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M. David Stirling- Contributor

Mr. Stirling served in the California Assembly between 1976 and 1982, and as chief deputy attorney general from 1991 to 1998. He is vice president of Pacific Legal Foundation, a public interest legal organization. [go to Stirling index]

‘Wetlands’ Bureaucrats
Crushing property rights......
[M. David Stirling] 8/26/0

On Aug. 18, 2004, 68-year-old Michigan resident John Rapanos is scheduled to be sentenced for the third time by Federal District Court Judge Lawrence P. Zatkoff.

Following conviction of Mr. Rapanos for violating the federal Clean Water Act by filling wetlands on his 175-acre parcel without a federal permit, Judge Zatkoff set aside the conviction because of deficiencies in the prosecution’s presentation. The federal appellate court reversed Judge Zatkoff’s action and ordered him to sentence Rapanos.

At the sentencing hearing – which followed the sentencing of an illegal immigrant for drug trafficking – the judge signaled his disgust at the Justice Department’s prosecution of Rapanos with this bench comment:

So here we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for 10 months. And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and the government wants me to give him 63 months in prison. Now if that isn’t our system gone crazy, I don’t know what is. And I am not going to do it.

At Rapanos’ second sentencing, Judge Zatkoff sentenced him to 200 hours of community service, three years probation, and a $185,000 fine, each of which Rapanos fulfilled. Still not satisfied that Judge Zatkoff had not imposed prison time, the appellate court, at the Justice Department’s urging, ordered Judge Zatkoff to imprison Rapanos for a minimum of 10 months.

Assuming this happens on Aug. 18, and if that isn’t enough, the government is asking for civil damages against Rapanos in the shocking amount of $10 million in fines, forfeiture of 81 acres of his land, and $3 million in “mitigation fees” – all on top of the earlier ordered fine of $185,000 which Rapanos already paid.

What is really going on here? Is John Rapanos one of the country’s leading outlaws? What explains the U.S. government’s seemingly insatiable zest for retribution against a productive, taxpaying citizen with no prior criminal record?

When America was new and “the people” were still the masters of the government, Thomas Jefferson warned that “the natural progress of things is for liberty to yield and government to gain ground.” There are two explanations for why Mr. Rapanos may soon be confined in a federal prison – both confirm the accuracy of Jefferson’s warning.

Editor Nolan Finley of the Detroit News provides the first explanation when he wrote: “John Rapanos’ story is a chilling example of what can happen when government loses all respect for property rights and starts looking at private land as a community asset.”

Mr. Rapanos purchased 175 acres of farm land in the 1950s. Because the surrounding drainage ditches dug by the county back in 1904 and the parcel’s naturally sandy soil cause rain water to dissipate quickly, only two small areas of the property qualify as “wetlands,” according to Rapanos. In 1988 and ‘89, he began preparing his property for sale as a commercial development site by having tree stumps pulled out and moving sand around.

Because he had no plans to, and did not disturb the two recognized wetland areas, he did not apply for a federal permit to fill wetlands. When government bureaucrats – using expanded, self-made definitions for wetlands – accused him of filling other wetlands on his property without a federal permit, Mr. Rapanos spurned their claims.

That was a big mistake in a country that has come to equate the regulatory state with preserving “the common good,” and regards private property as a selfish, profit-motivated notion that must be made subservient for the good of society as a whole. Soon thereafter, the U.S. Justice Department filed criminal charges against Rapanos, and for the past 16 years, he has been engaged in a legal battle to preserve his right to reasonably use his property against a federal bureaucracy intent on his submission.

The second reason Mr. Rapanos is being treated so harshly is his refusal to capitulate to the government’s increasingly arbitrary and heavy-handed demands. “Sure, I filled it,” he admits, “but I didn’t fill wetlands. When the government tells you to cease and desist when you’re not breaking the law, what do you do if you’re an American? I’m innocent. I’m not going to be pushed over if I’m innocent.”

That’s not the compliant response government bureaucrats have come to expect and certainly seek to instill in their citizenry. Peg Bostwick, federal wetlands program coordinator for Michigan’s Department of Environmental Quality, admits as much when she says that most property owners choose to “work with us, instead of arguing. Mr. Rapanos was the exception to that rule.”

Mr. Rapanos’ case is but one in a parade of horror stories where bureaucrats define and declare the presence of wetlands on private property as they see fit. While these regulatory enforcers use vast taxpayer-provided resources to coerce property owners into compliance with arbitrary and scientifically-dubious wetlands regulations, the diminishing class of property owners who would resist such government heavy-handedness must be prepared to personally pay millions of dollars in attorney fees, fines and penalties, and risk ultimate economic destruction and imprisonment just for the privilege.

It is doubtful that Jefferson could have imagined such a raw disparity in leverage when he warned about liberty yielding and government gaining ground.

If this bureaucratic juggernaut is not firmly reigned in by the Supreme Court – and soon – the founding principle of the people’s right to own and reasonably use private property will be irreparably damaged.

M. David Stirling is vice president of the Pacific Legal Foundation, a public-interest legal organization that has defended private-property rights for over 30 years. PLF supported John Rapanos at several stages of his case and represented him in a petition for certiorari to the U.S. Supreme Court. The Court declined to take the case. This commentary appeared on

copyright 2004 Pacific Legal Foundation



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