AFF Sentinel Vol.3 #15

Supreme Court Misses -- Just at Anniversary of Kelo Offense

The Supreme Court had the chance to limit the Department of Defense's obsession with drainage ditches and potential puddles. Even with two new justices on the bench, they could not manage definitive relief for landowners, farmers and ranchers in Rapanos v. United States.

Did I say Department of Defense? Yes, we've overlooked that - as national radio commentator Hugh Hewett noted on his blog ("The Administration's Rapanos Response," 6/20/06 hughhewitt.com) - the Army Corps of Engineers is the federal agency responsible for drawing connections to the national defense between dry streambeds and drainage ditches and "navigable waters." Yes, Rumsfeld's department.

Four justices - Scalia, Roberts, Alito and Thomas - were willing to limit and specifically define the Corps' reach, its "...essentially boundless view of the scope of its power," as Scalia aptly put it, under the Clean Water Act.

Rapanos is a Michigan landowner who filled in low ground on his properties, miles from any "navigable waters." The Corps charged him with Clean Water Act violations.

The Court vacated the lower court's decision and remanded the case back. Instead of clarity and restoration of basic rights to citizen landowners, we go from "boundless" to undecided, contradictory "significant nexus." The lower courts could repeat the decision, using Kennedy's arguments.

The Clean Water Act's intent to reduce pollution in the nation's "navigable waters" sounds reasonable until one views the network of cases that has resulted in the Corps' jurisdiction over nearly any piece of land from which water can drain. Unless water that falls on almost any land is drunk by animals, evaporates, or is used by plants, it will drain through gravity somewhere - by ditch, tributary or river - into one of the oceans. These broad interpretations mean the Corps' authority over nearly every piece of land in the country is limited only by the Corps' manpower available to catch a landowner with a shovel, tractor blade or dozer. It defies common sense.

But at least one observer with a legal background - Hewitt - sees an opening for the Bush Administration to extract some good here. Hewitt said, "It is clear the Administration has before it a huge opportunity to address a long-festering case of regulatory overreach. Justice Kennedy's opinion (the 1 in the 4-1-4 vote) is the narrowest of the rulings and so it controls, and Justice Kennedy seems to call for new regulations from the Army Corps of Engineers designed to stop the routine abuse of the Clean Water Act's definitions."

That, added to the majority's opinion and Chief Justice's concurrence, "can be fairly read as a strong prompt to action. The President and the Secretary of Defense should demand new regs on what ?substantial nexus' means, and get a definition of "navigable waters" out that reflects the commonly understood meaning of such words." Hewitt said emergency regulations could be justified as a response to the Court's direction. "...publishing clear guidance will... provide farmers and landowners with a definitive interpretation to use in their endless regulatory battles..." he said.

Hewitt urged the Administration to act, since "... another Congress has failed to enact any meaningful reform of any of the environmental laws that are routinely abused by regulators and environmental activists."

"We wish we could say the first environmental ruling of the Roberts court was a clear-cut win for property rights and limited government," the Colorado Springs Gazette said ("Muddy Waters," 06/21/06). "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act," Roberts said.

What with abuses of eminent domain, the tyranny of flora and fauna over humans under the ESA and the grasping tentacles of the Corps, it is obvious a man's home is his castle only if some bureaucrat doesn't notice or want - or favored insect or rodent covet - your castle and its grounds. We need more help at the Supreme Court to recover basic private property rights.

But if even a majority of the Supreme Court can't manage to see the error in jurisdiction of the Army Corps on a drainage ditch miles from any "navigable water," common sense is surely under water in America.

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