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

No. 21-454

IN THE

___________

MICHAEL SACKETT; CHANTELL SACKETT,

PETITIONERS,

V.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, Administrator,

RESPONDENTS.

___________

On Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

__________

BRIEF OF THE LIBERTY JUSTICE CENTER AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

__________

April 14, 2022

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

440 N. Wells St., Suite 200

Chicago, IL 60654

(312) 637-2280

dsuhr@libertyjusticecenter.org

i

QUESTION PRESENTED

Whether the Ninth Circuit set forth the proper test for

determining whether wetlands are “waters of the

United States” under the Clean Water Act,

33 U. S. C. § 1362(7)?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

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

INTERESTS OF THE AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT

AND INTRODUCTION ........................................ 2

ARGUMENT ................................................................ 3

I.

The jurisdiction claimed by the government is grounded

in an unconstitutional delegation of legislative

authority. ................................................................. 3

II. “Waters of the United States” is not a sufficiently

intelligible principle for federal jurisdiction. ....... 8

CONCLUSION .......................................................... 14

iii

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935) ......................................................... 7

Arlington v. FCC, 133 S. Ct. 1863 (2013) ................... 7

Christopher v. SmithKline Beecham Corp., 567 U.S.

142 (2012) ............................................................... 13

Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225

(2015) .............................................................. passim

Georgia v. Wheeler, No. 2:15-cv-00079, 2019 U.S.

Dist. LEXIS 142152 (S.D. Ga. Aug. 21, 2019) ....... 13

Gundy v. United States, 139 S. Ct. 2116 (2019) ..... 6, 9

Hirabayashi v. United States, 320 U.S. 81 (1943) ...... 8

Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. 607

(1980) ........................................................................ 6

J. W. Hampton, Jr., & Co. v. United States, 276 U.S.

394 (1928) ................................................................. 7

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) .. 5

Mistretta v. United States, 488 U.S. 361 (1989) . 3, 6, 7

Nat’l Horsemen’s Benevolent & Protective Ass’n v.

Black, No. 5:21-CV-071-H, 2022 U.S. Dist. LEXIS

59557 (N.D. Tex. Mar. 31, 2022).............................. 1

Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) .......... 8

Pasqua Yaqui Tribe v. EPA, No. CV-20-00266-TUCRM, 2021 U.S. Dist. LEXIS 163921 (D. Ariz. Aug.

30, 2021) ................................................................. 13

Paul v. United States, 140 S. Ct. 342 (2019)............... 6

Rapanos v. United States, 547 U.S. 715 (2006) 2, 9, 10,

11, 12

Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159 (2001).............................. 10, 11

The Daniel Ball, 77 U.S. 557 (1871) ......................... 10

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) .. 5

iv

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001)

................................................................................ 13

Yakus v. United States, 321 U. S. 414 (1944) ......... 6, 8

Statutes

33 U.S.C. § 1311(a) ...................................................... 9

33 U.S.C. § 1319(c) ..................................................... 13

33 U.S.C. § 1344(g)(1) ................................................ 10

33 U.S.C. § 1362(12) .................................................... 9

33 U.S.C. § 1362(14) .................................................... 9

33 U.S.C. § 1362(6) ...................................................... 9

33 U.S.C. § 1362(7) .................................................. 2, 9

Other Authorities

1 William Blackstone, Commentaries 142 (1765) ...... 4

Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng.

Rep. 1352, 1353 (K.B. 1611)..................................... 4

Gary Lawson, Delegation and Original Meaning, 88

Va. L. Rev. 327, 340 (2002) ...................................... 4

Joint Memorandum of EPA and the Army Corps,

Clean Water Act Jurisdiction Following the U.S.

Supreme Court’s Decision in Rapanos v. United

States & Carabell v. United States¸ Dec. 2, 2008 . 12

The Federalist No. 47 (James Madison) ..................... 4

Regulations

86 Fed. Reg. 69,372 .................................................... 13

80 Fed. Reg. 37,054 .................................................... 12

Constitutional Provisions

Mass Const. pt. 1, art. XXX ......................................... 4

U.S. Const. art. I, § 1 ................................................... 3

U.S. Const. art. II, § 1, cl 1 .......................................... 4

1

INTERESTS OF THE AMICUS CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect

economic liberty, private property rights, free speech,

and other fundamental rights. The Liberty Justice

Center pursues its goals through strategic, precedentsetting litigation to revitalize constitutional restraints

on government power and protections for individual

rights.

