Petition for Writ of Certiorari — Joan V. Bayley, et al., Petitioners v. United States

Supreme Court briefDec 1, 2025

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NO. 25-_____

In the

Supreme Court of the United States

JOAN V. BAYLEY, ET AL.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Grant J. Guillot

Counsel of Record

GRANT GUILLOT, LLC

5028 River Meadow Drive

Baton Rouge, LA 70820

(225) 614-7838

grant@grantguillot.com

December 1, 2025

SUPREME COURT PRESS

Counsel for Petitioners

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

Petitioners owned a lot with a slowly failing 1937

bulkhead onshore of the shoreline along Hood Canal,

Washington state. Hundreds of properties along Hood

Canal use bulkheads to control erosion. The lot has had

no continuous surface water connection to any body of

water since 1937. In August 2017, with state approval

arising from the Coastal Zone Management Act, Petitioners performed routine maintenance of their 1937

bulkhead. In August 2020, the United States filed a

Clean Water Act complaint alleging Petitioners caused

environmental injuries that incurred an astounding

$323,134,524 of penalties. In November 2020, the state’s

lead agency found the permitted activities were

complete, in compliance, and closed its permit. Without

any violations under state law, Petitioners received a

shoreline variance and permit to build a house on the lot.

The United States Court of Appeals for the Ninth

Circuit affirmed the default judgment entered in favor

of the United States while disregarding the District

Court’s statement, “Although Mr. Bayley obtained

approval from Mason County for the project, he took

no steps to comply with federal law.” The questions

presented are:

1. Did Congress provide the ultimate remedy to

federal overreach by releasing and relinquishing the

United States’ complaint for Clean Water Act environmental violations due to Petitioners following state

authority?

2. Did the United States waive the allegations

raised in its complaint for Clean Water Act environmental violations due to its approval of the State of

Washington’s environmental program, which resulted

in legally binding permit decisions that Petitioners

relied upon for their bulkhead activities?

3. Is a United States complaint for CWA violations moot if Petitioners disputed bulkhead activities

obtained required authorizations from state authority

under its federally approved environmental program?

4. Is Respondent required to satisfy “cooperative

federalism” requirements by Congress detailed in the

Coastal Zone Management Act and interpreted in 15

C.F.R. §930 to maintain standing to bring a Clean

Water Act enforcement action against a person following

state authority?

5. Given the circuit courts of appeals are divided

on this issue, should Clean Water Act penalties be

treated like injunctive relief claims under the CWA for

justiciability purposes?

iii

PARTIES TO THE PROCEEDINGS

Petitioners

●

Joan V. Bayley

●

Philip N. Bayley, in his personal capacity and

capacity as trustee of Frihet Trust

●

Big D’s Beach Cabin, LLC

Respondent

●

The United States of America

CORPORATE DISCLOSURE STATEMENT

As a limited liability company, Big D’s Beach

Cabin, LLC has no public ownership, and no public

company owns 10% or more of its ownership units.

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Ninth

Nos. 24-812, 24-901, 24-2901, 24-2902

United States of America, Plaintiff-Appellee

v. Joan V. Bayley, Philip N. Bayley, Big D’s Beach

Cabin, LLC, Defendants-Appellants

Final Opinion: July 10, 2025

Rehearing Denial: September 2, 2025

_________________

U.S. District Court, W.D. of Washington at Tacoma

No. 3:20-cv-05867-DGE

United States of America, Plaintiff v. Joan V. Bayley,

et al., Defendants

Final Order: April 26, 2023

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ........................ iii

