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

No. 21-454

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 Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF DUARTE

NURSERY, INC., IN SUPPORT OF

PETITIONERS

____________________

TIMOTHY KASSOUNI

Counsel of Record

Kassouni Law

455 Capitol Mall, Suite 604

Sacramento, CA 95814

Telephone: (916) 930-0030

timothy@kassounilaw.com

RONDA AZEVEDO LUCAS

Lucas Law

19738 August Ave.

P.O. Box 696

Hilmar, CA 95324

Telephone: (916) 468-8208

ralucaslaw@outlook.com

Counsel for Amicus Curiae

Duarte Nursery, Inc.

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 Contents.......................................................................... ii

Table of Authorities ..................................................................... iii

Interest of Amicus Curiae ............................................................ 1

Summary of Argument ................................................................. 9

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

I. Congress Granted the Corps Broad but Limited

Jurisdiction Under the Act. .............................................. 11

II. The Ninth Circuit Did Not Apply the Proper Test in

Determining the Corps’s Jurisdiction Over Wetlands

Under the Act. ................................................................... 18

A. The Ninth Circuit, Among Other Courts and the Corps,

Have Improperly Chosen “Significant Nexus” Ignoring

Congressional Intent and Supreme Court Holdings. .. 19

B. The Act Does Not Support a “Significant Nexus” Test to

Determine Jurisdiction Over Wetlands. ...................... 20

C. “Significant Nexus” is Inconsistent with the Court’s

Prior Decisions Regarding the Act’s Application to

Wetlands........................................................................ 24

Conclusion................................................................................... 28

iii

Table of Authorities

Cases

BFP v. Resolution Trust Corp., 511 U.S. 531, (1994) ------------- 24

Federal Energy Regulatory Comm’n v. Mississippi, 456 U.S.

742, (1982) ----------------------------------------------------------------- 23

Foster v. United States, 303 U.S. 118, (1938) ----------------------- 11

Grayned v. City of Rockford, 408 U.S. 104, (1972) ----------------- 18

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49, (1987) ------------------------------------------------------ 11

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, (1994) --- 23

Marks v. United States, 430 U.S. 188, (1977) ----------------------- 20

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

Russello v. United States, 464 U.S. 16, (1983) ---------------------- 14

Solid Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159, (2001) ---------- passim

Sturgeon v. Frost, 577 U. S. ___, ___ ,(2016)------------------------- 12

United Sav. Assn. of Tex. v. Timbers of Inwood Forest Assoc.,

Ltd., 484 U.S. 365, (1988) -------------------------------------------- 15

United States v. Riverside Bayview Homes, 474 U.S. 121, (1985)

------------------------------------------------------------------------- passim

Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586

U. S. ____, ____, (2018) ------------------------------------------------ 12

iv

Statutes

33 U.S.C. § 323.4(a)(1)(iii)(D) --------------------------------------------- 4

33 U.S.C. § 1311(a) --------------------------------------------------------- 19

33 U.S.C. §1319 -------------------------------------------------------------- 6

33 U.S.C. § 1344(f)(1)(A) --------------------------------------------------- 4

33 U.S.C. § 1362(7) ----------------------------------------------------------- i

33 U.S.C. § 1362(12)-------------------------------------------------------- 19

Other Authorities

39 Fed. Reg. 12115 (April 3, 1974) ------------------------------------- 12

40 Fed. Reg. 31320 (July 25, 1975)-------------------------------- 12, 21

42 Fed. Reg. 26,961 (May 24, 1977) ------------------------------------ 15

80 Fed. Reg. 37054 (June 29, 2015) -------------------------------- 2, 22

Chesapeake Bay Restoration Act of 2000,

Pub. L. No. 106-457, 114 Stat. 1971 ----------------------------------- 16

Clean Water Act of 1972,

Pub. L. No. 92-500, 86 Stat. 816 --------------------------------- passim

Clean Water Act of 1977,

Pub. L. No. 95-217, 91 Stat. 1578 -------------------------------------- 16

Environmental Quality Improvement Act of 1970,

Pub. L. No. 91-224, 84 Stat. 114 ---------------------------------------- 15

Great Lakes Critical Programs Act of 1990,

Pub. L. No. 101-596, 104 Stat. 300 ------------------------------------- 16

v

Water Infrastructure Improvements for the Nation Act,

Pub. L. No. 114-322, 130 Stat. 1890 (2016) -------------------------- 16

Webster’s New International Dictionary 2882 (2 ed. 1954) ----- 13

Regulations

33 C.F.R. § 209.120(d)(2)(h) (1976)------------------------------------- 21

Supreme Court Rules

Sup. C. R. 37.3 ---------------------------------------------------------------- 1

Sup. C. R. 37.3 (a) ------------------------------------------------------------ 1

1

Interest of Amicus Curiae

Pursuant to Sup. C. R. 37.3, Duarte Nursery,

Inc. (“Duarte”) respectfully submits this brief amicus

curiae in support of Petitioners.1

Duarte has several interests in this case

stemming from its nightmare experience dealing

with the U.S. Army Corps of Engineers’s (“Corps”)

prosecution under the “guidance” issued by the Corps

and the U.S. Environmental Protection Agency

(“EPA”) in 2008 interpreting the Court’s Rapanos

decision.2 (Rapanos v. United States, 547 U.S. 715

(2006) (hereinafter “Rapanos”). Duarte is interested,

first and foremost, in the Federal Water Pollution

Control Act, or Clean Water Act (“Act”) being applied

as written by Congress so that ordinary people can

understand and apply it, which is not presently

happening. When it was passed in 1972, the Act

represented one piece of legislation – amongst a

comprehensive suite of similarly enacted legislation

–which sought to protect the environment while

recognizing and preserving the roles of state and

local governments. The Act embodied a constructive

bargain amongst clean water advocates, farmers,

municipalities, state governments and the public at

1 No counsel for any party authored this brief in whole or in

part, or made any monetary contribution intended to fund the

preparation or submission of this brief. No person (other than

the amici curiae, their members, or their counsel) made any

such monetary contribution. Written consent for amici curiae

participation in this case was granted by counsel of record for

all parties pursuant to Sup. C. R. 37.3 (a).

