Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. 21-454

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 West Crossville Rd.,

Ste. 104

Roswell, Georgia 30075

JENNIFER A. SIMON

Counsel of Record

KAZMAREK MOWREY CLOUD

LASETER LLP

1230 Peachtree St., NE,

Ste. 900

Atlanta, Georgia 30309

(404) 812-0126

jsimon@kmcllaw.com

Counsel for Amicus Curiae

October 20, 2021

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

ii

IDENTITY AND INTEREST OF

AMICUS CURIAE ............................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

A.

B.

This case is critical and fortuitously

timely .........................................................

4

This case is critical to ensure the Agencies

apply and develop constitutional, lawful

rules ...........................................................

7

1. The current WOTUS definition is

unconstitutionally vague .....................

7

2. The current WOTUS definition violates the Commerce Clause ................. 12

3. The current WOTUS definition encroaches on the traditional province of

the states ............................................. 17

4. The current WOTUS definition violates this Court’s Rapanos decision .... 18

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) .................................................16

Am. Petroleum Inst. v. Johnson, 541 F. Supp. 2d

165 (D.D.C. 2008) .............................................. 14, 15

Army Corps v. Hawkes Co., 136 S. Ct. 1807

(2016) .........................................................................3

Connally v. General Constr. Co., 269 U.S. 385

(1926) .........................................................................8

FCC v. Fox Television Stations, Inc., 132 S. Ct.

2307 (2012) ................................................................8

Hughes v. United States, 138 S. Ct. 1765 (2018)........19

In re: Envt’l Protection Agency and Dep’t of Def.

Final Rule; “Clean Water Rule: Definition of

Waters of the United States,” 80 Fed. Reg.

37,054 (June 29, 2015), No. 15-3751 (6th Cir.) .........1

In re EPA, 803 F.3d 804 (6th Cir. 2015) .....................18

King v. Palmer, 950 F.2d 771 (D.C. Cir.

1991) ........................................................ 3, 20, 21, 23

Marbury v. Madison, 5 U.S. 137 (1803) ......................15

Marks v. United States, 430 U.S. 188 (1977) ...... passim

Miss. Comm’n on Nat. Res. v. Costle, 625 F.2d

1269 (5th Cir. 1980) .................................................18

N. Am. Dredging Co. of Nev. v. Mintzer, 245 F.

297 (9th Cir. 1917) ...................................................13

iii

TABLE OF AUTHORITIES—Continued

Page

N. California River Watch v. City of Healdsburg,

496 F.3d 993 (9th Cir. 2007) ....................................23

Nat’l Assoc. of Mfrs. v. Dep’t of Def., 138 S. Ct. 617

(2018) .........................................................................2

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519 (2012) ................................................................13

Nichols v. United States, 511 U.S. 738 (1994) ..............6

Pascua Yaqui Tribe v. EPA, No. CV-20-00266TUC-RM, 2021 WL 3855977 (D. Ariz. Aug. 30,

2021) ..........................................................................5

Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) .......15

Planned Parenthood of Se. Pa. v. Casey, 947 F.2d

682 (3d Cir. 1991) ....................................................20

Precon Dev. Corp. v. U.S. Army Corps of

Engineers, 633 F.3d 278 (4th Cir. 2011) .................23

Rapanos v. United States, 547 U.S. 715

(2006) ............................................................... passim

Sackett v. EPA, 566 U.S. 120 (2012) .............................8

SLF v. EPA, No. 15-cv-02488 (N.D. Ga.) ......................1

SLF v. EPA, No. 15-13102 (11th Cir.), transferred, No. 15-3885 (6th Cir.) ....................................1

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001)........... 12, 13, 17

Summit Petroleum v. EPA, 690 F.3d 733 (6th Cir.

2012) ........................................................................11

iv

TABLE OF AUTHORITIES—Continued

Page

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

2009) ........................................................................21

United States v. Davis, 825 F.3d 1014 (9th Cir.

2016) ............................................................ 19, 20, 21

United States v. Donovan, 661 F.3d 174 (3d Cir.

2011) ........................................................................21

United States v. Gerke Excavating, Inc., 464 F.3d

723 (7th Cir. 2006) ...................................................23

United States v. Hughes, 849 F.3d 1008 (11th Cir.

2017) ........................................................................19

United States v. Johnson, 467 F.3d 56 (1st Cir.

2006) .................................................................. 20, 21

United States v. Mead Corp., 533 U.S. 218

(2001).................................................................... 15

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) .................................................22

United States v. Robison, 505 F.3d 1208 (11th

Cir. 2007) ..................................................... 20, 22, 23

United States v. Williams, 553 U.S. 285 (2008) ............8

United States v. Wilson, 133 F.3d 251 (4th Cir.

