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Feds Dismiss Iowa RV Park/Wetlands Dispute, For Now

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March 21, 2012 by   - () Leave a Comment

Federal prosecutors moved Tuesday (March 20) to dismiss their case against a 65-year-old woman facing prison time for damaging a wetland while building a Dubuque, Iowa, campground, but reserved the right to pursue it later.

Elaine Kelly pleaded guilty last week to a felony violation of the Clean Water Act, reluctantly acknowledging she damaged a wetland while building Hoot Owl Hollow Campground and RV Park in 2009 and 2010. But family members said she accepted a plea deal only to avoid an expensive trial she could not afford and a prison term that could be up to three years, the Green Bay (Wis.) Press Gazette reported.

After reading about the guilty plea that carried a recommended sentence of 8 to 14 months behind bars, environmental consultant and wetland expert Ray Kagel of Rigby, Idaho, said he contacted Kelly and urged her to hire a new attorney to fight a case he called an overreach. Kelly parted ways with attorney Webb Wassmer and hired Ray Scheetz, who filed a motion to withdraw Kelly's guilty plea Sunday.

Citing the withdrawal of the plea, the U.S. Attorney's Office filed paperwork Tuesday dismissing the case without prejudice. That means they could choose to ask a grand jury to indict Kelly on similar charges in the future.

Peter Deegan, a spokesman for the U.S. Attorney's Office, would not say whether prosecutors intend to continue pursuing the case against Kelly, a grandmother of 13 who family members say has been caught in a nightmarish bureaucratic web for nearly three years.

"It sounds like it's going away for right now, but I don't know what that means for the future," Kelly said Tuesday.

The dispute started after Kelly and her husband decided to develop family property in Dubuque into the campground. She says she wanted to share land her father had set aside as a nature preserve with children and their families, and Dubuque officials who saw the campground as a great local attraction helped the project along.

But after construction began, Kelly proposed building a bridge over a creek on the property so that she could walk from the cottage where she lives to the campground. A land surveyor she'd hired applied for a permit with the U.S. Army Corps of Engineers, which instructed Kelly to study whether wetlands were present. Kelly's family says she hired an environmental consultant whose work was rejected by the agency as incomplete, a second who said the land could be wetland and a third who concluded it was not.

After she applied for a permit a second time, a Corps official told her in September 2009 to stop construction until she received a permit and the agency followed up with a written cease-and-desist letter the next month. By then, family members say, Kelly had her life savings invested in the project and construction was mostly done. She withdrew her plan to build the bridge, but finished a swimming pool, pavilion, and roads for the campground, which opened in May 2010 to great fanfare.

The U.S. Environmental Protection Agency decided to pursue a criminal investigation after taking over the case in 2010. A Corps spokesman said last week that's highly unusual because his agency usually works with developers who do not have proper permits to mitigate damage.

The plea agreement Kelly had accepted called for her to publicly apologize "for ignoring the repeated oral and written lawful instructions of the United States Army Corps of Engineers and knowingly destroying a protected wetland."

Kagel, an expert on wetlands who spent his career working for the Army Corps before starting a consulting business, said regulators can be wrong and mislabel a property as a wetland.

"Even if it was a wetland and she did fill without a permit, it didn't rise to this level," he said. "There was probably some kind of mitigation she could do to compensate, not go to federal prison."

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