In the late 1980s, when he was still primarily known as a well-regarded, Midland-based real estate investor and developer, John A. Rapanos set out to convert one of his largest holdings, a 230-acre parcel on Salzburg Rd. in Bay County, into a shopping center. But the shopping center was never built—halted in its tracks by environmental inspectors who charged Mr. Rapanos with ruining wetlands in violation of federal law.

The almost 20 years of investigation and court hearings that followed have turned Mr. Rapanos, now 70 years old, into a principal actor in a national political struggle—testing the federal wetland protection statute and the authority of government agencies to oversee uses of private land. It is a struggle that he has been more than eager to engage. Sometime in the next few weeks the United States Supreme Court will finally decide Mr. Rapanos’ case, which has high stakes for all sides.

For Mr. Rapanos, the court’s decision could mean exoneration. He has already served three years probation and paid a $185,000 fine, one of the toughest sentences ever levied in the Midwest for filling wetlands.

For the government and its supporters, among them the Sierra Club and its legal arm, Earthjustice Legal Defense Fund, the decision could affect the resolve with which environmental crimes are prosecuted.

Free market and property rights advocacy organizations are also watching. The groups embrace Mr. Rapanos’ story as a high-profile example of what they call “arbitrary interference” by the government in fundamental American property rights. Among the most visible supporters are the Midland-based Mackinac Center for Public Policy and its senior environmental policy analyst, Russ Harding, who directed the Michigan Department of Environmental Quality from 1995 to 2002.

The forthcoming decision in Rapanos vs. The United States of America will also provide another indication of where the Supreme Court stands on disputes involving private rights, community rights, and natural resources now that Chief Justice John Roberts and Associate Justice Samuel Alito—both recently appointed by President George W. Bush—are on the bench. In an earlier case involving dams in Maine, the justices unanimously upheld the state’s regulatory authority under the federal Clean Water Act.

“Many environmentalists were very nervous about this case and I think the Court's decision is cause for hope that the Clean Water Act's jurisdiction over tributary wetlands in the Rapanos case will be upheld by the Court,” said Chris Shafer, a professor of law at the Thomas M. Cooley Law School in Lansing.

“We are concerned that the decision will influence many other environmental issues,” added Alison Horton, the Midwest regional director for the Sierra Club, who is based in Traverse City.

A Wetlands Scofflaw?
The Rapanos saga starts in 1988, when the developer saw an opportunity on the 230-acre Salzburg Road parcel. Mr. Rapanos, according to court testimony, knew of the state and federal wetland protection statutes and asked the Michigan Department of Natural Resources to inspect the site. The scale of the development had already attracted the attention of state inspectors, who sent him an application and advised him that the land was suitable for development if he identified the wetlands and did not fill or drain them without a permit. A 1972 federal statute and a similar 1979 Michigan statute both require such a permit, in order to protect land that is valuable because it cleanses and absorbs water and provides habitat for fish, birds, and other wildlife.

In March 1989, a state environmental consultant inspected the property and confirmed that it contained wetlands. So Mr. Rapanos hired his own consultant, Dr. Frederick Glenn Goff, a specialist in plant ecology, for a second opinion. To Mr. Rapanos’s surprise, Dr. Goff agreed with the state consultant, said that between 48 and 58 acres were wetlands, and advised the developer to acquire the permit.

But, according to court testimony and a 2004 decision by a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, this was Mr. Rapanos’ response to Mr. Goff’s findings:

“Mr. Rapanos ordered Dr. Goff to destroy both the report and map,” the Appellate Court found, “as well as all references to Mr. Rapanos in Dr. Goff’s files. However, Dr. Goff was unwilling to do so. Mr. Rapanos stated he would ‘destroy’ Dr. Goff if he did not comply, claiming that he would do away with the report and bulldoze the site himself, regardless of Dr. Goff’s findings.”

Mr. Rapanos not only did not obtain wetland development permits, according to prosecutors’ evidence, he persisted in filling in the Salzburg Road wetlands and two sites he wanted to develop in Midland and Saginaw Counties. In July 1989, the state issued the first of several formal orders for him to stop all construction activities.

Mr. Rapanos ignored the orders. In court filings, his attorneys argued that the state and federal wetland law did not apply to his land and therefore he was not obligated to obey the stop-work order. State regulators then asked for help from the U.S. Environmental Protection Agency and federal prosecutors, who also issued a cease and desist order in 1991.

In 1994, the United States Department of Justice brought separate criminal and civil suits against Mr. Rapanos. Following a bench trial in the criminal case, District Court Judge Lawrence Zatkoff, who was appointed by President Ronald Reagan, ruled that Mr. Rapanos was guilty of filling wetlands on the Salzburg property. Although federal prosecutors asked for a five year prison term, Judge Zatkoff ordered him to pay a $185,000 fine and serve three years of probation.

Mr. Rapanos and his attorney, Thomas Wilhelm of Bloomfield Hills, appealed. But the Sixth Circuit Court of Appeals determined remanded the case back to the lower court to impose a jail sentence. Since then, the case has bounced around the federal court system. Last year, the U.S. Supreme Court, which in 2004 decided not to hear Mr. Rapanos’ criminal case, elected to hear the civil suit. Oral arguments were held in February.

At Issue
Under the Clean Water Act, and a similar state statute, the United States and Michigan have the authority to protect wetlands either by prohibiting construction or requiring developers to avoid wetlands. In cases where development parcels include wetlands, the state and the federal government require developers to obtain a permit prior to construction. The law is flexible, giving landowners the opportunity to apply for and receive permits even if they discover wetlands after construction begins.

What is not in dispute in the Rapanos case is that the Midland developer ignored those requirements. The question is whether his reasons for doing so were legal.