CORPORATE DISCLOSURE STATEMENT ........... iii

LIST OF PROCEEDINGS ......................................... iv

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

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS STATUTES

AND REGULATIONS .......................................... 2

A. Constitutional Provisions ................................ 2

B. Statutory Provisions ........................................ 2

C. Federal Regulations ......................................... 3

Washington State and County Codes ............ 3

INTRODUCTION ....................................................... 4

STATEMENT OF THE CASE .................................... 6

A. The District Court Proceedings ..................... 11

B. The Court of Appeals Proceedings ................ 13

TABLE OF CONTENTS – Continued

Page

REASONS FOR GRANTING THE PETITION ....... 15

In Accordance with Supreme Court Rule

10(c), the District Court and the Ninth

Circuit Have Decided an Important Question

of Federal Law That Has Not Been, but Should

Be, Settled by This Court, to Wit, Whether

a Person Following State Authority May

Be Subject to CWA Enforcement Activities

Without Respondent Satisfying Congress’s

“Cooperative Federalism” Requirements

Expressed in the CZMA and Prescribed in

15 C.F.R. § 930 Through Administrative

Procedures? .................................................... 15

A. The Submerged Lands Act (1953). ........... 16

B. The Clean Water Act (1972). .................... 17

C. The Coastal Zone Management Act

(1972). .............................................................18

D. The Coastal Zone Act Reauthorization

Amendments of 1990. ............................... 20

E. Petitioners Obtained the Required

Authorizations Under the Federally

Approved State Program. ......................... 21

F. The Federal Government Does Not Allege

in Its Complaint the State Erred in

Administering the Federally Approved

CZMA Program. ........................................ 21

G. The Respondent and Lower Courts Failed

to Uphold Congress’s “Cooperative

Federalism” Requirements in 15 C.F.R.

§ 930. ......................................................... 22

vii

TABLE OF CONTENTS – Continued

Page

II. In Accordance with Supreme Court Rule

10(c), the District Court and the Ninth Circuit

Have Decided an Important Question of

Federal Law in a Way That Conflicts with

Relevant Decisions of This Court, to Wit,

Whether a Property Owner’s Reliance on

Federally-Approved Primary State Authority

Over Environmental Matters Renders the

Federal Government’s Complaint for CWA

Violations Moot? ............................................. 24

III. In Accordance with Supreme Court Rule

10(a), the Ninth Circuit Has Entered a

Decision in Conflict with the Decisions of

Other United States Courts of Appeal

Concerning Whether Civil Penalties Should

Be Treated the Same as Injunctive Relief for

Justiciabilty Purposes. ................................... 30

CONCLUSION.......................................................... 34

viii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Memorandum Opinion, U.S. Court of Appeals

for the Ninth Circuit (July 10, 2025) ................. 1a

Order Granting Plaintiff’s Motion for Default

Judgment, U.S. District Court for the

Western District of Washington at Tacoma

(April 26, 2023) ................................................... 7a

REHEARING ORDER

Order Denying Rehearing, U.S. Court of Appeals

for the Ninth Circuit (September 2, 2025) ...... 42a

CONSTITUTIONAL AND STATUTORY

AND REGULATORY PROVISIONS

Constitutional Provisions ....................................... 43a

Statutory Provisions ............................................... 44a

Federal Regulations ................................................ 52a

Washington State and County Codes .................... 57a

OTHER DOCUMENTS

Complaint, Filed by Attorney General in the

U.S. District Court for the Western District

of Washington at Tacoma (August 27, 2020) .. 60a

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Alt. States Legal Found., Inc. v. Stroh Die

Casting Co., 116 F.3d 814 (7th Cir. 1997) ........ 31

Alt. States Legal Found., Inc. v. Tyson Foods,

Inc., 897 F.2d 1128 (11th Cir. 1990) ................. 31

Atl. States Legal Found., Inc. v. Pan Am.

Tanning Corp., 993 F.2d 1017

(2d Cir. 1993) ..................................................... 30

Bayer v. Neiman Marcus Grp., Inc.,

861 F.3d 853 (9th Cir. 2017) ............................. 29

California ex rel. California Coastal

v. Norton, 150 F.Supp.2d 1046

(N.D. Cal. 2001) .................................................. 20

Coastal Env’t. Rts Found.

v. Naples Rest. Grp., No. 23-55469

(9th Cir. Nov 05, 2025) ........ 25, 27, 29, 30, 31, 33

Decker v. Nw. Env’t Def. Ctr.,

568 U.S. 597 (2013) ........................................... 26

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ........................................... 26

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs., Inc., 528 U.S. 167 (2000) ........... 26, 31, 32

Gwaltney v. Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49 (1987) .... 27, 30, 33

Hester v. Vision Airlines, Inc.,

687 F.3d 1162 (9th Cir. 2012) ........................... 12

Lessee of Pollard v. Hagan,

3 How. 212 (1845) .............................................. 15

TABLE OF AUTHORITIES – Continued

Page

Miss. River Revival, Inc. v. City of

Minneapolis, 319 F.3d 1013

(8th Cir. 2003) ............................................ 31, 32

Nat. Res. Def. Council, Inc. v. Texaco Ref. and

Mktg., Inc., 2 F.3d 493 (3rd Cir. 1993) ............. 30

North Carolina v. Rice,

404 U.S. 244 (1971) ..................................... 25, 31

Northwest Envtl. Advocs. v. U.S. Dep’t of Com.,

No. 2:16-cv-01866-JCC, 2018 WL 6528538

(W.D. Wash. Dec. 12, 2018)............................... 13

Rapanos v. United States,

547 U.S. 715 (2006) ................................... 5, 9, 14

S.F. Bay Conservation Dev. Comm’n

v. U.S. Army Corps of Eng’rs,

8 F.4th 839 (9th Cir. 2021)................................ 18

Sackett v. Environmental Protection Agency,

598 U.S. 651, 143 S.Ct. 1322,

215 L.Ed.2d 579 (2023)... 5, 9, 10, 14, 16, 17, 23, 34

Smith v. Univ. of Wash., L. Sch.,

233 F.3d 1188 (9th Cir. 2000) ........................... 25

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S.

