M. David Stirling- Contributor
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
[go to Stirling index]
Crushing property rights......
[M. David Stirling] 8/26/04
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.
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
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
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
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 WorldNetDaily.com
2004 Pacific Legal Foundation