2 The Act grants authority to both the Corps and EPA. As used

in this brief any reference to the Corps acknowledges and

includes EPA as set forth in the Act and its implementing

regulations.

2

large to protect the nation’s navigable waters. In the

intervening decades, the agencies and some lower

courts have eviscerated Congress’s carefully

constructed bargain, ignoring their language and

intent and the Court’s holdings, by reading the Act to

have essentially limitless boundaries. These

limitless boundaries have led to regulations that give

no fair warning and, in practice, have led to the

delegation of basic policy matters to the Corps’s

employees who arbitrarily regulate and even

criminalize everyday activities like plowing a field to

plant food in areas vastly removed from navigable

waters or building your dream home on a parcel that

is surrounded by prior development. Even the Corps

admits it is not making entirely scientific judgments.

“Significant nexus is not a purely scientific inquiry”

but requires “scientific and policy judgment, as

well as legal interpretation.” Clean Water Rule:

Definition of “Waters of the United States,” 80 Fed.

Reg. 37054, 37060, 37057 (June 29, 2015) (emph.

added).

Under the Corps’s current practices, no

showing of actually discharging a pollutant into a

navigable water body is required, and the burden of

proving that you have not discharged a pollutant into

a navigable water body, which is the case for Duarte,

has been thrust upon individual citizens. This

process can take decades, cost millions of dollars, and

forces citizens to go through a civil process while

concurrently being threatened with criminal

prosecution and loss of liberty. Duarte provides a

real world example of the dangers with this limitless

approach.

3

Duarte was started in 1988 by third

generation farmers Jim and Anita Duarte and their

sons John and Jeff Duarte. Duarte began as a small

grape vine nursery and has grown to employ roughly

600 employees and 400 seasonal workers. Jim and

Anita’s sons are now the second generation of owners

with three generations of Duartes currently involved

in operations. Duarte’s story embodies the American

dream proving that through hard work and

commitment, law abiding citizens can achieve

success. For Jim and Anita, success is building a

family business that future generations will be proud

to be involved in and giving back to their community.

Duarte’s nightmare began in November 2012.

Duarte had high hopes that, working with the Corps

through its attorney, the Corps’s misunderstanding

could be easily resolved. These hopes were soon

dashed, and Duarte was prosecuted by the Corps, for

plowing a field a few inches deep in California’s

Central Valley, some 8 miles from the nearest

navigable water (the Sacramento River) to plant

wheat. The property at issue is located in Tehama

County and was purchased by Duarte in early 2012.

The property had been in rotational cultivation since

at least the 1960s with cattle grazing on the parcel

whenever it had not been in dryland crop production.

When not being grazed, the property had been

plowed, burned, dried out, irrigated, planted to small

grains, hayed, and otherwise disturbed many times

in the decades before the Corps asserted wetlands

jurisdiction and prosecuted Duarte for failing to

obtain a permit under the Act.

4

Duarte instructed third parties to plant,

maintain and harvest a winter wheat crop on this

property consistent with the property’s agricultural

history and the Act’s “farming exemption.”3 Duarte

relied on an engineering report provided by the

previous owner, the Natural Resource Conservation

Service’s confirmation that wheat had been

previously grown on the entire parcel, and the plain

language of the Act’s 404 agriculture exemption.

Based on this information, Duarte did not believe a

permit was required to farm its property. Duarte also

took the additional precaution of instructing the

third party to adjust the farming equipment thus

ensuring the chisel plow did not exceed more than 12

inches in the soil. The property was dry at the time

of the plowing, and the plowing resulted in tillage of

approximately 4-7 inches.

Because Duarte attempted to follow the Act

and take extra precautions, the Corps labeled Duarte

a “flagrant” violator. Rather than working with

Duarte, the Corps refused to provide the information

it was relying upon and ignored Duarte’s

constitutional protections by insisting Duarte

provide evidence of its alleged wrong doing to aid in

the Corps’s ongoing investigation while

simultaneously demanding Duarte stop all activities

on its property under threat of civil and criminal

3 Specifically, section 404(f)(1)(A) was added to the Act to

expressly eliminate any requirement to obtain a permit for

“discharge: (A) from normal farming . . . and ranching activities

such as plowing.” 33 U.S.C. § 1344(f)(1)(A). Moreover, the

Corps has by regulation recognized that “plowing” “will never

involve a discharge.” 33 U.S.C. § 323.4(a)(1)(iii)(D).

5

penalties. As a result, Duarte, in 2013, sued the

Corps for denying its due process rights.

In 2013 shortly after Duarte filed its suit, the

Corps discussed their Duarte enforcement with EPA.

Under official Corps policy, enforcement matters are

referred to EPA for further action. However, EPA

declined to pursue the Duarte enforcement because

Duarte’s lawsuit was a “complicating factor.”