174, 121 S.Ct. 675 (2001) ................................ 5, 9

Steele Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................. 29

U.S. v. Bevans,

16 U.S. 3 Wheat. 336 (1818) ............................. 15

U.S. v. Tammy Blakey and Flying T Ranch,

Inc., No. 2:23-cv-01910 (W.D. Wash. 2023) ...... 10

TABLE OF AUTHORITIES – Continued

Page

United States v. State of California,

381 U.S. 139, 85 S.Ct. 1401,

14 L.Ed.2d 296 (1965) ....................................... 16

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X ...................... 2, 5, 10, 15, 16, 18

U.S. Const. art. I, § 8, cl. 17........................................ 2

U.S. Const. art. III .................................. 25, 31, 32, 33

STATUTES

16 U.S.C § 1453(1) ................................................ 2, 18

16 U.S.C. § 1451 et seq., (Coastal Zone

Management Act) .................. i, 5, 6, 15, 18, 22, 34

16 U.S.C. § 1452(1) ......................................... 2, 18, 28

16 U.S.C. § 1452(2) ............................................... 2, 29

16 U.S.C. § 1453(14) ............................................... 2, 7

16 U.S.C. § 1453(6)(a) ................................................. 6

16 U.S.C. § 1455(d)(10) ........................................... 2, 4

16 U.S.C. § 1455(d)(2) ................................................. 2

16 U.S.C. § 1456(c) ...................................................... 2

16 U.S.C. § 1456(c)(1)(A) ...................................... 19, 22

16 U.S.C. § 1456(c)(1)(c) ....................................... 2, 22

16 U.S.C. § 1456(f) ................................................ 2, 19

28 U.S.C. § 1254(1) ...................................................... 1

33 U.S.C. § 1251 et seq. ............................................... 8

xii

TABLE OF AUTHORITIES – Continued

Page

33 U.S.C. § 1251 et seq.,

(Clean Water Act) .... ii, 4, 8, 16, 17, 19, 30, 31, 32

33 U.S.C. § 1251(b) ... 2, 4, 5, 9, 10, 14, 15, 16, 18, 27, 34

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

33 U.S.C. § 1319 ............................................ 18, 23, 24

33 U.S.C. § 1319(b) ..................................................... 2

33 U.S.C. § 1319(d) ..................................................... 2

33 U.S.C. § 1329 ........................................................ 16

43 U.S.C. § 1301(a)(1) ............................................... 16

43 U.S.C. § 1301(a)(3) ........................................... 2, 16

43 U.S.C. § 1311......................................................... 18

43 U.S.C. § 1311(a) ..................................................... 2

43 U.S.C. § 1311(b)(2) ................... 2, 10, 15, 17, 18, 25

43 U.S.C. § 1313(a) ..................................................... 2

RCW 90.58.050............................................................ 4

RCW 90.58.140(3) ................................................... 3, 4

RCW 90.58.140(5)(c)(i)(B) ....................................... 3, 7

RCW 90.58.180(1)(a) ............................................... 3, 7

WAC 173-27-050 ......................................................... 3

WAC 173-27-060 ............................................... 3, 6, 22

WAC 197-11-340(1) ................................................. 3, 7

WAC 197-11-970 ......................................................... 7

xiii

TABLE OF AUTHORITIES – Continued

Page

JUDICIAL RULES

Sup. Ct. R. 10(a) ....................................................... 30

Sup. Ct. R. 10(c) .................................................. 15, 24

REGULATIONS

15 C.F.R. § 930 .................... ii, 8, 14, 18, 20, 22, 24, 34

15 C.F.R. § 930.1(e) ............................................... 3, 23

15 C.F.R. § 930.11(h) ............................................ 3, 19

15 C.F.R. § 930.31(a)....................................... 3, 18, 23

15 C.F.R. § 930.32(a)................................................... 3

15 C.F.R. § 930.32(a)(1) ............................................ 22

15 C.F.R. § 930.32(a)(2) ............................................ 23

15 C.F.R. § 930.34(a)(1) ............................................ 22

15 C.F.R. § 930.34(a)(2) ........................................ 3, 28

33 C.F.R. § 323.2(d)(3)(i) ............................................. 3

33 C.F.R. § 323.4(a)(1)(ii)............................................ 3

33 C.F.R. § 323.4(a)(2) ................................................ 3

LEGISLATIVE MATERIAL

H.R. Rep. No. 101-964, 1990 USCCAN 2374 ..... 20, 21

xiv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

NOAA Off. for Coastal Mgmt.,

Washington Coastal Zone Management

Program (Nov. 1, 2025) https://coast.

