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Sixth Circuit Struggles to Untangle US Supreme Court Opinion in Rapanos (Wetland Jurisdiction)

By Vorys

On February 6, 2009, the Sixth Circuit Court of Appeals issued an opinion in US v. Cundiff, et al. wherein the Court made significant effort to unravel the three non-majority opinions of the US Supreme Court's Rapanos decision concerning federal wetland jurisdiction.  The case is interesting for the Court's struggle to find guidance from Rapanos.  "Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficultly comes in determining which - if any - of the three main opinions lower courts should look to for guidance."   Id. at p. 8.  After many pages of anguished effort, the Court eventually found that two of Rapanos's three main opinions were met (meeting a majority), and thus a decision could be made without further head-banging.  

Tags: Wetlands, Environment

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