1997) ........................................................................14

Wickard v. Filburn, 317 U.S. 111 (1942) ....................13

STATUTES

33 U.S.C. § 1251 ..........................................................17

33 U.S.C. § 1319(c)(1) ....................................................8

v

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

33 C.F.R. § 328.3(a)(3) (1993) .....................................14

40 C.F.R. § 19.4 .............................................................8

40 C.F.R. § 230.3(s) ............................... 9, 13, 14, 15, 16

38 Fed. Reg. 34,164 (Dec. 11, 1973) ............................15

38 Fed. Reg. 13,528 (May 22, 1973) ............................15

39 Fed. Reg. 4,532 (Feb. 4, 1974) ................................15

OTHER AUTHORITIES

EPA, Current Implementation of Waters of the

United States, https://www.epa.gov/wotus/

current-implementation-waters-united-states ........5

EPA, Clean Water Act Jurisdiction Following the

U.S. Supreme Court’s Decision in Rapanos v.

United States & Carabell v. United States,

Dec. 2008 (Rapanos Guidance) .................................5

EPA, Intention to Revise the Definition of

“Waters of the United States,” https://www.epa.

gov/wotus/intention-revise-definition-watersunited-states .............................................................6

Bryan A. Garner, et al., The Law of Judicial

Precedent (2016) ......................................................19

vi

TABLE OF AUTHORITIES—Continued

Page

U.S. DOT, FHWA, Army Corps of Engineers

Regulatory Guidance Letter on Jurisdictional

Determinations (May 6, 2009), https://www.

environment.fhwa.dot.gov/legislation/other_

legislation/natural/laws_usacememo.aspx .............11

Steinman, A., Nonmajority Opinions and Biconditional Rules, Yale L.J. (Mar. 2018),

https://www.yalelawjournal.org/forum/non

majority-opinions-biconditional-rules ....................20

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

Southeastern Legal Foundation (SLF) is a

national, nonprofit legal organization dedicated to

defending liberty and Rebuilding the American

Republic®. Since 1976, SLF has been going to court for

the American people when the government overreaches. SLF works to combat government overreach,

guard individual liberty, protect free speech, and

secure property rights in the courts of law and public

opinion.

SLF has been at the heart of the Waters of the

United States (WOTUS) definitional rulemaking

efforts and associated legal challenges for nearly a

decade. SLF filed comments on the Obama administration’s proposed rule on November 14, 2014 (see

EPA-HQ-OW-2011-0880-19466) and filed several of

the first legal challenges to the final WOTUS Rule

issue in 2015. See SLF v. EPA, No. 15-cv-02488 (N.D.

Ga.); SLF v. EPA, No. 15-13102 (11th Cir.), transferred,

No. 15-3885 (6th Cir.), and consolidated, In re: Envt’l

Protection Agency and Dep’t of Def. Final Rule; “Clean

Water Rule: Definition of Waters of the United States,”

80 Fed. Reg. 37,054 (June 29, 2015), No. 15-3751 (6th

Cir.).

1

Rule 37 statement: The parties were notified that Amicus

intended to file this brief more than 10 days before its filing and

consented to its filing. See Sup. Ct. R. 37.2(a). No party’s counsel

authored any of this brief; Amicus alone funded its preparation

and submission. See Sup. Ct. R. 37.6.

2

Following the Sixth Circuit’s jurisdictional rulings, SLF submitted briefing in support of the National

Association of Manufacturer’s successful petition for

certiorari to the Supreme Court. See Resp’ts’ Br. in

Supp. of Pet. for Cert., Nat’l Assoc. of Mfrs. v. Dep’t of

Def., No. 16-299 (U.S. Oct. 5, 2016), cert. granted, 137

S. Ct. 811 (2017). SLF was also active in the successful

Supreme Court litigation. See Resp’ts’ Br. in Supp. of

Pet., Nat’l Assoc. of Mfrs. v. Dep’t of Def., No. 16-299

(U.S. Apr. 2017); 138 S. Ct. 617 (2018).

Because of its overreach of federal authority, the

Ninth Circuit’s interpretation of the Rapanos decision

in this matter should be reversed. The Sacketts’ cert

petition should be granted and direction given to

regulators applying Rapanos and crafting yet another

attempt to define WOTUS.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This is a seminal moment in the evolution of the

contours of “Waters of the United States” (WOTUS).

EPA seized federal jurisdiction over the Sacketts’ land

in 2007 under a mostly invalidated set of regulations

and a misinterpretation of this Court’s decision in

Rapanos v. United States, 547 U.S. 715 (2006). After

two failed attempts at a new WOTUS definition under

two administrations, EPA and the Army Corps of

Engineers (Corps) (together, the Agencies) are back

where they started. They have returned to the 1980sera regulations in effect in 2007, guided by Rapanos

3

and its jumbled progeny. And in this mess, they

announced the beginning of yet a third rulemaking

effort. Before millions more taxpayer dollars are

wasted and our court systems again subsumed with

WOTUS litigation, this Court can speak to this

quagmire and establish clarity.

Rapanos has baffled the Agencies, courts, and

landowners to the point of being its own unconstitutionally vague standard. Much of the present

confusion is driven by the nebulous “significant nexus”

standard presented in the concurrence. Even its

author Justice Kennedy now calls it “notoriously

unclear” and notes its “crushing” consequences. Army

Corps v. Hawkes Co., 136 S. Ct. 1807, 1816 (2016)

(Kennedy, J., concurring). The meaning of “significant

nexus” is unclear even to experts but impenetrable to

an average landowner trying to follow the law.

