Skip to comments.Puddle Jumpers in the Great Lakes State The EPA's twenty-year war to make everything a wetland
Posted on 10/24/2005 7:56:28 PM PDT by vrwc0915
You can count on your constitutional due process rights if you are a thief, a rapist, or a murderer. But if you're accused of committing a crime against the environment, you may as well tear up the Constitution and bury it in a landfillor better yet, send it for recycling.
That, at least, is the message of the legal tactics that the government has employed in its two-decade-long crusade against John Rapanos, a Michigan developer. Rapanos' crime? He shifted sand from one part of his property to another without a wetland permit, a felony under the Clean Water Act.
Rapanos' legal saga, which has had more twists and turns than a snail darter in heat, came closer to its dénouement earlier this month when the U.S. Supreme Court agreed to hear his appeal in the civil case against him. (The Supreme Court declined to hear the companion criminal case two years ago.) If Rapanos loses, he faces a whopping $10 million in fines, $3 million in environmental mitigation fees and forfeiture of 80 acres of his property.
This is in addition to the $185,000 in fines and 200 hours of community service Rapanos has already received for the criminal conviction. He escaped a jail term the federal prosecutors wanted to impose on him only because Judge Lawrence Zatkoff, the federal district court judge who presided over the trial and witnessed the prosecutor's underhanded legal maneuvering first hand, rejected the prosecutor's demand earlier this year.
In fact, so prejudicial were some of the government's tactics that Judge Zatkoff ordered a new trial after the jury broke its deadlock and convicted Rapanos on the criminal charges in 1997. However, later that year, the 6th Circuit Courtnotorious for its soft spot for big government causesoverruled Judge Zatkoff.
Rapanos' troubles began back in 1985, when he decided to develop 175 acres of farmland he had bought in the 1950s in bucolic mid-Michigan. With the exception of two small areas, his property was bone dry, thanks to its sandy soil and the drainage ditches the county had dug in the area at the turn of the century.
Because Rapanos was not planning to touch the wet spots, he began to clear shrubs and even out the sand to prepare his land for development without feeling the necessity of obtaining a wetland permit. That's when agents from Michigan's Department of Natural Resources (DNR)the state enforcement arm of the federal Environmental Protection Agencyshowed up at his door with cease-and-desist orders, their first of many visits.
Rapanos, by all accounts, is rude, arrogant, and obscene. In other words, he's precisely the kind of person whomJudge Zarkoff notes"the Constitution was passed to protect."
But Rapanos cooperated with the agents during the first few visits when it seemed they intended only to inspect his property visually. However, during one visit when Rapanos and his lawyer were convinced that the agents meant to collect soil samples and other evidence to use against him in court, they demanded a search warranta perfectly appropriate demand.
But during the 1997 jury trial, the government prosecutors "raked [Rapanos] over the coals"in the words of a dissenting 6th Circuit Court judgefor electing to exercise his Fourth Amendment rights.
The prosecutors also questioned why Rapanos would insist on a warrant if he was not destroying wetlands. "What were you trying to hide?" the prosecutors demanded. Finally, the attorneys for the government likened Rapanos to a devil and compared his "treeless property" to the "Warsaw ghetto without Jews."
The government's prejudicial conduct and violation of Rapanos' civil rights is not directly at issue in the current case before the Supreme Court. Rather, the court will consider a novel theory that the federal governmentbacked by the Bush Justice Departmentis putting forward to defend its decision to prosecute Rapanos, given that the nearest federally protected navigable water is 20 miles away from his property. The government is arguing that it has the authority to regulate any property whose runoffs could reach navigable waters.
A nod from the court will put virtually every puddle and pond on anyone's property within the reach of wetland bureaucrats. But the question is not only if this would be allowed under a fair reading of the lawalthough the government's expansive interpretation is audacious, to say the least.
The court also ought to consider this question: How is the federal government likely to use these expanded powers?
Rapanos' treatment suggests a one-word answer: abusively.
Thanks for the ping!
The prosecutors also questioned why Rapanos would insist on a warrant if he was not destroying wetlands. "What were you trying to hide?" the prosecutors demanded. Finally, the attorneys for the government likened Rapanos to a devil and compared his "treeless property" to the "Warsaw ghetto without Jews."Gee, sounds like a bad infestation of Dhimmicrats.
Can you git me wunna dose???
Tanks fer da pingy-dingy, calcowgirl... Mowing my pastures that sorta double for yards since I don't have you here to herd the cattle, is one of my favorite pastimes. Those A-10's are my favorite airplains!
