Reply Brief — Joseph David Robertson, Petitioner v. United States

No. 18-609

In the

Supreme Court of the United States

JOSEPH DAVID ROBERTSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITIONER’S REPLY BRIEF

MARK MILLER

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL 33410

Telephone: (561) 691-5000

MMiller@pacificlegal.org

ANTHONY L. FRANÇOIS*

*Counsel of Record

JEFFREY W. MCCOY

TIMOTHY R. SNOWBALL

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

Telephone: (916) 419-7111

TFrancois@pacificlegal.org

ETHAN W. BLEVINS

Pacific Legal Foundation

892 Berkeley Drive

North Salt Lake, UT 84054

Telephone: (425) 576-0484

EBlevins@pacificlegal.org

Counsel for Petitioner

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

ARGUMENT ............................................................... 1

I. THE UNITED STATES OFFERS NO

COMPELLING GROUNDS TO DENY

ROBERTSON’S REQUEST THAT THIS

COURT RECONSIDER RAPANOS ................. 1

II. ROBERTSON’S VOID-FOR-VAGUENESS

DEFENSE AND SUPPORTING ARGUMENTS

WERE RAISED IN THE NINTH CIRCUIT,

ARE APPLICABLE TO THE FACTS OF HIS

CASE, AND FALL WITHIN DIMAYA ............. 5

III. THE GOVERNMENT MISSTATES FACTS,

IGNORES A STATE COURT SPLIT ON THE

QUESTION, AND RELIES UPON LAW THAT

SUPPORTS GRANTING THE PETITION ..... 8

A.

Motion for Judgment of Acquittal

Addressed All Counts ................................. 8

B.

The Government Ignores the State

Court Split on Richardson .......................... 9

C.

The Government Misconstrues

the Question Presented ........................... 10

CONCLUSION.......................................................... 12

ii

TABLE OF AUTHORITIES

Cases

Air and Liquid Systems Corp. v. DeVries,

586 U.S. ____, ____ (2019) ....................................... 7

Decker v. Northwest Environmental Defense Center,

568 U.S. 597 (2013) ................................................. 3

Grayned v. City of Rockford,

408 U.S. 104 (1972) ................................................. 6

Hughes v. United States,

138 S. Ct. 1765 (2018) ............................................. 5

Lebron v. National R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................................. 6

Marks v. United States,

430 U.S. 188 (1977) ................................................. 4

National Ass’n of Mfrs. v. Department of Defense,

138 S. Ct. 617 (2018) ............................................... 3

Ohio v. McGill,

No. 99CA25, 2000 WL 1803650

(Ohio Ct. App. Dec. 8, 2000).................................... 9

Olsen v. Paine, Webber, Jackson & Curtis, Inc.,

806 F.2d 731 (7th Cir. 1986) ........................... 10, 11

People v. Doyle,

765 N.E.2d 85 (Ill. App. Ct. 2002) .......................... 9

Rapanos v. United States,

547 U.S. 715 (2006) ........................................passim

Richardson v. United States,

468 U.S. 317 (1984) ....................................... 8, 9, 11

iii

Sackett v. EPA,

566 U.S. 120 (2012) ................................................. 4

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ..................................... 5, 6, 7

United States v. Gulledge,

739 F.2d 582 (11th Cir. 1984) ................................. 9

United States Army Corps of Engineers v. Hawkes

Co., Inc., 136 S. Ct. 1807 (2016).............................. 4

Whitman v. American Trucking Associations, Inc.,

531 U.S. 457 (2001) ................................................. 7

Yee v. Escondido,

503 U.S. 519 (1992) ................................................. 6

Statutes

18 U.S.C. § 1361 .......................................................... 8

Other Authorities

Gilmer, Ellen,

EPA, Army Corps give up on WOTUS delay rule,

Greenwire, (Mar. 11, 2019), https://www.eenews.

net/greenwire/2019/03/11/stories/1060126937 ....... 3

Hannaford-Agor, Paula L., et al.,

Are Hung Juries a Problem?, National

Center for State Courts (Sept. 30, 2002) ................ 9

Natural Resource Defense Council,

Comment on Proposed Rule Titled “Definition of

‘Waters of the United States’ – Recodification of

Preexisting Rules” (Sept. 27, 2017), https://www.

nrdc.org/sites/default/files/cwr-repealcomments-devine-20170927.Pdf ............................. 3

iv

Pianin, Eric,

EPA Scraps Changes to Clean Water Act,

Washington Post (Dec. 17, 2003), https://www.

