Opposition Brief — Tin Cup, LLC, Petitioner v. Army Corps of Engineers

No. 18-790

In the Supreme Court of the United States

TIN CUP, LLC, PETITIONER

v.

ARMY CORPS OF ENGINEERS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Assistant Attorney General

JENNIFER NEUMANN

DAVID GUNTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the U.S. Army Corps of Engineers permissibly determined that certain portions of petitioner’s

property contain wetlands, and that a permit is therefore required under the Clean Water Act, 33 U.S.C.

1251 et seq., for any discharge of certain materials.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 11

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Atlantic Fish Spotters Ass’n v. Evans,

321 F.3d 220 (1st Cir. 2003) ............................................... 12

Auburn Hous. Auth. v. Martinez, 277 F.3d 138

(2d Cir. 2002) ....................................................................... 12

Building & Constr. Trades Dep’t, AFL-CIO v.

Martin, 961 F.2d 269 (D.C. Cir.), cert. denied,

506 U.S. 915 (1992).............................................................. 12

Chiles v. Thornburgh, 865 F.2d 1197

(11th Cir. 1989) .................................................................... 12

Dalton v. Little Rock Family Planning Servs.,

516 U.S. 474 (1996).............................................................. 12

Lincoln v. Vigil, 508 U.S. 182 (1993) ................................... 13

Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91 (2011) ...... 16

Minis v. United States, 40 U.S. (15 Pet.) 423 (1841) ..... 9, 11

Russello v. United States, 464 U.S. 16 (1983) ..................... 13

Salazar v. Ramah Navajo Chapter, 567 U.S. 182

(2012) .................................................................................... 12

Seattle Audubon Soc’y v. Evans, 952 F.2d 297

(9th Cir. 1991) ...................................................................... 12

Smithsfork Grazing Ass’n v. Salazar,

564 F.3d 1210 (10th Cir. 2009) ........................................... 12

(III)

IV

Cases—Continued:

Page

Solid Waste Agency of N. Cook Cnty. v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001) ............ 2

United States v. Bailey, 571 F.3d 791 (8th Cir. 2009)........ 18

United States v. IBM, 892 F.2d 1006

(Fed. Cir. 1989) ................................................................... 12

United States v. Vulte, 233 U.S. 509 (1914) ........................ 12

Statutes and regulations:

Clean Water Act, 33 U.S.C. 1251 et seq.:

33 U.S.C. 1311(a) ............................................................... 2

33 U.S.C. 1344(a) ....................................................... 1, 2, 6

33 U.S.C. 1362(6) ........................................................... 2, 6

33 U.S.C. 1362(7) ......................................................... 2, 19

33 U.S.C. 1362(12) ............................................................. 2

Energy and Water Development Appropriations Act

of 1992, Pub. L. No. 102-104, 105 Stat. 510 ........................ 4

105 Stat. 518 ....................................................................... 4

Energy and Water Development Appropriations Act

of 1993, Pub. L. No. 102-377, 106 Stat. 1315 ...................... 4

106 Stat. 1324 ................................................4, 8, 10, 13, 15

106 Stat. 1325 ................................................................... 13

106 Stat. 1330 ................................................................... 13

106 Stat. 1331 ................................................................... 13

106 Stat. 1332 ................................................................... 13

106 Stat. 1338 ................................................................... 13

106 Stat. 1339 ................................................................... 13

106 Stat. 1342 ................................................................... 13

106 Stat. 1343 ................................................................... 13

31 U.S.C. 1301(c)(2) ............................................................... 12

V

Regulations—Continued:

Page

33 C.F.R. (2014):

Section 328.3(a)(1) ............................................................. 2

Section 328.3(a)(7) ............................................................. 2

Miscellaneous:

GAO, Principles of Federal Appropriations Law

(4th ed. 2016) ................................................................. 12, 13

S. Rep. No. 344, 102d Cong., 2d Sess. (1992) ...................... 16

U.S. Army Corps of Eng’rs:

Regional Supplement to the Corps of Engineers

Wetland Delineation Manual: Alaska

Region (Version 2.0) (2007) ........................................ 5

Wetlands Delineation Manual (1987) ............................ 3

In the Supreme Court of the United States

No. 18-790

TIN CUP, LLC, PETITIONER

v.

