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U.S. Supreme Court wades into Michigan dispute over wetlands


Post-Gazette National Bureau
Monday, October 12, 2005
Michael McGough

WASHINGTON -- Accepting the appeal of a Michigan developer who has become a hero to the property-rights movement, the U.S. Supreme Court yesterday said it will decide whether the federal government has the authority to regulate wetlands miles away from a river or other waterway.

The justices will decide whether John Rapanos, a grandfather in his 70s, was within his rights when he filled in wetlands on his property without a permit from the U.S. Army Corps of Engineers. Mr. Rapanos had hoped to build a shopping center on his land.

They must decide whether to sustain $13 million in civil fines and fees imposed against Mr. Rapanos. He was also convicted in a separate criminal case, but was sentenced to probation.

The court also agreed to review a decision against two other Michigan property owners, June and Keith Carabell, who were denied a permit to fill part of their land for the construction of condominiums.

The outcome could have implications for government authority in regulating construction in obviously environmentally sensitive areas. The Army Corps of Engineers regulates work on wetlands.

"They define wetlands so broadly that even dry desert areas of Arizona are being called wetlands," said Paul Kamenar, a lawyer with the Washington Legal Foundation, one of the conservative groups that called on the court to intervene.

In reviewing the two rulings by the 6th U.S. Circuit Court of Appeals in Cincinnati, the court is expected to clarify the confusion created by two of its decisions dealing with federal authority under the Clean Water Act. In 1985, in an earlier case from Michigan, the court unanimously held that in passing the Clean Water Act Congress "chose to define the waters covered by the act broadly." But in 2001, in a 5-4 decision, the court curbed the Corps' authority to regulate some wetlands.

Reed Hopper, a lawyer for the Pacific Legal Foundation, which represents Mr. Rapanos, called the court's agreement to take the case "fantastic" news.

Noting that property-rights advocates had failed to persuade the court to hear similar cases in the past, Mr. Hopper speculated that the addition of Chief Justice John G. Roberts Jr. to the court might have been a factor in the court's decision to take the case.

Douglas T. Kendall, executive director of the Community Rights Counsel, a public-interest law firm specializing in environmental issues, said the court's agreement to take the Michigan cases could mean the justices simply wanted to resolve conflicts between lower courts on the scope of the Clean Water Act.

As a judge on the U.S. Circuit Court of Appeals for the District of Columbia Circuit, Chief Justice Roberts dissented from a decision of that court not to rehear a case involving the application of the federal Endangered Species' Act to a "hapless toad" species that lived only in California. His critics said that opinion suggested that he took a narrow view of Congress' authority under the Commerce Clause to protect the environment.

Mr. Rapanos, whose probation sentence is being challenged by the U.S. Justice Department, has become a symbol for conservative and libertarian groups that see him as the victim of overweening bureaucracy.

Some activists have compared him to the property owners in New London, Conn., whose homes and businesses were condemned under eminent domain to make way for a development project anchored by a private business. A Supreme Court ruling in June upholding that use of eminent domain sparked a national protest that reverberated at Chief Justice Roberts' confirmation hearings.

In other action yesterday the high court:

Agreed to decide whether a hydroelectric company in Maine must certify that it is complying with the Clean Water Act's standards when it constructs or operates dams. The company argues that it isn't covered because dams don't "discharge" water.

Heard arguments in a complicated case in which a California inmate is challenging his death sentence because two of the aggravating factors considered by the jury that sentenced him were later ruled invalid by a state court.

Issued an unsigned opinion ordering the 6th Circuit to reconsider a claim by a convicted murderer in Michigan, Paul Allen Dye, that his conviction was tainted by prosecutorial misconduct.

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