Only by the Agencies’ and some lower courts’

errant interpretation of Rapanos was this problem

created. They have “turn[ed] a single opinion that lacks

majority support into national law. When eight of nine

Justices do not subscribe to a given approach to a legal

question, it surely cannot be proper to endow that

approach with controlling force, no matter how

persuasive it may be.” King v. Palmer, 950 F.2d 771, 782

(D.C. Cir. 1991). Because Justice Kennedy’s opinion

was not a logical subset of the plurality, it is not the

controlling opinion of the Court under Marks v. United

States, 430 U.S. 188, 193 (1977) and so should not be

the law.

4

Instead, recognizing the due process rights at

issue and states’ primary authority over property

regulation, the “narrowest” reading of Rapanos should

be that which is most restrictive of federal government

authority. Here, that would be a WOTUS definition

that covers, per the plurality, all traditional navigable

waters, their relatively permanent and continuously

flowing tributaries, and all adjacent ponds and

wetlands with a continuous surface connection, but

that is limited, per the concurrence, to such waters

having a significant nexus with the applicable

traditional navigable water. This would essentially

establish a presumption of jurisdiction for every water

meeting the plurality’s definition that is rebuttable if

the water has no significant economic effect on the

navigable water.

---------------------------------♦---------------------------------

ARGUMENT

A. This case is critical and fortuitously timely.

Rarely does the Court have an opportunity to hear

a case at so timely a juncture. EPA enforced against

the Sacketts in 2007, on the heels of Rapanos and

according to the 1980s-era regulations in effect. The

following fourteen years have been subsumed by

multiple failed rulemakings, endless litigation, a sea of

conflicting court decisions, and untold waste of time

and resources expended all to build a house on shifting

sand. After all this, the Agencies are back where they

5

started and again at the precipice of another flailing

journey.

Last month, following the District Court for the

District of Arizona’s order2 vacating and remanding

the latest WOTUS definition, the Agencies announced

this return to the 1980s-era regulations and the postRapanos guidance. See EPA, Current Implementation

of Waters of the United States, https://www.epa.

gov/wotus/current-implementation-waters-united-states

(reporting that the Agencies “are interpreting ‘waters

of the United States’ consistent with the pre-2015

regulatory regime until further notice. [This includes]

. . . the guidance materials listed below.”); EPA, Clean

Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States & Carabell v. United States, Dec. 2008 (Rapanos Guidance).

Agents across the country are now applying the

same 1980s-era regulations, interpreted according to

Rapanos, that controlled the Sacketts’ case in 2007. In

doing so, they are making critical decisions about the

fate of people’s property. Those decisions have enormous consequences, either subjecting that property to

an expensive and time-consuming federal regulatory

scheme or enabling landowners to follow typically

more efficient state-level processes. The differences in

costs and time both in aggregate and to each individual

landowner are staggering. See Rapanos, 547 U.S. at

721 (“The average applicant for an individual permit

2

Pascua Yaqui Tribe v. EPA, No. CV-20-00266-TUC-RM,

2021 WL 3855977 (D. Ariz. Aug. 30, 2021).

6

spends 788 days and $271,596 in completing the

process, and the average applicant for a nationwide

permit spends 313 days and $28,915—not counting

costs of mitigation or design changes. . . . Over $1.7

billion is spent each year by the private and public

sectors obtaining wetlands permits.”).

Meanwhile, EPA has announced an intent, first to

make its return to those 1980s-era regulations and

post-Rapanos Guidance official in a first-step rulemaking effort, and then to promulgate yet another

attempt to interpret the scope of their CWA authority.

See EPA, Intention to Revise the Definition of “Waters

of the United States,” https://www.epa.gov/wotus/

intention-revise-definition-waters-united-states. If history is any guide, this effort will likely be followed by

nationwide district court litigation, with the same

patchwork results as the matter winds through the

various district and circuit courts. And all-the-while,

individual landowners will remain befuddled over

whether the federal government controls their

property or not.

This Court can end the entire quagmire now and

clarify the holding of Rapanos and the scope of the

Agencies’ authority. “This degree of confusion following

a splintered decision . . . is itself a reason for

reexamining that decision.” Nichols v. United States,

511 U.S. 738, 746 (1994).

The time for this Court to act could not be more

optimal. Any later hearing would come too late—after

the costly rulemaking, after the protracted litigation,

7

and after countless landowners invest hundreds of

thousands of dollars merely to understand what rules

apply to their properties.

This Court should grant the Sacketts’ petition for

writ of certiorari.

B. This case is critical to ensure the Agencies

apply and develop constitutional, lawful

rules.

The Agencies’ only option when courts invalidate

central elements of their regulation defining WOTUS

is to return to the last legally valid regulation. The

rules the Agencies are currently applying were

vacated, either directly or implicitly, by several courts.