Normally, EPA’s decision to not pursue an

enforcement action results in the agencies dropping

the matter. Here, however, the Corps took the

extraordinary step of involving the Department of

Justice to sue Duarte because, as a Justice attorney

asserted, Duarte sued us so we had to sue them.

This fiasco originated from a Project Manager

in the Redding Corps’s office, a single person

regulatory unit covering five counties, driving by the

Duarte property and noticing farming equipment

parked. He testified it was raining so he did not get

out of his vehicle but took pictures from the side of

the road. He stated he believed there was a large

agricultural conversion going on violating the Act.

Later, the Project Manager admitted he had

assumed the neighboring property was part of

Duarte’s parcel and the equipment he saw on that

parcel raised the red flag. These assumptions were

erroneous. Based on his drive by and ignorance of

the difference between “deep ripping” and “plowing,”

he opened an investigation and issued a Cease and

Desist Letter against Duarte. Farmers, for

centuries, have interchangeably used the phrase

“ripped” and “plowed” in common parlance without

regard to the depth of the tillage. In reality, Duarte

6

was simply using a standard tractor and chisel plow

to plant wheat – a normal farming practice necessary

to grow anything.

Corps’s Photo of Tractor on Duarte Property,

Marked Up by Third Party

The Cease and Desist Letter’s attachment

“Appendix A, The Clean Water Act” reads in part:

Section 309 (33 USC §1319) states in part:

(c) Criminal penalties (1) . . . (A) Any person who negligently

violates Section . . . 1311 . . .shall be

punished by a fine of not less than

$2,500 nor more than $25,000 per day of

violation, or by imprisonment for not

more than 1 year, or by both ...

(2) ... (A) Any person who knowingly

violates section ... 1311 … shall be

punished by a fine of not less than

$5,000 nor more than $50,000 per day of

7

violation, or by imprisonment for not

more than 3 years, or by both ...

(d) Civil penalties; ... any person who violates

section ... 1311 ... and any person who violates

any order issued by the Administrator under

subsection (a) of this section, shall be subject to a

civil penalty not to exceed $ 25,000 per day for

each violation. In determining the amount-of a

civil penalty the court shall consider the

seriousness of the violation or violations, the

economic benefit (if any) resulting from the

violation, any history of such violations, any

good-faith efforts to comply with the applicable

requirements, the economic impact of the penalty

on the violator, and such other matters as justice

may require. . ..

The small wetlands on Duarte’s property

consist of vernal pools and wetland swales formed

atop thick subsurface layers of restrictive soils that

essentially block water from percolating into the

groundwater and cover less than five percent of the

property. During the rainy season, water rests atop

these restrictive layers; areas that become saturated

from the top of the restrictive layer up to the ground

surface form wetlands. As might be expected, given

these conditions, the property’s wetlands persist and

coexist with the previous agricultural activities there

and continue to this day. The following facts did not

stop the Corps from asserting jurisdiction over dry

farmland and aggressively prosecuting Duarte: 1) the

subsurface restrictive layers were never disturbed by

Duarte’s activities; 2) the plowing and wheat

planting did not convert any waters to dry land as

8

confirmed by the Corps and the Department of

Justice’s own experts; 3) Duarte’s 2012 plowing did

not affect the flow, circulation, or reach of any

wetlands on the property; and 4) Duarte’s plowing

and tilling of the farmland never resulted in the

discharge of any pollutant into navigable waters.

Shallow Tillage at Duarte Property, with Wetlands in

Full Bloom and Wheat Growing

Duarte was prosecuted under the Corps

“guidance” issued in 2008 which solely relied on

Justice Kennedy’s opinion in the Rapanos case. The

Corps clearly interpreted the “case by case” basis

language to untether them from any real restraint by

Congress and have set up a regulatory system by

which Corps personnel can and do randomly chose to

move the goal posts set by Congress and the Courts

to flex their regulatory might and assail ordinary

citizens without the benefit of any Constitutional

protections. The Corps contended Duarte could owe

over a hundred million dollars in fines – not for

discharging pollutants but for failing to get a permit

9

on a property that was eight miles from a river –

with the threat of criminal prosecution ever present.

Duarte, facing the fact the lower courts are

often inconsistent with the prior rulings of this Court

and could again move the goal posts set by Congress,

was forced to make a very difficult decision; continue

forward in the courts in order to face the Ninth

Circuit and its robust history of empowering the

Corps’s unlimited jurisdiction thereby risking the

entire Duarte family losing everything, perhaps even

their freedom, while destroying the livelihoods of

their hard working and loyal employees or settle.

There was no choice. Duarte settled paying $1.1

million and is subjected to certain injunctive relief.

Duarte’s consent decree specifies that much of the

injunctive relief may be reduced if the law on what is

navigable waters changes. Today, like the Sackett

property, Duarte’s property sits idle. Duarte is

unable to use its property as it intended. Duarte, the

Sacketts and countless other citizens are at the

mercy of this Court to resolve this issue in a manner

that any common citizen can interpret.

Summary of Argument

In order to address the Court’s question

presented, one must go back to basics. The Court

must first look at the language Congress passed

when it implemented the amendments on October

18, 1972 and, thus, created the Act as we know it

today. This review cannot be done in a vacuum.

Statutes must be interpreted so as to be entirely

harmonious with all laws as a whole.

Contemporaneous with Congress’s passage of the

10

Act, Congress passed other legislation that evoked

protections to improve air quality, preserve protect

and restore the coastal zone, protect species and

populations of marine mammals, provide for the

conservation of endangered and threatened species of

fish, wildlife, and plants, preserve, restore, and

improve wetlands, and to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s water.

