Pacific Legal Foundation Takes John Rapanos Case Back to U.S. Supreme Court -- PLF Asks High Court to Throw out Outrageous Multi Million Dollar Civil Penalty and Set Wetlands Law Straight
Contact: Dawn Collier
Phone: (916) 419-7111
Washington,DC; February 03, 2005: Pacific Legal Foundation is once again taking Michigan landowner John Rapanos’ case to the United States Supreme Court, this time to appeal the millions of dollars in civil penalties and fees the government is demanding he pay for failing to get a federal permit before moving the soil on his property. Federal officials are seeking the penalties in addition to the 10- to16-month prison sentence Mr. Rapanos is set to serve after the government’s relentless prosecution of him for more than a decade.
For filling wetlands on his property without a permit, the federal government is asking a whopping $10 million in fines and an additional $3 million in mitigation fees. The government also is asking Mr. Rapanos to set aside some 80 acres of his property as permanent wetlands.
“It’s not enough for federal bureaucrats to put John Rapanos in prison, they want to bankrupt him too. He’s become their poster-boy for what happens to ordinary citizens who stand up to big government,” said PLF attorney Greg Broderick.
“This case isn’t about protecting wetlands, it’s 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.”
“We’re going to keep taking this question of federal authority over wetlands back to the Supreme Court until it’s decided,” Hopper added. “No one knows what the law requires, so ordinary citizens are left wondering if they—like Mr. Rapanos—are risking bankruptcy and imprisonment for making normal use of their property. Until the Court steps in to clarify the law, property owners will continue to be at the mercy of overreaching government bureaucrats.”
When John Rapanos sought to develop his Michigan property in the late 1980s, he never imagined that it would cost him years of litigation and land him in federal prison—all for moving sand around on his own land. Since 1988, however, he and his wife Judith have been embroiled in a fierce dispute with government bureaucrats who claimed regulatory authority over wetlands on their property under the Clean Water Act. Mr. Rapanos refused to submit to the government’s demand that he apply for a Section 404(a) permit, which, according to a recent study, on average costs landowners over $270,000 and takes more than two years to obtain.
Mr. Rapanos argued the federal government has no jurisdiction over his property because federal authority under the Act extends only to “navigable waters,” such as a river or lake that can be used for shipping or other commerce, and wetlands immediately adjacent to such waters. Mr. Rapanos’ property lies as much as 20 miles from any navigable waters that could legally trigger federal jurisdiction.
But federal officials decided to make an example of Mr. Rapanos. In 1993, they brought criminal charges against him, seeking jail time. Chief District Judge Lawrence Zatkoff refused to send Mr. Rapanos to prison, finding the sentence too harsh, especially since the government was asking for more jail time for Mr. Rapanos than a drug dealer sentenced that same day. Instead, he sentenced Mr. Rapanos to three years probation and fined him $185,000. With clear outrage, Judge Zatkoff stated:
"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 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 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’m not going to do it." See United States v. Rapanos, 235 F.3d 256, 259 (6th Cir. 2000) (citing the lower court).
Government attorneys, however, were determined that Mr. Rapanos serve hard time. After the government won on appeal, Mr. Rapanos took his case to the United States Supreme Court. The High Court overturned Mr. Rapanos’ conviction and asked the Court of Appeals to reconsider the case in light of its decision in Solid Waste Agency of Northern Cook County v. United States (SWANCC). In that case, the Supreme Court invalidated an administrative interpretation of Clean Water Act jurisdiction on which Rapanos’ conviction was, in part, based.
On remand, federal officials changed course claiming they had authority over Mr. Rapanos’ property because the disputed wetlands were “hydrologically connected” to navigable waters—even though the property is many miles away from any such waters. The trial court ruled in favor of Mr. Rapanos, but on appeal, the Sixth Circuit adopted a very narrow reading of SWANCC, and reinstated his conviction. In December, 2003, PLF asked the Supreme Court to take up John Rapanos’ criminal case, but the Court declined.
