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A Closer Look at the Case of an 'Eco-Martyr'

THE BALTIMORE SUN

Meet Bill Ellen, veteran of Vietnam combat, father of children aged 4 and 2, partner with his wife in a rehabilitation center for injured wildlife. These days the personable wetlands consultant from Virginia tries to patch his life back together after six months in a federal prison.

And if you farm, cut timber, own a little retirement lot in the countryside or just worry about the growth of government in your life, then Bill Ellen is your worst nightmare come true -- at least as he is portrayed by a growing movement at odds with the extremism they see in environmental protection.

Mr. Ellen's crime? Here is how millions have seen it described across the country in opinion journals and editorial pages, including the Wall Street Journal's, and in filmed interviews with the Christian Broadcasting Network, the American Farm Bureau and on numerous radio talk shows.

A lifelong conservationist, Mr. Ellen was simply moving a little dirt to make ponds for a duck sanctuary on a client's estate in Dorchester County on Maryland's Eastern Shore. He jumped through every regulatory hoop he was aware of to comply with wetlands and other environmental rules, obtaining more than 30 state, local and federal permits between 1987 and 1988.

In 1989, as work proceeded in conditions so dry that water had to be sprayed to keep the dust down, new federal rules tripled overnight the extent of the county's wetlands to nearly 70 per cent of its land area. Mr. Ellen soon after was flabbergasted to receive, with no warning, a stop-work order from the Army Corps of Engineers for filling wetlands.

Despite shutting down all operations within the next 48 hours, he was charged by federal prosecutors a few months later with criminal destruction of 86 acres of wetlands.

"A Kafka-esque ordeal," the Journal called it. "If it can happen to Bill Ellen, it can happen to any landowner," concluded a Farm Bureau bulletin.

The case has led to the adoption of Mr. Ellen as the latest "eco-martyr" by a burgeoning nationwide network of groups whose interests range from land development and off-road vehicles to agriculture, mining and individual property rights. Sometimes lumped loosely under the title of the Wise Use Movement, they advocate reducing or repealing government regulations on wetlands, mining, endangered species and public lands.

"At this point, they're better organized than the environmental movement, because they're angrier, they're hungrier," Keith Schneider, the New York Times' environmental reporter said in a speech last year.

And one of their more effective tactics in recent years is to champion, wherever possible, "moms and pops" crushed by federal regulatory zeal -- "real people" valued less than impersonal acres of "swamp." Mr. Ellen thus joins as a cause celebre of the land rights movement John Pozsgai, a Pennsylvanian sentenced to 33 months and fined $202,000 for filling a marsh on his property; and Ocie and Carey Mills, a Florida father and son who each served nearly two years for destruction of wetlands to build a home.

"They represent hundreds and thousands of others like them out there who have undergone a massive violation of their civil rights," says Paul D. Kamenar, whose Washington Legal Foundation is a mainstay of the Wise Use Movement.

If Mr. Ellen's martyrdom seems compelling, it also seems not very true, based on transcripts from his five-week trial and

dozens of interviews. The major source of information in the spate of Ellen-as-victim pieces has been the Fairness to Land Owners Committee (FLOC), a property-rights lobby operated out the waterfront manor home of a Dorchester County woman, Margaret Ann Reigle.

The media-savvy Ms. Reigle, a retired vice president for finance of the New York Daily News, has worked tirelessly to promote Mr. Ellen as a victim of "the eco-Gestapo," generating tens of thousands of requests to George Bush in the final stages of his presidency in an unsuccessful bid for a pardon.

Her newsletter, circulated to more than 250 media outlets and an equal number of grass-roots property rights groups, routinely bashes the Chesapeake Bay restoration program as little more than an attempt to usurp landowners' rights under the guise of controlling pollution.

What follows is the anatomy of an eco-martyr, and a glimpse into the movement that promotes them. As with John Pozsgai and Ocie and Carey Mills, close examination shows Bill Ellen was scarcely an innocent victim. On the other hand, his case also shows real flaws in the way we protect wetlands, and legitimate frustrations that draw supporters to groups like FLOC.

*

Talk to almost anyone who has known and worked with Bill Ellen on wetlands projects and certain words are quick off every tongue: "likable," "intelligent," "good talker." Nearly as universal is a less-flattering assessment: In his job of shepherding clients' projects through the regulatory process, Bill Ellen was always bending the rules.

