09/18/2002
The NFIB Legal Foundation took its fight against overzealous regulation to the courts today. In a brief filed with the 6th Circuit, the NFIB Legal Foundation is supporting a businessman who the Army Corps of Engineers criminally prosecuted for developing his private land--land that the U.S. Supreme Court has said the Corps has no authority to regulate.
"The government is concocting creative legal theories for sweeping more and more private land under its regulatory jurisdiction and criminally prosecuting small-business owners for developing their own land," said NFIB Legal Foundation Executive Director Karen Harned. "This brief fights to limit the Corps' efforts to regulate essentially any land that collects water, be it a ditch, creek or puddle."
The NFIB Legal Foundation joined, among others, the National Association of Home Builders and the National Association of Realtors, in filing an amici curiae brief in U.S. v. Rapanos, asking the 6th Circuit Court of Appeals to affirm a district court decision vacating Rapanos' conviction for "filling" property located 20 miles away from any navigable water.
In a 2001 decision--Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)--the U.S. Supreme Court held that the Clean Water Act only extends to "navigable waters." In light of that decision, the U.S. Supreme Court asked the lower court to reexamine Rapanos' conviction. Earlier this year the District Court for the Eastern District of Michigan held that the wetlands on Rapanos' property "were not directly adjacent to navigable waters" and, consequently, not subject to regulation by the Corps. As a result, the court held that Rapanos' criminal conviction should not stand. The government has appealed the district court decision.
In the brief, the NFIB Legal Foundation cites longstanding precedent that: (1) legislatures--not the courts--should determine if an activity is criminal; (2) when there is ambiguity concerning the scope of a criminal statute, it should be resolved in favor of lenity; and (3) all persons should receive fair warning as to what conduct is criminal.
"Under the laws of the land, a developer placing fill on property 20 miles away from any navigable water does not, and should not reasonably expect to have to ask the Corps' permission first." Harned said. "It is amazing that the government continues to pursue this criminal prosecution after the U.S. Supreme Court's decision in SWANCC and a finding in favor of Rapanos by the District Court. This case is important not just to Rapanos but to the more than 20,000 NFIB members that own construction firms and deserve to make an honest living without fear of criminal prosecution."
CONTACT: Michelle Dimarob, (202) 554-9000
