Rod Grams, a candidate for the Minnesota 8th Congressional District seat, has written about and brought up in debates a property rights case that he considers an overreach of Federal authority. He used up almost all of his 600-word essay in today's Duluth News Tribune on this case. As I suspected, the Rapano wetlands case is more complicated than Grams makes it out to be.
The National Association of Counties reports that the Supreme Court decision was 5-4 and five opinions were written.
Amicus curiae briefs in Rapanos’ favor:
Mackinac Center for Public Policy
Attainable Housing Alliance files amicus brief
More details of the case in
Environmental Times, The voice of the environmental industry
Notes and Trends, "Bench and Bar of Minnesota", October 2003
Washington Report, City of Lincoln, Nebraska
This first of these three shows that the Rapanos are not as Grams depicts them. They are developers with many property holdings, and they intended to build a shopping center on a large property that had 48 to 58 acres of wetlands. The second deals more with the legal issues, and if I understand the article correctly, the Federal government's case was upheld by lower courts after the Supreme Court's remand of the case. Note that the Supreme Court did not rule completely in the Rapanos' favor, just that the case was argued in the wrong way. The third is a report on how Congress was dealing with this issue this year. It doesn't paint Jim Oberstar, the incumbent Representative, as such a callous Federal power-grabber as Grams does.
However, I found very little with a search on “rapano” and “wetlands” that was strongly in opposition to the Rapanos’ case. The closest was a blog of an Arkansas canoe club. Even this discussion was not all one-sided.
I’d say that this is mostly a state case. The question is did the Rapanos have all the proper state and local permits. They did not, and they even ignored the advice of their own consultant. There is also what would the impact of their development be on their neigbors. For example, was the wetlands a natural storage area that replenished ground water? If the water is no longer retained, the neighbors wells could have much less water.
There are two issues about property rights here, one clear and one not. The first is just how much authority does the federal government have? If Grams wants to limit authority here, is he willing to limit the authority in the Patriot Act? The second is what are the limits on “property rights”. People can’t start fires in their woods to clear them for farming. Or put another way, your property rights end where my water supply begins.
Disclaimer: I am an advisor and aide to Harry Welty, also a candidate for Minnesota's 8th Congressional District seat.