The Agencies have ignored some adverse decisions,

selectively interpreted others, and misapplied the rest,

and continue to apply unconstitutional, invalid rules

through a lens of impenetrable guidance. This Court

should grant cert to correct this unconstitutional

overreach of Agency authority and provide direction as

to the lawful contours of the Agencies’ future

regulation.

1.

The current WOTUS definition

unconstitutionally vague.

is

Justice Alito observed in the first iteration of this

matter, “The reach of the Clean Water Act is

notoriously unclear. Any piece of land that is wet at

least part of the year is in danger of being classified by

EPA employees as wetlands covered by the Act.”

8

Sackett v. EPA, 566 U.S. 120, 132 (2012) (Alito, J.,

concurring). Four years earlier, Justice Scalia noted,

“The Corps’ enforcement practices vary somewhat

from district to district because ‘the definitions used to

make jurisdictional determinations’ are deliberately

left ‘vague.’ GAO Report 26.” Rapanos, 547 U.S. at 727.

Vague regulations—particularly vague criminal

regulations3—violate constitutional due process rights

and cannot stand. “ ‘A statute which either forbids or

requires the doing of an act in terms so vague that men

of common intelligence must necessarily guess at its

meaning and differ as to its application, violates the

first essential of due process of law.’ ” FCC v. Fox

Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012)

(quoting Connally v. General Constr. Co., 269 U.S. 385,

391 (1926)). A regulatory standard must be vacated if

it “fails to provide a person of ordinary intelligence fair

notice of what is prohibited, or is so standardless that

it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 553 U.S. 285,

3

For merely negligent CWA violations, the landowner is

subject to fines of up to $37,500 per day of noncompliance and

imprisonment for up to a year. See 33 U.S.C. § 1319(c)(1),

adjusted per 40 C.F.R. § 19.4; Sackett v. EPA, 566 U.S. 120, 132

(2012) (Alito, J., concurring). See also Rapanos, 547 U.S. at 721

(internal quotation marks and citations omitted):

[T]he Clean Water Act imposes criminal liability, as

well as steep civil fines, on a broad range of ordinary

industrial and commercial activities. In this litigation,

for example, for backfilling his own wet fields, Mr.

Rapanos faced 63 months in prison and hundreds of

thousands of dollars in criminal and civil fines.

9

304 (2008). The current regulatory regime fails on both

counts.

To understand the current definition of WOTUS, a

landowner must wade through 1980s-era regulations

this Court found impossibly vague in 2006 and 2012,

several Supreme Court decisions that interpret and

constrict those regulations (including Rapanos which

lacks a majority), EPA guidance documents purporting

to explain those decisions, and numerous circuit and

district court attempts to interpret those materials,

and then guess how a local enforcement agent might

apply all that law. Within this morass, the regulated

community has no idea what conduct is prohibited, and

regulators have no hope of consistent application.

To cite just a few examples, the regulations create

a category of jurisdictional waters called “other

waters,” which include waters that “could affect interstate . . . commerce including any such waters [w]hich

. . . could be used by interstate . . . travelers for

recreational or other purposes.” 40 C.F.R. § 230.3(s).

How a landowner or field agent might guess as to

whether someone from out-of-state might enjoy fishing

or canoeing on a small pond or stream is a mystery.

The Agencies further assert jurisdiction over all

tributaries of traditionally navigable waters, interstate waters, or “other waters.” See 40 C.F.R. § 230.3(s).

However, the Agencies define a tributary to include the

entire “reach of the stream,” with flow characteristics

decided according to the entire stream. Rapanos

Guidance, p. 6. Thus, the flow on any particular parcel

10

may be both intermittent and trivial to the extent it is

unclear whether it forms part of a larger waterbody or

not. Without expert analysis or Agency clarification, no

property owner could possibly know whether a trickle

through her property implicates the CWA, and no field

agent could hope to apply the regulation consistently.

Presuming one could theoretically identify federal

“tributaries,” the Rapanos Guidance then establishes

federal jurisdiction over all waters with a “significant

nexus” to those tributaries and certain other covered

waters. To make this determination, a landowner must

assess the “flow characteristics and functions of the

tributary itself and the functions performed by any

wetlands adjacent to the tributary to determine if they

significantly affect the chemical, physical and biological integrity of downstream traditional navigable

waters.” Id., p. 8. This analysis includes many considerations outside the knowledge or expertise of a typical

landowner. For example, the Agencies declare their

right to consider “historic records of water flow,” the

provision of “habitat services,” or a “significant” nexus

formed either through allowing sediment to flow or the

complete reverse, trapping sediment. See id., p. 11. If

reasonable hydrologists, marine scientists and botanists could disagree as to a water’s “significance,” no

landowner or field agent could possibly understand the

rules or apply them consistently.

And this assessment applies not only to wetlands

near traditionally navigable waters but also to wetlands that are several steps removed from such waters.

Wetlands “adjacent” (which the Agencies unlawfully

11

interpret functionally4) to “non-navigable tributaries

that are not relatively permanent” also become jurisdictional if the Agencies deem they have a significant

nexus with a “traditional navigable water” (again,

interpreted in ways that are neither traditional nor

require actual navigation). See id., p. 8.