In the meantime, federal appellate courts have interpreted SWANCC differently, and the Bush administration has failed to issue regulations directing federal agencies to come into compliance with the case. As a result, federal bureaucrats—and environmental litigants—continue to use the Clean Water Act as a tool to control local land use decisions. Landowners remain at the mercy of federal officials who use the threat of Clean Water Act prosecution to extort both land and money from landowners in exchange for a permit—a permit that many landowners shouldn’t have to get in the first place.
PLF is asking the High Court to take Mr. Rapanos’ civil case to clarify federal wetland jurisdiction and bring heavy-handed bureaucrats under control. Mr. Rapanos is also awaiting re-sentencing by Judge Zatkoff in his criminal case. Recently, the Supreme Court decided the sentencing guidelines originally applied in Mr. Rapanos’ criminal trial are advisory, not mandatory. This may result in a reduction of his sentence.
copy of petition - writ of certiori:
I've read other aricles on the Rapanos case and this one does not tell the whole story, but has a clear "property rights" bias. Mr. Rapanos can hardly be called an ordinary citizen "moving sand around his property". From what I've read, he hired a private consultant to delineate the wetlands for a proposed mall development. The consultant's report showed he had 50 acres of wetlands so he ordered the consultant to destroy the report. He cut down thousands of trees, bulldozed and removed the stumps, placed fill, installed agricultural drain tiles, and mass-graded the wetland to convert his forested wetlands into a "corn field". He ignored cease and desist orders from both the U.S. Environmental Protection Agency and the MDNR. A federal court jury heard all of his arguments about "just moving sand," and decided unanimously that he was guilty beyond a reasonable doubt.
I am not familiar with the case. However, I thought Michigan had assumed the Section 404 permit program. Further, I thought a State could only assume the Section 404 program if the EPA had determined that the State regulatory program was as good or better than the program administered by the Corps. Where is the State in all of this?
I would like to remind people that it is the policy of this forum not to have large postings of the type that started this thread. Please provide a short, concise paragraph and then provide a link (if possible) to the larger article.
Charles Andrew Cole, Ph.D., PWS
Ctr for Watershed Stewardship
Penn State University
227 East Calder Way
State College, PA 16801
814-865-5735 (-1378 fax)
Can you define the term "large" posting? Has the term been reviewed by the Board of Directors? Is it specifically discussed in the By-laws? The term "large" can be just as problematic as the term "adjacent".
Chris Svoboda said:
"Mr. Rapanos can hardly be called an ordinary citizen "moving sand around his property"....He cut down thousands of trees, bulldozed and removed the stumps, placed fill, installed agricultural drain tiles, and mass-graded the wetland to convert his forested wetlands into a corn field."
Rapanos does not deny the destruction of wetlands on his property. The same impacts would have occured if Rapanos had obtained a permit. The question is whether or not these wetlands are subject to federal jurisdiction. Rapanos rightly argues that there is a conflict between federal courts over the issue of jurisdiction over wetlands that are not adjacent to traditional navigable waters. He argues that Congress never intended for the Corps to assert jurisdiction over every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection.
The Supreme Court previously refused to hear Rapanos and it remains to be seen if the court will now consider this case. If not, then federal wetlands protection will continue to be driven by inconsistent and conflicting court decisions.
You have started an interesting subject. I would like to see a lot of input on this issue from more than just a few people. You are correct about the wetland loss with or without a permit. However, we use words to enhance our individual goals. When someone does something in a wetland without a permit, he is destroying the wetland. When someone has received a permit, they are only disturbing a wetland.
****o Michigan! Are you out there? Don't let the federal government decide what is best for your State. In the SWANCC decision, I believe the Supreme Court gave the States more responsibilities. Inquiring minds want to know what the State has to say about Rapanos.
It would be interesting to hear from Michigan since they did take over the 404 program in 1984. From what I have read, on this case, Michigan was the driving force of the ceease and desist orders. According to Michigan regs, it seems like the isolated issue in this case wouldn't apply.