ARMY CORPS OF ENGINEERS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1A27) is reported at 904 F.3d 1068. The opinion of the

district court (Pet. App. B1-B28) is not published in the

Federal Supplement but is available at 2017 WL 6550635.

JURISDICTION

The judgment of the court of appeals was entered on

September 21, 2018. The petition for a writ of certiorari

was filed on December 18, 2018. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner, the owner of a property in Alaska, sought

a Clean Water Act (CWA) permit from the U.S. Army

Corps of Engineers (Corps) in connection with a proposed construction project. Pet. App. A7; see 33 U.S.C.

1344(a). Petitioner and the Corps disagreed on the

(1)

2

methodology that should be used to determine the extent of wetlands on petitioner’s property. Petitioner

contended that appropriations statutes enacted for fiscal years 1992 and 1993 required the Corps to use specific provisions of a 1987 manual. The Corps instead

used a supplement to the 1987 manual that contained

wetlands-determination criteria tailored to Alaska. Pet.

App. A8. The district court concluded that the Corps

had permissibly relied on the Alaska supplement. Id. at

B18-B27. The court of appeals affirmed. Id. at A1-A27.

1. a. The CWA generally prohibits “the discharge

of any pollutant” without an appropriate permit.

33 U.S.C. 1311(a). As relevant here, the “discharge of ”

a “pollutant” means the “addition of any pollutant to

navigable waters.” 33 U.S.C. 1362(12). The term “pollutant” encompasses “dredged” or fill material such as

gravel or sand, 33 U.S.C. 1362(6), and the term “navigable waters” includes “the waters of the United States,”

33 U.S.C. 1362(7).

Permits “for the discharge of dredged or fill material

into the navigable waters” may be issued by the Corps

on behalf of the Secretary of the Army. 33 U.S.C.

1344(a); see, e.g., Solid Waste Agency of N. Cook Cnty.

v. United States Army Corps of Eng’rs, 531 U.S. 159,

163 (2001). The Corps has promulgated numerous regulations to govern the issuance of such permits. At the

times relevant here, the Corps’ regulations defined waters of the United States to encompass, inter alia, traditional navigable waters, which include waters susceptible to use in interstate commerce, see 33 C.F.R.

328.3(a)(1) (2014), and “[w]etlands adjacent” to traditional navigable waters, 33 C.F.R. 328.3(a)(7) (2014).

In addition to its regulations, the Corps has produced detailed manuals to assist its field personnel in

3

determining whether a particular area is a “wetland”

for purposes of the CWA permitting requirement. Of

particular relevance here, the Corps’ 1987 Wetlands Delineation Manual (1987 Manual) identifies three key elements of wetlands: (1) the presence of hydrophytic

vegetation (i.e., vegetation adapted to saturated soil),

(2) the presence of hydric soils, and (3) certain hydrology conditions, such as the saturation of soil “during the

growing season.” 1987 Manual 9-10. With respect to

the third element (hydrology conditions), an appendix

to the 1987 Manual defines a “growing season” as the

“portion of the year when soil temperatures at 19.7”

inches “below the soil surface” are higher than five degrees Celsius. Pet. App. A5.

The 1987 Manual recognizes that “[c]ertain wetland

types, under the extremes of normal circumstances,

may not always meet all the wetland criteria defined in

the manual,” and that “such wetland areas may warrant

additional research to refine methods for their delineation.” 1987 Manual 5. In particular, the Manual identifies the third of the criteria, hydrology conditions, as

“often the least exact of the parameters” for defining a

wetland. Id. at 29. The Corps subsequently clarified

that, “although the soil temperature factor noted in the

appendix of the 1987 Manual was the ‘primary’ definition of growing season, ‘local means of determining

growing season may be more appropriate and can be

used.’ ” Pet. App. A25 (Bea, J., concurring in the judgment) (citation omitted).

b. In 1989, a committee of federal agencies, including the Corps, adopted a new wetlands-delineation manual designed “to supersede the 1987 Manual.” Pet. App.

A4. That 1989 Manual “employed less stringent meth-

4

ods for delineating * * * wetlands than the 1987 Manual.” Id. at A5. “In response to complaints from business groups and legislators,” however, “Congress limited the use of the 1989 Manual in the” Energy and Water Development Appropriations Act of 1992 (1992

Budget Act), Pub. L. No. 102-104, 105 Stat. 510. Pet.

