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Michigan developer John Rapanos has spent more than 15 years battling the federal government over his attempts to develop 54 acres of private property without the proper permits. The government, which has brought both criminal and civil charges against Rapanos, claims that significant portions of Rapanos’ property are protected wetlands and that Rapanos flouted environmental laws when he cleared the vegetation and spread soil in preparation to build a shopping center. Now, Rapanos is asking the Supreme Court to clarify the extent of the government’s power to protect privately owned wetlands under the Clean Water Act. At issue is whether wetlands that have no surface connection to navigable waters are subject to oversight by the Army Corps of Engineers. The Court will consider Rapanos v. U.S. and a similar case brought by another Michigan landowner, June Carabell, at its private conference on Oct. 7. If the Court decides to hear the cases, arguments could be scheduled for early next year. This is the third time that Rapanos has petitioned the Court to hear an appeal of his Clean Water Act violations. Last year the Court declined to hear an appeal of his criminal conviction, in which he raised similar issues. He also petitioned the Court once before to review his criminal conviction. That time, his case was remanded to the U.S. Court of Appeals for the 6th Circuit. Last year the Court also denied cert to two other petitions landowners filed that raised similar Clean Air Act issues. M. Reed Hopper, principal attorney at the Pacific Legal Foundation and one of Rapanos’ attorneys, says he does not know why the Court declined to hear the other cases. There is a very real split between the circuits, Hopper says, adding that it’s an issue the Court must clarify. “[We] intend to keep bringing it back until they address this issue,” Hopper says. Despite the government’s push for jail time in Rapanos’ criminal case, earlier this year a federal trial judge sentenced him to probation, community service, and a $185,000 fine — a sentence below the federal sentencing guidelines. In the civil case before the high court, the government is seeking $13 million in fines and fees and asking that 80 acres of Rapanos’ property be set aside as protected wetlands. According to the government’s brief, Rapanos’ battle with the government began in 1988, after he requested an inspection of one of his properties by the Michigan Department of Natural Resources. Rapanos wanted to discuss the feasibility of building a shopping center on the land. After touring the property, the department warned Rapanos that the site contained regulated wetlands but that it could still be suitable for development with the proper permits or if he refrained from building on the protected portion of the land. Rapanos disregarded the department’s warnings and began extensive land clearing and earth-moving the following year. Similar clearing projects took place at Rapanos’ other two sites, as well. In his brief, Rapanos argues that the Clean Water Act regulations do not apply to his land, claiming the law only applies to land that abuts navigable waters. Since his three properties are as much as 20 miles from the nearest navigable water, Rapanos says the government has overstepped its authority. “By its terms the Clean Water Act does not apply to every drip and drop of water in the Nation,” writes Mark Perry, a partner at Gibson, Dunn & Crutcher who filed an amicus brief on behalf of the Washington Legal Foundation. “The section at issue only makes unlawful unauthorized discharges �of dredged or fill material into navigable waters.’ “The water in a puddle on a sidewalk will eventually find its way to a river,” the amicus brief continues, “but the puddle is surely not �navigable’ — and Congress certainly cannot assert its Commerce Clause power over the child who fills the puddle with dirt to make mud pies.” But the government claims the property is subject to its jurisdiction because the wetlands are “hydrologically connected” to a nearby “navigable waterway.” “The Corps and EPA regulations defining the [Clean Water Act] term �the waters of the United States’ have long been premised on the fact that, because �water moves in hydrologic cycles,’ pollution of waters that do not themselves meet traditional tests of navigability �will affect the water quality of the other waters within that aquatic system,’” the government writes in its brief. Both the District Court and the 6th Circuit found in favor of the government. The wetlands on the Salzburg site, the 6th Circuit wrote, “have a surface water connection to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron.” Hopper says that the passing of Chief Justice William Rehnquist may have hurt his chances of getting his client’s case before the Court, because Rehnquist “might have been a vote in our favor.” But he says the fact that Justice Sandra Day O’Connor remains on the bench could help them. “She has ruled favorably in other similar cases,” he says. OTHER CASES UP FOR REVIEW •� Carabell v. U.S. Army Corps of Engineers, No. 04-1384. To what extent does the Clean Water Act apply to local waters? •� Michigan v. Bolduc, No. 04-1617. When do officers violate the Fourth Amendment by prolonging an encounter? •� Contessa Premium Foods v. Berdex Seafood, No. 04-1693. Is willfulness a prerequisite to an award of profits under Section 43(a) of the Lanham Act? •� Arlington Central School District v. Murphy, No. 05-18. What fees may be paid to a prevailing parent under the Individuals with Disabilities Education Act? •� Bernback v. Greco, No. 05-19. When does interest accrue on attorney fees awards? •� Knisley v. Medtronic, No. 05-22. Does federal law pre-empt state law claims for devices that received pre-market approval from the Food and Drug Administration? •� DiGuglielmo v. Brinson, No. 05-25. When is equitable tolling available on habeas corpus? •� Peoples v. United States, No. 05-42. When does the resolution of an ineffective assistance of counsel claim on direct appeal bar another such claim on habeas? •� Cianci v. United States, No. 05-43. When does an “association in fact” constitute a RICO enterprise? •� Teva Pharmaceuticals v. Pfizer Inc., No. 05-48. When does a generic pharmaceutical company have Article III standing to bring declaratory judgment action against a brand-name competitor? •� Smit v. Yamaha Motor Corp. U.S.A., No. 05-96. What test governs a commerce clause claim against a statute that does not discriminate against interstate commerce?
This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein & Howe represents the petitioner in 04-1693 and 05-19 and filed an amicus brief in 05-48. Bethany Broida can be contacted at [email protected].

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