Every word within a statute is there for a

purpose and should be given its due significance.

The Court’s role is to construe laws in harmony with

their original legislative intent recognizing that the

passage of no amount of time can change that

original intent. And while undertaking this role, the

Court must remember that perhaps the most

important element is whether or not the statute and

the Court’s application of it give the common man a

reasonable opportunity to know what is prohibited so

he may act accordingly. This edict has even more

importance when interpreting and applying the Act

because the consequences are so high. Merely failing

to obtain a permit because of one’s good faith belief

the Corps does not have jurisdiction can easily result

in millions of dollars in fines and penalties, the

inability to use one’s property as one wishes for years

if not decades and, most egregious, the real life

consequence of losing one’s liberty. The loss of

liberty makes and should make the law intolerant of

error.

11

Argument

I.

Congress Granted the Corps Broad but Limited

Jurisdiction Under the Act.

In order to answer the presented question, the

Court must first look to the original language of the

statute when originally enacted. “The starting point

for interpreting a statute is the language of the

statute itself.” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987);

The passage of no amount of time can change the

original legislative intent of the law. “Courts should

construe laws in harmony with the legislative

intent….” Foster v. United States, 303 U.S. 118, 120

(1938.)

The Act is the principal law governing

pollution of the nation’s surface waters. This

legislation, originally enacted in 1948, was totally

revised by amendments in 1972 which give the Act

its current dimensions. Clean Water Act of 1972,

Pub. L. No. 92-500, 86 Stat. 816. The 1972

legislation spelled out ambitious programs for water

quality improvement that have since been expanded.

The Act’s objective is “to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s water” by, in part, setting a national goal of

eliminating “the discharge of pollutants into

navigable waters” and “provid[ing] for the protection

and propagation of fish, shellfish, and wildlife, and

provid[ing] for recreation in and on the water.” Id. at

§ 101 (a)(1), (2). (emph. added).

12

The Act expressly defined:

“navigable waters” as “the waters of the United

States, including the territorial seas.” Id at. §

502(7), 886 (emph. added).

“discharge of a pollutant” and “discharge of

pollutants” as, “any addition of any pollutant to

navigable waters from any point source, any

addition of any pollutant to the waters of the

contiguous zone or the ocean from any point

source….” Id. at § 502(12), 886 (emph. added).

Of course, “[s]tatutory language cannot be

construed in a vacuum,” Sturgeon v. Frost, 577 U. S.

___, ___ (2016) (slip op., at 12) (internal quotation

marks omitted), and so we must also consider “the

discharge of pollutants into navigable waters” in its

statutory context. As Chief Justice Roberts has

noted, “[a]djectives modify nouns—they pick out a

subset of a category that possesses a certain quality.”

Weyerhaeuser Co. v. United States Fish and Wildlife

Serv., 586 U. S. ____, ____ (2018) (slip op., at 8). It

follows that “navigable waters” is the subset of

“waters” that are “navigable,” and thus it is

“navigable waters” that Congress intended the Corps

to have jurisdiction over under the Act. 4 As this

Court noted in its Rapanos plurality decision, “[t]he

only natural definition of the term ‘waters,’ our prior

and subsequent judicial construction of it, clear

evidence from other provisions of the statute and this

Court’s canons of construction all confirm that ‘the

4 Even the Corps originally adopted this narrow view of its own

authority under the Act. Permits for Activities in Navigable

Waters or Ocean Waters, 39 Fed. Reg. 12115, 12119 (April 3,

1974); Id. at 40 Fed. Reg. 31320, 31325-31326 (July 25, 1975).

13

waters of the United States’ in § 1362(7) cannot bear

the expansive meaning that the Corps would give it.”

Rapanos, 547 U.S. at 731.

The Act’s statutory structure affirms the

Court’s opinion above and elucidates Congress’s

desire to limit the Corps’s authority, and thus the

need to obtain a federal permit to use one’s property,

to navigable waters.5 The Act could have defined

“navigable waters” as “waters of the United States”

but it did not. Instead, Congress used “the waters,”

indicating the original definition did not refer to

water in general, but “‘the waters’ refers more

narrowly to water as found in streams and bodies

forming geographical features such as oceans, rivers

and lakes, or the flowing or moving masses, as waves

or floods, making up such streams or bodies.”

Rapanos, 547 U.S. at 732 (quoting Webster’s New

International Dictionary 2882 (2 ed. 1954)). Read in

conjunction with the Act’s entire statutory construct,

it is clear “navigable waters” means something more

discrete than all waters.

As noted above, Congress defined “discharge of

a pollutant” to include “any addition of any pollutant

to navigable waters from any point source.” Clean

Water Act of 1972, Pub. L. No. 92-500 § 502(12), 86

5 “PERMITS FOR DREDGED OR FILL MATERIALS

Sec. 404. (a) The Secretary of the Army, acting through the

Chief of Engineers, may issue permits, after notice and

opportunity for public hearings for the discharge of dredged or

fill material into the navigable waters at specified disposal

sites.” Clean Water Act of 1972, Pub. L. No. 92-500 § 404(a), 86

Stat. 884 (emph. added).

14

Stat. 886 (emph. added). Congress separately

defined “point source” to mean “any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or may

be discharged.” Id. at § 502(14), 86 Stat. 887. Thus,

Congress defined “point source” to encompass

conveyance systems and watercourses that

intermittently contain water and separated these

intermittent or occasional flows from “the waters of

the United States.” Every word within a statute is

there for a purpose and should be given its due

significance. Russello v. United States, 464 U.S. 16,

23 (1983). When the Act is read in its totality, it is

clear the Act confers jurisdiction only over relatively

permanent bodies of water and not wetlands and

even dry land miles from these permanent bodies.