App. A5. Specifically, the 1992 Budget Act “prohibited

the use of funds to delineate wetlands under the 1989

Manual ‘or any subsequent manual not adopted in accordance with the requirements for notice and public

comment of the rulemaking process of the Administrative Procedure Act.’ ” Ibid. (quoting 105 Stat. 518). The

1992 Budget Act “also required the Corps to use the

1987 Manual to delineate any wetlands in ongoing enforcement actions or permit application reviews.” Ibid.

The following year, Congress enacted the Energy

and Water Development Appropriations Act of 1993

(1993 Budget Act), Pub. L. No. 102-377, 106 Stat. 1315.

The 1993 Budget Act stated in pertinent part:

None of the funds in this Act shall be used to identify or delineate any land as a “water of the United

States” under the Federal Manual for Identifying

and Delineating Jurisdictional Wetlands that was

adopted in January 1989 or any subsequent manual

adopted without notice and public comment.

Furthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as

it has since August 17, 1991, until a final wetlands

delineation manual is adopted.

106 Stat. 1324.

c. In a separate 1992 enactment, Congress appropriated funds for a new scientific study to “analyze federal wetlands regulation.” Pet. App. A6. The study,

5

which was published in 1995 by the National Research

Council (NRC), recommended that “the 1987 Manual’s

approach to ‘growing season’ should either be abandoned altogether or replaced by region-specific criteria

for wetland delineation.” Ibid. (citation omitted). In response to the NRC study, the Corps developed a series

of regional supplements to the 1987 Manual that “provide region-specific criteria for wetland delineation.”

Ibid.

In 2007, the Corps published its regional supplement

for Alaska. See Regional Supplement to the Corps of

Engineers Wetland Delineation Manual: Alaska Region (Version 2.0) (2007) (Alaska Supplement). The

Alaska Supplement identifies many characteristics

unique to Alaska that are relevant to wetlands delineation, and it urges site-specific consideration to evaluate

whether the wetlands-delineation criteria set forth in

the 1987 Manual are satisfied. Of particular relevance

here, the Alaska Supplement explains that the soil-temperature methodology for identifying a “growing season” is ill-suited to conditions in Alaska because of the

presence of permafrost. Id. at 48. The Supplement

states that, “in Alaska, the preferred approach to determine growing season dates involves direct observation

of vegetation green-up, growth, and maintenance as an

indicator of biological activity occurring both above and

below ground.” Ibid.

2. Petitioner “owns a 455-acre parcel near North

Pole, Alaska,” a city in the State’s interior near Fairbanks. Pet. App. A7. Petitioner seeks to build a pipe

fabrication and storage facility on the parcel. “The project will require the excavation and laying down of

gravel material, which is a regulated ‘pollutant’ under

the Clean Water Act,” and therefore requires a permit

6

from the Corps. Ibid. (quoting 33 U.S.C. 1362(6)); see

33 U.S.C. 1344(a).

As relevant here, petitioner applied to the Corps for

a permit in 2008. See Pet. App. A7.1 The Corps “examined the extent of wetlands on the site and issued” a jurisdictional determination. Ibid. The Corps determined that petitioner’s property contains wetlands that

are part of a larger wetlands complex adjacent to the

Tanana River. See id. at C4. Because that wetlands

complex is “one of the very few large, undeveloped wetlands within the alluvial plain,” it “has exceptional value

as wildlife habitat.” C.A. Supp. E.R. 51.

Petitioner pursued an administrative appeal of the

Corps’ jurisdictional determination. See Pet. App. A8.

Petitioner contended that, under the 1987 Manual, “an

area can only be considered a wetland if it has a growing

season,” and that “the 1987 Manual defines a growing

season as the season in which soil temperature at 19.7

inches belowground level is at or above 5°C.” Ibid. Petitioner “claimed that the ‘discontinuous permafrost’ on

its property did not reach that temperature, and thus

that there was no growing season.” Ibid.

The Corps review officer “rejected” petitioner’s

“permafrost argument.” Pet. App. A8. The officer explained that the Alaska Supplement to the 1987 Manual

“recognizes the existence of permafrost and the need to

rely instead upon locally or regionally developed methods to determine growing season dates . . . as well as

by direct observation of vegetation.” Ibid. The review

officer concluded on that basis that “soil temperature at

19.7 inches below the surface is essentially irrelevant to

determining the growing season in Alaska.” Ibid.

