Federal agencies should back off land regulation

Samuel Alito, the newest justice, sat in for the first time last week as the U.S. Supreme Court heard oral arguments in two important cases that could do much to define the regulatory reach of the federal government and the priority given to private property rights. The cases could tell us a great deal about how committed Justice Alito and Chief Justice John Roberts are to constitutionally limited government.

Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers involve Michigan properties that federal regulators define as “wetlands” although they do not seem to fit the definition under the law in question. By applying the 1972 Clean Water Act in a far-reaching way, the federal government has prevented the owners of these properties from using them in ways they prefer and that state regulators approve.

The Clean Water Act prohibits people from discharging, dredging or putting fill material into the navigable waters of the United States. The question is: What constitutes navigable waters?

John Rapanos, a 70-year-old grandfather of six, has tussled with federal regulators for almost two decades. He has owned 175 acres of fallow farmland since 1950 and wanted to sell it for a shopping center. It is 20 miles from Saginaw Bay. But his land borders a non-navigable ditch that flows into a river, so the feds declared it under their jurisdiction. After he started to level his land, they swooped in, subjecting him to criminal and civil charges. The trial judge refused to jail him as the government wanted, calling Rapanos “the kind of person that the Constitution was passed to protect.”

Keith Carabell and his partners own a 20-acre plot on which they want to build condominiums. But the Army Corps of Engineers, noting that the land occasionally retains water and is bordered by a drainage ditch that flows into a creek that empties into a lake, has declared it federal “navigable waters” and denied a permit.

Rob Rivett, a principal attorney for the Pacific Legal Foundation, which handled the Rapanos case, watched his colleague M. Reed Hopper argue the case. He said the arguments all around were competent and the questioning lively, but he refused to predict the outcome.

In both these cases, bolstered by the belief that protecting the environment is of utmost importance, federal regulators have reached beyond the language of the relevant statutes — and quite likely beyond the reach of the interstate commerce clause — to regulate land that should be under state jurisdiction. The court’s clear duty is to admonish federal agencies to obey the law and pull back.