In other words, a landowner of a damp property

could look hard for a nearby tributary and reasonably

find none, but an agent could later assert that an offsite occasional trickle, typically invisible to the eye,

qualifies as jurisdictional. And that agent could then

decide that the wetlands at issue, together with the

invisible tributary, have a significant nexus with a

jurisdictional water miles away. See id., p. 10. And,

though the landowner’s inability to perceive the

federal jurisdiction over her property is completely

understandable, she would nevertheless face crippling

fines for failure to secure a federal permit, plus the loss

of use of her property, without recompense.

To avoid such risk, a landowner might engage the

services of a costly environmental professional, obtain

a scientific opinion on whether her land is jurisdictional, and coordinate with the Agencies to confirm

their agreement. This effort costs thousands of dollars

and at least several months. See U.S. DOT, FHWA,

Army Corps of Engineers Regulatory Guidance Letter

on Jurisdictional Determinations (May 6, 2009),

4

See Summit Petroleum v. EPA, 690 F.3d 733, 744 (6th Cir.

2012) (“ ‘adjacent’ is not ambiguous between ‘physically

proximate’ and merely ‘functionally related’ ”), citing Rapanos,

547 U.S. at 748.

12

https://www.environment.fhwa.dot.gov/legislation/other_

legislation/natural/laws_usacememo.aspx (“While the

RGL states that the Corps is committed to finalizing

both preliminary and approved JDs within 60 days of

submittal, factors such as Corps work load and

complexity of the aquatic resource delineation may

delay a decision from the Corps.”). And, at the end of

that process, the Agencies may disagree with the

landowners’ expert assessment.

Complying with the law should not be this hard.

Waters of true federal significance should be obvious.

Properties should be bought, sold and developed

without undergoing months or even years of expert

analysis. And people should understand the rules

before they are fined and prosecuted. These are

foundational aspects of our private property and due

process rights. The Agencies and the regulated

community need this Court’s direction to rein in the

behemoth WOTUS problem that has unfolded over the

last few decades.

2.

The current WOTUS definition violates

the Commerce Clause.

Although this Court has found the Clean Water

Act does not extend federal authority to its constitutional limits (see Solid Waste Agency of N. Cook Cty.

v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001)),

the Agencies exceed even those further bounds of the

Constitution. Indeed, several courts have recognized as

such and the Agencies ignored their direction. This

13

Court should grant cert to clarify the CWA and

Commerce Clause limits on Agency authority and to

reestablish the primacy of the Constitution over

Agency action.

The Agencies’ interpretation of “traditional

navigable waters” is neither traditional nor bears any

relationship to navigability and has come far from the

CWA-era understanding of that term. See id. at 168,

n. 3 (nothing “in the legislative history . . . signifies

that Congress intended to exert anything more than

its commerce power over navigation”).

For example, the Agencies assume jurisdiction

over all waters that “could affect interstate . . .

commerce including any such waters [w]hich . . . could

be used by interstate . . . travelers for recreational or

other purposes.” 40 C.F.R. § 230.3(s). Every isolated

fishing pond or stream that could conceivably be

attractive to an out-of-state person for any reason

hardly qualifies as “traditionally navigable.” And

certainly such a water would not qualify as having a

“substantial economic effect on interstate commerce”

as required to remain within the bounds of the

Commerce Clause. Nat’l Fed’n of Indep. Bus. v.

Sebelius, 567 U.S. 519, 551 (2012) (quoting Wickard v.

Filburn, 317 U.S. 111, 125 (1942)). See also N. Am.

Dredging Co. of Nev. v. Mintzer, 245 F. 297, 300 (9th Cir.

1917) (explaining a water’s “sufficien[cy] for pleasure

boating or to enable hunters or fishermen to float their

skiffs or canoes” is insufficient to qualify a water as

“navigable”).

14

Indeed, courts have already spoken on this issue

and have vacated these provisions. In United States v.

Wilson, the Fourth Circuit explained that the “regulation purports to extend the coverage of the Clean

Water Act to a variety of waters that are intrastate,

nonnavigable, or both, solely on the basis that the use,

degradation, or destruction of such waters could affect

interstate commerce.” 133 F.3d 251, 257 (4th Cir. 1997).

Because the regulation does not require “that the

regulated activity have a substantial effect on interstate commerce,” it poses “serious constitutional difficulties” and appears “to exceed congressional authority

under the Commerce Clause.” Id. The court concluded

Congress could not have intended the CWA to be

unconstitutional and, therefore, the regulation must be

beyond the scope of the CWA. See id. (“[T]he Army

Corps of Engineers exceeded its congressional authorization under the Clean Water Act, and . . . , for this

reason, 33 C.F.R. § 328.3(a)(3) (1993) is invalid.”). The

Agencies barely paid lip service to the Wilson decision

and, further, did not remove the “could affect” language

from any of their subsequent regulations or guidance

documents. That language remains codified at 40

C.F.R. § 230.3(s).