washingtonpost.com/archive/politics/2003/12/17/

epa-scraps-changes-to-clean-water-act/a743b32

b8cfc-4b54-8ccaa2ba1e27378c/?utm_term=.4df1a

26c4cf6 ..................................................................... 2

Federal Register

68 Fed. Reg. 1991 (Jan. 15, 2003) .............................. 2

84 Fed. Reg. 4154 (Feb. 14, 2019) .............................. 1

84 Fed. Reg. 4159 (Feb. 14, 2019) .............................. 2

84 Fed. Reg. 4175 (Feb. 14, 2019) .............................. 1

1

INTRODUCTION

Petitioner Joseph David Robertson presents

this Reply in support of his Petition for Writ of

Certiorari.

ARGUMENT

I

THE UNITED STATES OFFERS NO

COMPELLING GROUNDS TO DENY

ROBERTSON’S REQUEST THAT THIS

COURT RECONSIDER RAPANOS

The EPA and Army’s proposed new rule

redefining “navigable waters” does not eliminate the

need for this Court to revisit its decision in Rapanos

v. United States, 547 U.S. 715 (2006). See Opposition

at 28 (citing 84 Fed. Reg. 4154 (Feb. 14, 2019)). First,

the proposed rulemaking acknowledges a range of

uncertainty over what Rapanos requires and that the

agencies are changing their interpretation of Rapanos

in the proposed rulemaking. See 84 Fed. Reg. at 4175

(“The agencies recognize that this is a departure from

prior positions of the Federal government.”). Next,

whether this administration ever adopts a regulation

defining “Navigable Waters” that survives judicial

review, significant questions will remain about the

text and scope of the Act itself. Without a clear

interpretation of the Act, regulated parties, the

Government, and lower courts will face continued

uncertainty over its scope.

The Government does not argue that clearly

interpreting the scope of the Act is an unimportant

question. Nor can it. In the proposed rule, the agencies

admit that the statutory language of the Act has

“spurred substantial litigation testing the meaning of

2

the phrase” “Waters of the United States.” 84 Fed.

Reg. at 4159. They also note that “[h]undreds of cases

and dozens of courts have attempted to discern the

intent of Congress when crafting the phrase” and

“federal courts have established different analytical

frameworks to interpret the phrase, and the

applicable test may differ from state to state.” Id.

The Government implies that the proposed rule

will solve these issues. But it is only a proposal, not

certain to be adopted. In 2003, the agencies proposed

a new regulatory definition of “Navigable Waters.”

68 Fed. Reg. 1991 (Jan. 15, 2003). Eleven months

later, they abandoned that proposed rule. Eric Pianin,

EPA Scraps Changes to Clean Water Act, Washington

Post (Dec. 17, 2003). 1

Even assuming the agencies adopt the new

proposal, it will not resolve the uncertainties about

the Act. Each new administration can tinker with (or

wholesale revise) the definition of “navigable waters,”

because this Court has yet to clearly interpret the

phrase. This administration may adopt one

“analytical framework,” 84 Fed. Reg. at 4159, but

without a clear interpretation of the Act, the next one

is perfectly free to adopt a completely different

framework, and can be expected to.

And if this administration finalizes its proposed

rule, a future administration can easily abandon

defense of that rule in the litigation that is sure to

follow. There is precedent for this in the Army Corps’

original regulations, which were invalidated by a

1Available

at https://www.washingtonpost.com/archive/politics/

2003/12/17/epa-scraps-changes-to-clean-water-act/a743b32b8cfc

-4b54-8cca-a2ba1e27378c/?utm_term=.4df1a26c4cf6.

3

federal district court from whose order the Army

decided not to appeal. See Rapanos, 547 U.S. at 724.

Organizations are already contemplating filing suit if

and when the current administration adopts a new

rule. See Petition at 26 n.6. 2 This is the cycle of

regulatory revision, litigation, and electoral politics

which Robertson’s petition forecasts. See Petition at

24-27. Without some guidance from this Court, a new

rule from the current administration will not end the

continuous litigation over the meaning of “navigable

waters.”

In the past, proposed regulatory changes have

not affected this Court’s decisions in CWA cases. In

Decker v. Northwest Environmental Defense Center,

the EPA adopted an amendment to the stormwater

discharge regulation at issue in the case three days

before oral argument. 568 U.S. 597 (2013). This Court

still decided the case. Id. at 610. Similarly, in National

Ass’n of Mfrs. v. Department of Defense, a proposed

rule to delay the effective date of a CWA regulation

did not prevent this Court from issuing its opinion.