The Corps had issued an earlier permit, but that permit expired

before petitioner carried out the authorized work. Pet. App. A7.

1

7

The Corps subsequently issued an initial proffered

permit that would have authorized petitioner to discharge a million cubic yards of fill into 118 acres of wetlands, as petitioner requested. See Pet. App. A8, D1.

Petitioner again filed administrative objections contending that the areas in question were not wetlands under the growing-season provisions of the 1987 Manual.

The Corps again rejected petitioner’s arguments on the

ground that the Alaska Supplement to the 1987 Manual

recommends the use of more refined growing-season

criteria appropriate to the Alaskan climate. The Corps

observed that the “Alaska Regional Supplement and all

other supplements now in use across every region of the

U.S. and its territories * * * [have] abandon[ed] the

original * * * definition of growing season” used in the

1987 Manual. C.A. E.R. 233. The Corps therefore concluded that observations of on-site growing conditions

were adequate to establish wetlands hydrology, and it

declined to alter the terms of the proffered permit. Id.

at 233-234; see Pet. App. A8.

3. Petitioner filed suit in federal district court to

challenge the Corps’ proffered permit. Petitioner contended that the 1992 and 1993 Budget Acts required the

Corps to use only the wetlands-delineation criteria established by the 1987 Manual, without considering the

Alaska Supplement or any other supplementary material. See Pet. App. B14-B16. The district court rejected

petitioner’s argument. See id. at B18-B27. The court

first held “that the operative language from both the

1992 and 1993 [Budget Acts] which prohibit the Corps

from delineating wetlands under the 1989 Manual applies only to ‘the funds in this Act’ ”—that is, to the

funds appropriated by the 1992 and 1993 Budget Acts

8

themselves, and not to funds appropriated for future

years. Id. at B18.

Petitioner also argued that the Corps’ use of the

Alaska Supplement was barred by the 1993 Budget

Act’s statement that “[f ]urthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987

Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted.” 106 Stat. 1324. In

rejecting that argument, the district court explained

that “Congress is not presumed in annual appropriations bills to enact language having permanent application to future appropriations unless Congress expressly

indicates its intention to make such provisions permanent.” Pet. App. B20. “To rebut the strong presumption that appropriations riders do not create a permanent change in substantive law,” the court added, “typically requires that Congress include ‘words of futurity.’ ” Id. at B21.

The district court was “unpersuaded that the [cited

provision of the 1993 Budget Act] constitutes words of

futurity sufficient to establish congressional intent to

make the language permanent.” Pet. App. B22. The

court observed that the cited provision immediately followed a sentence “restricting the use of funds for implementation of the 1989 Manual” only for the funds appropriated in the 1993 Budget Act, “which makes it less

likely the provision will be viewed as permanent.” Id.

at B23-B24. The court also observed that a different

provision of the 1993 Budget Act “used the word ‘hereafter’ and explicitly indicated its intent to make [a] prohibition [on the use of funds] permanent by stating that

it applied to ‘subsequent Energy and Water Development Appropriations Acts.’ ” Id. at B24. The court explained that the absence of any “such clear statement

9

manifesting congressional intent that the Corps’ use of

the 1987 Manual extend permanently or indefinitely beyond fiscal year 1993” undermined petitioner’s position.

Ibid.

Finally, the district court held that the use of regional supplements is consistent with the 1987 Manual,

which “lays the foundation for the regional supplements

and their refinement of wetland delineation methods in

non-traditional environments.” Pet. App. B25.

4. The court of appeals affirmed. Pet. App. A1-A15.

The court explained that “provisions of appropriations

acts altering substantive law * * * are generally only

in force during the fiscal year of the appropriation and

do not work a permanent change in the substantive

law.” Id. at A9 (citations and internal quotation marks

omitted). The court traced that principle to this Court’s

holding in Minis v. United States, 40 U.S. (15 Pet.) 423

(1841), that a change to substantive law in an appropriations act should not be presumed to have permanent

effect “unless it is expressed in the most clear and positive terms, and where the language admits of no other

reasonable interpretation.” Id. at 445.

