By Jim Martin
Posted Jul 10, 2017 at 2:00 AM
Updated Jul 11, 2017 at 9:05 AM
Robert Brace, the Waterford-area farmer who has spent 30 years defending what he sees as his right to use his own land, has turned the tables.
Brace’s case, one of the best-known property rights cases in the nation, which led to the formation of the Pennsylvania Landowner’s Association, began more than 30 years ago when he first clashed with the U.S. Fish and Wildlife Service about his right to repair drainage pipes on his farmland near Waterford.
Brace, who says he’s paid legal bills of more than $1 million since then, thought his battle was over in 1996 when he signed a consent decree, agreeing to pay $10,000 and to remove drainage pipes that had made the land suitable for farming.
Earlier this year, the Department of Justice filed a motion in federal court in Erie to enforce the consent decree — claiming that Brace was again farming that land — and to levy millions of dollars in penalties against Brace and his company, Robert Brace and Sons Inc.
When attempts to settle the case through mediation failed earlier this year, Brace’s lawyers filed a request for legal sanctions against the government, claiming the government did not send representatives to the session who were authorized to settle the case.
Now, Brace has turned up the heat.
In documents filed July 3, he’s seeking compensatory damages from the Environmental Protection Agency, U.S. Army Corps of Engineers and U.S. Department of Interior Fish & Wildlife Service for harm caused to his property as a result of periodic flooding to three contiguous tracts of land “in connection with their over-enforcement of the 1996 court-approached consent decree covering only a portion of one of those properties.”
One of Brace’s lawyers, Lawrence A. Kogan, said the claim in the amount of $8.07 million is based on the loss of revenue from more than 60 acres of land for the last 20 years.
The case took a significant turn on June 15, when U.S. Magistrate Judge Susan Paradise Baxter ruled that the government’s motion to enforce had effectively reopened the case.
That ruling effectively reopened the discovery process, giving both sides until Nov. 30 to complete that fact-finding process, and giving Brace an opportunity to file his own claim.