Rescue Needed for Property Rights edict.(COMMENTARY)

Article excerpt


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"? …