The District Court for the District of Columbia

was similarly troubled by the “could affect interstate

commerce language” and vacated a comparable

WOTUS definition. Am. Petroleum Inst. v. Johnson,

541 F. Supp. 2d 165, 187 (D.D.C. 2008). The court

ordered EPA to return to its 1973 regulation, the last

effective regulation before the invalidated 2002

15

regulation. See id. at 186 (“[V]acatur will . . . merely

restore the previous regulatory definition of ‘navigable

waters’ pending further proceedings.”). This is because,

generally, “[t]he effect of invalidating an agency rule is

to reinstate the rule previously in force.” Paulsen v.

Daniels, 413 F.3d 999, 1008 (9th Cir. 2005). EPA

complied but did not make comparable adjustments to

other CWA regulations.

The Agencies do not have this option of continuing

to apply rules courts have invalidated, particularly

rules invalidated on constitutional grounds.5 See

United States v. Mead Corp., 533 U.S. 218, 247 (2001)

(Scalia, J., dissenting) (“Once the court has spoken, it

becomes unlawful for the agency to take a contradictory position; the statute now says what the court

has prescribed.”); Marbury v. Madison, 5 U.S. 137, 177

(1803) (“It is a proposition too plain to be contested,

that the constitution controls any legislative act

repugnant to it.”).

The Agencies then expand on this unlawful base

by claiming jurisdiction over all tributaries of these

waters, however small and insignificant. See 40 C.F.R.

§ 230.3(s). Nonnavigable, nearly invisible trickles are

neither channels nor instrumentalities of interstate

commerce and indeed have no effect whatsoever on

interstate commerce, regardless of whether they cross

state lines. Justice Kennedy recognized this overreach

5

The last legally valid rules were those from 1973 and 1974

(38 Fed. Reg. 34,164, 34,165 (Dec. 11, 1973); 38 Fed. Reg. 13,528,

13,529 (May 22, 1973); and 39 Fed. Reg. 4,532, 4,533 (Feb. 4,

1974)), interpreted according to later jurisprudence.

16

in his Rapanos opinion: “The merest trickle, if

continuous, would count as a “water” subject to federal

regulation.” 547 U.S. at 769. Nevertheless, here again,

the Agencies did not remove the unlawful regulations

from the Code, and their Rapanos Guidance continues

to claim jurisdiction over these waters.

The Agencies further claim authority over certain

waters that are “adjacent” or have a “significant nexus”

with jurisdictional waters or their tributaries even if

these nearby waters are completely physically

separate and have no commercially-relevant

interconnection. 40 C.F.R. § 230.3(s); Rapanos Guidance,

pp. 8-12.

“There is a view of causation that would obliterate

the distinction between what is national and what is

local in the activities of commerce.” A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)

(Cardozo, J., concurring). That is what the Agencies

have long done in their interpretation of WOTUS.

By extending federal jurisdiction over an unending

sequence of ever-more-attenuated connections to navigable waters, the Agencies have “asserted jurisdiction

over virtually any parcel of land containing a channel

or conduit—whether man-made or natural, broad or

narrow, permanent or ephemeral—through which

rainwater or drainage may occasionally or intermittently flow.” Rapanos, 547 U.S. at 722. Such regulation

“of immense stretches of intrastate land . . . [is] an

unprecedented intrusion into traditional state authority.” Id. at 738. The Agencies’ current interpretation of

WOTUS, including the applicable regulations and

17

Rapanos Guidance, no longer bears any reasonable

relationship to interstate commerce.

This Court should grant cert to rein in the

Agencies’ overreach under the Commerce Clause and

enforce the basic controlling effects of judicial

decisions.

3.

The current WOTUS definition encroaches on the traditional province of

the states.

In the Clean Water Act, Congress charged the

Agencies with protecting both the “chemical, physical,

and biological integrity” of truly “navigable waters”

and “the primary responsibilities and rights of States”

to prevent water pollution and manage their land and

water resources. 33 U.S.C. § 1251. The Agencies have

strayed far from this original commission and are now

interpreting WOTUS in ways that place primary

responsibility for the regulation of water on the federal

government. This is a violation of both the Clean Water

Act and the constitutionally mandated balance of state

and federal power.

“Regulation of land use, as through the issuance of

the development permits sought by petitioners in both

of these cases, is a quintessential state and local

power.” Rapanos, 547 U.S. at 738 (Scalia, J., plurality).

See also SWANCC, 531 U.S. at 174 (“the States [have]

traditional and primary power over land and water

use”). Preserving this balance of power is important

not only for constitutional purposes but also for

18

practical reasons. In a country as large as ours, “the

varied topographies and climates . . . call for varied

water quality solutions.” Miss. Comm’n on Nat. Res. v.

Costle, 625 F.2d 1269, 1275 (5th Cir. 1980).

But the expansion of authority under the

Agencies’ interpretation leaves very little, if any, water

for state regulation. Every pond or stream with a fish,

every tributary of such a water up to its tiniest,

ephemeral headwater trickle, and every wetland with

any ecological connection to such waters are subsumed

within federal jurisdiction. If few waters of any

meaningful size remain for the states, the Agencies are

not “honor[ing] the policy of cooperative federalism

that informs the Clean Water Act [or] . . . attend[ing]

the shared responsibility for safeguarding the nation’s

waters.” In re EPA, 803 F.3d 804, 808 (6th Cir. 2015).