To further determine what Congress’s

intention was when defining “navigable waters,” and

specifically whether Congress intended the term to

include all wetlands, the Court must look to the

totality of Congress’s actions in the early 1970s and

the entire body of laws enacted. Statutes must be

interpreted so as to be entirely harmonious with all

laws as a whole. The pursuit of this harmony is

often the best method of determining the meaning of

specific words or provisions which might otherwise

appear ambiguous. It is, of course, true that

“[s]tatutory construction is a holistic endeavor” and

the meaning of a provision is “clarified by the

remainder of the statutory scheme . . . .” United Sav.

Assn. of Tex. v. Timbers of Inwood Forest Assoc., Ltd.,

15

484 U.S. 365, 371 (1988) (internal quotations

omitted).

The 1970s was a seminal decade for

environmental protection wherein Congress passed a

suite of legislation creating a holistic, comprehensive

approach to environmental protection.6 In each act it

passed, Congress set forth specific goals and gave

specific jurisdiction to discrete agency administrators

and secretaries to achieve the respective goals

Congress set forth. For example, the EQIA

specifically set forth the “national policy for the

environment which provides for the enhancement of

environmental quality…”and asserts “[t]he primary

responsibility for implementing this policy rests with

State and local governments.” Environmental

Quality Improvement Act of 1970, Pub. L. No. 91224, §§ 202(b)(1), (2), 84 Stat. 114. Further, in 1977,

under the authority of the National Environmental

Policy Act, Executive Order 11990 was issued for the

protection of wetlands. Exec. Order No. 11,990, 42

Fed. Reg. 26,961 (May 24, 1977). Notably, section

1(b) states, “[t]his Order does not apply to the

issuance by Federal agencies of permits, licenses, or

allocations to private parties for activities involving

wetlands.” Id. When considering these laws as a

whole, it is clear Congress was well aware of the

6 In its first year came the creation of the Environmental

Protection Agency, the passage of the Clean Air Act of 1970,

Environmental Quality Improvement Act of 1970 (“EQIA”), and

The Water Bank Act. Congress then passed, amongst others,

the Act, the Marine Mammal Protection Act of 1972, Coastal

Zone Management Act of 1972, and the Endangered Species Act

of 1973.

16

existence of wetlands, and indeed, had passed

legislation to protect and restore wetlands in a

variety of venues, but not specifically in the Act.

The Act, when passed in 1970, was completely

void of the word “wetlands,” and in its existence

today, the Act uses that word only six times. In the

Act’s 1977 amendments, Congress added the word

“wetlands” three times, two of which were in

reference to “the National Wetlands Inventory” in

the context of best management planning and

appropriations. Clean Water Act of 1977, Pub. L. No.

95-217 §§ 34(B)(v), (b)(2), 91 Stat. 1578. The other

reference authorized transfer of permitting authority

to the states under the Act except for discharges to

certain classes of waters and “wetlands adjacent

thereto.” Id. at § 67(b)(g)(1), 91 Stat. 1601. In 1990,

Congress added the word “wetlands” two times in the

text of the “Great Lakes Critical Programs Act of

1990” specifically within the Lake Champlain

drainage basin. Pub. L. No. 101-596 §§ 120(g),

304(B)(ii), 104 Stat. 3008, 3010. In 2000, Congress

added the word “wetlands” once in the text of the

“Chesapeake Bay Restoration Act of 2000.” Pub. L.

No. 106-457 § 117(g)(1)(D), 114 Stat. 1971. In 2016,

Congress added the final “wetlands” through the text

of the “Water Infrastructure Improvements for the

Nation Act” concerning prioritizing appropriations.

Pub. L. No. 114-322 § 5005(B)(iv), 130 Stat. 1890

(2016). As this statutory evolution demonstrates,

when Congress did use the word “wetlands” as far as

a waterbody was concerned, Congress tied that

reference to proximity to navigable waters and/or a

clearly defined geographical area (i.e., wetlands

adjacent to waters, Lake Champlain, and

17

Chesapeake Bay) and not the limitless, nebulous

expanse asserted by the Corps today.

Clearly, Congress had the knowledge and

opportunity to define navigable waters to include

“wetlands” in the Act if it so chose. Congress did not.

As the Rapanos plurality stated, “[i]n any event, a

Comprehensive National Wetlands Protection Act is

not before us, and the wis[dom] of such a statute is

beyond our ken. What is clear, however is that

Congress did not enact one when it granted the

Corps jurisdiction over only the waters of the United

States.” Rapanos, 547 U.S. at 745-746 (internal

citations and quotations omitted). And, absent

“overwhelming evidence of acquiescence” the Court is

“loath to replace the plain text and original

understanding of [the Act] with an amended agency

interpretation.” Solid Waste Agency of Northern

Cook County v. United States Army Corps of

Engineers, 531 U.S. 159, 169-170 n. 5 (2001)

(Hereinafter “SWANCC”). Clearly, Congress never

granted or intended to grant the Corps or any other

agency jurisdiction under the Act over all wetlands

and certain dry lands. Rather, the Act authorizes

federal jurisdiction only over certain “waters” (i.e.,

“relatively permanent bodies of water”). Clean

Water Act of 1972, Pub. L. No. 92-500 § 502(7), 86

Stat. 886; Rapanos, 547 U.S. at 731, 734.