noaa.gov/states/washington.html ..................... 12

U.S. EPA ECHO,

Civil Enforcement Case Report (Nov. 10,

2025) https://echo.epa.gov/enforcementcase-report?activity_id=3601867009 .......... 11, 14

OPINIONS BELOW

The Ninth Circuit opinion, dated July 10, 2025,

can be found at 2025 WL 4477993 and is included at

App.1a. The order of the U.S. District Court for the

Western District of Washington at Tacoma granting

Respondent’s Motion for Default Judgment, dated

April 26, 2023, is included at App.7a. These opinions

were not designated for publication.

JURISDICTION

The Ninth Circuit entered judgment on July 10,

2025. App.1a. On August 19, 2025, Petitioners moved

for rehearing. The Ninth Circuit denied Petitioners’

request for rehearing on September 2, 2025. App.42a.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

STATUTES AND REGULATIONS

Constitutional Provisions (App.43a)

• U.S. Const. amend. X

• U.S. Const. art. I, § 8, cl. 17

Statutory Provisions

The Submerged Lands Act (App.44a)

• 43 U.S.C. § 1301(a)(3)

• 43 U.S.C. § 1311(a)

• 43 U.S.C. § 1311(b)(2)

• 43 U.S.C. § 1313(a)

Clean Water Act (App.46a)

• 33 U.S.C. § 1251(b)

• 33 U.S.C. § 1311(a)

• 33 U.S.C. § 1319(b)

• 33 U.S.C. § 1319(d)

Coastal Zone Management Act (App.48a)

• 16 U.S.C. § 1452(1)

• 16 U.S.C. § 1452(2)

• 16 U.S.C § 1453(1)

• 16 U.S.C. § 1453(14)

• 16 U.S.C. § 1455(d)(2)

• 16 U.S.C. § 1455(d)(10)

• 16 U.S.C. § 1456(c)

• 16 U.S.C. § 1456(c)(1)(c)

• 16 U.S.C. § 1456(f)

Federal Regulations

Code of Federal Regulations (App.52a)

• 15 C.F.R. § 930.1(e)

• 15 C.F.R. § 930.11(h)

• 15 C.F.R. § 930.31(a)

• 15 C.F.R. § 930.32(a)

• 15 C.F.R. § 930.34(a)(2)

• 33 C.F.R. § 323.2(d)(3)(i)

• 33 C.F.R. § 323.4(a)(1)(ii)

• 33 C.F.R. § 323.4(a)(2)

Shoreline Management Act of 1971 (App.55a)

• RCW 90.58.140(3)

• RCW 90.58.140(5)(c)(i)(B)

• RCW 90.58.180(1)(a)

D. Washington State and County Codes

(App.57a)

•

WAC 173-27-050

WAC 173-27-060

WAC 197-11-340(1)

Mason County Code § 17.50.400(C)(4)

INTRODUCTION

Between 2017 and 2020, Petitioners performed

routine maintenance of a slowly failing 1937 fortyeight-foot-wide bulkhead (the “bulkhead activities”),

located in Mason County, State of Washington. All

activities by Petitioners were authorized by Mason

County’s local government.1 Respondent, the United

States, alleged Petitioners’ activities resulted in four

federal violations (App.30a, 40a) of the Clean Water

Act (“CWA”), 33 U.S.C. § 1251, et seq. and calculated

an astounding $323,134,5242 in penalties. Respondent

and the District Court acknowledged that Petitioners’

activities, which were overseen daily by the Washington

State Department of Fish & Wildlife biologists and

Mason County inspectors, were authorized by Mason

County.

1 While 33 U.S.C. § 1251(b) and 16 U.S.C. § 1455(d)(10) recognize

the primary authority of the states to regulate environmental

matters, the State of Washington, through RCW 90.58.050, has

delegated that responsibility to its local governments. See RCW

90.58.050, which provides, in pertinent part “Local government

shall have the primary responsibility for initiating the planning

required by this chapter and administering the regulatory

program consistent with the policy and provisions of this

chapter.” See also RCW 90.58.140(3), which provides,

The local government shall establish a program, consistent with

rules adopted by the department, for the administration and

enforcement of the permit system provided in this section. The

administration of the system so established shall be performed

exclusively by the local government.

