Camera Lucida

February 19, 2006

Upcoming property rights decisions

Filed under: Constitutional law — CL @ 10:07 am

The most significant property rights case of the current term of the U.S. Supreme Court is to be argued on Tuesday, February 21. In the companion cases of Carabell v. U.S. Army Corps of Engineers and Rapanos v. United States, both of which are on appeal from decisions of the Sixth Circuit Court of Appeals, the petitioners are challenging the authority of the ACE to regulate wetlands well away from the navigable waters of the United States.

Over the last ten years, the Federal government’s regulation of wetlands has grown, as the ACE has claimed very extensive authority in this area, which is typically regulated by the states. The ACE’s assertion of authority is premised on a statutory prohibition, contained in the Clean Water Act, against the discharge of any “pollutants, including dredged or fill material” into the navigable waters of the United States without a permit from the ACE.

The Court decided in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) and in Solid Waste Agency Of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) that the regulations adopted by the ACE were a reasonable exercise of the authority conferred under the Clean Water Act. In the Solid Waste Agency case, however, the Court ruled that the ACE did not have the authority to regulate “isolated ponds”.

LII has posted an extensive analysis of these cases and the issues they present, with links to several of the briefs, at http://www.law.cornell.edu/supct/cert/04-1034.html. The analysts note that these two cases will offer the Court the opportunity to refine or redefine the meaning of waters that are “adjacent” to navigable waters.

And the Endangered Species & Wetlands Report has a web page including links to briefs and other resources relating to the case. (Pointer by How Appealing)

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