138 S. Ct. 617, 627 n.5 (2018). 3 Proposed regulatory

changes do not change the need to revisit Rapanos.

See also Natural Resource Defense Council, Comment on

Proposed Rule Titled “Definition of ‘Waters of the United States’

– Recodification of Preexisting Rules” at 33 (Sept. 27, 2017),

https://www.nrdc.org/sites/default/files/cwr-repeal-comments-de

vine-20170927.Pdf.

2

3 The agencies finalized that rule following this Court’s decision

in NAM v. DOD, 138 S. Ct. 617 (2018). Legal challenges followed,

two courts enjoined the rule, and on March 8, 2019, the agencies

abandoned their defenses of it, just as with the 1974 regulations.

See Ellen Gilmer, EPA, Army Corps give up on WOTUS delay

rule, Greenwire (Mar. 11, 2019), https://www.eenews.net/

greenwire/2019/03/11/stories/1060126937.

4

That is the case here. Uncertainty remains

about the scope of the CWA. As Chief Justice Roberts

said in Rapanos, “[i]t is unfortunate that no opinion

commands a majority of the Court on precisely how to

read Congress’ limits on the reach of the Clean Water

Act” because “[l]ower courts and regulated entities

will now have to feel their way on a case-by-case

basis.” 547 U.S. at 758 (Roberts, J., concurring). The

district court judge in this case repeated those

sentiments during Robertson’s sentencing. See

Appendix D-2–D-3.

The district court judge also considered this

case an ideal vehicle to clarify the scope of the Act:

“there is a remarkably complete and good record made

in this case . . . to raise this serious legal question.”

Appendix D-2. While the district judge felt bound by

previous Ninth Circuit precedent on the issue, he

recognized that the question “does require an answer”

and encouraged this Court to issue that answer.

Appendix D-2–D-3.

The Government attempts to downplay the lack

of clarity by citing various circuit court cases

interpreting Rapanos. Opposition at 5-6. These cases

are of limited value. All but one were decided prior to

Sackett v. EPA, 566 U.S. 120 (2012), and United States

Army Corps of Engineers v. Hawkes Co., Inc., 136 S.

Ct. 1807 (2016), where several members of this Court

expressed concern about the uncertain nature of the

Act. See Petition at 15-16.

Furthermore, these circuit court cases do not

offer a clear interpretation of the Act itself. They

merely attempt to apply Marks v. United States,

430 U.S. 188 (1977), and many of the lower courts

disagree on how to do so. See Petition at 28-29. The

5

Opposition merely highlights how scattered are the

circuit courts’ efforts to make sense of fractured

opinions like Rapanos, and the importance of this

Court’s review to replace such decisions with clear

majority opinions as it did last term in Hughes v.

United States, 138 S. Ct. 1765 (2018).

II

ROBERTSON’S VOID-FOR-VAGUENESS

DEFENSE AND SUPPORTING ARGUMENTS

WERE RAISED IN THE NINTH CIRCUIT, ARE

APPLICABLE TO THE FACTS OF HIS

CASE, AND FALL WITHIN DIMAYA

Robertson pressed his void-for-vagueness

defense at the Ninth Circuit. See Appellant’s Opening

Brief, Ninth Circuit case no. 16-30178, Docket Entry

19-1, at 19-26 (laying out void-for-vagueness defense).

And, the Ninth Circuit passed on this defense in its

opinion below. Pet. App. A-19–A-20 (rejecting same).

Robertson also presented his argument to the

Ninth Circuit that the Rapanos concurrence is voidfor-vagueness. See Appellant’s Opening Brief at 13

(trial court’s jury instruction based on Rapanos

concurrence was over Mr. Robertson’s objection that

statutory term “waters of the United States” violates

Due Process on vagueness grounds); id. at 22-23 (rule

of lenity requires adoption of Rapanos plurality over

concurrence to satisfy Due Process notice

requirements).

Even if Robertson had not raised this precise

argument below, he raised the defense of void-forvagueness, and this Court’s “traditional rule is that

‘“[o]nce a federal claim is properly presented, a party

can make any argument in support of that claim;

6

parties are not limited to the precise arguments they

made below.”’ Lebron v. National R.R. Passenger

Corp., 513 U.S. 374, 378-79 (1995) (quoting Yee v.

