Court refuses to return to Rapanos
on Dec 1, 2008 at 10:06 am
The Supreme Court refused on Monday to reopen the issue of the kinds of wetlands that are protected from pollution discharges under the federal Clean Water Act. Without comment, the Court denied review of a Justice Department case and an opposing case on the issue; the cases were sequels to the Court’s splintered 2006 ruling in Rapanos v. U.S. (04-1034). The Court took no action on the new case testing presidential power to detain and hold indefinitely an individual who was seized and is being held without charges inside the U.S. (Al-Marri v. Pucciarelli, 08-368).
The Court asked the U.S. Solicitor General to provide the government’s views on the rights of service station operators to sue to challenge the loss or non-renewal of their franchises from oil companies. The question arises in two cases — Mac’s Shell Service v. Shell Oil (08-240) and Shell Oil v. Mac’s Shell Service (08-372). There is no deadline for the SG’s comments.
The Court’s refusal to consider anew the scope of wetlands protection leaves lower federal courts to continue to struggle over the meaning of the Rapanos decision. The Court in that decision provided three separate approaches to the Clean Water Act’s scope –one embraced by four Justices, one by a different group of four, and one by Justice Anthony M. Kennedy. The Justice Department asked the Court to clear up the matter in U.S. v. McWane (08-233); the other side filed a conditional plea on a Double Jeopardy issue in McWane v. U.S. (08-364). The case now returns to lower courts for a new trial on criminal charges of dumping industrial waste water into a creek next to a pipe-making plant in Birmingham, Ala.
The Court refused to hear three separate cases raising issues about police encounters with motorists, raising these issues:
** Whether police must warn an individual of the right to remain silent if they question that individual while detaining him at the scene of an auto accident. The New Mexico Court of Appeals upheld a requirement of “Miranda warnings” in that situation (New Mexico v. Snell, 08-196).
** Whether police who legally stop a vehicle for a traffic violation may ask a passenger to search her purse if they have no basis for suspecting a crime. The Kansas Supreme Court ruled that police may not seek consent to search a purse if that is unrelated to the reasons for the traffic stop (Kansas v. Smith, 08-245).
** And, whether police, after stopping a car for a noise violation, must warn a suspect of his rights before asking him if there are weapons or anything else dangerous in the car. The Eighth Circuit Court ruled that no such “Miranda warning” is required in that circumstance, because of the “public safety exception” to the warnings mandate (Liddell v. U.S., 08-227).
The Court also declined to hear an appeal testing the constitutionality of juries of fewer than 12 persons to try criminal cases. State courts are split on the meaning of prior Supreme Court rulings on the issue, including Williams v. Florida (1970) and Ballew v. Georgia (1978). The issue was raised anew in Gonzalez v. Florida (08-6833).