The term “waters” was defined by Congress

and originally interpreted by the Corps and the

Court in a manner every citizen understood because

it gave fair warning. The Corps has taken us far

afield from this understanding.

18

“It is a basic principle of due process that an

enactment is void for vagueness if its

prohibitions are not clearly defined. Vague laws

offend several important values. First, because

we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a

reasonable opportunity to know what is

prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented,

laws must provide explicit standards for those

who apply them. A vague law impermissibly

delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and

subjective basis, with the attendant dangers of

arbitrary and discriminatory application . .

.Uncertain meanings inevitably lead citizens to

steer far wider of the unlawful zone. . .than if the

boundaries of the forbidden areas were clearly

marked.”

Grayned v. City of Rockford, 408 U.S. 104, 108-109

(1972) (internal quotations and footnotes omitted).

The Court should take this opportunity to revert

back to Congress’s plain language and intent,

thereby avoiding the vagueness the Corps has

created allowing it to arbitrarily and discriminately

enforce against innocent citizens.

II.

The Ninth Circuit Did Not Apply the Proper

Test in Determining the Corps’s Jurisdiction

Over Wetlands Under the Act.

19

A. The Ninth Circuit, Among Other Courts and

the Corps, Have Improperly Chosen

“Significant Nexus” Ignoring Congressional

Intent and Supreme Court Holdings.

The Court, prior to Rapanos, had asserted and

subsequently affirmed a well-founded majority

opinion, grounded in the statutory text, concerning

the jurisdictional and geographic scope of the Act.

The Act regulates discharges of pollutants to

“navigable waters.” 33 U.S.C. §§ 1311(a), 1362(12).

The Court affirmed that navigable waters did include

wetlands actually abutting a navigable-in-fact river

because such wetlands are part of “the transition

from water to solid ground.” United States v.

Riverside Bayview Homes, 474 U.S. 121, 132 (1985)

(hereinafter Riverside Bayview). In SWANCC, the

Court majority held the Act does not allow regulation

of ponds that are not adjacent to open water

affirming its rationale and holding in Riverside

Bayview that proximity to navigable waters is

determinative and the Corps went too far including

lands not adjacent or abutting navigable waters.

SWANCC, 531 U.S. at 168. Despite the consistent

rationale and clear holding of both of these Supreme

Court opinions, the Corps and some lower courts

repeatedly ignored the Court’s determination that

the Act’s grant of jurisdiction stops where navigablein-fact waters have transitioned to solid ground, and

continued to regulate far afield, like Duarte’s wheat

field some 8 miles from the nearest navigable water.

In 2008, shockingly, the Corps gave itself wide

latitude in determining which opinion it felt met its

goals, in essence choosing a single Justice’s opinion

20

over the prior Court holdings in Riverside Bayview,

SWANCC, and the Rapanos plurality opinion. The

Ninth Circuit has errantly endorsed and affirmed the

Corps’s choice in the present case. When no single

rationale explaining the Court’s judgment in a

particular case garners a majority, the holding “may

be viewed as that position taken by those Members

who concurred in the judgments on the narrowest

grounds.” Marks v. United States, 430 U.S. 188, 193

(1977) (emph. added). As applied to Rapanos, Justice

Kennedy’s opinion, rather than being the narrowest

grounds for the decision, in fact represented the

broadest rationale receiving no additional support

from other Justices and thus, should be afforded

little to no precedential affect. No other Justice

joined in this opinion, and the plurality opinion,

expressing the rationale and judgment of four

Justices, expressly criticized it. Rapanos, 547 U.S. at

753-757. It was inappropriate, therefore, for the

Ninth Circuit to use the “significant nexus” test, and

its decision must be overturned.

B. The Act Does Not Support a “Significant

Nexus” Test to Determine Jurisdiction Over

Wetlands.

The Act does not impose federal jurisdiction

over wetlands. The “significant nexus” test contains

zero contextual support from the Act’s actual

language as originally written. As noted above,

Section 404 of the Act authorizes the Corps to issue

permits for dredge and fill material “into navigable

waters.” Clean Water Act of 1972, Pub. L. No. 92500 § 404(a), 86 Stat. 884 (emph. added). After

initially construing the Act to cover only waters

21

navigable in fact, in 1975 the Corps issued interim

final regulations redefining “the waters of the United

States” to include not only actually navigable waters

but also tributaries of such waters, interstate waters

and their tributaries, and nonnavigable intrastate

waters whose use or misuse could affect interstate

commerce.” Revised Definition of “Waters of the

United States,” 40 Fed. Reg. 31320 (July 25, 1975).

More importantly for present purposes, the Corps

construed the Act to cover all freshwater wetlands

that were adjacent to other covered waters. A

“freshwater wetland” was defined as an area that is

“periodically inundated” and is “normally

characterized by the prevalence of vegetation that

requires saturated soil conditions for growth and

reproduction.” 33 C.F.R. § 209.120(d)(2)(h) (1976).

Since then, the Corps has inflicted ever expanding

federal regulation of land use under the Act without

Congress making any change to the relevant

sections of the Act. The Corps, merely through

regulatory fiat, interpret their jurisdiction under “the

waters of the United States” to cover more than 300

million acres of land – including half of Alaska and

an area the size of California in the lower 48 states.

Rapanos, 547 U.S. at 722.

