An Idahoan’s unspeakable crime: Working to protect property from flooding

An Idahoan’s unspeakable crime: Working to protect property from flooding

by
Wayne Hoffman
November 24, 2009
Wayne Hoffman
Author Image
November 24, 2009

This week, Lynn Moses starts his federally-supervised probation after serving time in prison for a crime only the federal government could dream up.

Moses is an ordinary Idahoan who became a convicted felon after performing flood control work on a creek in order to protect lives and property.

Nearly 30 years ago, Moses approached Teton County about his plan to put a subdivision on the outskirts of Driggs. The Teton County commissioners were concerned about flooding from Teton Creek, which runs just a couple months a year and is dry the rest. The commissioners and Moses met with the U.S. Army Corps of Engineers. But the Corps of Engineers determined that Teton Creek runs intermittently, and therefore is not governed by the Clean Water Act.

Lowell Curtis, who was the commission chairman at the time, remembers the Corps of Engineers rep walking away from the issue: “He said ‘well, we don’t have any jurisdiction over that.’ That’s when the county put together the letter with Lynn that if he put a subdivision in, he would be responsible for the water.”

Moses honored the agreement, keeping the stream clear of trees, gravel bars and other debris. Even the U.S. Forest Service hired a contractor who used Moses’ services to clear gravel from the creek – work that was done without a permit and to the satisfaction of the federal government.

The years passed. New federal employees would show up. They’d write and warn him to get a federal permit for the creek work. Moses would write back, remind the government what the government previously told him and ask the agency to explain why he required a permit. The letter would be met with silence. The issue would go away. Years would pass. Another warning from the government. Another response from Moses. And the cycle would repeat.

In 2005, the U.S. Environmental Protection Agency decided to prosecute. A grand jury indicted Moses for Clean Water Act violations from 2002-2004. U.S. District Judge Lynn Winmill presided over the case and ruled that Moses’ history with the federal government prior to 2002 was inadmissible. A jury found Moses guilty. He was sentenced to 18 months in prison, a year of probation and fined $9,000.

Donald Reichmuth, a Spokane engineer and expert witness in the case, said the government’s case against Moses “was basically predicated on the fact that he thumbed his nose at them for 25 years.”

“The damage he did, if there was any damage, was so minute. I thought it was an injustice to go after someone like that,” Reichmuth said.

Moses, now under house arrest until Thanksgiving, remains hopeful he’ll be vindicated. In a U.S. Supreme Court plurality ruling issued after Moses’ conviction and sentencing, Justice Antonin Scalia argued that the Clean Water Act does not apply to “transitory puddles or ephemeral flows of water.”

Moses still believes he did what was right. “I had the duty … to protect the interests of the property owners out there and honor the contract with the county.”

Former Commissioner Curtis also sides with Moses: “They spent thousands of dollars to put a man like Lynn behind bars. Lynn’s an honest guy.”

Officials from EPA declined to discuss the Moses case, or why the government decided to prosecute Moses after declaring the government had no jurisdiction.

Now then, some say we have nothing to fear from our federal government as it tries to expand into new areas of our lives. They tell us we need not be afraid that law-abiding citizens will be sent to prison if we fail to buy health insurance, for example. I wonder if that promise is worth as much as the one the government made to Lynn Moses.

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