Posted on 07/01/2004 10:02:10 AM PDT by looscnnn
It was a dark day in America on April 5. On that day, the U.S. Supreme Court turned away a grand opportunity presented by Pacific Legal Foundation—an opportunity to reinforce the basic principle that our federal government has been granted only limited powers, and those powers are constrained by the Constitution to be used in a fair and just manner.
Moreover, because of the High Court’s inaction, Michigan landowner John Rapanos, age 68, faces federal imprisonment for a minimum of 10 months and up to $10 million in civil penalties. His crime: failure to fill out federal paperwork before putting his land to productive use. This is his story.
Mr. Rapanos’ nightmare began in the late 1980s after he cleared and graded 200 acres of fallow farmland he had owned since the 1950s with the hope of constructing a shopping center. When the retail project fell through, he leased the land to a local grain farmer. Since that time, Mr. Rapanos has spent more that $1 million on lawyers, consultants, and fines while fending off for some 15 years federal regulators and prosecutors who accuse him of harming wetlands. “They’re out to destroy me,” Rapanos said. “They won’t stop until I’m behind bars.”
The Government Is the Law Breaker Under the Clean Water Act, no person may discharge dredged or fill material into “navigable waters” without a federal permit. Congress adopted the act to protect the nation’s waterways and municipal water supplies from pollution. Over the years, however, the U.S. Army Corps of Engineers has interpreted the law so liberally that “navigable waters” have included isolated areas of land far removed from any truly navigable waterway like a river or lake. Consequently, private property owners seeking to make improvements on their land have been shocked to learn that doing anything to small depressions in the ground on their property requires them to go through an extensive and expensive federal permitting process.
For example, the Corps has argued that isolated ponds and puddles were magically transformed into “navigable waters,” and subjected to regulations, merely by the stopover of “migratory” birds. Finally, in its groundbreaking decision of 2001 in SWANCC v. Army Corps of Engineers, the Supreme Court agreed with PLF arguments and struck down the corps’ expansive “migratory bird” rule, holding that
the Corps’ authority does not extend to isolated wetlands that are not adjacent to a traditional navigable waterway. The Court characterized the corps’ expansive approach as “[pushing] the very limit of the congressional authority.” Yet, to this day the agency ignores the SWANCC ruling.
What makes Mr. Rapanos’ case especially egregious is that his land is surrounded on all sides, and divided down the middle, by drainage ditches dug by the county in 1904. Special tiles were added to further aid drainage so the property could be used for farming. Bottom line: Mr. Rapanos’ land cannot hold water—just like the federal government’s claim that it is a “wetland.” Moreover, the contested “wetlands” on the property are 20 miles away from the closest navigable water in Saginaw Bay and that, insists government lawyers, is close enough to justify the Corps’ unrelenting assertion of regulatory power over Mr. Rapanos’ life and property.
This case is a classic example of a federal bureaucracy that has lost all sense of self-discipline as it dedicates itself to expanding its regulatory control over reasonable human activity. In setting aside Mr. Rapanos’ conviction in the early stages of the case, U.S. District Judge Lawrence Zatkoff—noting a drug dealer was in his courtroom the same day—said from the bench:
“Here we have a person ... who 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.”
Judge Zatkoff certainly had it right. Unfortunately, the U.S. Sixth Circuit Court of Appeals was more impressed by the government’s arguments that Mr. Rapanos deserves jail time—and the U.S. Supreme Court has shown no interest in the matter. One only hopes President George W. Bush issues a presidential pardon and orders his administration to correct the regulatory abuses for which the corps is so infamous.
ping
wetlands - BS buzzword for SWAMP, aka mosquito-breeding grounds
navigable waters - where boats may traverse
swamp does not = even a creek
All this "environMENTAL" crap is just that....!$@#!@$^$#$@!$@#!%#$#$%$%#@$&&%^$^*@#!@%#&^(&^*(!$#
And that's how I feel about it.
Obviously not.
Ping
Also known as FASCISM - *NOT* the opposite of COMMUNISM, while supposedly the bogeyman of all our liberal pals and what they like to call conservatism.
Watching the road work in New Jersey approaching Atlantic City we noticed they took wetlands to widen the roadway. Money talks and BS walks. The marsh land was filled and covered. It just depends on who wants to do it. One person would be run into the ground by the government. When the government (state of federal) wants to do it? No problem.
Exactly, none of us is a landowner, we're just allowed some limited use of land in exchange for vast sums of money, like some latter-day serf. Anything else would be like poaching the King's deer.
The President should also issue an EO creating a land office for registering claims to celestial resources.
It's fascism. You own the land, but have to abide by gov rules including what to produce. IOW there's little point in owning anything. (Not quite the same as serfdom!)
What a country!
I remember a few years ago, while I was still in Michigan, homeowners along the Saginaw Bay could not get rid of the seaweed that would wash up on shore and stink up the area.
You don't even have to go to that extreme. If your property puddles up due to extremely large rainfall, but drains normal amounts of rain, it will be classified as a wetlands.
Maybe Joni Mitchell had it right.
Just when I thought it was not possible to hate big government anymore along comees a story like this.
The Founding Fathers must be rolling over in their graves!
He bought a 1000 acre farm in the 60's and started a dairy farm. starting in the late 80's, the town rejected his legal permits to drill wells on unused pasturage; local activists reported him for cutting trees; (a contractor had cut 'protected' trees on adjacent town ROW'S ....two of them..by accident) he was fined ($100,000)for deepening a pre-existing man-made pond (wetlands viol); and went into bankruptcy. (ACE and EPA action)
His legally procured permit to sell part of the land to home builders was illegally rejected by the town. He sued. Prominent Dem luminaries offered to finance the town's defense against the farmer, who went into tax default.
The land was sold by the town for $10 million (a fraction of the value)to a mysterious Arabian investor (bin Ladens?) who agreed to give about 800 acres to the local land conservation group. The remainder, along a river, was used to build several multi-million-dollar homes. The lawsuit was treated as an asset in foreclosure, and the farmer was prevented from recapturing the rights to the suit by a Boston Federal judge.
The farmer died, after being paid a few million from the tax sale (minus tax in arrears, and whittled away by attorney's fees) leaving his son to find another career, not running the family farm.
"This land is our land; your land is our land....
This stuff happens a lot.
The entire Waikiki hotel strip was built on a FILLED MARSH.
It's hard to imagine, but at one time there were no hotels in Waikiki. The area was mostly marshland, at times a place where royalty hung out. But over the years there have been movies made about it, with stories of romance unfolding on its beaches. Waikiki...the feature of this weeks Lucky You Live Hawaii.
It's the engine that drives Hawaii's economy but before there were hotels and visitors lining the beaches, Waikiki was a vast marshland. The early Hawaiians turned it into taro fields and fishponds.
Ah, the so-called 'glancing geese' doctrine.
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