This brazen assertion of federal land use

control is justified to control the discharge of

“dredged or fill material,” (i.e., dirt, rocks, and

substrate) “which unlike traditional water

pollutants, are solids that do not readily wash

downstream” and actually make it into the navigable

waterbody. Id. at 723. Importantly, the Act does not

contain a single reference to a “significant nexus”

test to determine the Corps’s authority. “That

22

phrase[, significant nexus,] appears nowhere in the

Act….” Id. at 755. Instead, the “significant nexus”

test “simply rewrites the statue, using for that

purpose the gimmick of significant nexus.” Id. at

756.

“The only natural definition of the term

‘waters,’ our prior and subsequent jurisdiction

constructions of it, clear evidence from other

provisions of the statute, and this Court’s cannons of

construction all confirm that ‘the waters of the

United States’ in §1362(7) cannot bear the expansive

meaning that the Corps would give it.” Id. at 731732. Thus, the Corps’s interpretation and

application of the Act is impermissible under not

only the Court’s cannons of construction but also

because it results “in a significant impingement of

the States’ traditional and primary power over land

and water use.” SWANCC, 531 U.S. at 174. Under

the guise of “significant nexus” the Corps set up a

construct to regulate wetlands, regardless of their

proximity to navigable waters and whether activities

in those wetlands will actually result in the

discharge of a pollutant into navigable waters, for

the purpose of regulating an area Congress never

authorized. In so doing, the Corps improperly

usurped the legislative and democratic process

because, in the Corps’s own words, the “significant

nexus” test “requires scientific and policy

judgment as well as legal interpretation.” Clean

Water Rule: Definition of “Waters of the United

States,” 80 Fed. Reg. 37054, 37060, 37057 (June 29,

2015) (emph. added).

Unlike the Court, the Corps has focused not on

Congress’s intent and grant of jurisdiction to control

23

the discharge of pollutants into navigable waters but

instead has granted itself, improperly, the authority

to regulate virtually all wetlands by ignoring the

Act’s purpose and contradicting Congress. “It is the

policy of Congress to recognize, preserve and protect

the primary responsibilities of States to prevent,

reduce and eliminate pollution, to plan the

development and use (including restoration,

preservation, and enhancement) of land and water

resources….” Clean Water Act of 1972, Pub. L. No.

92-500 § 101(b), 86 Stat. 816. Regulation of land use,

as through the issuance of the development permits

sought by petitioners in this case, is a quintessential

state and local power. Federal Energy Regulatory

Comm’n v. Mississippi, 456 U.S. 742, 767-768, n. 30

(1982); Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 44 (1994). “But the expansive theory

advanced by the Corps, rather than preserving the

primary rights and responsibilities of the States [has

brought] virtually all planning of the development

and use of land and water resources by the States

under federal control.” Rapanos, 547 U.S. at 737.

The extensive federal jurisdiction the Corps has

granted itself allows them to function as a de facto

regulator of vast stretches of intrastate land, and the

agency has repeatedly demonstrated its enthusiastic

willingness to exercise the scope of discretion that

would befit a local planning commission or zoning

board.

The Corps has eviscerated the Act’s carefully

constructed balance between state and federal

authority over land use. The Court allows such

conduct only with a “clear and manifest” statement

from Congress to authorize an unprecedented

intrusion into state authority. BFP v. Resolution

24

Trust Corp., 511 U.S. 531, 544 (1994). “The phrase

‘the waters of the United States’ hardly qualifies.”

Rapanos, 547 U.S. at 738. “It would have been an

easy matter for Congress to give the Corps

jurisdiction over all wetlands (or, for that matter, all

dry lands) that significantly affect the chemical,

physical, and biological integrity of waters of the

United States. It did not do that, but instead

explicitly limited jurisdiction to waters of the United

States.” Id. at 756 (internal quotations omitted).

The “principle problem” with Justice Kennedy’s

significant nexus test is its creation in “utter

isolation from the text of the Act.” Id. at 754-755.

The Act does not grant the Corps jurisdiction over

wetlands and never uses the phrase “significant

nexus.” The Ninth Circuit’s ruling in this case is in

error and must be reversed.

C. “Significant Nexus” is Inconsistent with the

Court’s Prior Decisions Regarding the Act’s

Application to Wetlands.

The Court has already reached a sensible

majority opinion concerning the Act’s application to

wetlands vis-à-vis the phrase “navigable waters,”

and it is not the “significant nexus” test. “Justice

Kennedy’s reading of ‘significant nexus’ bears no

easily recognizable relation to either the case that

uses it (SWANCC) or to the earlier case that that

case purported to be interpreting (Riverside

Bayview).” Id. at 753. This “significant nexus”

standard “certainly does not come from Riverside

Bayview, which explicitly rejected such case-by-case

determinations of ecological significance for the

jurisdictional question of a wetland is covered,

25

holding instead that all physically connected

wetlands are covered.” Id., Riverside Bayview, 474

U.S. at 135, n.9. Further, the “significant nexus test”

“cannot be derived from SWANCC’s characterization

of Riverside Bayview, which emphasized that the

wetlands which possessed a significant nexus in that

earlier case ‘actually abutted on a navigable

waterway,’ and which specifically rejected the

argument that physically unconnected ponds could

be included based on their ecological connection to

covered waters.” Rapanos, 547 U.S. at 754;

SWANCC, 531 U.S. at 167.

In Riverside Bayview, the Court accepted that

navigable waters could include wetlands actually

abutting a navigable-in-fact water (a river)

because such wetlands are part of “the transition

from water to solid ground.” Riverside Bayview, 474

U.S. at 132 (emph. added). In reaching that

conclusion, the Court focused on proximity. “More

importantly for present purposes, the Corps

construed the Act to cover all ‘freshwater wetlands’

that were adjacent to other covered waters.” Id.

at 124 (emph. added). The Court stated it “must

determine whether respondent’s property is an

‘adjacent wetland’ within the meaning of the

applicable regulation….” Id at 126 (emph. added).

