About this Document:
A Brief of Amicus Curiae

The following pages reproduce the text of a brief of amicus curiae — "a friend of the court" brief — submitted on Dec. 2, 2005, by the Mackinac Center for Public Policy to the U.S. Supreme Court in regard to two Michigan cases: Rapanos v. United States, and Carabell v. United States Army Corps of Engineers.* In both cases, federal officials have ruled that wet areas on the properties of the Rapanos and Carabell landowners constitute "wetlands."

Such "wetlands" cannot be altered by a landowner with sand, dirt or other fill material without a permit. In Carabell, a permit request was denied, and in Rapanos, a lower court found that the landowner deposited fill material in the alleged wetland without permission. The rationale for these permits is protection of the nation’s navigable waters. Such waters are distant from the Rapanos and Carabell properties.

The Mackinac Center’s amicus brief, written by Senior Legal Analyst Patrick J. Wright, supports the claims of the Rapanos and Carabell landowners in arguing that the federal government has exceeded its statutory and constitutional authority in these cases (see, for instance, the "Executive Summary" of the brief below). Readers interested in a more general discussion of the disputes may also wish to read the "Articles and Viewpoint Commentaries" listed under "Additional Research" on the final page of this study.

The Supreme Court is scheduled to hear oral arguments in the cases on Feb. 21, 2006.


Executive Summary

The Mackinac Center’s 29-page brief in support of the Rapanos and Carabell petitioners presents four major arguments to the U.S. Supreme Court:

  • In asserting federal jurisdiction over any wetlands on the Rapanos and Carabell properties, the U.S. Army Corps of Engineers overstepped the authority that Congress granted the corps under the Clean Water Act.

  • Even if the Supreme Court rules that the corps correctly interpreted its authority under the act, the court must still reject federal jurisdiction over these properties, since such a broad federal mandate would exceed Congress’ constitutional powers to regulate interstate commerce and would thereby weaken America’s federalist system of government.

  • The history of federal oversight of Michigan’s wetland fill-permitting system suggests the negative effect that an overbroad reading of the Clean Water Act can have on American federalism.

  • A larger question implicit in these cases is whether the courts have allowed Congress to delegate its legislative powers unconstitutionally to unelected and largely unaccountable federal agencies.



* Further information about the Mackinac Center’s Legal Studies Project and its amicus filings appears on Page 30 of this study.