The court of appeals concluded that the key provision of the 1993 Budget Act “does not contain a clear

statement of futurity,” as would be required to give permanent effect to Congress’s prohibition on the use of

any wetlands delineation manual other than the 1987

Manual. Pet. App. A10. The court observed that, unlike

other passages of the 1993 Budget Act, the provision at

issue here “does not contain the word ‘hereafter,’ ”

which is “the most common word of futurity.” Id. at

A11. The court also rejected petitioner’s argument that

Congress’s inclusion of the word “will,” in the statutory

phrase “the Corps of Engineers will continue to use the

10

[Corps’] 1987 Manual,” 106 Stat. 1324, evinced an intent

that the restrictions in the 1993 Budget Act would have

lasting effect. The court explained that the provision

instead “recorded Congress’s understanding of the

Corps’ intention to delineate wetlands using the 1987

Manual,” but “does not bind the Corps to using the 1987

Manual.” Pet. App. A12. The court explained that, if

Congress had intended the provision to have permanent

binding effect, “it would have used the word ‘shall.’ ”

Ibid. Finally, because the 1993 Budget Act lacked “a

clear statement of futurity in order to give permanent

effect to a provision of an appropriations act,” the court

concluded that it “need not delve into legislative history

to explain the 1993 Budget Act’s provisions.” Id. at A15.

Judge Bea concurred in the judgment. Pet. App.

A15-A27. In his view, the language of the 1993 Budget

Act indicated that Congress intended for the Corps to

give the 1987 Manual continuing effect. See id. at A20A23. He agreed that the district court’s judgment

should be affirmed, however, because he viewed the

Corps’ use of the Alaska Supplement as consistent with

the 1987 Manual, which Congress expected the Corps to

“amend and supplement” as necessary. See id. at A24.

He explained that, when Congress enacted the 1993 Act,

the Corps “was already allowed to use” some supplemental guidance beyond the 1987 Manual itself. Id. at

A25. In Judge Bea’s view, the Alaska Supplement “is

nothing more than formal guidance regarding the ‘local

means’ that were permitted under the 1987 Manual.”

Ibid. He accordingly concluded that the Corps’ use of the

Alaska Supplement to identify the wetlands at issue here

was not foreclosed by the 1993 Budget Act. Id. at A27.

11

ARGUMENT

The court of appeals correctly held that the 1993

Budget Act does not impose continuing restrictions on

the Corps’ use of funds, because the statute lacks the

clear statement of futurity that this Court has long required in order for an appropriations act to effect a permanent change in substantive law. Petitioner does not

dispute that governing principle of statutory interpretation, but instead contests its application to the particular provisions at issue here. Petitioner’s case-specific

contentions are misplaced, and this Court’s review

would be unwarranted in any event. As Judge Bea explained in his concurrence, the Corps’ use of the Alaska

Supplement was permissible even if the 1993 Budget

Act required the Corps to use the 1987 Manual, because

the 1987 Manual contemplates development of supplements like the one the Corps employed. Pet. App. A20A27.

Petitioner’s suggestion that the decision below will

have broad consequences for other statutes is unfounded. The decision below does not conflict with any

decision of this Court or another court of appeals, and it

is unlikely to have any far-reaching practical effect.

Further review is not warranted.

1. The court of appeals correctly applied settled

principles of statutory interpretation to the appropriations provisions at issue here.

a. This Court has long explained that a law providing for “special and temporary appropriation[s]” should

not be presumed to “have a general and permanent

application to all future appropriations” unless Congress has expressed that intent “in the most clear and

positive terms, and where the language admits of

no other reasonable interpretation.” Minis v. United

12

States, 40 U.S. (15 Pet.) 423, 445 (1841); accord, e.g.,

Dalton v. Little Rock Family Planning Servs., 516 U.S.

474, 477-478 (1996) (per curiam); United States v. Vulte,

233 U.S. 509, 514-515 (1914). Applying that interpretive

approach, the courts of appeals have uniformly adopted

a “very strong presumption” that appropriations acts do

not permanently change substantive law absent a clear

statement of congressional intent to do so. Building &

Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d

269, 273 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992);

see, e.g., Smithsfork Grazing Ass’n v. Salazar, 564 F.3d

1210, 1216 (10th Cir. 2009); Atlantic Fish Spotters Ass’n

v. Evans, 321 F.3d 220, 224 (1st Cir. 2003); Auburn

Hous. Auth. v. Martinez, 277 F.3d 138, 146 (2d Cir.