2 Respondents’ Motion for Default Judgment, No. 3:20-cv-05867

(W.D. Wash. Oct. 14, 2022) at 15.

The federal government’s actions against Petitioners run afoul of this Court’s decision rendered in

Sackett v. Environmental Protection Agency, 598 U.S.

651, 143 S.Ct. 1322, 215 L.Ed.2d 579 (2023) (“Sackett”),3

wherein the Court stated “[G]iven the CWA’s express

policy to ‘preserve’ the States’ ‘primary’ authority over

land and water use, § 1251(b),4 this Court has required

a clear statement from Congress when determining

the scope of ‘the waters of the United States.’” and by

extension, the jurisdictional limits of the CWA.

Petitioners assert 33 U.S.C. § 1251(b) of the Clean

Water Act, the Tenth Amendment to the United

States Constitution, and “cooperative federalism” are

explained with clear manifest intent by Congress in

the Coastal Zone Management Act (“CZMA”), 16

U.S.C. § 1451, et seq. (later expanded by the Coastal

Zone Reauthorization Amendments (“CZARA”)). These

statutes address both (1) Congress’s lack of constitutional power to regulate the environment where a

state exercises primary authority and (2) how federal

agencies are required interact with states through

cooperative federalism.

3 Sackett, 143 S.Ct. at 1342 (citing SWANCC, 531 U.S., at 174,

121 S.Ct. 675; accord, Rapanos v. United States, 547 U.S. 715,

738 (2006), 126 S.Ct. 2208 (plurality opinion)).

4 33 U.S.C. § 1251(b) provides, in pertinent part

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources, and to consult with the Administrator in

the exercise of his authority under this chapter.

STATEMENT OF THE CASE

Between 2017 and 2020, Petitioners adhered to

and relied on the primary state authority, Mason

County, in performing routine maintenance of a

slowly failing 1937 forty-eight-foot-wide bulkhead

(“bulkhead activities”) onshore of the shoreline along

Hood Canal, navigable waters of the United States

(“WOTUS”) located in Mason County, State of

Washington. Petitioners obtained authorization for

all bulkhead activities from Mason County’s local

government, which acts as the lead agency with

primary jurisdiction and implements the State’s

federally approved Coastal Zone Management Act

(“CZMA”), 16 U.S.C. § 1451, et seq. The Shoreline

Management Act of 1971 forms the core of Washington

State’s federally approved coastal zone management

program under the CZMA, 16 U.S.C. § 1451, et seq.5

The decisions of Mason County were legally binding6

5 See WAC 173-27-060, which provides, in pertinent part

The Shoreline Management Act is incorporated into

the Washington state coastal zone management

program and, thereby, those direct federal agency

activities affecting the uses or resources subject to the

act must be consistent to the maximum extent

practicable with the enforceable provisions of the act,

regulations adopted pursuant to the act and the local

master program.

6 16 U.S.C. § 1453(6)(a) provides,

The term ‘enforceable policy’ means State policies which

are legally binding through constitutional provisions,

laws, regulations, land use plans, ordinances, or

judicial or administrative decisions, by which a State

on third parties7 such as Respondent. Mason County

concluded the bulkhead activities would result in no

injury-in-fact to the environment.8 Respondent was

properly notified of these decisions and chose not to

appeal them, making them final. 9

exerts control over private and public land and water

uses and natural resources in the coastal zone.

7 16 U.S.C. § 1453(14) provides,

The term ‘person’ means . . . the Federal Government

. . . or any entity of any such Federal, state, regional,

or local government.

This, the U.S. is considered a “person” for the purposes of the

CZMA.

8 See WAC 197-11-340(1), which provides,

If the responsible official determines there will be no

probable significant adverse environmental impacts

from a proposal, the lead agency shall prepare and

issue a determination of non-significance (DNS) substantially in the form provided in WAC 197-11-970.

See also RCW 90.58.140(5)(c)(i)(B), which provides, in pertinent

part

. . . The local government, after reviewing the

assessment required in (c)(i)(A) of this subsection

and prior to the final issuance of all appropriate

shoreline permits and variances, must determine

that the project will result in no net loss of shoreline

ecological functions.

9 RCW 90.58.180(1)(a) provides,

Any person aggrieved by the granting, denying, or

rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the

shorelines hearings board by filing a petition for

review within 21 days of the date of filing of the decision

as defined in RCW 90.58.140(6).

