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Top court split over wetlands protections
AP on Yahoo ^ | 6/19/06 | Gina Holland - ap

Posted on 06/19/2006 10:05:00 AM PDT by NormsRevenge

WASHINGTON - The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act when they refused to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.

At the same time, justices could not reach a consensus on whether government can extend protections for wetlands miles away from waterways.

The decision is the first significant environmental ruling for the high court headed by new Chief Justice John Roberts, and justices were so fractured that the main opinion by Justice Antonin Scalia only had the votes of four justices.

Roberts, one of those four, said that the result was so confusing that "lower courts and regulated entities will now have to feel their way on a case-by-case basis."

The court voided rulings against June Carabell and John Rapanos, who wanted to fill wetlands they owned near Lake St. Clair in Macomb County, Michigan. Carabell wanted to build condos on wetlands she owns about a mile from the lake. Rapanos wanted to put a shopping mall on his property, which is about 20 miles from the lake.

Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waterways.

The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

In the middle was Justice Anthony M. Kennedy.

In a sign of the division, justices spent nearly half an hour explaining their votes from the bench Monday. After Scalia announced the decision, Kennedy and Justice John Paul Stevens both took turns detailing their positions.

Kennedy wrote his own opinion to explain why he was not joining the main opinion. "Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular," he said. Scalia's opinion, Kennedy said, "seems unduly dismissive of the interests asserted by the United States in these cases."

Scalia had said the Corps of Engineers misinterpreted the term "waters of the United States."

"In applying the definition to `ephemeral streams,' `wet meadows,' storm sewers and culverts, ... man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term `waters of the United States' beyond parody," he wrote.


TOPICS: Business/Economy; Culture/Society; Government; News/Current Events
KEYWORDS: court; environment; protections; scotus; split; wetlands

1 posted on 06/19/2006 10:05:03 AM PDT by NormsRevenge
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To: NormsRevenge

Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waterways.

The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

In the middle was Justice Anthony M. Kennedy.


2 posted on 06/19/2006 10:06:27 AM PDT by NormsRevenge (Semper Fi - Wanna help kick some liberal arse? It's not just a job here at FR, IT's an obsession.)
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To: NormsRevenge

Pretty soon my pool will count as a wetland


3 posted on 06/19/2006 10:08:37 AM PDT by italianquaker (Democrats and media can't win elections at least they can win their phony polls.)
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To: italianquaker
Soon your gutter runoff will be counted as a "wetland".
4 posted on 06/19/2006 10:12:26 AM PDT by Bratch
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To: NormsRevenge

Hopefully Justice Kennedy gets bit by the retirement bug ...


5 posted on 06/19/2006 10:12:37 AM PDT by The G Man (The Red States ... the world's only hope for survival.)
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To: NormsRevenge
The law is foolish and needs to be changed. Protecting "wetlands" to protect "endangered plants and species" is just another leftist roadblock to freedom and progress. The Congress needs to change it but with the abundance of lefties there it is unlikely.

However, Scalia is right. Stretching the law to cover man-made "waterways" like drainage canals and, as some leftists do, include mud puddles after a rain, is more overreaching by the left.
6 posted on 06/19/2006 10:14:00 AM PDT by Mind-numbed Robot (Not all that needs to be done, needs to be done by the government.)
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To: The G Man

Naw get rid of Ginzberg first....we can live with Kennedy and the rest but Ginzberg is really "out there"


7 posted on 06/19/2006 10:20:36 AM PDT by Vaquero ("An armed society is a polite society" Robert A. Heinlein)
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To: NormsRevenge

Antonin Scalia is the single most important person in America standing between us and utter stupidity.

A ditch is not a waterway. Never has been, never will be.


8 posted on 06/19/2006 10:23:39 AM PDT by Taliesan
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To: Vaquero

Yeah, good point.


9 posted on 06/19/2006 10:29:49 AM PDT by The G Man (The Red States ... the world's only hope for survival.)
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To: NormsRevenge

"...such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment."

Need I point out that it is not the Supreme Court's job to protect the habits of a government agency or the environment?

A law that is unconstutional could feed starving children but if it has no legal basis it is, well, null and void.

But then, I'm not a Constutional "scholar". I don't even have the legal background of, oh, I dont know, HARRIET MIERS?

So I suppose in the rarified air breathed by "brilliant legal minds" a ditch may indeed be transmogrified into a waterway.

I think we need more people on the Court like Scalia, and the screening test to find them should be show them a broom and ask them if it is a mop.


