The musings of one Andrew Langer - defender of liberty, passionate protector of individual rights, foodie. (Note: Said Musings of Andrew Langer are his own, and the views represented herein are likewise his views, and not the views of any other people, entities, foodstuffs, etc [unless otherwise specifically and explicitly noted].)

Tuesday, October 11, 2005

The Federal Regulation of Swamps...

Another settled issue on the Liberty Blog: Our's is a government of limited powers.

The federal government simply cannot extend its reach into everything. Why? Because a government whose power has been limited is less able to abuse the rights of the citizens it has been set up to protect.

Of course, the tendency is for government to extend its reach (thus giving this blog an unlimited supply of subject matter). What's really amazing is when government extend its reach in one direction, then suddenly reverses that direction and does the direct opposite.

So it's been with the federal government and swamps. For nearly 100 years, the feds had a policy of "busting" swamps - turning them into usable farmland and abating the risk of malaria from mosquitos. The federal power nexus here was questionable enough, but that nexus became even more tenuous when the government switched to a wholesale program of wetlands preservation.

Now, I know that wetlands serve important environmental functions - flood control being the most important. Water filtration and species habitat following closely on the heels of the first. But because so many wetlands are found on private lands, and because the regulatory repurcussions are so strict, this question of the federal power over wetlands becomes an important one.

And there is no federal "Wetlands Protection Act". Much like the interpretation of "public use" that has changed since the founders wrote those words in the Constitution over two centuries ago, this is all an interpretation of the laws designed to protect "navigable" waters of the United States. What started as a law designed to prevent waterways from becoming impeded, thus preventing commerce from traveling on them, is now a law where dry land is now considered a navigable waterway.

So it was when Ocie Mills, a Florida builder, went to jail for putting dry sand on dry sand. So it was when the Don and Roger Norman, father and son community makers, who suddenly found more than 200 acres of their high-desert Nevada ranch federally-protected wetlands (amazingly, the feds wanted the _MOST_ valuable land. Imagine that!).

Now, when the Feds wanted to assert jurisdiction over wetlands owned by the Solid Waste Agency of Northern Cook County, Illinois (also known as SWANCC), SWANCC said, "Wait a minute - you're a government of limited powers, right?"

The Feds said, "Well, even if we are, we can regulate your land."

SWANCC challenged them on that, and in a surprisingly lucid opinion, the Supreme Court of the United States agreed. They held that the Federal Government has no business regulating isolated wetlands - wetland that have no relationship to interstate commerce (no "nexus").

Well, the Supreme Court now has an opportunity to build on that excellent decision. It has taken up two wetlands cases for review:

In the first, John Rapanos from Michigan asserts that the federal government has no authority to regulate his putting sand on isolated wetlands on property that he owns - wetlands that are 20 miles from any navigable waterway. Rapanos faces jail time for this offense, and the district court judge who initially heard this case was disgusted with the government's lawsuit.

The second, Carabell, hinges on whether or not their land is considered "adjacent" to tributaries of a navigable water.

These cases are important for two reasons. First, they're important because they represent an important opportunity for the Roberts court to stake out its territory on property rights - a legal area for which there are some questions regarding Chief Justice Roberts. Second, they also present an early opportunity for the Roberts Court to show how it is going to look at issues of federalism and the limits to federal power.

But they're also important because there are real people whose lives are in turmoil because these issues aren't settled. Ocie Mills did jail time. The Normans spent years in court and nearly lost all they had.

Like Mills, John Rapanos could go to jail. Let's hope the Roberts Court understands the limits to federal power so he doesn't have to.

- Andrew Langer

3 Comments:

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