Escondido, 503 U.S. 519, 534 (1992)).

Robertson’s Petition emphasizes the facts to

which the void-for-vagueness analysis applies in this

case. Petition at i (foot-wide channel with 2-3 garden

hoses worth of flow, 40 miles from nearest navigable

river), id. at 8-9 (same, in greater detail). How the

words “navigable waters” could give constitutionally

adequate notice that they include a nameless, footwide channel in the middle of the Montana woods, 40

miles from the Jefferson River, is precisely the

question raised by the Petition. Nor does the Rapanos

concurrence give fair notice of what other water

features are “similarly situated” with the nameless

trickle in question, or what the applicable “region” is

within which its “situation” is “similar” to other

features.

The opinions of agency staff cannot cure

constitutionally inadequate notice in a statute.

Indeed, the purpose of the void-for-vagueness doctrine

is to ensure that criminal enforcement is not left to the

arbitrary judgment of enforcement authorities. See

Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972) (“[a] vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis”); see also

Sessions v. Dimaya, 138 S. Ct. 1204, 1227-28 (2018)

(Gorsuch, J., concurring in part and concurring in

judgment) (vague laws “threaten to transfer

legislative power to police and prosecutors, leaving to

them the job of shaping a vague statute’s contours

through their enforcement decisions”). The Opposition

7

offers no argument that the statute itself gives fair

notice that it applies to nameless foot-wide channels

with a few garden hoses worth of flow, 40 miles

upstream from the nearest navigable-in-fact river.

“People should be able to find the law in the books;

they should not find the law coming upon them out of

nowhere.” Air and Liquid Systems Corp. v. DeVries,

586 U.S. ____, ____ (2019), slip op. at 8 (Gorsuch, J.,

dissenting).

The Government incorrectly argues that this

Court’s decision in Dimaya is inapplicable because it

only applies to legal determinations regarding “judgemade abstractions” not involving “real world facts.”

This argument ignores the obvious: the Rapanos

concurrence itself is a “judge-made abstraction.” Its

200-word paragraph laying out the details of the

significant nexus test, Rapanos, 547 U.S. at 779-80

(Kennedy, J., concurring in judgment), is entirely

extrapolated from two words in the Clean Water Act:

“navigable waters.” 4 Id. at 755 (“Only by ignoring the

text of the statute and by assuming that the phrase

. . . (‘significant nexus’) can be properly interpreted in

isolation from that text does Justice Kennedy reach

the conclusion he has arrived at.”).

And within the Rapanos concurrence,

“similarly situated” and “region” are abstractions,

whether “judge-made” or “agency-staff made.” See

Petition at 19-21. Because the concurrence provides

no standards by which to determine what is similarly

situated or what the region is, these factors are

4 The significant nexus test is also a lot of elephant to hide in a

two-word mousehole. Whitman v. American Trucking

Associations, Inc., 531 U.S. 457, 468 (2001).

8

perforce abstract constructs, not “real world facts.”

See id.

III

THE GOVERNMENT

MISSTATES FACTS, IGNORES

A STATE COURT SPLIT ON THE

QUESTION, AND RELIES UPON LAW THAT

SUPPORTS GRANTING THE PETITION

On Robertson’s third question, the Opposition

misstates the facts in order to draw wrong conclusions

of law, and diminishes the conflict among lower state

and federal courts on the application of Richardson v.

United States, 468 U.S. 317 (1984). It also counsels in

favor of granting the Petition on the third question

presented.

A.

Motion for Judgment of

Acquittal Addressed All Counts

The Government incorrectly states that a

ruling in Robertson’s favor would have no “practical”

effect on the sentence he has already received.

Opposition at 26. It contends that relief on his motion

for judgment of acquittal at the first trial—if reviewed

on appeal following the second trial as it should have

been—would not affect his sentence because he “does

not challenge his conviction for injuring property of

the United States, in violation of 18 U.S.C. § 1361,”

Opposition at 26-27, and that count alone could have

led to the same result he obtained when convicted of

all three counts.

But that is factually wrong. Robertson moved

for a judgment of acquittal on all three counts—

including the second count of injuring property of the

United States. Pet. App. H-2. Thus, one of the

9

Government’s primary arguments against granting

the Petition is premised on a misstatement of the

facts.

B.

