Court Quips

Court Scolds the Government on its Behavior

Development Makes the World Go Around ... or ... Maybe Not

Court Scolds the Government on its Behavior

During the March 15 sentencing hearing for John Rapanos, a builder from Michigan found to have violated the Clean Water Act by filling wetlands without a permit, the U.S. District Court of Michigan sentenced John Rapanos to time served of three years of probation, community service, and a fine of $185,000. 

The Hon. Lawrence Zatkoff expressed his displeasure with this case, noting that it is the oldest case in his chambers and is the most voluminous.  In addition, Judge Zatkoff stated outright that he did not believe Mr. Rapanos received a fair trial.  Moreover, Judge Zatkoff said, it is his opinion that the federal government pursued this case in the way it did because Mr. Rapanos “had the audacity and the temerity to insist upon his constitutional rights.”  The Court also compared other environmental prosecutions brought by the federal government and noted that defendants were rarely sentenced to prison.  For example, the court noted that these were civil cases only, not criminal – and found that Mr. Rapanos’s sentence was by far the most involved – particularly since the government sought a 10 to 16 month jail sentence, even after the U.S. Supreme Court found the federal sentencing guidelines unreasonable.

In expressing his disagreement with the government's insistence on imprisonment as part of Mr. Rapanos's sentence, Judge Zatkoff said, "And, in my opinion, the government has failed to address similar conduct in sentencing consequences."  He then identified other enviromental cases where the government sought much lighter penalties.  First, he identified two men who were sentenced to one year probation and ordered to pay a $5000 fine and restore the wetlands.  In another case, two developers were similarly ordered to pay a $5000 fine and received a year of probation after clear-cutting, plowing and destroying eight acres of forested wetlands.  In a third case involving BP Oil Company, Judge Zatkoff noted that the U.S. Department of Justice only brought civil charges against BP, and that ultimately, it was fined and told to clean up its facility after dumping a variety of pollutants (including oil and grease) into the Delaware River.  As a final example, Judge Zatkoff point out that the captain of the Exxon Valdez, involving "perhaps the most notorious American environmental disaster of the 20th Century," was "prosecuted and convicted of negligence" and sentenced to serve 1000 hours of community service over a five-year period with no fine or prison time. 

Development Makes the World Go Around ... or ... Maybe Not

A case that has been going on since the early 1990s might finally be affecting the development industry in Monroe County, Florida.  In 1990, environmental groups, in the name of the Key Deer, brought suit against the Federal Emergency Management Agency (FEMA) for failing to meet its “consultation” obligations under the Endangered Species Act (“ESA”).  The ESA requires federal agencies to consult with the Fish and Wildlife Service to insure that their actions neither jeopardize nor adversely modify the critical habitat of endangered species.  In 1994, Judge Moore of the Southern District of Florida ordered FEMA to consult over its flood insurance program.  FEMA complied, and the outcome of the consultation was a 1997 biological opinion that established a review process of certain building permits.  Subsequently, in 2003, the biological opinion was amended.  However, it was very similar to the 1997 biological opinion. 

In 2003, the environmental groups reinitiated their suit and challenged the 2003 biological opinion.  In March 2005, Judge Moore found that the biological opinion violated the ESA and in April held a status conference to discuss remedies.

At the status conference, the attorney for the environmental groups requested that the judge enjoin the issuance of flood insurance in areas of Monroe County where any of six endangered species could be impacted.   Seeming to side with the environmental groups, the judge said:

“[L]et’s play it out.  I mean, if the injunction is issued as they have requested, my guess is that you would file your notice of appeal and you would probably move to stay the enforcement of the injunction during the pendency of the appeal.  And, assuming that the stay was denied, then the injunction would prohibit the issuance of flood insurance in that area during the pendency of the appellate review.”

Recognizing that if FEMA can not issue flood insurance then construction projects can not move forward Judge Moore further provided: 

“Is there something earth shattering about that? I mean, is the world going to stop turning ....”  [ return to top ]