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Published: Thursday, 2/23/2006

Property rights motivated wetlands case, lawyer says

BY TOM HENRY
BLADE STAFF WRITER

Property rights hero? Or environmental thug?

The historic wetlands case that involves mid-Michigan resident John Rapanos, heard by the U.S. Supreme Court on Tuesday, has generated a flurry of emotions.

Observers say it also has made strange bedfellows out of the Bush Administration, high-powered Democrats, and environmental activists while drawing the ire of civil libertarians on guard against government intrusion.

Yesterday, the California attorney who represents Mr. Rapanos told a packed auditorium at the University of Toledo's College of Law that the case evolved because his client "decided he would exercise some civil disobedience."

Reed Hopper of the Pacific Legal Foundation in Sacramento said Mr. Rapanos' act of defiance was to fill in 54 acres of wetlands in Midland, Bay, and Saginaw counties in the late 1980s without first obtaining the required federal permits. He did so because he wanted to sell it to a shopping mall developer.

The government sought $13 million in fines and fees, plus an order requiring him to permanently set aside 80 acres as wetlands.

The Supreme Court heard an appeal of a lower court judge's sentence of three years probation and an $185,000 fine.

The high court, which is expected to rule by summer, consolidated the Rapanos case with one involving a southeastern Michigan couple, June and Keith Carabell, who were denied a permit to fill in 15 acres of forested wetlands for a developer who wanted to build a 112-unit condominium project in Macomb County.

The combined case seeks to clarify a 2001 ruling in which the Supreme Court, by a 5-4 decision, struck down a federal rule that requires a permit for the dredging or filling of wetlands visited by migratory birds.

Mr. Rapanos, 70, filled in much of his land because he wanted to test the government's authority over isolated wetlands, Mr. Hopper said.

Federal officials have used the landmark Clean Water Act of 1972 as their legal muscle for regulating wetlands. But Mr. Hopper claimed there's no proof that it was the intent of Congress some 34 years ago to apply that act broadly to include wetlands separated from navigable waters.

The land that Mr. Rapanos filled is 20 miles from Lake Huron, but connected to tributaries that flow into it, according to court records.

Several past and current members of Congress disagree.

Led by U.S. Rep. John Dingell (D., Dearborn), they filed a joint friend-of-the-court brief with the Supreme Court on Jan. 13 in support of the status quo.

Forty such briefs were filed. Those weighing in were attorneys general from 33 states and the District of Columbia, four former U.S. Environmental Protection Agency administrators, more than three dozen environmental, conservation, outdoor recreation, and public health groups as well as the National Association of Home Builders, the International Council of Shopping Centers, the American Petroleum Institute, the American Farm Bureau Federation, and the National Association of Waterfront Employers.

Contact Tom Henry at:

thenry@theblade.com

or 419-724-6079.



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