Published in today's Detroit News, by PLF Principal Attorney Reed Hopper.
After hundreds of thousands of dollars in attorneys fees and 14 years of court battles with no end in sight, Michigan's John Rapanos finally gave up his fight to defend himself against accusations that he illegally filled wetlands on his private property in violation of the Clean Water Act.
Despite winning his case in the U.S. Supreme Court, Rapanos recently settled it with the federal government. He agreed to pay fines and mitigation fees approaching $1 million. Federal prosecutors immediately hailed the settlement as a vindication of their virtually limitless power to regulate local wetlands nationwide.
But this settlement only demonstrates the inability of individual citizens to stand up for their rights against the overwhelming resources of Big Government.
The federal Clean Water Act prohibits the discharge of fill material into "navigable waters" and expressly recognizes the rights and responsibilities of state governments to protect and maintain local waters. Who could have foreseen that federal bureaucrats would stretch the language of the law to encompass mostly dry, inland wetlands lying in the middle of a Michigan cornfield?
Certainly not ordinary citizens like Rapanos, whose private property was 20 miles away from the nearest navigable waterway. No wonder he told federal officials to take a hike when they accused him of a federal crime for the ordinary activity of "moving sand from one end of his property to another," as one judge described it.
But federal bureaucrats in the Army Corps of Engineers and the Environmental Protection Agency are not used to being ignored. Rapanos was perceived as a threat to the agencies' ever-expanding claim of authority. So they sued Rapanos criminally and civilly.
The cases would turn on whether Clean Water Act jurisdiction extended to remote, inland wetlands with only a tenuous and intermittent connection to actual navigable waters. But federal regulators have never applied a consistent jurisdictional standard.
The U.S. Supreme Court has castigated the agencies for their ever-changing regulatory interpretations, and an oversight agency has documented that even officials in the same Army Corps office cannot agree on the scope of Clean Water Act jurisdiction. So bizarre is the federal regulation of wetlands that one judge likened it to the upside down logic of "Alice in Wonderland," where the placement of clean sand on dry land constitutes the illegal discharge of a pollutant into navigable waters.
To justify their suits, prosecutors argued the federal government had jurisdiction over Rapanos' property because the Clean Water Act extended federal authority to all waters that may be used by migratory birds. While the cases were pending, the U.S. Supreme Court invalidated the "migratory bird rule," finding the government's theory was contrary to the language of the law, inconsistent with prior federal interpretation and would likely exceed constitutional authority.
So federal officials claimed the Clean Water Act covered all waters (including any and all wetlands) that have some sort of hydrological connection with downstream navigable waters, no matter how remote or insignificant. In his defense, Rapanos argued this new legal theory exceeded both statutory and constitutional authority. The lower courts ruled for the government.
Although Rapanos had nearly exhausted his personal resources, he appealed his criminal conviction to the U.S. Supreme Court and was turned down. A year later, the high court accepted his civil case and in the 2006 decision Rapanos v. United States, a majority of the justices ruled in favor of Rapanos and for the second time invalidated the government's claim of jurisdiction over inland wetlands. In other words, the Supreme Court held that the federal government had acted illegally.
But the Supreme Court decided federal prosecutors could retry Rapanos using another jurisdictional standard. Unfortunately, the justices could not agree on the controlling legal standard. This meant federal officials could attempt to reprosecute Rapanos using one of two conflicting standards proposed by some justices or adopt a new theory.
This was the situation facing Rapanos when he agreed to settle the case and pay heavy fines and fees. It was clear that federal prosecutors were not going to give up, and it was equally clear that Rapanos was not playing on a level field. In almost all wetland jurisdiction cases, the lower courts have ruled for the government.
Unlike Rapanos, the federal government has unlimited resources to pursue any alleged violation. And it could perpetually retry the case. In other words, Rapanos could never really win, and the federal government could never really lose.
Rapanos's settlement is not an admission of guilt. Rather, it is an alarming demonstration of the erosive effect of heavy-handed government. When ordinary citizens can be beaten down so their only viable choice is to minimize their loses, by the very process designed to protect their rights, everyone loses.