2002); Seattle Audubon Soc’y v. Evans, 952 F.2d 297,

304 (9th Cir. 1991); Chiles v. Thornburgh, 865 F.2d

1197, 1204 (11th Cir. 1989); United States v. IBM,

892 F.2d 1006, 1009 (Fed. Cir. 1989).

Congress has codified a similar clear-statement rule

by providing, subject to exceptions that are inapplicable

here, that an “appropriation in a regular, annual appropriation law may be construed to be permanent or available continuously only if the appropriation * * * expressly provides that it is available after the fiscal year

covered by the law in which it appears.” 31 U.S.C.

1301(c)(2). Likewise, the “Red Book”—a guide to federal appropriations published by the nonpartisan Government Accountability Office (GAO) and repeatedly

cited as authority by this Court—explains that the presence of words of futurity is “the crucial factor” in determining whether the language of an appropriations act is

permanent or temporary. GAO, Principles of Federal

Appropriations Law 2-92 (4th ed. 2016) (Red Book);

see, e.g., Salazar v. Ramah Navajo Chapter, 567 U.S.

13

182, 190 (2012) (relying on the Red Book); Lincoln v.

Vigil, 508 U.S. 182, 192 (1993) (same). Of particular relevance here, the Red Book explains that “hereafter” is

the “most common word of futurity.” Red Book 2-86.

b. The court of appeals correctly applied those principles in construing the appropriations acts at issue in

this case. After analyzing the text and structure of the

key provisions in the 1993 Budget Act, the court held

that the Act lacks the “clear statement of futurity” required to overcome the presumption that Congress did

not intend to permanently require use of the 1987 Manual. Pet. App. A10. Relying on the Red Book, the court

observed that the key provisions of the 1993 Budget Act

do not contain the term “hereafter,” which is “the most

common word of futurity.” Id. at A11. The court found

the omission of such a word especially telling because

many other provisions of that statute do use “hereafter”

to signal their continuing effect. Ibid.; see 106 Stat.

1325, 1330, 1331, 1332, 1338, 1339, 1342, 1343. As the

court explained, where Congress includes particular

language in one part of a statute but omits it in another,

“it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983);

see Pet. App. A11.

The court of appeals drew a similar inference from

the distinction between the 1993 Budget Act’s directive

that “[n]one of the funds in this Act shall be used” to

delineate wetlands using the 1989 Manual, and its subsequent statement that “the Corps of Engineers will

continue to use the” 1987 Manual “until a final wetlands

delineation manual is adopted.” 106 Stat. 1324 (emphases added). The court explained that this Court “has

14

distinguished descriptive ‘will’ statements from mandatory ‘shall’ statements,” and that inferring such a distinction is appropriate here because other provisions of

the 1993 Budget Act “use ‘will’ statements to describe

the consequences of mandatory commands” rather than

to issue mandatory commands. Pet. App. A12; see id.

at A13. The court correctly concluded that the key paragraphs in the 1993 Budget Act “reasonably can be interpreted as complementary statements,” with the first

paragraph read as “a command about what the Corps

could not do during fiscal year 1993, and the second paragraph [read a]s a description of what Congress expected it to do instead,” not as a clear statement of futurity giving permanent effect to the substantive prohibition in the one-year appropriations act. Id. at A12.

c. Petitioner does not dispute the general principles

of statutory interpretation that the court of appeals

identified, but instead argues that the court erred in applying those principles to the 1993 Budget Act. Petitioner first contends (Pet. 11-16) that the court should

have construed the word “until” to indicate futurity. As

both the Red Book and Judge Bea’s concurrence recognize, petitioner is correct that “until” sometimes indicates futurity. See Pet. App. A21 (relying on the Red

Book to explain that “ ‘until’ can * * * be used to express futurity in certain contexts”). The most common

word of futurity, however, is the word “hereafter,” and

Congress’s omission of that word in the key provisions

of the 1993 Budget Act is significant. See id. at A11.

The meaning of “until” in a particular provision ultimately turns on statutory context, and the court of appeals discussed at length the contextual evidence that

the statutory language at issue here—i.e., that “the

Corps of Engineers will continue to use the * * * 1987

15

Manual * * * until a final wetlands delineation manual

is adopted,” 106 Stat. 1324—is best read as “a description of what Congress expected” the Corps to do in 1993,

rather than as a permanent directive. See Pet. App.