The question for the Supreme Court is whether the 1972 federal Clean Water Act allows federal regulation of wetlands that are connected to distant navigable waters. Mr. Rapanos, whose case was taken up pro-bono by the Pacific Legal Foundation, a Sacramento-based, nonprofit, free-market law firm, argued that because the ground in question was 20 miles from Saginaw Bay, the nearest navigable waterway, the law didn’t apply.

“Mr. Rapanos' case is an extreme example of government overreaching,” claimed Reed Hopper, Mr. Rapanos’ primary attorney at the Pacific Legal Foundation, in an interview with the Great Lakes Bulletin News Service. “The Army Corps of Engineers virtually rewrote the Clean Water Act.”

The government asserts that the wetlands on Mr. Rapanos’ property drained into tributaries of the Saginaw Bay and thus were connected to a navigable waterway, a view affirmed in the 1995 District Court ruling. 

A Supreme Precedent?
But between 1992 and 2001, when U.S. Supreme Court was first asked to consider the Rapanos case, another similar case had made its way to the nation’s top court. In Solid Waste Agency of Northern Cook County (SWANCC) vs. United States Army Corps of Engineers, several Illinois suburbs sought to establish a waste disposal site at an abandoned sand and gravel pit that included water-filled excavation ponds that had filled with water. The Corps claimed jurisdiction over the ponds and denied the municipalities a federal permit to fill them. The suburbs argued that the ponds were not connected to navigable waters, so no permit was necessary.

On January 9, 2001, in a 5 to 4 ruling, the Supreme agreed with the suburbs, agreeing that the wetlands were isolated from major streams, rivers, and lakes, and that the Corps of Engineers did not have jurisdiction. Two of the five votes in the majority were cast by Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor, who have been replaced by Justices Roberts and Alito.

Legal opinions differ about the influence of the Illinois case on the upcoming decision in the Rapanos case.

Mr. Hopper argues that the “SWANCC decision is essential to Mr. Rapanos' case.” He added: “We believe that if the Supreme Court follows its earlier SWANCC decision, Rapanos should win.”

Mr. Shafer, the Cooley Law School professor, does not think the SWANCC decision will apply to the Rapanos case, because it is “factually is substantially different” because it deals with isolated wetlands that truly are not connected to navigable waters. Mr. Shafer believes that the Supreme Court will affirm that Mr. Rapanos broke the law because his “case does not involve isolated wetlands, but rather wetlands that are connected to a tributary” and ultimately larger waterways.            

However, John Echeverria, the executive director of the Georgetown Environmental Law and Policy Institute in Washington, said the decision in the Illinois case is an important indication of which way the Justices will line up. Mr. Echeverria believes that the two new justices will vote as their predecessors did five years ago. “Assuming they vote the same way as their predecessors voted,” Mr. Echeverria argued, “they are not likely to swing the balance on the court.”

Mr. Echeverria also predicted that the decision in the Rapanos case will most likely hinge on Justice Anthony M. Kennedy, who sided with the majority in SWANCC.

If the court rules in Rapanos’ favor, said legal experts, it will put more pressure on states to regulate wetlands and make it easier for private landowners to alter wetlands without public oversight, so long as there is no clear connection to navigable water. Only Michigan and New Jersey have state-level wetland protection programs.

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WHAT HAPPENED

June 19, 2006

Justices Support Wetlands Protection

WASHINGTON -- A divided Supreme Court, in an unusual 4-1-4 decision, upheld the broad power of federal environmental regulators to protect most wetlands from development, even in areas that are dry much of the year and distant from navigable waters. The decision by five justices dashed the hopes of private property advocates who believed that the more conservative court was ready to sharply cut back the reach of the Clean Water Act, and its safeguards for wetlands.

The opinion came in the consolidated cases of Rapanos v. U.S. (04-1034) and Carabell v. Army Corps of Engineers (04-1384). The Rapanos case involved Michigan wetlands that lie near ditches or man-made drains that eventually empty into navigable waters. The Carabell case involved Michigan wetlands that are physically separated from navigable water, by means of man-made barriers such as an earthen berm, and seldom send water to a navigable stream.

Both cases were returned to lower courts for further action.

Last year, the court voted to take up a property rights challenge to the broad reach of federal authority. It was brought on behalf of John Rapanos, a Michigan developer who was fined heavily after he had filled in wetlands on three farm fields that were about 20 miles from Lake Huron. After a heavy rain, water from these fields flowed into a drainage ditch, and from there to a tiny stream.

Mr. Rapanos acknowledged that federal authorities could prevent the pollution of "navigable" rivers, bays and lakes, but he maintained that they could not exercise control over inland wetlands like those on his fields.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., both new to the court in the past year, agreed with Mr. Rapanos and joined an opinion by Justice Antonin Scalia. They argued that only wetlands that were connected to steadily flowing streams came under federal protection, an opinion that Justice Clarence Thomas also accepted.

This opinion would have stripped away federal protection from most wetlands that are well inland and nearly all those in the West because their streambeds are dry most of the year.

Justice Anthony M. Kennedy, a native of Sacramento, balked and wrote a separate opinion that essentially upheld the broad reach of the law. He cited the Los Angeles River and other streams in the West that send "torrents thundering" downstream, but only for short periods of the year.

Kennedy said Scalia's opinion was "unduly dismissive" of the importance of wetlands and was "inconsistent with the text, structure and purpose" of the Clean Water Act.

Ben Buchwalter, a student at Haverford College in Pennsylvania, reports and writes for the Michigan Land Use Institute’s news desk under a joint program sponsored by the college and the Institute. This is his first article for the Great Lakes Bulletin News Service. Reach him at benb@mlui.org.