From July 31 through August 16, 2017, state

officials were on-site nearly daily ensuring compliance

with Petitioners’ bulkhead activities. On August 17,

2017, the U.S. Army Corps of Engineers (“USACE”)

commenced CWA enforcement against Petitioners’

state authorized project. Around August 2020, Petitioners finished the project after receiving confirmation

from state authorities it could be completed by pouring

concrete stairs and backfilling behind the 2017

bulkhead.

Days after completing the project in August 2020,

Respondent, the United States, filed suit alleging Petitioners’ bulkhead activities was unauthorized, required a Section 404 permit, caused environmental

injuries, and resulted in the incurrence of an

astonishing $323,134,524 in federal penalties10 arising

from violations of the Clean Water Act (“CWA”), 33

U.S.C. § 1251, et seq. Petitioners allege that the United

States’ failure to engage in “cooperative federalism,”

and comply to the maximum extent of the State of

Washington’s CZMA program, as prescribed in 15

C.F.R. § 930, resulted in its loss of standing to allege

a CWA violation.

On November 10, 2020, Mason County performed

its final inspection and closed its permit after finding

all permitted activities were completed. After the

project’s completion, the Washington State Department

of Ecology investigated and confirmed Petitioners’

bulkhead activities did not violate the State of

Washington’s authorizations under the federally

See also, Mason County Code § 17.50.400(C)(4).

10 Respondents’ Motion for Default Judgment, No. 3:20-cv05867 (W.D. Wash. Oct. 14, 2022) at 15.

approved CZMA state programs. Without any violations

under state law, Petitioners received a permit to build

a house on the lot.

The federal government’s actions against Petitioners run afoul of this Court’s decision rendered in

Sackett v. Environmental Protection Agency, 598 U.S.

651, 143 S.Ct. 1322, 215 L.Ed.2d 579 (2023) (“Sackett”),11

wherein the Court stated “[G]iven the CWA’s express

policy to ‘preserve’ the States’ ‘primary’ authority over

land and water use, 33 U.S.C. § 1251(b),12 this Court

has required a clear statement from Congress when

determining the scope of ‘the waters of the United

States,’” and by extension, the jurisdictional limits of

the CWA.

The applicable statutes implicated by the questions

raised present a “case of first impression.” They lack

a decision by any court of review in this nation,

giving this Court an opportunity of first impression to

determine whether the federal government can allege

CWA environmental violations and seek CWA

11 Sackett, 143 S.Ct. at 1342 (citing SWANCC, 531 U.S., at 174,

121 S.Ct. 675; accord, Rapanos v. United States, 547 U.S. 715,

738 (2006), 126 S.Ct. 2208 (plurality opinion)).

12 33 U.S.C. § 1251(b) provides, in pertinent part

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources, and to consult with the Administrator in

the exercise of his authority under this chapter.

penalties against a property owner following state

primary authority.13

This Court has the opportunity to answer this

question, expound upon its affirmation of 33 U.S.C.

§ 1251(b) in Sackett, and opine on Congress’s CZMA

declarations. In doing so, this Court can determine the

scope of a state’s primary authority under the Tenth

Amendment and Respondent’s requirements under

“cooperative federalism” in environmental matters,

along with the consequences upon federal agencies

when persons follow state authority as expressed by

Congress in 43 U.S.C. § 1311(b)(2). Petitioners also

ask this Court to determine whether Respondent’s

complaint was rendered moot by the fact that Petitioners obtained the appropriate authorizations from

the primary state authority, Mason County. In addition, this Court is presented with the opportunity to

resolve a split among the courts of appeal regarding

whether CWA injunctive relief and penalties should

be treated the same for justiciability purposes.

13 Petitioners also note that in the currently pending case of

U.S. v. Tammy Blakey and Flying T Ranch, Inc., the United

States in pursuit of CWA penalties against the defendant is

utilizing Petitioners’ district court’s ruling to support its contention

that the court can disregard the defendant’s reliance on following

State authority administering the same federally approved State

program. United States v. Blakey, No. 2:23-cv-01910 (W.D. Wash.),

filed Dec. 13, 2023. Thus, Petitioners respectfully maintain that

it is critical this Court grant writs to prevent the Ninth Circuit’s

ruling in this matter from setting a dangerous precedent – that

property owners cannot trust State authority nor federal

approvals of State programs when managing their lands.