There are a few of my favorite thangs!!!
>>since I don't have you here to herd the cattle...
no, it's not on par with murder or rape. in the eyes of the government, its worse.
An Act of Federal Piracy
The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. - President John Adams
Once every few years the jackboot of federal insanity leaves its stamp on Michigan soil. Its imprint is designed to scare the serfs back into their rabbit holes, so unelected pirates annointed with undue and illegal power can continue their assault against citizens minding their own business.
Armed with this reprobate power, unelected bureaucrats made up law out of thin air and effectively squashed Michigan farmer John Rapanos, 69, for moving sand on his 175 acre property in Bay County. The federal bureaucrats charged him with violating the Clean Water Act because he interferred with water evaporation - the migratory molecule rule - on his property. As incredible as the charge is, he faced a $13 million fine and 63 hard-time months in a federal pen. The federal pirates even demanded that Rapanos forfeit 81 acres of his land.
Rapanos ran into the federal buzzsaw after he had the temerity to unilaterally rile the federal utopian god called wetland. The gaia high priests were deeply offended that they and their collectivist comrades werent offered bent knee respect by a commoner, and he didnt pay out a $270,000 tribute to study, admire and appease their wetland god.
The federal bureaucrats harassed this Michigan farmer. They threatened him. They villified him. They booed him. They bankrupted him. They robbed him. They conspired against him. These unaccountable bureaucrats tried their hardest to sit this farmer in a prison for years to contemplate the power of the federal utopian wetland god.
In the end, U.S. District Judge Lawrence Zatkoff, one of the good guys in this fractured federal farce, brought this collectivist insanity and blatant piracy to a less than ideal close. He sentenced Rapanos in March to probation and community service - time hes already served - and a $185,000 fine. All for filling a puddle.
So why the zeal for prosecuting a citizen for filling a puddle? Quite simply, a gang of power-mad utopians have infilitrated federal agencies and courts. They are making war on individual American rights in order to collectivize American property and place it under control of an unelected imperial federal bureaucracy.
John Rapanos story is a chilling example of what can happen when government loses all respect for property rights and starts looking at private land as a community asset, wrote Editor Nolan Finley of the Detroit News.
Two bad actors stand up as enablers in this grotesque abuse of federal power. One is a gang of out-of-control bandits exercising fascist bureaucratic control. The second is a group of clueless, clucking activist judges who couldnt tie a bow on package, much less discover a tie between this case and a previous United States Supreme Court decision.
In essence, unelected federal bureaucrats hidding behind a fig leaf law provided by a whimsy court have established themselves as super-legislators with the power to zone everyones private property. In a word, thats called a dictatorship.
Farms Good, Homes Bad
Rapanos, who bought his property in the 1950s, farmed the land for years. Happily and with no problems from government.
In 1973 Congress passed legislation to create the Environmental Protection Agency and the Clean Water Act, that a prescient congressman warned would give the federal government free reign to goosestep all over America and destroy private property.
But still Rapanos found no trouble from the federal government, even though he plied his farming trade on sacred swamps.
Then in 1988, Rapanos decided he would build homes on his property. Now the EPA jumped in and demanded extensive studies of his property before he would be granted permission to use his property. Farming was okay on imaginary wetlands but building homes wasnt.
On average, permits cost over $270,000 and take more than two years each to obtain. Rapanos thought this $270,000 tribute unnecessary. This EPA mandated pay-off goes to engineers, socialists and lawyers politically connected to the EPA who piddle around for high hourly fees and interpret bureaucratic gobbledygook.
Rapanos reasonably thought this a rather silly thing. Afterall, only two areas on his property were designated as so-called wetlands and he had no plans to disturb them. Thus, he reasoned, he had no need to apply for a permit to fill wetlands because he didnt plan to fill wetlands.
The county solved the wet ground problem in 1900 when it built a series of drainage ditches to open the land for farming. The entire parcel is crisscrossed by drainage tiles installed in 1904.
This land couldnt be a wetland if it wanted to. Its land no different from surrounding farmland.
The Mackinac Centers Russ Harding, a former director of Michigans environmental agency whos walked the property, says that its not a wetland because the drains do what they were meant to do: keep the land dry by draining the water.
Harding visited the property and dug 18 holes, each four-feet deep, at various spots. He found no trace of water, and no evidence of fill dirt.