A11-A12. That holding properly applies settled principles of statutory interpretation to the appropriations

provisions at issue here. It does not, as petitioner suggests (Pet. 11, 13, 16), announce any blanket rule that

the word “until” never indicates futurity.

Petitioner similarly contends (Pet. 16-17) that the

court of appeals “fail[ed] to recognize that ‘will,’ like ‘until,’ is a word of futurity,” and that this Court “has never

held that ‘will’ statements are incapable of imposing a

mandatory duty.” That criticism of the decision below

is misplaced. As with its interpretation of “until,” the

court of appeals did not suggest that “will” can never

impose a mandatory duty. Instead, the court explained

that the 1993 Budget Act used the terms “will” and

“shall” in close proximity, and that the second paragraph using the term “will” provided a “descriptive clarification” of the effect of the first paragraph, but did not

serve as “an independent provision establishing permanent law.” Pet. App. A14. That context-specific approach will not have any implications—let alone “pernicious consequences,” Pet. 21—for the interpretation of

statutes that use “shall” or “will” alone.

Petitioner also contends (Pet. 21) that the court of

appeals’ interpretation of the 1993 Budget Act renders

superfluous the statement that the Corps “will continue

to use the * * * 1987 Manual * * * until a final wetlands delineation manual is adopted.” 106 Stat. 1324. As

explained above, however, that language simply reflects

Congress’s expectation that the Corps would use the

1987 Manual, rather than some other alternative to the

16

1989 Manual, during fiscal year 1993. See Pet. App.

A12. In any event, petitioner’s interpretation would

create even more glaring linguistic superfluity. If the

provision quoted above established a permanent requirement that the Corps use the 1987 Manual, the first

paragraph prohibiting the Corps from using the 1989

Manual would serve no practical purpose. See Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 106 (2011)

(explaining that “the canon against superfluity assists

only where a competing interpretation gives effect ‘to

every clause and word of a statute’ ”) (citation omitted).

Finally, petitioner suggests (Pet. 23-26) that the legislative history supports its reading of the statute. But

as the court of appeals correctly explained, the legislative history cannot supply the required “clear statement

of futurity” if the statutory text does not. Pet. App. A15.

In any event, the legislative history does not support

petitioner’s reading. The Senate Report accompanying

the 1993 Budget Act stated that “most of the problems

with the current [Corps permit] program occur when

policy decisions are made outside the normal notice and

public comment process,” and that the “Committee expects the Corps to adopt all policies implementing the

* * * permit program in accordance with * * * notice

and public comment.” S. Rep. No. 344, 102d Cong., 2d

Sess. 56 (1992). The Senate Report thus reflects an expectation that the Corps would use notice-and-comment

procedures before adopting subsequent additions to the

manual. The regional supplements that the Corps now

uses, including the Alaska Supplement at issue here,

are consistent with that expectation. See Pet. App. A17

17

(Bea, J., concurring in the judgment); C.A. Supp. E.R.

201-203.2

2. This Court’s review is unwarranted for several

additional and independent reasons.

a. Even if the 1993 Budget Act required the Corps

to use the 1987 Manual for all wetlands delineation, the

Corps’ determination here would be lawful, because

“the 1987 Manual itself allows the Corps to amend and

supplement the 1987 Manual and the Alaska Supplement is consistent with that” provision. Pet. App. A23A24 (Bea, J., concurring in the judgment). As Judge

Bea explained, the “1987 Manual explicitly acknowledges that ‘certain wetland types, under the extremes

of normal circumstances, may not always meet all the

wetland criteria defined in the manual.’ ” Id. at A25.

Even before the 1993 Budget Act, the Corps relied on

that language to make “alterations to the method for

identifying hydrology and the ‘growing season.’ ” Ibid.

For example, the Corps issued guidance in 1992 “stating that, although the soil temperature factor noted in

the appendix of the 1987 Manual was the ‘primary’ definition of growing season, ‘local means of determining

growing season may be more appropriate and can be

used.’ ” Ibid. The “Alaska Supplement—including its

definition of the ‘growing season,’ which is at issue

here—is” thus “nothing more than formal guidance regarding the ‘local means’ that were permitted under the

1987 Manual and its subsequent guidance documents.”

The 1993 Budget Act’s statement that the Corps will use the

1987 Manual “until a final wetlands delineation manual is adopted,”

106 Stat. 1324, also indicates that Congress contemplated an end to

any obligation to use the 1987 Manual. It would make little sense to

read that provision to foreclose the use of supplements adopted by

the Corps that would form the basis of any final manual.