The District Court Proceedings

On August 27, 2020, Respondent, the United

States of America, filed suit with the United States

District Court for the Western District of Washington

at Tacoma (“the District Court”) against Petitioners

alleging they discharged dredged or fill material into

Hood Canal on private property without a permit in

violation of the CWA.14 On April 26, 2023, the District

Court granted Respondent’s motion for default judgment after striking Petitioners’ amended answer and

dismissing Petitioners’ counterclaims without prejudice15 due to the court’s finding that Petitioners had

14 Despite Washington State never formally recognizing the

presence of wetlands on Petitioners’ property, the EPA’s public

Civil Enforcement Case Report states its CWA action seeks

“wetlands preservation.” See Civil Enforcement Case Report,

U.S. EPA ECHO, https://echo.epa.gov/enforcement-case-report?

activity_id=3601867009 (last visited Nov. 10, 2025). Respondent’s attorney repeatedly stated on the record its right of action

arises from discharges on private property, which is part of a

wetland, thus requiring a CWA 404 permit. The District Court

also relied on wetlands-specific case law in determining Petitioners’ property was subject to CWA jurisdiction; therefore, the

property was treated as wetlands for the purpose of establishing

the court’s right to exercise its discretion and Respondent’s basis

for CWA violations.

15 However, the District Court did not strike several other

pleadings wherein Petitioners alleged (1) Respondent in its

complaint did not challenge Washington state’s administration

of the state’s federally approved CZMA program and (2) that

their property did not constitute “waters of the United States”

because it is located within the onshore uplands outside the

reach of navigable waters. Thus, those pleadings and the arguments contained therein remain part of the Record. Regardless,

Petitioners herein appeal “the legal sufficiency of the claims

themselves and whether those claims are supported by factual

allegations in the Complaint”, which is permitted when a party

violated certain discovery obligations and orders, which

were irrelevant to Respondent’s burden to substantiate

that Petitioners’ property comprised adjacent wetlands.

In the court’s order granting default judgment, it

stated, “Although Mr. Bayley obtained approval from

Mason County for the project, he took no steps to

comply with federal law.” App.33a, 34a. The District

Court thus acknowledged that Petitioners did obtain

the proper authorization to perform the bulkhead

activities from the primary authority, Mason County.

Respondent has attested that since 197616 Mason

County’s approvals under the State of Washington’s

federally approved CZMA programs, which authorized

Petitioners’ bulkhead activities in the instant matter,

comply with federal law. If Mason County’s approval

of the bulkhead activities complies with federal law,

Petitioners assert that there cannot be a violation of

federal law.

This issue is compounded by the fact that while

Respondent was seeking $323,134,524 in CWA

penalties from Petitioners in the instant matter, it

was concurrently arguing in another Washington

state court in the matter of Northwest Envtl. Advocs.

appeals a default judgment. Hester v. Vision Airlines, Inc., 687

F.3d 1162, 1171 (9th Cir. 2012). Specifically, Petitioners allege

Respondent failed in its Complaint to allege Petitioners did not

follow the federally approved state CZMA program and that

Washington State erred in administering its CZMA program.

16 Washington State’s CZMA program, established in 1976, was

the first federally approved coastal zone management program.”

Washington Coastal Zone Management Program, NOAA Off. for

Coastal Mgmt., https://coast.noaa.gov/states/washington.html

(last visited Nov. 1, 2025).

v. U.S. Dep’t of Com.,17 which culminated in an

unpublished decision, that the State of Washington’s

CZMA and CZARA programs, which authorized Petitioners’ bulkhead activities, were consistent with federal law. In that matter, the United States declared to

the court, “Washington, not EPA or NOAA, has direct

authority to regulate . . . third party actions with

respect to land uses contributing to nonpoint source

pollution . . . Further, Congress essentially authorized

the States to regulate coastal and other nonpoint

source pollution, not the Federal Agencies.”18 The

United States also admitted, “Congress did not

empower the Federal Agencies with the authority to

directly regulate land uses contributing to nonpoint

source pollution. That authority rests with the States.

The only authority Congress gave the Federal Agencies

here is to administer the administrative grant programs

under CWA Section 319 and CZMA Section 306.”19

The Court of Appeals Proceedings

On July 10, 2025, the United States Court of

Appeals for the Ninth Circuit affirmed the District

Court’s grant of default judgment. The Ninth Circuit

determined the District Court did not abuse its discretion by imposing sanctions and entering a default judgment against Petitioners. The Ninth Circuit found that

17 No. 2:16-cv-01866-JCC, 2018 WL 6528538 (W.D. Wash. Dec. 12,

2018).

18 Defs.’ Mot. to Dismiss at 18, ECF No. 21, Northwest Env’t

Advocs. v. U.S. Dep’t of Com., No. 2:16-cv-01866-JCC (W.D. Wash.

Oct. 14, 2016).