But because Rapanos thumbed his nose at the EPA fiefdom, the bureaucrats arbitrarily re-defined the definition of wetlands to target him.
It started with a bureaucrat illegally trespassing onto Rapanos property and observing him dumping sand on property thats not a wetland.
Shortly after, the U.S. Justice Department filed criminal charges against Rapanos. (This battle has gone on non-stop for 16 years.)
Rapanos correctly pointed out that his land was not a wetland. The EPA has jurisdiction over only navigable waterways and the nearest such thing is more than 10 miles from his property.
But in this floundering American age of bureaucracies illegally writing law, a job constitutionally charged only to elected legislators, unelected functionaires simply moved the goalposts.
Under the Clean Water Act, its illegal to discharge a pollutant into a navigable waterway without a permit.
Thats reasonable. Then you discover that a pollutant can mean nearly anything a bureaucrat wants it to mean, from heat to fish to sunlight and even specks of dirt that fall from a shovel.
Then you explore navigable water and its revealed that the water need not be evenly remotely navigable. The new bureaucratic rule is if its wet, its navigable. How? Well, water seeps and evaporates. Thus, filling a puddle with sand disturbs water that might, someday, someway, be evaporated by the sun and fall into a navigable waterway as rain. There it is - according to bureaucrats, morning dew can be navigated by freighters, cruise ships and aircraft carriers.
In Army Corps of Engineers bureaucratese, federal functionairies discovered the migratory molecule rule, which says that even isolated wetlands fall under federal control because there is a theoretical chance that a water molecule from any location may reach a navigable waterway. Thus we have the unforgivable crime of interferring with water evaporation.
(Keep in mind that the Supreme Court has ruled that regulations may not be arbitrary or capricious and must be reasonable.)
At his trial, Rapanos correctly argued that the federal government has no authority under the commerce clause to regulate land that is far removed from any actual navigable waterway. And it doesnt, as will be illustrated shortly.
Further, the EPA, telling a little bitty fib, screamed that Rapanos dumped 302,000 cubic yards of fill on his property. Of course that would have raised the elevation on the Rapanos property a good six feet and would have required 30,200 trucks carrying 10 cubic yards of soil each onto the property.
Did the EPA produce a dozen dreary-eyed witnesses who lost sleep with 30,200 trucks rumbling past day and night. No, of course not.
Were the bureaucrats tested for hallucinogens or sent to a padded room for analysis of seeing things? No, the case went to a jury.
So in 1995, a jury of unmitigated clods, who were too stupid to get out of jury duty, found him guilty of interferring with the suns evaporation. This jury never visited the land to see if a swamp even existed.
Zatkoff threw out the conviction, ruling that government prosecutors wrongly claimed that Mr. Rapanos had attempted to conceal evidence by refusing to consent to searches without a warrant. The federal government appealed.
Heap Angry Swamp God
Enter the genuises on the appellate court. This court of clowns reversed Zatkoff, stating that Mr. Rapanos had no expectation of privacy on his property - the gate and fence notwithstanding. The case was then sent back to the trial court for sentencing.
Rampanos, who spent more than $1 million in legal fees, found the judgment outrageous. Judge Zatkoff, one of the few sane federal actors in this black comedy, agreed with Rapanos.
That same day this judge sentenced a drug dealer. The federal prosecutors recommended a 10 month sentence.
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 63 months in prison, Zatkoff said.
Now, if that isnt our system gone crazy, I dont know what is. And Im not going to do it.
Again the government appealed and won, so Zatkoff sentenced Rapanos to probation. The 6th Circuit Court of Appeals in Cincinnati chastized Zatfoff for inappropriate remarks because he truthfully commented on a system gone crazy.
Apparently the swamp god was now heap plenty angry. Probation wasnt enough. So the government appealed again, asking for jail time and big fines to appease Big Swamp God. The high priests of the federal nature worship congregation demanded that Rapanos go to prison for five years or more and be fined $13 million.
The Black Flag of Anarchy
Enter the United States Supreme Court.
In 2001, the Supreme Court ruled in Solid Waste Agency of Northern Cook County v. United States (SWANCC) that the Clean Water Act cannot extend to such non-navigable waterways like puddles and ponds and standing water.
The High Court overturned Rapanos conviction and told the Court of Appeals to reconsider the case in light of this decision.
So Rapanos won, right? The US Supreme Court cavalry rode to the rescue to shoot down the bad guys. Sanity popped up and said: Here I am! Right?