"Everyone around here knew, if it's a controversial project, if it needs a loophole found to get through, call Bill Ellen," said Jim Wesson, a waterman and ecologist from Virginia's Middle Peninsula where Mr. Ellen lives.

"He always pushed it to the limit and a little beyond -- nothing blatant, but he was a constant thorn in the side of the regulatory agencies," said Tom Bernard, a wetlands expert with the Virginia Institute of Marine Science.

Officials of the Army Corps of Engineers and other agencies who had to approve Mr. Ellen's applications for wetlands work say it was virtually his trademark to have a few items, from boundary lines to soil types, misrepresented.

Misrepresentation "happened so frequently that for a while we suspected Bill was doing it deliberately to create more billings when we would make him redo things," said William McGlaun,a wetlands regulator with the Corps.

"At interagency reviews of projects, the corps would say, 'Here's a Bill Ellen case,' and groans would go 'round the room," said Charles Rhodes, an EPA wetlands ecologist and a prosecution witness in Mr. Ellen's trial.

Mr. Ellen was defended by one respected bay wetlands scientist, who did not want to be identified. He said he wrote a letter to the judge on Mr. Ellen's behalf before his sentencing: "There's no doubt he was an adversary, out to get his clients as much as he could; but not the environmental shyster people said."

Mr. McGlaun and other critics nonetheless find Mr. Ellen's conviction mystifying. At his worst, they agree, he never had come close to the blatant behavior that would convince a federal jury and an appeals court he deserved prison.

But then Tudor Farms, the project he signed on to manage in 1987, was unlike anything Bill Ellen -- or anyone else -- had undertaken. Far from "moving a little dirt" to build "a few duck ponds," it was to be the dream retreat, hunting lodge and wildlife preserve of passionate outdoorsman and wealthy Wall street trader Paul Tudor Jones 2nd.

"I've always looked for what I thought were the most beautiful places and structures on earth. . . . Just like you can appreciate a spectacular painting, I look at landscape that way," said Mr. Jones in a recent interview. And with a net worth estimated at more than $100 million dollars, the 38-year-old Mr. Jones has the resources to collect natural beauty as others might buy artwork.

Mr. Jones eventually would stand, humbled, before a federal judge in Baltimore, his dream become a nightmare, pleading guilty to negligence and agreeing to pay what would reach around $4 million in fines and restoration. But that was three years away; in 1987, the future of the project seemed unlimited.

Tudor Farms would be what is known as a "signature project," of such magnitude and state-of-the-art wildlife conservation practices that everyone associated with its development stood to gain international prestige. Mr. Jones and Mr. Ellen chose lower Dorchester County, a natural paradise for waterfowl and wading birds that contains nearly 40 percent of the state's tidal ,, wetlands.

There, on nearly six square miles of lowland forest, farm fields and wetlands, Mr. Ellen was to fulfill Mr. Jones' dream. During the next few years a small town would be constructed -- homes for employees and dormitories for Mr. Jones' "I Have A Dream" kids -- more than a hundred students from New York's rough Bedford-Stuyvesant area, whose college tuitions the multimillionaire has personally guaranteed if they complete high school.

The complex includes large barns with handmade copper cupolas; a small processing plant that presents departing guests with their game in shrink-wrap plastic (unclaimed game goes to the Salvation Army); another building, 150 feet by 80, holds Tudor Farms' collection of fine hunting weapons.

Down to the simplest shed for tractors, all buildings, according to workmen who built them, are designed to withstand hurricane-force winds. All are roofed with cedar shakes of the highest quality -- costing up to $100,000 just to cover a single building. All that pales before the main lodge, a 14,000-square-foot structure rising like a hotel from the surrounding lowlands. Its audiovisual systems alone cost close to $1 million, according to installers.

All this just scratches the surface of a project so large that at one point its demand for heavy equipment and contractors nearly paralyzed other construction throughout the county. Aerial photos taken before and after work began, used by federal prosecutors at Mr. Ellen's trial, show land transformation -- the great bulk of it legal -- occurred on a massive scale.

Dozens of miles of roads were constructed or enlarged, and large tracts of forest were cleared to create waterfowl impoundments. A mature oak forest was destroyed for one bizarre project, a series of 16 triangular ponds, each more than an acre, forming a single huge triangle -- designed by a computer to maximize "edge" habitat for quail and other upland game. The ground was so wet that the proper plants to attract the game would not grow.

