This past Wednesday, November 22, PLF attorneys filed a petition for cert with the U.S. Supreme Court in Morrison v. United States. The case involves another extravagant assertion of jurisdiction by the Army Corps of Engineers. But what’s worse, the Sixth Circuit (that’s right—the same Circuit that was reversed in Rapanos) completely ignored the Supreme Court’s decision in Rapanos when affirming Corps jurisdiction over the Morrisons’ property.
Alice and Joseph Morrison own a small parcel of land on the edge of a residential subdivision on Harsens Island, Michigan. Their property is about a quarter mile from the nearest navigable water, the St. Clair River. Ten years ago the Morrisons had to dig up a broken sewer pipe for repair. The Corps later claimed that the Morrisons violated the CWA by illegally discharging pollutants (translated "dirt") into the navigable waters of the United States (translated "their backyard"). The Morrisons then spent the next decade litigating on their own and defending their property and finances against the feds’ attempt to impose a $25,000 civil fine.
The district court ruled for the government, determining that the Morrisons’ property qualified as a wetland and was "adjacent" to the St. Clair, notwithstanding the fact that a small town separated their property from the banks of the river. On appeal, the Sixth Circuit affirmed based upon pre-Rapanos case law. After Rapanos came down, the Morrisons moved for rehearing, notifying the Sixth Circuit of the Supreme Court’s decision. Remarkably, the Sixth Circuit denied the Morrisons’ petition yet failed even to cite Rapanos, let alone explain how that decision affects the Morrisons’ case.
The Morrisons, nearly at the end of their rope, came to PLF for help. PLF has asked the Supreme Court to remind the Sixth Circuit that, once again, not just anything goes when it comes to CWA jurisdiction. The petition for cert requests that the Supreme Court vacate the decision of the Sixth Circuit and remand the case for further consideration in light of Rapanos.