No, wrong. The appeals court told the Supreme Court to go take a flying leap. The appeals court wrapped its little arms around the bureaucrats new theory that evaporation equals navigable waters for floating aircraft carriers. It found the idea tasty and loving. The appeals court slurped it all up and decreed that Judge Zatkoff abide by federal sentencing guidelines. Throw the book at him, said the appeals circus.
Zatkoff delayed the resentencing until the Supreme Court could rule on the constitutionality of sentencing guidelines, which it recently set aside.
We have a very disagreeable person who insists on his Constitutional rights, Zatkoff said. This is the kind of person the Constitution was passed to protect.
Zatkoff administered the best justice he could and single-handedly held off a howling mob of insane federal collectivists who worship swamps and mosquitoes.
This case tells of a federal bureaucracy gone bonkers and a rogue appeals court hoisting the black flag of anarchy in the courtroom.
If this bureaucratic juggernaut is not firmly reigned in by the Supreme Court - and soon - the founding principle of the people's right to own, and reasonably use private property, will be irreparably damaged, wrote M. David Stirling, vice president of the Pacific Legal Foundation, a public-interest legal organization that represented Rapanos in several stages of this case.
Roadmap to Chaos
The Rapanos matter is a roadmap to chaos.
Rational observers looking at the Rapanos decision come to the indelible conclusion that parts of the federal government are certifiably insane: Puddles are navigable waterways. Supreme court decisions are ignored by an appeals court. Original intent of Congressional law is keelhauled. The law is whatever an unelected bureaucrat says it is. And American citizens are expected to sit and eat this totalitarian garbage.
A consensus is building to rein in runaway bureaucracies writing law and clown courts ignoring law.
Bureaucrats must be stripped of their illegal law making power, judges that ignore supreme court decisions must be impeached and politicians that allow unelected tyrants to write law must be thrown from office.
The Rapanos harassment makes clear that environmental law has nothing to do with the environment. Its about control. Its about expanding federal power over every blade of grass and tree in America.
This case isnt about protecting wetlands, its about federal power. Agency bureaucrats are exploiting an ambiguity in the law to run roughshod over property owners, said PLF principal attorney Reed Hopper. The Clean Water Act authorizes federal regulation of navigable waters, not every wet spot in the nation.
The Rapanos incident is a microcosm of a story about unelected functionaries and judges abusing their power. This government control of private property is nothing more than Old European style fascism. Under this system, private property owners (serfs) take care of the land and pay taxes on it, while government wields complete control over the land.
Its win-win for an imperial government. Not only do serfs work the land, the serfs also pay the government taxes for the labor they performed. Its the ultimate government abuse and scam on the people. The illegal federal assault on Rapanos is meant to achieve exactly that result.
Meanwhile, the federal pirates continue to seek a $13 million fine against Rapanos.
Thanks for the ping.
We're looking at indicting the US attorney and the bureaucrats for civil rights violations against Rapanos.
This is one of the most blatant examples of federal abuse of power.
The US Supreme Court has agreed to review the Rapanos persecution. If the USSC agrees that Rapanos had his civil rights violated, we're going after the fascist US attorney and try to throw her in prison.
Not only should the EPA thrown in the garbage, people who support the EPA should be shipped out - one way - to North Korea.
One of the primary tenets of fascism is government control of private property.
It's time to notice how the government pushes us around, and time to reconsider how we react to it.
In this case, Zon, the US attorney engaged in gross mis-conduct by coaching witnesses to lie under oath and covering up gross violations of Rapanos' civil rights.
We have illegal trespass on Rapanos' property by the government and testimony by the US attorney witnesses of dumping fill dirt on so-called wetland - a complete lie.
what about law regarding plain sight? i thought police had the right to search exposed property without warrant but not building?
Perhaps a jailbreak is in order!
They have been hoping he would get fed up and kill a few bureaucrats so they could try him and win. Rapanos has more tolerance for dealing with idiots than I do, that's a fact.
the problem is by definition any federal law with a sentence of more than a year is classified as a felony.
I find it amazing that so many feel that the most important thing ever created is the right to destroy. Learn a bit about wetland functions and what they do before condemning them as a pain because they are on your property. Everyone will be up in arms when your neighbors start polluting your property and your water - even thought they may be 20 miles away (Like Rapanos). Water has to come from somewhere before it comes out of your tap. Is the ability to make money really worth everyone's health? My right (and yours) to clean water far supercedes anyones 'right' to build a condo.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.