October 21, 2005

All right, so maybe it’s not in the backyard, but it’s a wet spot and in their mind it’s their wet spot, not the federal government’s. The Supreme Court is set to shake all this out, in case you thought wet spots were trifling matters.

What we (and they) are talking about is the preservation of wetlands and who has or hasn’t the right to make them dry. Most of us think that draining a swamp is a good idea, but the federal position is that wetlands are a part of the commonwealth ecosystem, something that belongs to us all and are protected by the Clean Water Act.

Which was probably a mistake and too broad an interpretation.

What we needed and didn’t get was a wetlands protection statute. But the Court often finds itself in this position, running up and down the sidelines, refereeing a mismatched game. Wetlands and clean water are connected, but the structure the government has chosen to enforce its position relies on interstate commerce and waters that support recreation or shipping.

To drain my swamp? Are you kidding? You gotta be kidding.

Once again the Feds are knocking on the court's door to accomplish something worth while with laws that are not meant to do it. Quite likely they will lose and the environmental people will scream and rage as environmental people are wont to do. They should instead lobby the Congress for decent wetland legislation and stop misusing a minnow or frog to hold back the Darth Vaders of commerce.

Saving old growth timber by enlisting the unwitting help of the Spotted Owl is wrong and, because it is wrong, people on both sides of a very worthwhile issue have come to blows.

The same kind of foolishness is shaping up with wetlands. They need to be saved, but not by applying wrong law. Protecting a wetland threatened by a developer who wants to dry it up to build a supermarket is a good idea, but making the ludicrous claim that interstate commerce will be affected by his choice is just plain dumb.

Let’s face it, ownership of land is a problem in and of itself. On the one hand, our home is our castle and the sanctity of private property is basic to our freedoms. But we’re such short-term owners, we're not indicidually very good stewards of long-term value to society. We move on as quickly as profit or convenience allow.

Over a lifetime, I have owned some thirteen houses. Owned them legally right down to the center of the earth and, within the limits of my mortgages, had the right to do pretty much as I wanted with them and the land upon which they stood. But a house is a house, it's not a wetland or an old-growth forest.

How did I come to own them? The obvious answer is I bought them, but the cosmic answer is pretty twisty. Basically, American land was taken from those who had it before us, either by force or purchase. It’s the ability of my government to hold off all comers that guarantees me title.

Title is a modern concept, a bargain, struck in an eyewink of human history. It's an agreement, backed by the force of government. So private ownership and public good are in some ways, maybe many ways, at odds with each other.

I can drain the swamp and move on, most likely at a profit, cut the timber and do the same. Any fool with a chain saw can cut down a tree in ten minutes that took a hundred years to grow. I could have a short-term goal that may not (and usually does not) square with the long-term public good.

But should I be stopped?

Yeah, I think so, but I also think we need to talk about that nationally and turn down the volume of the rhetoric a bit. It is a certainty that cutting the last of our old-growth timber, paving over small-area wetlands, building on inhospitable barrier islands, pumping down the public water tables, diverting rivers to irrigation, allowing coal power generation and a host of other activities are not friendly to our long-term health and happiness. All have various impacts on private rights.

The right to be left the hell alone, in comfort and health cannot help but infringe to some degree on the right to private profit. How we face that and what compromises are made in the process are really earth-shaking issues. The Supreme Court will no doubt make various rulings on the constitutional issues raised.

That job is really a tough call for the Court and made a lot tougher when the law is bent to serve a worthwhile purpose in an underhanded way.

Get out of the Archives and read what Jim's writing today