Amicus is interested in this case because the protection of private property rights is a core value vital to a

free society. To that end, the Liberty Justice Center

represents property owners in a variety of cases

around the country. See, e.g., Mendez v. Chicago, Cook

County Illinois Chancery Court No. 16 CH 15489. Amicus also believes that standardless delegations of regulatory authority are constitutionally infirm and pursues litigation to oppose such delegations. See, e.g.,

Nat’l Horsemen’s Benevolent & Protective Ass’n v.

Black, No. 5:21-CV-071-H, 2022 U.S. Dist. LEXIS

59557 (N.D. Tex. Mar. 31, 2022) (challenging delegation of horseracing regulation to a private organization).

1 Rule 37 statement: No counsel for any party authored

any part of this brief, and no person or entity other

than amicus funded its preparation or submission.

Counsel timely provided notice to all parties of their

intention to file this brief, and counsel for each party

consented.

2

SUMMARY OF ARGUMENT

AND INTRODUCTION

Vague pronouncements license capricious enforcement. For 15 years, Michael and Chantell Sackett

have watched multiple presidential administrations

bounce back and forth as to just what Congress’ commands mean, with their rights and those of property

owners like them held in limbo.

The Sacketts stand liable for staggering fines for

violating a standard that neither administrations nor

courts can agree on—and that this Court itself could

not reach consensus on the last time it considered the

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

(2006). But there’s a straightforward explanation for

this confusion, and Congress is to blame. The Clean

Water Act defines “navigable waters” simply as “waters of the United States.” 33 U.S.C. § 1362(7). This

statutory definition does not provide proper notice or a

sufficiently intelligible principle and therefore is an

impermissible delegation of authority, allowing standardless regulation by an executive agency in violation

of the structural requirements of the Constitution. The

ordeal suffered by the Sacketts, see Pet. 14-17, demonstrates the pitfalls of such standardless delegation.

Congress’s circular definition of “waters of the

United States” cannot provide an intelligible principle

because, in the first place, it is not intelligible. The

statutory scheme uses the term “navigable waters” to

mean something inconsistent with both ordinary usage and legal tradition, leaving courts and regulated

parties floating adrift and subject to the arbitrary de-

3

terminations of executive agencies. The resulting regime provides no notice to property owners like the

Sacketts, no guidance for courts, and no limitation on

the power of the executive. Under the circumstances,

amicus submits that the best solution is to cut this

Gordian Knot and affirm that enacting sweeping, national regulation requires more of Congress than tautology.

ARGUMENT

I.

The jurisdiction claimed by the government is grounded in an unconstitutional

delegation of legislative authority.

“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States,

488 U.S. 361, 371 (1989). The opening sentence of the

Constitution specifies that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the

United States.” U.S. Const. art. I, § 1. The Nondelegation doctrine is at bottom an attempt to take this provision seriously: there is a legislative power to make

laws, and “all” such power resides in the Congress. See

Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225,

1244 (2015) (Thomas, J., concurring) (“[T]he separation of powers is, in part, what supports our enduring

conviction that the Vesting Clauses are exclusive and

that the branch in which a power is vested may not

give it up or otherwise reallocate it.”).

The President, by contrast, is not empowered to

make laws; instead, the document states that “[t]he executive Power shall be vested in a President.” U.S.

4

Const. art. II, § 1, cl 1. The Congress writes the laws,

and the President carries out the laws that Congress

writes. Implicit in this setup is the premise that neither branch may delegate its sphere of power to any

other. “The Vesting Clauses, and indeed the entire

structure of the Constitution, make no sense [if there

is no limit on delegations].” Gary Lawson, Delegation

and Original Meaning, 88 Va. L. Rev. 327, 340 (2002).

The premise that these powers must be separated,

and delegations avoided, is not some modern invention; rather, it predates the founding. Commentators

as far back as Lord Coke affirmed that the King could

not “change any part of the common law, nor create

any offence by his proclamation, which was not an offence before, without Parliament.” Ass’n of Am. R.R.,

135 S. Ct. at 1243 (Thomas, J., concurring) (quoting

Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep.

1352, 1353 (K.B. 1611)). Blackstone likewise wrote

that when “the right both of making and of enforcing

the laws . . . are united together, there can be no public

liberty.” 1 William Blackstone, Commentaries 142

(1765). John Adams, in drafting the Massachusetts

state constitution, expressly provided that “[t]he executive shall never exercise the legislative and judicial

powers . . . to the end it may be a government of laws

and not of men.” Mass Const. pt. 1, art. XXX. James

Madison warned that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same

hands, whether of one, a few, or many . . . may justly

be pronounced the very definition of tyranny.” The

Federalist No. 47 (James Madison).