Recognizing the states’ primary responsibility

over land and water regulation means not merely

giving states a share of the paperwork but preserving

their rights to regulate a water differently or even not

at all. The Agencies have long run afoul of this

constitutional and Clean Water Act directive. This

Court should grant cert to restore the appropriate

federal-state balance.

4.

The current WOTUS definition violates

this Court’s Rapanos decision.

The Agencies and courts are at sea in interpreting

Rapanos and, indeed, many of this Court’s fragmented

decisions. Marks v. United States is at the heart of this

19

confusion, particularly for decisions where the concurrence is not a logical subset of the plurality.6 This

would be an ideal occasion to resolve both the proper

interpretation of Rapanos and the precedential effect

of this Court’s fragmented decisions.

The Marks Court instructs as follows:

When a fragmented Court decides a case and

no single rationale explaining the result

enjoys the assent of five Justices, the holding

of the Court may be viewed as that position

taken by those Members who concurred in the

judgments on the narrowest grounds.

430 U.S. at 193.

However, “[t]he Marks Court did not elaborate on

how to identify the narrowest grounds.” United States

v. Hughes, 849 F.3d 1008, 1012 (11th Cir. 2017)

(quoting Bryan A. Garner, et al., The Law of Judicial

Precedent 199–200 (2016)). “In the face of this confusion, two main approaches have emerged: one focusing

on the reasoning of the various opinions and the other

on the ultimate results.” United States v. Davis, 825

F.3d 1014, 1020 (9th Cir. 2016). In the first, the holding

becomes that opinion which is the “logical subset of

other, broader opinions. In essence, the narrowest

opinion must represent a common denominator of the

Court’s reasoning; it must embody a position implicitly

6

This Court granted cert several years ago to clarify this

issue. See Hughes v. United States, 138 S. Ct. 1765, 1779 (2018).

But this Court was ultimately able to decide the case without

resolving the debate over Marks.

20

approved by at least five Justices who support the

judgment.” King, 950 F.2d at 781. In the second, “the

narrowest ground [i]s the rule that ‘would necessarily

produce results with which a majority of the Justices

from the controlling case would agree.’ ” Davis, 825

F.3d at 1021 (quoting Planned Parenthood of Se. Pa. v.

Casey, 947 F.2d 682, 694–97 (3d Cir. 1991)).

Because Justice Kennedy’s concurrence is not a

logical subset of Justice Scalia’s plurality, applying the

reasoning-based approach to Marks may be problematic. Indeed, the principle of “narrowest grounds” is

unclear for any biconditional rule such as the definition of WOTUS. See Steinman, A., Nonmajority

Opinions and Biconditional Rules, Yale L.J. (Mar.

2018), https://www.yalelawjournal.org/forum/nonmajorityopinions-biconditional-rules. Is a test that makes more

waters jurisdictional while making fewer waters

nonjurisdictional “narrowest” or the converse? Courts

disagree and, when they reach an impasse, seem to

choose based on the result they like best. For example,

the Eleventh Circuit follows Kennedy’s concurrence,

finding his standard the “narrowest” because it is “less

far-reaching (i.e., less-restrictive of CWA jurisdiction).”

United States v. Robison, 505 F.3d 1208, 1221 (11th Cir.

2007). But the First Circuit reasoned that “it seems

just as plausible to conclude that the narrowest ground

of decision in Rapanos is the ground most restrictive of

government authority (the position of the plurality),

because that ground avoids the constitutional issue of

how far Congress can go in asserting jurisdiction under

the Commerce Clause.” United States v. Johnson, 467

21

F.3d 56, 63 (1st Cir. 2006). Apparently not liking that

result, the First Circuit elected instead to take its

direction from the dissent and find federal jurisdiction

whenever either the plurality’s or the concurrence’s

test applied. Id., at 64-66.

Several circuit courts likewise follow this

approach of applying the dissenting opinion in interpreting Rapanos. See, e.g., United States v. Donovan,

661 F.3d 174, 181 (3d Cir. 2011); United States v. Bailey,

571 F.3d 791, 799 (8th Cir. 2009). Although not in this

context, the Ninth Circuit has also expressed support

for this approach. See Davis, 825 F.3d at 1025 (reasoning that “we assume but do not decide that

dissenting opinions may be considered in a Marks

analysis,” while acknowledging “that in King, the D.C.

Circuit explicitly stated that it was not ‘free to combine

a dissent with a concurrence to form a Marks majority.’

King, 950 F.2d at 783”).

The Agencies also follow an either/or approach.

See Rapanos Guidance, p. 3 (citing Stevens’ dissent to

justify incorporating both the plurality’s and the

concurrence’s standards). For example, they adopt

Justice Scalia’s “relatively permanent” criterion for

jurisdictional tributaries, despite Justice Kennedy’s

criticism of that standard as being a government overreach. See Rapanos Guidance, p. 1 (“The agencies will

assert jurisdiction over . . . [n]on-navigable tributaries

of traditional navigable waters that are relatively

permanent. . . .”); Rapanos, 547 U.S. at 769 (Kennedy, J.,

concurring) (“The merest trickle, if continuous, would

count as a ‘water’ subject to federal regulation. . . .”).

