On Feb. 21, the U.S. Supreme Court heard oral arguments in two consolidated cases that will determine whether three Michigan families and their business associates were unlawfully deprived of the use of their property by federal regulators invoking wetlands rules. The outcome will likely clarify the scope of federal wetlands regulation, which has expanded in recent years.

The first case involves Midland resident John Rapanos, whose difficulties started in 1989 when the Michigan Department of Natural Resources ordered him to cease preparing his property for possible development. Rapanos had cut trees, removed brush and leveled his cornfield, which is surrounded by drainage ditches that Rapanos contends were dug in the early 1900s by order of the county commission.

The DNR, acting for the federal government, laid regulatory claim to the property under the Clean Water Act of 1972, which prohibits the discharge of dirt or sand into “navigable waters” without a permit from the U.S. Army Corps of Engineers. Regulators claimed that moving soil on the Rapanos property constituted a discharge of pollutants that required a permit because the drainage ditches might carry water to tributaries that could connect to navigable waters. The Rapanos property is approximately 20 miles from the nearest potentially connected navigable water.

Nonetheless, the federal government in 1994 prosecuted Mr. Rapanos for filling wetlands on this property without a permit. He was convicted in 1995, fined $185,000 and sentenced to three years probation. However, U.S. District Judge Lawrence P. Zatkoff expressed misgivings about the case and declined to impose a prison sentence, despite federal sentencing guidelines. He noted:

(T)he case that I just sentenced prior to this case … was the case of Mr. Gonzalez, who was a person selling dope on the streets of the United States. He is an illegal person here. He’s a citizen of Cuba, not an American citizen. He has a prior criminal record. … 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 ten 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 government wants me to give him sixty-three 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.

In addition to the criminal case, the federal government filed a civil suit against Mr. Rapanos concerning this property and two others. It is this civil litigation that is now pending before the U.S. Supreme Court, with oral arguments scheduled for Feb. 21. This case will determine whether the federal government can claim jurisdiction over the Rapanos property.

The 26-year battle has taken a heavy toll on Mr. Rapanos, both professionally and personally. He has lived for years with the threat of prison and has spent hundreds of thousands of dollars fighting regulators and prosecutors who command massive resources at taxpayer expense.

The Supreme Court also will decide the case of Keith and June Carabell and Harvey and Frances Gordenker. In 2000, the U.S. Army Corps of Engineers denied the Carabell and Gordenkers’ request to fill “wetlands” on their Macomb County property prior to building condominiums. The property is located one mile northwest of Lake St. Clair, and decades before the owners had acquired the land, a ditch bordering the property was constructed. The dirt from the ditch was redeposited on the land, forming a berm between the property and the ditch. The Carabells and Gordenkers maintain that the corps has no jurisdiction because wet areas on the property are hydrologically isolated from any “waters of the United States,” the legal standard set out in the Clean Water Act.

Both of these cases are critically important to restoring private property rights, which have been seriously eroded in recent years. Both disputes involve the lives and livelihoods of citizens who simply want to control their property without arbitrary interference from the government — a fundamental American right.

The legal and constitutional issues to be decided by the court include those addressed in a “friend of the court” brief written by Patrick J. Wright, senior legal analyst at the Mackinac Center for Public Policy, a nonprofit research and educational institute in Midland, Mich. In this brief, submitted to the court on Dec. 2, 2005, Wright argues the following:

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

  • Even if the corps correctly interpreted its authority under the act, the court must still reject federal jurisdiction over these properties, since such a broad 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 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 violate the Constitution by delegating legislative powers to unelected and largely unaccountable federal agencies.

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The following Mackinac Center policy analysts are available at (989) 631-0900 to provide interviews and insight on these cases:

Patrick J. Wright
Senior Legal Analyst
wright@mackinac.org

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Russ Harding
Senior Environmental Analyst
harding@mackinac.org

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Michael D. Jahr
Communications Specialist
jahr@mackinac.org

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