To summarize their regs (from their website) wetlands do not have to be connected to a lake pond stream or river they are also regulated they are any of the following:
·more than 5 acres in size and located in counties with a population of more than 100,000.
· less than 5 acres in size, but the DEQ has determined that these wetlands are essential to the preservation of the state's natural resources and has notified the property owner.
Regarding your statement about the same impacts occuring if he had obtained a permit. The key in that statement is a big IF. I haven't seen many permits issued for impacts to 50 acres of forested wetlands. It seems that it would be tough to justify the need to impact 50 acres of forested wetland to build a shopping center.
State,_Federal_and_Local_Wetland_Regulations.url (267 Bytes, 1113 downloads)
While it may be interesting to hear from the state of Michigan, Rapanos is a federal case that has consequences far beyond the state.
What Rapanos is seeking is an accurate interpretation of the U.S. Constitution and federal laws, that is consistent and applicable in every state. Mr. Rapanos would not be facing heavy fines and a prison sentence if his case was located in the federal Fifth Circuit (Texas, Louisiana, and Mississippi).
The waivering inconsistency among the courts coupled with the actions of individuals like Mr. Rapanos, will only encourage more land owners to challenge the arguably unconstitutional basis of federal wetlands regulation. It appears that this regulatory program is slowly retreating under the onslaught of litigation.
My wetlands consultant recommends that land owners first obtain independent and competent legal advice before consulting with the Corps on wetlands issues.
I agree with you that this case goes beyond the State of Michigan. Far too often people turn to the Federal government to solve their problems. A few decades ago everyone agreed that we needed to change our actions to improve our environment. In my opinion we still don't have complete agreement on how to achieve that. However, the biggest problem with our environmental problems is the same as all of our cultural and/or civic problems. We always turn to Uncle Sam to solve the problem. In the SWANCC decision, the Supreme Court said it was the State's responsibility and not the Corps'. Rather than accepting that decision and moving forward, the Federal regulators have tried to find alternatives to work around the SWANCC decision. There is a perception by many people, organizations, and agencies that without Federal regulatory reviews, we are doomed to environmental purgatory. If you disagree with this statement, take a look at the State of New York where they have chasing ping pong balls to justify Federal regulatory involvement. Rather than chasing ping pong balls, the New York State Attorney General should be working with his own State agencies to solve the problem by the State, for the State, in the State.
Being a wetland consultant in Michigan, I can tell you that I'm sure that the MDEQ had jurisdiction, they have jurisdiction over wetlands within 500' of any inland lake, stream or pond over 1 acre, or the criteria as listed by Mr. Svoboda. But through a memorandum of agreement the Corps only has jurisdiction over wetlands "adjacent" to the Great Lakes and select rivers. The wetlands on Rapanos site were not anywhere near the features the Corps regulates. In addition, if Mr. Rapanos did farm the fields, under Michigan law he can "disturb" the wetland. Michigan's wetland program is under attack by the Corps, with the Corps taking jurisdiction over wetlands that even they admit they don't have jurisdiction of, but they say the MDEQ should. It's a big issue for us because the MDEQ much more reasonable and straightforward to work with than the Corps. I've been reading everybody's postings about the Corps and feeling sorry for you guys and now we're getting stuck with them more often.
The real issue here is that ambiguity in Clean Water Act when it comes to wetlands. The best way to solve this problem is for congress to re-examine and amend the Clean Water Act. Congress should decide if it is the federal government’s role to “regulate every wet spot in the nation” (PLFs Reed Hooper) and clearly spell out the extent of federal authority. Conversely, we should not expect the Corps to continue to regulate wetlands in a fashion that the US Supreme Court has found illegal.
Until the CWA is changed, Ed Bonner is right, each state should enact their own wetland regulations to catch any wetlands that may not be regulated by the Corps and decide for them selves how those wetlands should be regulated.
As for the Raponose case specifically, I agree with Ms. Gibson, the state of Michigan almost certainly had jurisdiction over the wetlands, though his “farming” operation might have been exempted from permit requirements. It is quite a stretch to believe that Corps also has jurisdiction since they relinquished authority over inland waterways and wetlands through the “memorandum of agreement.”