5

The principle is likewise recognized in early Supreme Court cases, with Chief Justice Marshall declaring “[i]t will not be contended that Congress can delegate to the courts, or to any other tribunals, powers

which are strictly and exclusively legislative.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).

The basic principle is so well acknowledged that some

years later the Court described it as such: “that Congress cannot delegate legislative power to the President is a principle universally recognized as vital to

the integrity and maintenance of the system of government ordained by the Constitution.” Marshall Field &

Co. v. Clark, 143 U.S. 649, 692 (1892).

Recognizing these concerns, this Court has a longdeveloped doctrine limiting Congress’s discretion to

delegate its legislative prerogatives. As Justice

Rehnquist explained:

First, and most abstractly, [the nondelegation

doctrine] ensures to the extent consistent with

orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. Second, the doctrine guarantees that, to the extent Congress

finds it necessary to delegate authority, it provides the recipient of that authority with an “intelligible principle” to guide the exercise of the

delegated discretion. Third, and derivative of

the second, the doctrine ensures that courts

charged with reviewing the exercise of delegated

legislative discretion will be able to test that exercise against ascertainable standards.

6

Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. 607,

685–86 (1980) (Rehnquist, J., concurring) (internal citation omitted). The Court therefore requires that any

grant of regulatory authority include an “intelligible

principle” that will form the basis of agency action, but

what exactly this means in practice requires elaboration.

The basic requirement that derives from the

Court’s cases is that “Congress must set forth standards sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether

Congress’s guidance has been followed.” Gundy v.

United States, 139 S. Ct. 2116, 2136 (2019) (Gorsuch,

J., dissenting) (quoting Yakus v. United States, 321

U. S. 414, 426 (1944)). The onus is on Congress to “expressly and specifically decide the major policy question itself and delegate to the agency the authority to

regulate and enforce.” Paul v. United States, 140 S. Ct.

342, 342 (2019) (Kavanaugh, J., statement respecting

the denial of certiorari). The Court’s cases also

acknowledge that “no statute can be entirely precise,

and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it.”

Mistretta, 488 U.S. at 415 (Scalia, J., dissenting).

But this is not a reason to abandon the exercise,

because courts “may not—without imperiling the delicate balance of our constitutional system—forgo [their]

judicial duty to ascertain the meaning of the Vesting

Clauses and to adhere to that meaning as the law.”

Ass’n of Am. R.R., 135 S. Ct. at 1246 (Thomas, J., concurring). Even where a line is not readily apparent,

“the inherent difficulty of line-drawing is no excuse for

7

not enforcing the Constitution.” Ass’n of Am. R.R., 135

S. Ct. at 1237 (Alito, J., concurring). The failure to enforce these requirements undermines democratic trust

and accountability, since “the citizen confronting thousands of pages of regulations—promulgated by an

agency directed by Congress to regulate, say, ‘in the

public interest’—can perhaps be excused for thinking

that it is the agency really doing the legislating.” Id.

(quoting Arlington v. FCC, 133 S. Ct. 1863, 1879 (2013)

(Roberts, C.J., dissenting)).

Such requirements do not undermine the functioning of a proper regulatory scheme, since “the Constitution has never been regarded as denying to Congress

the necessary resources of flexibility and practicality.”

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 529 (1935). Nondelegation principles “do not

prevent Congress from obtaining the assistance of its

coordinate Branches,” Mistretta, 488 U.S. at 372

(1989), and few doubt “the inherent necessities of government coordination.” J. W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 406 (1928).

Yet “recognition of the necessity and validity of

such provisions, and the wide range of administrative

authority which has been developed by means of them,

cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be

maintained.” Schechter Poultry, 295 U.S. at 530. It is

no excuse that Congress was “too busy or too divided

and can therefore assign its responsibility of making

law to someone else.” Mistretta, 488 U.S. at 416

(Scalia, J., dissenting). Our constitutional structure

requires that each Congressional enactment “furnishes a declaration of policy or a standard of action.”

8

Panama Ref. Co. v. Ryan, 293 U.S. 388, 416 (1935). It

falls to Congress, and Congress alone, to “establish primary standards, devolving upon others the duty to

carry out the declared legislative policy.” Id. at 426.