22

And they adopt Justice Kennedy’s “significant nexus”

test (see Rapanos Guidance, pp. 8-11) despite the

plurality’s lengthy critique of that approach. See

Rapanos, 547 U.S. at 753-57 (calling Justice Kennedy’s

“significant nexus” analysis a mischaracterization of

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985) that eschewed case-by-case determinations, a substitution of the purpose for the text of the

statute, the creation of a “new statute all on his own,”

and, ultimately, “turtles all the way down”).

This amalgam approach is an improper application of Marks and is unfaithful to the Rapanos

decision. The Eleventh Circuit explains:

Marks talks about those who “concurred in

the judgment[ ],” not those who did not join

the judgment. Marks, 430 U.S. at 193. It

would be inconsistent with Marks to allow the

dissenting Rapanos Justices to carry the day

and impose an “either/or” test, whereby CWA

jurisdiction would exist when either Justice

Scalia’s test or Justice Kennedy’s test is

satisfied.

Robison, 505 F.3d at 1221. The Agencies even

acknowledge in their Guidance this approach is

directly contrary to the direction of the Eleventh

Circuit. See Rapanos Guidance, p. 3, citing Robison.

Nevertheless, the Agencies remain steadfast in this

perspective both now and in the next rulemaking.

The either/or approach is also contrary to the

weight of judicial authority. Most courts interpret

23

Rapanos according to Justice Kennedy’s concurrence,

although they reach that result in different ways. The

Ninth Circuit provides plainly that in a 4-1-4 decision,

the concurrence is necessarily controlling. See N.

California River Watch v. City of Healdsburg, 496 F.3d

993, 995 (9th Cir. 2007). The Eleventh Circuit reasons

that Kennedy’s concurrence is the narrowest grounds

because it “will classify a water as ‘navigable’ more

frequently than Justice Scalia’s test.” Robison, 505

F.3d at 1221. The Seventh Circuit found Kennedy’s

concurrence “narrower (so far as reining in federal

authority is concerned)” and deemed it further persuasive that whenever Kennedy’s test is satisfied, five

justices would agree (including the four dissenters).

United States v. Gerke Excavating, Inc., 464 F.3d 723,

724 (7th Cir. 2006). In the Fourth Circuit, the parties

conveniently agreed. See Precon Dev. Corp. v. U.S. Army

Corps of Engineers, 633 F.3d 278, 288 (4th Cir. 2011).

But making Justice Kennedy’s test the law is also

a misapplication of Marks and a distortion of Rapanos.

Following his opinion has the effect of “turn[ing] a

single opinion that lacks majority support into

national law. When eight of nine Justices do not

subscribe to a given approach to a legal question, it

surely cannot be proper to endow that approach with

controlling force, no matter how persuasive it may be.”

King, 950 F.2d at 782.

Instead, a results-based perspective on the Marks

analysis may prove more useful. Five of the Rapanos

justices voted to reverse the District Court’s and the

Court of Appeals’ findings of federal government

24

jurisdiction over the waters at issue. Four of the

justices voted to affirm. Of the five Rapanos Justices

who “concurred in the judgment” (Marks, 430 U.S. at

193), they would only agree that a water body is subject

to federal jurisdiction when it meets both Justice

Scalia’s permanent/continuous test and Justice

Kennedy’s significant nexus test. Therefore, the result

of Rapanos is not either/or but both.

This approach also makes logical sense. An

unimportant trickle should not be sufficient to invoke

federal jurisdiction, but it makes an excellent starting

point because of its visual clarity. It provides an

unambiguous standard, without resort to experts and

years of lost commercial opportunity and the myriad

other problems with a case-by-case analysis that have

long troubled this Court (see Rapanos, 547 U.S. at 753).

And the significant nexus backdrop ensures inconsequential connections are not elevated beyond their

importance or their capacity for regulation under the

Commerce Clause. In practice, a significant nexus

analysis will seldom be necessary because most waters

covered under the plurality’s approach would also

satisfy Justice Kennedy’s test.

By joining both tests, the regulated community

receives clarity, the intent of Rapanos is effectuated,

and the Agencies remain within their constitutional

bounds. This Court should grant cert to so clarify the

Rapanos decision.

---------------------------------♦---------------------------------

25

CONCLUSION

For the foregoing reasons, SLF respectfully

requests this Court grant the Sacketts’ Petition for

Writ of Certiorari.

Dated: October 20, 2021

Respectfully submitted,

KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 West Crossville Rd.,

Ste. 104

Roswell, Georgia 30075

JENNIFER A. SIMON

Counsel of Record

KAZMAREK MOWREY CLOUD

LASETER LLP

1230 Peachtree St., NE,

Ste. 900

Atlanta, Georgia 30309

(404) 812-0126

jsimon@kmcllaw.com

Counsel for Amicus Curiae