Interstate dominanace over domesitc waters. The case of Gerke Excavating Inc v. United States

That prudent advice stems from a recent filing at the Supreme Court. The case is Gerke Excavating Inc. v. United States. It involves one more grab for power by the Army's Corps of Engineers.

The Corps long ago asserted its dominion over all domestic waters "which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce." Not content with interstate jurisdiction, which might rest upon a plausible constitutional foundation, the Corps currently asserts power by it own regulations over:


"All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce."

Are birdbaths next? Children's play pools? The rhetorical questions are writ sarcastick — but in the pending Gerke case the sarcasm surely is deserved. The case involves a piddling little 5.8-acre piece of land in Tomah, Wis. (pop. 8,525), an hour's drive east of LaCrosse. A jurisdictional link to the Commerce Clause is a link of limp spaghetti.

This is the pasta tie: On the west side of the tract is a drainage ditch. This ditch is non-navigable. It runs, when it runs at all, into a creek. The creek also is non-navigable. It trickles into the Lemonweir River. The river too is non-navigable, but it feeds into the Wisconsin River, a navigable source that finally flows, interstate-wise, into the mighty Mississippi. You can hear the cri de Corps: Praise the Lord! Now we got jurisdiction!

In its opinion last June in the Gerke case, a panel of the 7th Circuit professed no interest in such geography. "Obviously," said Judge Richard Posner, "filling in a 5.8-acre tract is not going to have any measurable effect on the depth of the Wisconsin or Mississippi rivers." Then, having given the game away, Posner took it back. "The sum of many small interferences with commerce can be large, and to protect commerce Congress must be able to regulate an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect." And there go the ice tray and the family tub. They're become waters of the United States.

The Supreme Court very probably will put the Gerke case from Wisconsin on hold for a few months. On Feb. 24 the court will hear argument in two cases from Michigan that present the same questions of federal jurisdiction. One case dates from 1988, when John and Judith Rapanos sought approval for their plan to develop three parcels of land in Bay, Midland and Saginaw counties. The other dates from 1993, when June and Keith Carabell and others applied for permission to build condominiums on 19.6 acres in Macomb County.

Both proposals have foundered on the rocks of Corps of Engineers' disapproval: The Carabells' proposed construction, said the feds, would have "a significant adverse impact" upon identifiable wetlands. The owners argued in vain that their project had no "significant nexus" with navigable waters. It has only "a minimal hydrological connection."

The Rapanos case presents essentially the same questions of federal jurisdiction. One of the three tracts at issue is more than 20 miles from the nearest navigable waterway. Even so, the evidence disclosed "the presence of a hydrological connection." Rapanos accordingly was denied permission to proceed. For the past 17 years, under threat of imprisonment, he has been fighting the feds — and losing all the way.

In considering the two Michigan cases, the court necessarily will reconsider its 5-4 decision five years ago in a pond-and-puddle case from Cook County, Ill. The late Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Thomas and Kennedy, prevailed over the usual four, i.e., Justices Stevens, Souter, Ginsburg and Breyer. Now Chief Justice John Roberts has succeeded Rehnquist and Judge Samuel Alito probably will be confirmed to succeed O'Connor.

You may have sensed that I'm pulling for the property owners to get a life under state regulation. Michigan and Wisconsin are perfectly capable of doing all that needs to be done to protect their own — what's that term of art? — their own hydrological connections.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com)

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