Tudor Farms' approach to waterfowl hunting caused one visitor, Rep. Wayne T. Gilchrest, a Republican from Maryland's 1st District, to remark that it was a "Disneyland for duck hunters."

Virtually all birds shot on the property are pen-reared. They are taken in cages to the tops of towers and released to fly back toward the home pond where they are fed, passing over blinds strategically located for predictably good shooting.

That part of the operation, Mr. Jones says, is "European-style shooting . . . not hunting" for guests and clients of his trading firm, Tudor Investments. A major concept of the project, he explains, is to provide a sanctuary for wild ducks and other birds. Of about 7,000 ducks shot last year, only 19 were wild ones. "The hand-reared mallards . . . that is like going to Kentucky Fried Chicken," Mr. Jones says.

Wildlife conservation, not environmental destruction, was always what Tudor Farms was about, maintained Bill Ellen at his sentencing in 1991 and in a subsequent interview at the Petersburg, Va., federal prison camp. He said he never knowingly violated federal wetlands laws.

"I made mistakes," he said, "but I know I was not a bad player."

He says it was virtually impossible for any individual to have kept pace with the changing federal definitions during the late 1980s of what is a wetland -- particularly with regard to non-tidal areas, inland bogs, ponds, seasonally flooded woodlands and the like.

Yet, for all the confusion, court records and testimony show that, beginning in 1987, Mr. Ellen repeatedly ignored clear warnings and expressions of concern about his need to check work at Tudor Farms with wetlands authorities. Some examples:

* October 1987: an internal memo at Andrews-Miller, the local engineering firm for the project says, "Bill does not want the corps on site until Monday week, which will allow him to plug some tidal ditches. . . . I expressed extreme concern over this. . . . he insisted; he also does not want to show [other areas to the corps]. I told him I felt he should put everything in the open immediately."

At one point, told by his employer, Mr. Jones, to get the corps on site, Mr. Ellen agreed, then again canceled the inspector's visit.

Gene Skinner, a local technician for the U.S. Soil Conservation Service, said, "We advised him early on he was getting into some gray areas and to check with the corps, because they are the authority [on wetlands rules]; but he didn't seem to think he needed to."

Mr. Ellen's lawyers would later testify that he felt justified in working in certain areas because Mr. Skinner's agency had not defined them as wetlands.

"There is no question in my mind he knew he was playing fast and loose. . . . The place looked like a bomb had hit it -- trees down all over, 'dozers everywhere, and all so wet it was knee-deep in mud," said Court Stevenson, a University of Maryland wetlands ecologist who has done extensive work in Dorchester County.

Dr. Stevenson had gone to Tudor Farms in the fall of 1988 to evaluate an offer by Mr. Ellen to fund at least $100,000 in research on the site. "He said he was trying to beat Maryland's new wetlands regulations [pending at that time]. We decided not to touch it with a 10-foot pole. He was clearly over the line with the federal rules, and I can't believe he didn't know that."

Mr. Ellen appeared to have problems with permits in general, repeatedly ignoring the need for local water, sewer and grading permits, to the point the county roads department issued its own stop-work order in the spring of 1988.

"Any time he hit a stumbling block with a permit, he had a tendency to just do the work, then try to deal with the permit afterward," said Stacey Beachamp, an environmental health regulator for the county. "Our history with him was, yes, he'd get the permit, once you caught him."

The beginning of the end for Mr. Ellen came in February 1988, when Alex Dolgos, a veteran corps enforcement officer first visited Tudor Farms and found what he felt was clear evidence of wetlands violations. The following is a summary of what ensued, agreed to by both sides in the trial.

Feb. 11, 1988 -- Mr. Dolgos issues a formal cease-and-desist order to Mr. Ellen.

Jan. 24, 1989 -- Mr. Dolgos finds work continuing, issues a verbal cease-and-desist order.

Feb. 15 -- Work continues, and the corps issues a written cease-and-desist order.

Feb. 22 -- Mr. Dolgos again tells Mr. Ellen to stop all work.

March 3 -- On a Friday, Mr. Dolgos finds more wetlands destruction and orders Mr. Ellen again to stop work.

March 4 -- Contractors tell Mr. Dolgos that Mr. Ellen has said nothing about stopping. Mr. Dolgos orders contractors to stop.