2

18

Ibid. Accordingly, “the 1993 Budget Act cannot be read

to prohibit use of the Alaska Supplement,” even if the

Act is viewed as including sufficient references to futurity. Id. at A26; accord id. at B26.

Moreover, even if the Corps were required to use the

precise form of the 1987 Manual that existed in 1993—

a reading that no member of the panel below endorsed

and that the statute does not support—the Corps’ determination here would still be lawful because the administrative record supports the conclusion that petitioner’s property displays wetland hydrology under the

criteria established by the 1987 Manual. See C.A. Supp.

E.R. 10-11. Throughout its multiple administrative appeals, petitioner failed to introduce any current evidence of soil temperature at the relevant depth to rebut

the Corps’ findings, relying instead on maps from 1970

that show “discontinuous permafrost” in the area. See

C.A. E.R. 245-246. Although the courts below did not

reach this issue, petitioner could not prevail even if the

Court fully agreed with petitioner’s interpretation of

the 1993 Budget Act.

b. Petitioner suggests (Pet. 21-23) that the court of

appeals’ decision conflicts with a footnote in the Eighth

Circuit’s decision and the Corps’ position in United

States v. Bailey, 571 F.3d 791 (2009). No such conflict

exists. In the footnote that petitioner cites, the Eighth

Circuit summarily rejected a possible alternative argument that the “Corps’ interpretation of wetlands in the

1987 Manual” was “unreasonable.” Id. at 803 n.7. The

court then stated that “Congress has mandated that the

1987 Manual be used until a final wetlands-delineation

manual is adopted.” Ibid. That footnote did not closely

analyze the 1993 Budget Act, nor did it address the

question whether the Corps could permissibly rely on

19

regional supplements, such as the Alaska Supplement

in this case. The Eighth Circuit’s statement, moreover,

is fully consistent with the Corps’ longstanding position

that it does use the 1987 Manual to delineate wetlands,

because the 1987 Manual contemplates the development

of supplements to address local conditions. See Pet.

App. A25 (Bea, J., concurring in the judgment). The

footnote in Bailey accordingly does not conflict with the

decision below.

c. Petitioner suggests (Pet. 8-9) that the decision below will have far-reaching effects on the interpretation

of federal appropriations acts. As explained above,

however, the court of appeals did not announce any general rule that would control the construction of appropriations statutes in future cases. Contrary to petitioner’s suggestions (Pet. 11, 16), the Ninth Circuit did

not hold that “until” or “will” can never constitute words

of futurity. The court merely applied settled principles

of statutory interpretation to the particular appropriations provisions at issue here. See pp. 11-15, supra. Petitioner does not identify any appropriations law that includes materially similar language in a materially similar context, and the Corps is not aware of any other decision that has interpreted the language of the 1993 Act.

Likewise, this case does not implicate what petitioner calls (Pet. 22) the “controversial and difficult”

questions about the scope of the CWA that this Court

has considered several times in recent years. The difficult interpretive issue in many of those cases was the

meaning of the CWA term “waters of the United

States.” 33 U.S.C. 1362(7). This case, however, does

not turn on the meaning of that term. Petitioner does

not dispute that, if the areas of its property in question

constitute wetlands as defined by the 1987 Manual, the

20

Corps has authority under the CWA to require a permit. Nor does petitioner dispute that the areas in question are properly classified as wetlands under the

Alaska Supplement. The only disputed question is

whether the Corps may use the Alaska Supplement or

is limited to the 1987 Manual alone.

Contrary to petitioner’s contentions, the Ninth Circuit’s resolution of that question does not “exacerbate[] * * * uncertainty” or interfere with regulated

parties’ expectations. Pet. 26; see Pet. 23. The Corps

has been using regional supplements for more than a

decade, and no regulated entity other than petitioner

appears to have disputed the propriety of that practice.

The decision below therefore will not disrupt settled expectations, and the question presented here is unlikely

to arise with any frequency.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY BOSSERT CLARK

Assistant Attorney General

JENNIFER NEUMANN

DAVID GUNTER

Attorneys

MARCH 2019