Federal Wetlands War, final essay

from the September issue of Future of Freedom, published by the Future of Freedom Foundation

The Federal Wetlands War, pt. 3

by James Bovard

As the first two parts of this series revealed, federal bureaucrats have been using environmental pretexts to rampage against property owners since the late 1980s. Unfortunately, even after the Republicans took over Congress in 1994 and promised sweeping reforms, the outrages continued. A recent Supreme Court decision vivified that, despite many victories in federal district courts across the nation, landowners are still routinely at the mercy of power-hungry bureaucrats.

Wetlands-policy outrages have continued in part because federal agencies usually find a way around federal court decisions that purport to limit their power. For instance, in 1995 the Justice Department sued James Wilson and his development company for disturbing four little wetlands in a housing project he built in Charles County, Maryland. The Army Corps had initially approved Wilson’s development plans in 1989; federal regulators subsequently changed the definition of “wetlands” and ordered him to cease and desist in 1990. He responded by suing the federal government for violating his property rights.

The feds were outraged that Wilson had some loads of dirt deposited on the land to stabilize the area where houses were to be built. At a federal trial, they conceded that Wilson’s development was in an area that was far from pristine and that his action caused no evident environmental damage. As a court decision noted, the land in question was “more than ten miles from the Chesapeake Bay, more than six miles from the Potomac River, and hundreds of yards from the nearest creeks.” The main evidence the feds offered that the land was involved in interstate commerce came from a fur trapper who testified at the trial that beavers and muskrat had been hunted someplace in the county in which Wilson built: no evidence linked Wilson’s site to trapping. Wilson was convicted of violating the Clean Water Act and sentenced to 21 months in prison and fined $1 million; the judge imposed another $3 million fine on Wilson’s company.

In December 1997, a federal appeals court overturned the conviction, ruling that “the Corps’ [sic] regulation of such wetlands is based solely on its definition of wetlands as ‘waters of the United States’” — for which the court found no basis in the Clean Water Act. On May 29, 1998, the EPA and Army Corps issued a guidance memo detailing their plans to evade the court decision. The EPA and Army Corps informed agency personnel that the decision would be completely disregarded in any area outside of the jurisdiction of the Fourth Circuit Court of Appeals (i.e., Virginia, West Virginia, Maryland, North Carolina, and South Carolina). And, even within those states, the EPA and Army Corps planned to continue prohibiting owners from using their land when the feds could argue that the land would be used “by migratory waterfowl, other game birds, or other migratory birds that are sought by hunters, bird watchers, or photographers, or are protected by international treaty, [and] thereby affect interstate commerce.” According to the Clinton administration, it took only a few clicks of a camera to nullify property rights.

Wetlands fights continued to fester in the courts. In early 2001, the Supreme Court struck down one Clinton-era power grab involving Chicago-area governments that wanted to convert some land into a dump. Chief Justice William Rehn-quist ruled that “permitting the [government] to claim federal jurisdiction over ponds and mud flats would also result in a significant impingement of the states’ traditional and primary power over land and water use.”

The most telling phrase in the decision came from the dissent. Justice John Paul Stevens and his fellow Friends of Leviathan harrumphed that the majority was guilty of a “miserly construction” of the Clean Water Act — and that the Court owed more “deference” to federal regulators. To give unlimited deference to federal regulators means creating an unlimited bias against citizens’ right to live their own lives. “Miserly” is a strange term to use to condemn a decision that slightly reduces the federal sway over private citizens. The Framers created safeguards to ensure that the federal government had only a miserly amount of power, but some current Supreme Court justices act as if today’s citizens deserve only a miserly amount of freedom. Rather than serving as a bulwark to defend the Bill of Rights, many justices seem to view their jobs the same as did the ministers of King George III — doing whatever is necessary to maintain the king’s prerogatives.