March 5 -- Mr. Ellen calls Mr. Dolgos at home to complain he has had to stop because Mr. Dolgos has scared off his contractors. Shortly thereafter, Mr. Ellen isfired by Mr. Jones.

"You can say what you want about the changing wetlands laws during that period," Mr. Dolgos said. "He'd have never, never been in the criminal arena if he had not just flouted clear orders to stop." He noted that Mr. Ellen was prosecuted only under corps regulations in effect the year the project began, rather than rules announced after work was under way, as Mr. Ellen's supporters claim.

What drove Mr. Ellen so? Some observers, including his wife, Bonnie, note that for all his years of experience with wetlands, he had functioned basically as a broker, a permit-getter, and possibly was in over his head in managing in the field a unique mega-project like Tudor Farms.

Many also find it easy to believe Mr. Ellen was being driven by Mr. Jones, a workaholic who trades stocks and bonds in Europe, Asia and the United States, often working nearly 'round the clock.

Mr. Jones apologized at the beginning of an interview in his Greenwich, Conn., home for keeping his eyes on three computer screens, tracking international currency rates and securities issues on two continents.

Mr. Jones is described by employees as a decent person, but also a "Warp-10" individual, who "wants what he wants, right now." Mr. Ellen sometimes told people with whom he discussed the project he "could not stop," or that Mr. Jones "expects this done now."

Mr. Jones says now, as he did at his sentencing, that he was guilty only of not paying close enough attention to the project. Until the weekend that work on Tudor Farms was actually shut down by Alex Dolgos, he says, "I had zero comprehension that we had any problems with the corps, even minor ones."

Mr. Ellen was also used to working with the Norfolk district of the corps, and not the stricter Baltimore dis- trict that had jurisdiction over Tudor Farms.

"I wouldn't be surprised if, based on his experience in Virginia, Ellen just figured he would get after-the-fact permits if and when he was caught," one regulator famil- iar with both districts said.

No one finds such explanations satisfying. Mr. Ellen, observers agree, may not have liked the rules -- may not even have understood them as well as he should -- but when the cops are on your bumper, siren going and lights flashing, you don't need ** to know much about federal transportation law to know you pull over and stop.

*

If Mr. Ellen does not make the best of martyrs, neither do Ms.

Reigle and her FLOC, who propelled him to national prominence, make the most altruistic of champions. In a biographical sketch, she describes how, in 1990, "peaceful days of working the soil, canning and quilting were abruptly interrupted" by pleas from elderly neighbors, the first of many locals who found new wetlands rules had stalled their ability to develop or sell their land.

By May of that year, Ms. Reigle had turned her residence into the nerve center of a land-rights lobby with a membership she puts at more than 12,000 in 45 states. She won't release names of members, or disclose where they are located, and says all of FLOC's work is done on a volunteer basis.

FLOC's stated purpose was to help "the moms and pops out there" who are being ground under by an environmental bureaucracy run amok. That happened to include Ms. Reigle and her husband, Charles Jowaizsas. Since January 1990, they had been wrangling with the corps over permission to fill a small (about a third of an acre) wetland on a waterfront homesite they insisted they needed for a new primary residence.

After months of correspondence, much of which came to the Corps bearing the FLOC letterhead, a permit to fill the wetland was granted in November 1990. Almost immediately the couple sold the lot. A corps internal memo later said, "It appears that the sole purpose of [the permit] was real estate speculation," and added, "It appears she [Reigle] is using the FLOC name for her own personal gain."

The couple also had purchased and won county permission to develop another, 138-acre property. This angered several neighbors who had put their properties in open space preservation.

"They got it approved on a technicality -- nothing illegal -- but this whole act about 'we're Eastern Shore farmers, just raising our tomatoes,' is a lot of crap -- they're developers," says Hugh Horning, a retired du Pont executive whose land adjoins the Reigle-Jowaizsas tract.

The couple -- and the FLOC -- were locked in a dispute with the corps during 1991 and 1992 about how much wetland was on their acreage, a critical definition as it affected how many lots could be sold.

Ms. Reigle used her contacts to get a meeting at the Pentagon with top corps officials. Local corps wetlands judgments ultimately were upheld, but not before the Baltimore district was told to perform a property survey that Alex Dolgos estimates "saved [Ms. Reigle] about $10,000."

