch”) and well-heeled Nature Conservancy donors who enabled the government to take over the surrounding property, create a refuge, and conduct “ecological restoration” for the sake of two species, the pupfish and the speckled dace, that were considered endangered. As the judge acknowledged, restoration deprived the family of its stream, whether or not it caused the flooding.
As far as I can see, there were no negotiations as there would have been between two private parties. I believe the Mountain States Legal Foundation was correct when it said: “[T]he case shows the immense and unfair advantage federal agencies enjoy when they set out to exert their will over frequently underfunded and outgunned average citizens.”
I have not read the record of the case, and commented only on the excerpts and the context presented. I sometimes miss the obvious, and that may be my problem here. However, it does seem that there are two questions:
1. The right of a govt agency to take such an action. There I’m with the ministry, but I understand how the necessary “public purpose” could be applied
2. Cause of damage from flooding. Given the facts and commentary of the court, it seems the ministry could not prove the flood damage was caused by the diversion, at least not to the court’s satisfaction. What the experts testified to, is in the record I haven’t read. Maybe the court missed the obvious.
About the disproportionate power of federal agencies (and even state and county agencies) I agree that it makes landowners with limited means and influence or popularity hugely disadvantaged.