Federal officials had little evidence to go on, but that didn’t stop them from prosecuting John Rapanos for moving dirt around his Bay County, Michigan property. It’s a case that illustrates just how arbitrary — and perhaps unconstitutional — the regulation of “wetlands” has become.
The case dates to 1989, when the Michigan Department of Natural Resources (DNR) dispatched a rookie agent without a search warrant to inspect the Rapanos field. Months before the unannounced visit, Mr. Rapanos had contracted for the removal of trees and brush from his property.
The DNR ordered Mr. Rapanos to cease all work on the land, and referred the case to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. Both agencies exercise authority over “navigable waters” under the Clean Water Act, which makes no mention of “wetlands.”
In this case, the nearest “navigable” water is some 20 miles from the Rapanos land. Nonetheless, the feds filed charges against Mr. Rapanos for “polluting” the wetlands by leveling his soil.
The EPA charged that Mr. Rapanos deposited 302,000 cubic yards of fill on the property, a quantity that would have raised the elevation six feet. Topographical maps, however, show no change in elevation. Moreover, that quantity of fill would have required 30,200 trucks carrying 10 cubic yards of soil each onto the property, which is across the road and within plain sight of a major corporate office complex with hundreds of employees. But government investigators failed to find one witness who ever saw such a caravan.
After an initial mistrial, a second jury convicted Mr. Rapanos in 1995. The trial judge, U.S. District Judge Lawrence Zatkoff, then threw out the conviction, ruling that government prosecutors wrongly claimed that Mr. Rapanos had attempted to “conceal” evidence by refusing to consent to warrant-less searches. The appellate court reversed Zatkoff, ruling that Mr. Rapanos had no expectation of privacy on his property — the gate and fence notwithstanding. The case was then remanded to the trial court for sentencing.
In a display of courage from the bench, Judge Zatkoff refused to follow federal guidelines in sentencing Mr. Rapanos. Contrasting Mr. Rapanos with a drug dealer also in court that day, the Judge said: “So here we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for 10 months. And then we have an American citizen, who buys land, pays for it with his own money, and he moves some sand from one end to the other and (the) government wants me to give him 63 months in prison. Now, if that isn’t our system gone crazy, I don’t know what is. And I am not going to do it . . . . I don’t believe he got a fair trial.”
Judge Zatkoff was subsequently overruled by the Sixth Circuit Court of Appeals. Mr. Rapanos then appealed his conviction to the U.S. Supreme Court, which recently declined to hear the case. He now faces a possible prison term for working his own property.
Nonetheless, the government’s argument was weakened in January 2001 when the Supreme Court struck down the so-called “migratory bird rule” that formed the basis of the Army Corps of Engineers’ slim claim of jurisdiction. That rule held that the feds could regulate isolated wetlands because waterfowl that touch down upon them fly across state lines, and the dollars spent by hunters and birdwatchers constitutes interstate commerce.
Barred from employing such dubious reasoning, the Corps became more “creative” in defining its jurisdiction. It came up with the “migratory molecule” rule, which says that even isolated wetlands fall under federal jurisdiction because there is a theoretical chance that a water molecule from any location may reach a navigable waterway. Clearly, federal agencies do not intend to relinquish flimsy claims to wetlands authority without a fight.
The regulatory bullying of the Rapanos family is not an isolated incident. Nor are the consequences borne solely by defendants. The repeated abuse of power by government agencies seeking to expand their reach undermines the property rights of all citizens.
Unfortunately, neither Congress nor the White House has been willing to confront the issue. The result is the continued erosion of property rights, once regarded in America as fundamental to the preservation of liberty and the rule of law. It may be a play on words to say that today’s wetlands policy is “for the birds,” but that’s what the Rapanos case proves.
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Russ Harding, former director of the Michigan Department of Environmental Quality, is senior environmental policy analyst with the Mackinac Center for Public Policy, an educational and research institute headquartered in Midland, Michigan. More information is available at www.mackinac.org. Permission to reprint in whole or in part is hereby granted, provided the author and his affiliation are cited.