10 posted on 06/19/2006 10:31:06 AM PDT by Taliesan
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To: NormsRevenge

Glad to see the Court at least get the specific question of this particular case right. A clear step in the right direction.

Thank God for President Bush's new justices.


11 posted on 06/19/2006 10:31:46 AM PDT by blitzgig
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To: NormsRevenge

They make it sound like 5,4 votes on the supreme court are unusual.


12 posted on 06/19/2006 10:47:48 AM PDT by Daralundy
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To: blitzgig
Thank God for President Bush's new justices.

"But what has President Bush done for conservatives? Vote third party"

13 posted on 06/19/2006 11:03:24 AM PDT by sharkhawk (Play me a dirge matey)
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To: Taliesan
Except at my house. I was cited in 1997 for damaging a wetland critical area for cutting down dead & dying red alders along a culverted ditch running parallel along my property.

The citation carried a $450.00 per day fine for every day past 30 I had to respond to. I was instructed to file a wetland mitigation plan by a "county approved" wetlands biologist and jump through several other hoops.

I lawyered up and didn't win, they just went away. I still get visits from the county every five years or if I speak out to vocally in the local press or at a public meeting challenging government land theft, I get an environmental review.

The county even sent one of their goons to my place on Christmas eve 2003 for an inspection. Funny though, two weeks earlier I had testified at a county commissioner hearing against expanding "open space" purchases of private land by the county government.

The ditch was placed on my property in the '40's by the fire service agency to feed a hand dug 14" deep retention pond so the fireman would have a water source. I live on a hill so steep that even today in case of a fire, the fire department has to dump 50% of the water in the tanker in order to climb my hill. No public water, all private wells & septic systems.

A water source was necessary for public safety. 40 years later the county is using their past public works project as a means to steal my property. The area in question is 40' X 335'.
14 posted on 06/19/2006 11:11:49 AM PDT by bigfootbob
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To: NormsRevenge
The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.,p>That is an opinion, not a fact. Certainly not based on science.

Nature has never been static. Man is part of nature,

Claiming that human activity is always a "threat" to the environment is circular reasoning, and a self-fulfilling prophecy. One could just as easily assert the opposite.

15 posted on 06/19/2006 12:29:42 PM PDT by Publius6961 (Multiculturalism is the white flag of a dying country)
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To: bigfootbob
I applaud your defense of common sense and property rights in the face of uncivil government interference and extortion.

I believe it is becoming apparent to the general public that many levels of government are using the principle of the greater good to control and exploit taxpayers.

16 posted on 06/19/2006 4:10:56 PM PDT by Justa (Politically Correct is morally wrong.)
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To: blitzgig; Peach; Howlin; CWOJackson; Petronski; sinkspur
Thank God for President Bush's new justices."""

AMEN. (For those of you who call me a leftist because I oppose the Iraq war, THIS is why I voted for Bush -- to get people like Alito and Roberts on the Supreme Court. He T'd me off with the Harriet Miers stupid move, but he recovered - thanks to pressure from conservatives. Alito and Robers are turning out even better than I hoped. One more like them and the rule of law can be returned to America.) Of course, that still doesn't make me an Iraq war supporter - but the only place where everybody is supposed to agree on everything is a place like .. Saddam's Iraq.

17 posted on 06/19/2006 9:27:25 PM PDT by churchillbuff
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To: NormsRevenge

The damn AP is so screwed up they contradict themselves in the same breath.

First the AP idiots say: "The court voided rulings against June Carabell and John Rapanos, who wanted to fill wetlands they owned..."

Then the AP morons contradict themselves and say: "Instead of ruling in the property owners' favor..."

Well, which is it? Voiding a ruling is a victory.

The AP are the most useless bunch of maggots to ever hold a pencil.


18 posted on 06/20/2006 6:54:40 AM PDT by sergeantdave
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To: bigfootbob

Cutting down tag elders is "damaging a wetland critical area?"

I recommend you challenge this asinine assertion under the federal Data Quality Act.

DQA makes these unelected bureaucrats justify their illegal rules, using scientific data. Because a bureaucratic says something is true, that's not necessarily so.

The DQA is designed to destroy eco-fascist junk science. It also forces these Marxists out of the field and gets them behind their desks justifying their actions with reams of requests you can file.

There's some debate on whether the DQA applies to state mandates, but I believe it does.

If you need more info on DQA, freepmail me.


19 posted on 06/20/2006 7:06:55 AM PDT by sergeantdave
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