The Court held it was reasonable “in light of the

language, policies, and legislative history of the Act

for the Corps to exercise jurisdiction over wetlands

adjacent to [ i.e., abutting] but not regularly flooded

by rivers, streams, and other hydrographic features

more conventionally identifiable as ‘waters.’” Id. at

131 (emph. added). The Court’s “holding was based

in large measure upon Congress’ unequivocal

26

acquiescence to, and approval of, the Corps’

regulations interpreting the [Act] to cover wetlands

adjacent to navigable waters. [The Court] found

that Congress’ concern for the protection of water

quality and aquatic ecosystems indicated its intent to

regulate wetlands inseparably bound up with the

waters of the United States.” SWANCC, 531 U.S. at

167 (emph. added).

In upholding inclusion of wetlands abutting a

river — principally due to the difficulty of drawing a

clear boundary between the two because of proximity

— the Court never envisioned nor suggested, even in

dicta, that “‘the waters of the United States’ should

be expanded to include, in their own right, entities

other than ‘hydrographic features more

conventionally identifiable as ‘waters.’” Rapanos,

547 U.S. at 735. In fact, when deciding Riverside

Bayview, the Court did not “express any opinion” on

whether the Corps had authority to regulate

discharges of fill material into wetlands not

adjacent to bodies of open water. Riverside

Bayview, 474 U.S. at 131-132, n. 8. Had the Corps

stopped its authoritarian march at this point, we

would not be before the Court today. Unfortunately,

the Corps continues to assert sweeping jurisdiction

beyond adjacent wetlands and is now in conflict with

Congress because it has shattered the bounds

Congress imposed.

The Corps has ignored the Court’s assertion

“the qualifier ‘navigable’ is not devoid of

significance,” as well as the Court’s focus on

adjacency for the basis of jurisdiction under the Act.

The Court unequivocally stated “nonnavigable,

27

isolated, intrastate waters”, which did not “actually

abu[t] on a navigable waterway” were not “waters of

the United States” and thus under the Corps

jurisdiction. SWANCC, 531 U.S. at 171; Id at 167.

The Court affirmed Riverside Bayview did not

establish “the jurisdiction of the Corps extends to

ponds that are not adjacent to open water.” Id. at

168. In both of these holdings, the Court focused on

the close connection between waters and the

wetlands they gradually blend into – a focus on

proximity, which the Court characterized as “the

significant nexus between wetlands and ‘navigable

waters’ that informed [the Court’s] reading of the

[Act]….” Rapanos, 547 U.S. at 741. The Court

expressly rejected “the ecological considerations upon

which the Corps relied in Riverside Bayview…

provid[ing] and independent basis for including

entities like ‘wetlands’ (or ‘ephemeral streams’)

within the phrase ‘the waters of the United States.’

SWANCC found such ecological considerations

irrelevant to the question whether physically isolated

waters come within the Corps’ jurisdiction.” Id. at

741-742. Despite this repudiation, a singular

Justice’s opinion has given rise to a mythical

“significant nexus test” that is supported neither by

the Act nor the Court’s holdings. The Ninth Circuit’s

(and many other courts’) understanding of what the

Court meant by “significant nexus” bears no

semblance to the Court’s actual holdings nor the

Act’s language. The proper focus for determining

jurisdiction under the Act is navigable-in-fact waters

and any actually abutting, adjacent, wetlands.

28

Conclusion

The term “the waters of the United States”

cries out for a limiting construction ordinary people

can understand. As we have learned in the

intervening years following Rapanos, allowing

agency personnel to make up for the shortcomings in

a vague interpretation of the Act’s application on a

case-by-case basis under the auspices of applying the

“significant nexus” test is a treacherous endeavor.

The “significant nexus” test and the Corps assertions

of jurisdiction unconstitutionally impose on a lay

person a duty found nowhere at common law – a

duty to retain a bevy of experts including an

attorney, biologist, geologist, hydrologist, and

countless others – to attempt to determine what the

Act means before using their private property.

Neither Congress, the courts nor agency bureaucrats

should be allowed to use indecipherable terminology

to shift this burden to private citizens. In essence,

the government is asking the Supreme Court to do

Congress’s job by construing the Act, a federal

criminal law, to demand that the average person

undertake an expensive and arguably

unconstitutional burden Congress has never before

imposed on the public. This Court can and should

immediately rectify this fiasco by ruling “navigable

waters” means just what a majority of this Court has

previously said: navigable-in-fact water and actually

abutting, adjacent, wetlands but nothing more. This

is a rule that comports with an ordinary meaning of

the statutory text that is clear, and easy for the

citizenry to both understand and apply. For the

foregoing reasons, Amicus respectfully submits the

decision of the court below should be reversed.

29

DATED: April 15, 2022.

Respectfully submitted,

TIMOTHY KASSOUNI

Counsel of Record

Kassouni Law

455 Capitol Mall, Suite 604

Sacramento, California

95814

Telephone: (916) 930-0030

timothy@kassounilaw.com

RONDA AZEVEDO LUCAS

Lucas Law

19738 August Ave.

P.O. Box 696

Hilmar, CA 95324

Telephone: (916) 468-8208

ralucaslaw@outlook.com

Counsel for Amicus Curiae

Duarte Nursery, Inc.