The 2001 ruling was interpreted largely as a victory for state and local governments. By trimming EPA and Army Corps prerogatives, however, it is also at least a marginal victory for property rights. Unfortunately, the Supreme Court refused to take up earlier cases that offered classic illustrations of the EPA’s and Army Corps’s trampling individual land owners.

The 2001 decision slightly trimmed the power of the Army Corps to designate wetlands. But the Army Corps has destroyed far more wetlands than any corporation. A single project that the Corps was pushing at that time in Missouri would have destroyed 36,000 acres of wetlands — which, as the Washington Post noted in September 2000, was “nearly twice as many as all of America’s developers were permitted to touch last year.” But government-destroyed wetlands were not an environmental problem because government supposedly acts in the public interest.

Defining “wetlands”

This past March, the Supreme Court struck a blow against dictatorial wetlands policies in the case of Sackett v. EPA. Michael and Chantell Sackett spent $23,000 in 2005 to buy a small vacant lot in a residential subdivision near an Idaho lake. After they began preparing the land to build a house, the EPA notified them that their property had been classified as a wetlands and ordered them to immediately cease construction. It also threatened a $75,000-a-day fine for refusal to comply. The EPA had not classified any other lots in that neighborhood as wetlands and did zero analysis of the soil on the Sacketts’ property before slapping on the designation. The Sacketts, aided by the Pacific Legal Foundation, sued the government. Though they lost in the Ninth Circuit Court of Appeals, they won a unanimous though narrow decision in the Supreme Court.

The key issue before the Court was whether the Sacketts could file a court challenge to the EPA’s compliance order. (The EPA issues thousands of such orders a year.) Justice Antonin Scalia declared, “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.’’ In comments to the media when he announced the Court’s decision, Scalia mocked the EPA’s definition of “wetlands,” noting that the Sacketts have never “seen a ship or other vessel cross their yard.”

Justice Samuel Alito, in a concurring opinion, captured the continuing unfairness and irrationality of federal policy:

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy…. The combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

Alito concluded by urging Congress to clarify the definition of “wetlands” — and thus to set a limit once and for all to federal regulators’ controls over private landowners.

Environmental groups warned of grim consequences from the Sacketts’ victory. Larry Levine, senior attorney with the Natural Resources Defense Council, feared that the decision would “make it harder for the EPA to take action to promptly correct ongoing environmental harms.” Levine feared that the agency will get “bogged down in court, using limited resources to fight lawsuits instead of enforcing the Clean Water Act.” According to his viewpoint, individual rights are nothing but impediments to the feds’ dictating the right uses for every acre in the land. But as Scalia noted, the Court rejected “the principle that efficiency of regulation conquers all.”

In the 1950s liberals helped spur a backlash against Sen. Joseph McCarthy by highlighting cases of innocent individuals who had lost their jobs as a result of his baseless accusations of left-wing associations. Vastly more Americans have lost their livelihoods as a result of federal prohibitions imposed on landowners with the flimsiest of legal pretexts. Yet there has been little uproar — and scant attention on Capitol Hill — over how bureaucratic tyranny wrecked the lives of landowners. As a result, federal agencies continue prosecuting private citizens on the basis of laws that had never been written, of memos that had never been made public, of assumptions that cannot stand the light of day.

In the Middle Ages, governments bound peasants to their land for the benefit of their lords. Today, governments bind landowners to the current use of their land, indenturing the owners to the whim of local government officials. If government officials decreed that no one was permitted to change his profession, people would widely recognize that as tyranny. Yet there is little protest when governments make a similar declaration prohibiting residents from changing the use of their property. We are increasingly turning landowners into the serfs of bureaucracies.

Wetlands policies illustrate that government cannot control property without controlling people. Every extension of control over property means a decrease in citizens’ ability to rely on themselves and plan their own lives. Every decrease in the sanctity of private property will mean an increase in insecurity for some citizens. To allow the government practically unlimited control and jurisdiction over private property is to give politicians and bureaucrats almost unlimited power to intervene in private lives. We face a choice of private property or political subjugation.

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