Courts therefore must reject regimes in which they

find “an absence of standards for the guidance of the

Administrator’s action, so that it would be impossible

in a proper proceeding to ascertain whether the will of

Congress has been obeyed.” Yakus v. United States,

321 U.S. 414, 426 (1944).

Ultimately, what is proscribed by the nondelegation doctrine is the making of law. Blackstone “defined

a ‘law’ as a generally applicable ‘rule of civil conduct

prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.’” Ass’n

of Am. R.R., 135 S. Ct. at 1244 (Thomas, J., concurring). Where an agency accrues to itself the prerogative to enact such rules, they have transgressed the

constitutional boundaries. The failure to do so endangers the liberty guaranteed to each of us as citizens, as

past failures to uphold these principles should remind

us. See, e.g., Hirabayashi v. United States, 320 U.S. 81,

104 (1943) (approving the delegation of authority to

military commanders to intern citizens of Japanese descent).

II.

“Waters of the United States” is not a sufficiently intelligible principle for federal jurisdiction.

The Clean Water Act, in defining its grant of jurisdiction as the “waters of the United States,” does not

provide a sufficiently intelligible principle to guide—

9

and, what is most important, constrain—agency action. The statute does not give regulated parties a discernible basis for determining the boundaries of Congress’ scheme. And it does not provide the courts a sufficient basis to adjudicate the agency’s assertion of authority. In other words, it is not “sufficiently definite

and precise to enable Congress, the courts, and the

public to ascertain whether Congress’s guidance has

been followed.” Gundy, 139 S. Ct. at 2136 (Gorsuch, J.,

dissenting).

The CWA prohibits the “discharge of any pollutant

by

any

person,”

with

certain

exceptions.

33 U.S.C. § 1311(a). The term “discharge of a pollutant” is defined to include the “addition of any pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12). Navigable waters are defined as

“the waters of the United States, including territorial

seas.” 33 U.S.C. § 1362(7). A “point source” is any “conveyance . . . from which pollutants are or may be discharged,”

such

as

a

pipe

or

a

ditch.

33 U.S.C. § 1362(14). “Pollutants” are defined broadly

to include both substances that are toxic or dangerous

as well as fill material such as rocks or sand. 33 U.S.C.

§ 1362(6).

The definition of “navigable waters” circularly as

“waters of the United States” provides no basis for limiting agency discretion. This failure of definition is aggravated by the fact that other provisions of the Act

make clear that the term “navigable waters” “includes

something more than traditional navigable waters.”

Rapanos v. United States, 547 U.S. 715, 731 (2006)

(plurality opinion). “For a century prior to the CWA,

10

[the Supreme Court] had interpreted the phrase ‘navigable waters of the United States’ in the Act’s predecessor statutes to refer to interstate waters that are

‘navigable in fact’ or readily susceptible of being rendered so.” Id. at 723 (citing The Daniel Ball, 77 U.S.

557 (1871)). But various portions of the Act, see, e.g.,

33 U.S.C. § 1344(g)(1), make clear that Congress did

not base its scheme in a traditional, or even coherent,

understanding of which “waters” are “navigable.” See

Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159, 167 (2001). Rather, it left the

agency to define its own jurisdiction, undermining the

necessary limits on executive authority.

The result of this undefined discretion has been expansive, and inconsistent, application of agency authority. The first set of regulations issued by the Army

Corps limited the scope of the Act to waters that were

navigable in a traditional sense. See Solid Waste

Agency, 531 U.S. at 169. But a few years later, a new

administration “deliberately sought to extend the definition of ‘the waters of the United States’ to the outer

limits of Congress’s commerce power” by issuing a

new, and much broader interpretation. Rapanos, 547

U.S. at 724. These claims of federal jurisdiction metastasized to eventually engulf more or less the entire

country. As the plurality opinion in Rapanos described

it:

The Corps has also 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. On this view, the

11

federally regulated ‘waters of the United States’

include storm drains, roadside ditches, ripples of

sand in the desert that may contain water once

a year, and lands that are covered by floodwaters once every 100 years. Because they include

the land containing storm sewers and desert

washes, the statutory ‘waters of the United

States’ engulf entire cities and immense arid

wastelands. In fact, the entire land area of the

United States lies in some drainage basin, and

an endless network of visible channels furrows

the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a ‘water of the United States.’

