- The Washington Times - Monday, October 7, 2002

The family of Charlie Johnson has been growing cranberries on its small farm near Carver, Mass., since the 1920s. But for the last six years, the federal government has been making life miserable for the 70-year-old Korean War veteran and his wife.
In 1996, the Environmental Protection Agency charged Mr. Johnson with violating the 1972 Clean Water Act, claiming falsely that he had destroyed isolated wetlands in order to create his cranberry bogs. The Justice Department has been dragging out court proceedings ever since, and the monetary, physical and emotional burden is destroying Mr. Johnson's business and his life.
Mr. Johnson and hundreds of others in similar situations thought relief was in sight in January of 2001, when, shortly before the inauguration of President George W. Bush, the Supreme Court handed down a landmark property rights victory in Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers.
The SWANCC decision struck down a "Migratory Bird Rule" that the Corps had created to extend its jurisdiction to any isolated waters that "are or would be used as habitat" by migratory birds. But the court went even further, concluding, unequivocally, that the federal government does not have jurisdiction over isolated, intrastate non-navigable waters that are not contiguous to traditionally navigable waters.
The day before leaving office, the Clinton administration issued a memo that narrowly interpreted the SWANCC decision and basically told EPA and Corp field agents how to circumvent it. Nevertheless, property owners were confident the Bush administration would adhere to the clear and controlling law of the land as handed down by the high court.
Unfortunately, that is not the case.
Last month, Assistant Attorney General Thomas L. Sansonetti told a congressional oversight committee that the Justice Department has conducted a "comprehensive review" of all SWANCC-related cases, and "if we determined that the basis for jurisdiction in a particular case was undermined by SWANCC, we took appropriate action."
Nonsense. If that's true, why has the Justice Department not dropped cases like the one against Mr. Johnson, since even if his cranberry bogs had destroyed wetlands, they would have been isolated ones and clearly outside the jurisdiction of the federal government?
Worse yet, why is Justice appealing favorable lower-court decisions, such as U.S. vs. Newdunn and U.S. vs. Rapanos, where property owners are prevailing because judges are adhering to the clear and unambiguous language and logic of SWANCC? In Newdunn, why did the Justice Department disingenuously claim that SWANCC applied only to the "migratory bird rule"?
Some say the problem is that too many Clintonites are still in control at the federal agencies. Others say the Bush appointees are afraid of the anti-property-rights activists who wrap themselves in the shroud of "environmentalism." Whatever the case, it is clear President Bush is not being well served by his subordinates.
For make no mistake: The anti-property-rights, tax-exempt "environmental" organizations have been actively trying to undermine the Supreme Court's decision. On July 24, 2002, Sen. Russell Feingold, Wisconsin Democrat, and Democratic Reps, James Oberstar of Minnesota and John Dingell of Michigan introduced legislation in the House and Senate that would negate the SWANCC decision.
The legislation which was written by their friends at Earthjustice and the National Wildlife Federation would also delete the term "navigable" from the Clean Water Act, so the federal government would clearly be free to regulate any pothole or mud puddle.
Not surprisingly, propaganda in the war of public opinion is accelerating.
The NWF and the Natural Resources Defense Council have issued a "report" claiming that because of SWANCC, "vast wetland areas will be destroyed, potentially devastating plant and animal life."
They also have published a full-color, 20-page self-serving piece attacking the SWANCC decision, arguing that if the water in an isolated "prairie pothole" could some day, somehow, seep through the ground into a downstream body of water, the pothole should come under federal jurisdiction. Under that theory, every drop of water in the country would be subject to federal jurisdiction and by extension, every piece of private property on which water exists. That is their ultimate goal.
It is time for the White House to act. We urge President Bush to instruct the Justice Department to immediately change its litigation strategies to comply with the SWANCC decision, before this important, hard-won property rights victory is nullified by the liberals in Congress and their anti-property-rights cohorts.
Some are urging the EPA and the Corps to issue new guidelines for its field agents. But that could take months they've already been "working on it" for almost two years. Meanwhile, Charlie Johnson and others who fought on the battlefield for their country are being destroyed by their own government.
The Justice Department can stop this. The Supreme Court has already issued clear guidelines. As the government's attorney, Mr. Sansonetti, has an immediate obligation to come down with a legal opinion that will then reverberate to the policy level at the agencies.

F. Patricia Callahan, a lawyer, is founder and president of the American Association of Small Property Owners.

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide