February 5, 2009
New 6th Circuit Rapanos decision
A frequent reader who practices in the Sixth Circuit saw this 6th Circuit application of the Rapanos case and passed some comments along:
U.S. v. Cundiff
The Court (Judges Martin, McKeague, and a District Judge Collier, with Martin writing for a unanimous panel (that lineup and the unanimity is interesting alone to me and I would guess other Sixth watchers)) held that, under Rapanos, the government had jurisdiction over the defendant's wetlands in Kentucky. The Court discussed the Marks-Rapanos problem at length (some fascinating discussion, along with a sharp rebuke of the Pacific Legal Foundation's view that the plurality test controls in a footnote), but did not make a final decision because it decided that jurisdiction was proper under both the plurality and Kennedy tests. The application of the plurality and Kennedy tests was also lengthy and interesting.
Also interesting was this footnote, describing the status of the property in Muhlenberg County, KY. (If you've ever been there, this is pretty accurate.)
"1 Singer-songwriter John Prine has colorfully recounted Muhlenberg County’s sordid ecological history:
"And daddy won’t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .
"JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971)."
Thanks again -- I grew up singing to Paradise.
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