The Supreme Court ruled in favor of two Michigan land owners who maintained that fish had no right to swim in the water on their property and, as a result, the developers should be able to grace the wetlands with a shopping mall and a condominium.
Until now, the courts had generally maintained that fish have certain inalienable rights and that among them is the right to swim in and out of any waterway they can navigate.
The ruling was, however, not the resounding victory the land owners had hoped for, because it only applied to newly arriving fish; the ones already located in the wetlands could continue to swim there.
The splintered outcome opened the dam to more litigation in the lower courts, and attorneys for the ACLU vowed to defend the rights of all fish to enter and exit any wetland at will.
The ruling also muddies the Clean Water Act and may spur debate on whether or not fish should be permitted to swim in water at all, since their presence may shock people who look into a glass of water before they drink it.
Coming down solidly against the fish, Justice Scalia maintained that fish rights had gone “beyond parody,” because they now seemed to cover even “man-made drainage ditches and dry arroyos in the middle of the desert.”
Justice Stevens, however, wrote that the wetlands “had surface connections to tributaries of traditionally navigable waters” and so the fish should be able to swim there without undue hindrance.
Justice Souter wondered why Congress would permit fish in rivers but rule them out of waterways and wetlands that feed them, maintaining, “All you’ve got to do is let a fish swim into a tributary before you can arrest it for trespassing.”
But Justice Scalia shot back that such logic would grant fish the right to swim in “a storm drain, because during heavy rains it could be considered navigable.” He went on to say, “I suggest it’s absurd to call storm drains ‘waters of the United States.’ They’re drainage ditches. When it comes to waters of such magnitude, we should confine the swimming rights of fish to goldfish bowls.”