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COURT REPORTER
MUDDIED WATERS IN MICHIGAN [by James Kilpatrick] Seventeen years have passed since John Rapanos had his great idea: He would dump dirt and sand on 50 acres he owned in Michigan. On them he would build a shopping center and other structures. Three counties would benefit from new taxes, thousands of people would have jobs, and everyone would live happily ever after.
That was 1988. This is now, and Rapanos is
charges against him for violation of the Clean
gable waters.” There is a “symbiotic relation-
asking the Supreme Court to get him out of a
Water Act. The charges led to repeated trials
ship” that must be respected.
jam he got himself into. Trouble is, the U.S.
and appeals. At one point, U.S. District Judge
Army Corps of Engineers says those acres
Lawrence Zatkoff said the government had
Symbiotic relationship? Hydrological con-
are wetlands, and nobody is going to build
gone “crazy” in its criminal prosecution. Pro-
nection? In the name of the founding fathers,
anything on a wetland without the engineers’
ceedings led finally to a fine of $185,000 and
what are we talking about? The federal
OK.
a sentence of at least 10 months in a federal
government’s case against John Rapanos
prison. John Rapanos is now 70 years old.
hangs on gossamer threads. Under the Con-
Constant readers will recall that I have sided
The sentence is in abeyance.
with John Rapanos before. In person, he
stitution, Congress has power “to regulate commerce among the several states” and “to
may be a most agreeable companion. In this
The separate civil action in U.S. District Court
provide for the general welfare of the United
lawsuit he comes across as a mulish fellow,
led to penalties and mitigation fees that add
States.”
determined to have his own way, no matter
up to several million dollars. Last July a
what. He has managed to raise the hackles of
panel of the U.S. Court of Appeals for the 6th
Here there is not the slightest evidence that
every federal judge (but one), every army en-
Circuit reluctantly affirmed the civil judg-
the Rapanos “wetlands” figure in interstate
gineer and every government witness he has
ment. On Jan. 28, with the help of the Pacific
commerce. We are not talking of national
encountered since the case began. He can be
Legal Foundation, Rapanos appealed to the
parks that contribute to the general welfare.
a Very Difficult Man. But in this controversy,
U.S. Supreme Court. This is a case the high
We are talking about federal control over a
he’s right-on.
court should hear.
drainage ditch 20 miles from Saginaw Bay in
To shorten a long and unhappy story, state
U.S. District Judge Danny C. Reeves, sitting
authorities advised him repeatedly in the
in the 6th Circuit by designation, began by
Faithful readers have tolerated me for nearly
1980s that the several sites were federally
emphasizing that the act’s reach does not
60 years as an unreconstructed defender of
protected wetlands. To develop them, he
extend to all waters. There are jurisdictional
the 10th Amendment. If Michigan wants to
would need permits. Rapanos repeatedly
limits, but these are “far from obvious.” In
pursue its case against John Rapanos under
ignored them. He hired a consultant to be his
two leading cases, the Supreme Court has
its own laws protecting its own wetlands, it
expert witness. When the consultant brought
done little “to clear the muddied waters” of
has that power. Until then, sound constitu-
in a report saying the site was indeed a wet-
the act’s jurisdiction. Still, in determining a
tional doctrine requires that those 50 soggy
land, he fired the consultant.
“significant nexus” between wetlands and
acres be off-limits to the feds.
the sovereign state of Michigan.
navigable waters, the engineers’ interpretaIn April 1989, still without a permit from the
tion is entitled to deference. Unless their
(Letters to Mr. Kilpatrick should be sent by
army engineers, Rapanos began prepar-
interpretation is “arbitrary, unreasonable,
e-mail to kilpatjj@aol.com.)
ing the site for construction. He dumped
and manifestly contrary to the statute,” it
sand over the wetland vegetation. At one
must prevail.
COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE
site he set bulldozers to building roads. The Environmental Protection Agency sent him
It is not necessary to federal jurisdiction,
a compliance order. He ignored it. The state
said the court, that wetlands be adjacent to
tributed electronically, in print or otherwise
issued a cease-and-desist order. He neither
navigable waters. Congress “clearly intended
without the written permission of uclick and
ceased nor desisted.
that the Clean Waters Act’s jurisdiction
Universal Press Syndicate.
Eventually, the federal government ran out
would extend to bodies of water exhibiting a
of patience and filed both civil and criminal
hydrological connection to traditional navi-
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