Andrew Geffert said:
"The real issue here is that ambiguity in Clean Water Act when it comes to wetlands. The best way to solve this problem is for congress to re-examine and amend the Clean Water Act."
This was been talked about for years during the Clinton and Bush Administrations. There have been several attempts at new legislation, but nothing has passed. My theory is that wetlands have been difficult and expensive to regulate and interest is dwindling at the federal level.
The environmental lobby is far more interested in party politics and global warming, so they seldom complain about wetlands, and when they do, wetlands are lumped together with urban sprawl and the Artic National Wildlife Refuge (ANWR). With the continuing war on terror there will probably be less federal spending on wetlands in the future.
If the Supreme Court overturns Rapanos, then federal wetlands jurisdiction will be significantly restricted, and the regulatory authority will be effectively handed over to the states. It would be then be up to the states to protect, or not protect, wetlands that are no longer protected by the feds.
Currently, wetlands continue to be regulated at the federal level, even after the feds hand over authority to the states. This is one reason why most states prefer to leave wetlands with the feds and not get involved.This message has been edited. Last edited by: Johnny Stevens,
Wetlands law mired in a bog
By Russ Harding
Published March 14, 2005
Tomorrow John Rapanos will stand before a federal judge for sentencing. The purported crime of this mid-Michigan builder is violating the federal Clean Water Act by moving sand in a cornfield he owns and had hoped to develop.
Having investigated the scene of the "crime," I can attest that Mr. Rapanos' possible incarceration is absurd. Unfortunately, it is but one example of the current abuses of federal "wetlands" law.
Mr. Rapanos' cornfield was deemed a wetland by state and federal authorities despite being surrounded by drainage ditches mandated by county drain commissioners in the early 1900s. When I visited the site, having recently ended my tenure as director of the Michigan Department of Environmental Quality, I confirmed that these ditches were in fact keeping the land dry. Moreover, the nearest navigable water -- the basis of federal jurisdiction over "wetlands" -- was some 20 miles away.
Mr. Rapanos no doubt provoked federal authorities when he worked on this farmland in violation of cease-and-desist orders, but there was little to justify the government's use of the Clean Water Act.
..go here for the rest of the story.....
Developer Avoids Prison In Wetlands Case
The Bay City Times, 3/16/05. By SARAH KARUSH, Associated Press.
DETROIT - "A Midland developer whose feud over wetlands has lasted more than 15 years was sentenced Tuesday to probation he had already served - despite a higher court's ruling that he should go to prison. John A. Rapanos was convicted in 1995 of illegally filling wetlands in properties he owned in Bay, Midland and Saginaw counties. U.S. District Judge Lawrence Zatkoff of Detroit accused the government of going overboard with its insistence on prison, in part because of Rapanos' personality. The judge sentenced Rapanos to three years of probation, 200 hours of community service, and a $185,000 fine. That was identical to the original sentence, and Rapanos already has completed it. The resentencing was scheduled after the Sixth U.S. Circuit Court of Appeals instructed Zatkoff to impose a sentence of 10 to 16 months. However, the Supreme Court's January ruling striking down mandatory sentencing guidelines meant Zatkoff didn't have to follow the Sixth Circuit's order. Rapanos said Tuesday he was relieved at the outcome but was confident all along that he would not go to prison. The judge said he refers to the case as 'the sandman case' because Rapanos was convicted of moving sand on his property . . . "
I don't know what all the fuss is about. After all, in the last ice age all of Michigan was under water, frozen water but still water. Further, Michigan is adjacent to Lake Michigan. Based upon a simple and straightforward interpretation that any regulator can make, all of Michigan would therefore be waters of the United States since it was below the ordinary frozen high water mark.
We have ongoing debate about what is and is not in the Clean Water Act. Unfortunately, we can all agree that the words reasonable and logical are not there. "The arrogance of officialdom should be tempered and controlled"
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