Rapanos, 547 U.S. at 722. And since “the definitions

used to make jurisdictional determinations are deliberately left vague,” id. at 727, how can one know when

the standards are not met? This arbitrary and allreaching view extends to the exercise of permitting decisions, where he U. S. Army Corps of Engineers

(Corps) exercises the discretion of an enlightened despot, relying on such factors as ‘economics,’ ‘aesthetics,’

‘recreation,’ and ‘in general, the needs and welfare of

the people.’” Id. at 721.

This Court has at various points pushed back on

this enlightened despotism. For instance, it rejected

the Corps’ claim that “an abandoned sand and gravel

pit” was a water of the United States. Solid Waste

Agency, 531 U.S. at 162. In Rapanos, the Court further

clarified that the Corps could not push its jurisdictions

past all limits, but no single standard for determining

“waters of the United States” could garner majority

12

support. The plurality opinion, written by Justice

Scalia and joined by three colleagues, would have held

that the term in the statute should “include only relatively permanent, standing or flowing bodies of water,”

and therefore “only those wetlands with a continuous

surface connection to bodies that are ‘waters of the

United States’ in their own right, so that there is no

clear demarcation between ‘waters’ and wetlands, are

‘adjacent to’ such waters and covered by the Act.”

547 U.S. at 739, 741. Justice Kennedy, writing for

himself, would have held instead that the “Corps’ jurisdiction over wetlands depends upon the existence of

a significant nexus between the wetlands in question

and navigable waters in the traditional sense.” Id. at

779 (Kennedy, J., concurring). Following Rapanos,

EPA and the Corps issued a guidance memo stating

that they would claim jurisdiction using both the plurality and concurrence standards, whichever suited

them in any particular case. Joint Memorandum of

EPA and the Army Corps, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in

Rapanos v. United States & Carabell v. United States¸

Dec. 2, 2008.2.

In 2015, the agencies issued yet another regulation

defining their jurisdiction. See Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg.

37,054 (June 29, 2015). As one district court put it in

striking the rule down, this new definition of supposedly “navigable waters” was so broad, and disconnected from any sense of navigation, that “it read[] the

term navigability out of the CWA.” Georgia v. Wheeler,

https://www.epa.gov/cwa-404/2008-rapanos-guidance-and-related-documents-under-cwa-section-404.

2

13

No. 2:15-cv-00079, 2019 U.S. Dist. LEXIS 142152, at

*47 (S.D. Ga. Aug. 21, 2019). On January 23, 2020, the

agencies issued yet another new definition, which itself was recently struck down by a district court.

Pasqua Yaqui Tribe v. EPA, No. CV-20-00266-TUCRM, 2021 U.S. Dist. LEXIS 163921 (D. Ariz. Aug. 30,

2021). The Biden Administration has since announced

yet another new definition, for which the comment period ended February 7, 2022. See 86 Fed. Reg. 69,372.

These various rules over the years by various administrations have embraced greater and lesser scopes

of coverage. But even less expansive claims of authority are emblematic of the standardless discretion

granted to the agencies here. “The idea that an agency

can cure an unconstitutionally standardless delegation of power by declining to exercise some of that

power seems to us internally contradictory.” Whitman

v. Am. Trucking Ass’ns, 531 U.S. 457, 473 (2001). “The

very choice of which portion of the power to exercise—

that is to say, the prescription of the standard that

Congress had omitted—would itself be an exercise of

the forbidden legislative authority.” Id. And while the

Government has so far pursued the Sacketts for civil

penalties, this arbitrarily defined statute also contemplates criminal prosecution. 33 U.S.C. § 1319(c). That

these definitions bounce back and forth from administration to administration, representing not a coherent policy of Congress but the whim of executive preference, further renders the agencies’ authority suspect. See Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 157 (2012) (denying deference to the Labor Department’s repeatedly changing interpretations

of the Fair Labor Standards Act).

14

CONCLUSION

The Clean Water Act grants the executive “an unlimited authority to determine the policy and to lay

down the prohibition, or not to lay it down, as he may

see fit. And disobedience to his order is made a crime

punishable by fine and imprisonment.” Panama Ref.,

293 U.S. at 416. Such a delegation of executive authority cannot be squared with a government of limited

and enumerated powers.

For these reasons, and those stated by the Petitioners, the decision below should be reversed.

Respectfully submitted,

April 14, 2022

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

440 N. Wells St., Suite 200

Chicago, IL 60654

(312) 637-2280

dsuhr@libertyjusticecenter.org