"Clearly, with more than 100,000 permit applicants, we didn't do this for everyone," said Mike Davis, a corps official in Washington. "But given her visibility and that she had a lot of people stirred up, we felt we had better do this one carefully."

*

It would be comforting if Bill Ellen could be dismissed as purely a scofflaw and groups like FLOC as nothing but the latest sheepskin for wolfish developers. But a thorough reading of the trial documents and the Reigle cases yields other conclusions.

However noble its ends, the permit process by which we protect our wetlands can be a nightmare of jargon, bureaucratic delays and frustration, unnecessarily alienating individuals who simply want to know what they can and can't do on their property.

The problem is rooted in the fact that the nation never has had a true wetlands law. Beginning in the 1970s, Congress and the courts began broadening their interpretations of the Clean Water Act, which prohibited discharging pollutants to "the navigable waters of the U.S.," to make it illegal to place "fill" in wetlands.

This worked passably well with tidal wetlands, popularly associated with the great, prairie-like sweeps of coastal and riverine flooded prairies that inspired Sidney Lanier's poetry ("Ye marshes,how candid and simple and nothing-withholding and free/Ye publish yourselves to the sky and offer yourselves to the sea.")

But more recently protection has begun also to focus on the nation's millions of acres of non-tidal wetlands, which range from peat bogs to riverine forests to depressions in fields that are flooded only seasonally, or perhaps only saturated to just below their surface.

Such areas are critical to the environment, says Curtis Bohlen, until recently a scientist with the Chesapeake Bay Foundation. They harbor a range of rare plants and animals out of all proportion to their acreage and play key roles in absorbing flood waters and recharging underground water supplies. They also remove enormous quantities of pollutants from both ground water and surface water before the pollutants wash from farms and developments into waterways.

But what makes ecological sense is not yet supported by widespread public perception: "I'm sorry, but many of these wetlands just don't look like 'waters of the U.S.' -- or waters of anything," says Mr. Bohlen, referring to the Clean Water Act's definitions of wetland. "We need to get away from the current, flawed law, to something that defines why these [non-tidal] wetlands are important in a way people can understand."

*

In a bare room with two folding metal chairs at his federal prison camp, Bill Ellen sits and talks earnestly about trying to figure out "what's this all meant, this last four years [since he was first charged]. My oldest boy is just 4 now. . . . It's been a long four years, and I still don't have any good answers."

He recently wrote of his concern about "the endless [attempts] JTC to stereotype me into one extreme camp or the other -- eco-martyr or the greedy, insensitive developer."

However, the day after this interview, he says, a film crew from the American Farm Bureau is coming to do a piece. The theme will be Bill Ellen as everyman; no farmer is safe while the current wetlands mania persists.

It is the same pattern the property rights movement followed earlier with Mr. Poszgai and the Mills family, generating nationwide press and endless fodder for letters to Congress and the newsletters of Wise Use groups.

He is not naive, Mr. Ellen says, about the fact that FLOC and other property rights interests are using him to further larger agendas. He is "quite concerned" about the lack of environmental protections in a wetlands bill those groups are supporting in Congress.

"You could fill an awful lot of wetlands, legally, if it passed," he says.

But such groups have been his and Bonnie's support at a time when, as he sees it, the federal government "has been doing its best to destroy me -- and I am grateful as I can be to Peggy Reigle and others like her."

"Mistakes were made, and wetlands filled illegally," Mr. Ellen will concede; but nothing, he thinks, that deserved six months in prison.

However, a federal appeals court, in reviewing Mr. Ellen's conviction and length of sentence, had this to say: "That [he] believes that an offense of this magnitude is trivial or unimportant ironically exemplifies the need not to foreclose punishment by imprisonment."

Some wetlands experts have suggested licensing consultants like Mr. Ellen might provide a middle course. Lifting a license to practice would be a stern deterrent, but less harsh than jail time.

As for Tudor Farms, the court-ordered restoration work is complete, and "today it looks almost exactly as I hoped it would look in 1987," Mr. Jones says.

"Ellen was a fool, and possibly incompetent, but there was no ecological disaster perpetrated here," says Ed Soutiere, the waterfowl and wetlands expert hired to complete the project.

"The difference is, Bill didn't get permits and I did. . . . That's about it," Mr. Soutiere says.

Tom Horton writes a column on the Chesapeake Bay for The Baltimore Sun.

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