The Government Ignores the State

Court Split on Richardson

The Petition’s third question presents a legal

issue with significant consequences for criminal

defendants that the lower courts resolve in two

starkly different ways. One path allows for legal

review of the sufficiency of the evidence presented by

the Government after a final judgment in the

Government’s favor, see, e.g., United States v.

Gulledge, 739 F.2d 582, 584 (11th Cir. 1984), and the

other path prevents a defendant from ever

questioning whether the Government failed to meet

its evidentiary burden in presenting its case for the

first time; the path the lower court took here. Only one

path can be correct.

This split goes beyond the federal courts and

also roils the state courts, a state-court split the

Petition identifies but the Government ignores. Some

state courts currently allow post-judgment review of

first trial sufficiency rulings, see, e.g., Ohio v. McGill,

No. 99CA25, 2000 WL 1803650, at *6-9 (Ohio Ct. App.

Dec. 8, 2000), while others expressly rely on

Richardson and reject review of first-trial motions for

judgment of acquittal. See, e.g., People v. Doyle, 765

N.E.2d 85, 91 (Ill. App. Ct. 2002). Given that mistrial

rates in state courts, which hear more than 50,000

criminal trials each year, are even higher than in

federal courts, this Court’s resolution of this question

is needed. See Paula L. Hannaford-Agor, et al., Are

Hung Juries a Problem? 19-27, National Center for

State Courts (Sept. 30, 2002). Defendants in state

10

court deserve review of this question as much as

Robertson and other federal defendants do.

C.

The Government Misconstrues

the Question Presented

The Government confuses the question

presented by claiming that a motion for judgment of

acquittal is mooted by a final judgment, just like other

motions are mooted by a final judgment in other

circumstances. The Government quotes a single case

to make this argument—Olsen v. Paine, Webber,

Jackson & Curtis, Inc., 806 F.2d 731 (7th Cir. 1986).

Opposition at 24. But Olsen supports Robertson’s

position.

The parties in Olsen were in a dispute over a

brokerage agreement that included an arbitration

clause. 806 F.2d at 733. The trial court stayed the

litigation and ordered the parties to arbitration. Id.

But before the arbitration began, the appellant

appealed the order as well as the stay, contending she

should not have to participate in the arbitration. Id.

The Seventh Circuit held that the interlocutory order

sending her case to arbitration was not appealable

because there was a possibility that the appellant

would be satisfied with the outcome in arbitration, the

case would reach a final judgment that did not

aggrieve her, and no appeal would ever be needed,

thus conserving judicial resources. Id. The

interlocutory appeal did not meet collateral order

criteria. Crucially, Judge Posner explained that if the

appellant did not like the ultimate outcome at the end

of the case, then she could “unquestionably” appeal

the final judgment, “raising among other issues the

question whether the arbitration was valid.” In other

words, the arbitration order she wanted to appeal

11

immediately would ultimately be appealable if need

be.

This portion of the Olsen decision counsels in

favor of Robertson’s Petition and supports his

argument about what Richardson means. In

Richardson this Court held consistently with Olsen,

that a defendant could not immediately appeal the

denial of the motion for judgment of acquittal before

the final judgment in the second trial was reached.

There was a possibility that Richardson would be

found not guilty after all—making the denial of the

motion for judgment of acquittal in the first trial moot.

But to follow Olsen’s logic, if Richardson was

convicted, then ultimately he would have been able to

appeal that original denial of the motion for judgment

of acquittal. As Olsen says, the right to appeal an

earlier decision reached before final judgment is

“unquestionably” appealable after the final judgment.

So it should be here. Richardson holds the defendant

cannot immediately appeal the denial of the motion

for judgment of acquittal. But it does not say he never

can appeal that order. That is a misinterpretation of

Richardson, and the Olsen decision supports, rather

than counsels against, granting the Petition.

12

CONCLUSION

The Petition should be granted.

DATED: March, 2019.

Respectfully submitted,

MARK MILLER

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL 33410

Telephone: (561) 691-5000

MMiller@pacificlegal.org

ANTHONY L. FRANÇOIS*

*Counsel of Record

JEFFREY W. MCCOY

TIMOTHY R. SNOWBALL

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

Telephone: (916) 419-7111

TFrancois@pacificlegal.org

ETHAN W. BLEVINS

Pacific Legal Foundation

892 Berkeley Drive

North Salt Lake, UT 84054

Telephone: (425) 576-0484

EBlevins@pacificlegal.org

Counsel for Petitioner