19 Defendants’ Reply in Support of Motion to Dismiss at 5, ECF

No. 35, Northwest Env’t Advocs. v. U.S. Dep’t of Com., No. 2:16cv-01866-JCC (W.D. Wash. Aug. 25, 2017).

the District Court “correctly concluded that the wellpled allegations in the government’s complaint sufficiently alleged violations of the CWA.” App.5a.

The Ninth Circuit failed to recognize that Sackett

affirmed Congress preserves states’ rights in the

CWA through the application 33 U.S.C. § 1251(b). The

court failed to confirm Respondent lost standing to

deploy CWA enforcement activities for not satisfying

Congress’s “cooperative federalism” requirements as

defined in the CZMA and interpreted through required

administrative procedures cited in 15 C.F.R. § 930.

The appellate court disagreed with Petitioners’

contention on appeal that the Supreme Court’s decisions in Sackett and Rapanos “render their property

beyond the reach of the CWA” (App.6a), noting that

Rapanos and Sackett concerned the application of the

CWA to certain wetlands, which were not at issue in

the case.” The court arrived at this conclusion despite

Respondent and the District Court treating Petitioners’

property as wetlands during the court proceedings as

evidenced from (1) the EPA’s Civil Enforcement Case

Report, (2) Respondent’s repeated attestations that

discharges on private property with wetlands require

a CWA 404 permit, and (3) the District Court’s

reliance on wetlands-specific case law to affirm Respondent’s right of action under the CWA.

The Ninth Circuit concluded its ruling with its

rejection, without explanation, of Petitioners’ “arguments regarding the preclusive and preemptive effects

of certain federal statutes and state law on the government’s CWA authority.” App.6a.

REASONS FOR GRANTING THE PETITION

In Accordance with Supreme Court Rule

10(c), the District Court and the Ninth

Circuit Have Decided an Important Question

of Federal Law That Has Not Been, but Should

Be, Settled by This Court, to Wit, Whether a

Person Following State Authority May Be

Subject to CWA Enforcement Activities

Without Respondent Satisfying Congress’s

“Cooperative Federalism” Requirements

Expressed in the CZMA and Prescribed in

15 C.F.R. § 930 Through Administrative

Procedures?

Respectfully, this Court should grant certiorari

and determine whether the Ninth Circuit abused its

discretion in affirming the district court’s entry of a

default judgment without considering the consequences

upon this instant case of the District Court’s acknowledgement that Petitioners followed State authority.

Of national constitutional concern, the lower

courts have set precedent that suggests the CWA’s

enforcement powers arising from the Commerce Clause

may be used to circumvent the states’ Tenth Amendment reserved powers,20 commandeer the administration of federally approved State programs, and nullify

Congress’s protections granted to persons following

State authority. 21 Currently, 34 out of 35 eligible

20 See U.S. v. Bevans, 16 U.S. 3 Wheat. 336 (1818) and Lessee of

Pollard v. Hagan, 3 How. 212, 230 (1845).

21 See 43 U.S.C. § 1311(b)(2); 33 U.S.C. § 1251(b); CZMA.

states participate in CZMA programs. All 50 States

are eligible to participate in the 33 U.S.C. § 1329

nonpoint source management program. If the Ninth

Circuit’s ruling is allowed to stand, the states’ primary

authority over environmental, land, and water matters

will essentially be rendered meaningless. The states,

lacking these “reserved powers,” will be on inferior

footing, lacking sovereignty, and essentially rendered

the equivalent of territories of the District of Columbia

under the Enclave Clause. This Court has the opportunity to expound upon its affirmation of 33 U.S.C.

§ 1251(b) in Sackett. In doing so, this Court can determine the scope of (1) a state’s primary authority

secured by the Tenth Amendment and (2) Congress’s

requirements of “cooperative federalism” upon federal

agencies acting where a state exerts its primary

authority.

Petitioners note that this matter involves multiple

state and federal statutory frameworks which provide

Congress’s clear manifest intent for 33 U.S.C. § 1251(b)

and “cooperative federalism.” They are as follows:

A. The Submerged Lands Act (1953).

This Court in United States v. State of California22

explained, “The Submerged Lands Act [“SLA”]23 grants

to the State title to and ownership of the lands

beneath navigable waters within the boundaries of the

respective States.”24 43 U.S.C. § 1301(a)(3) includes

22 381 U.S. 139, 146, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965).

23 43 U.S.C. § 1251, et seq.

24 43 U.S.C. § 1301(a)(1).

Petitioner’s 1937 land (“fill”) that was included as

“lands beneath navigable waters.”

A key provision of the SLA is 43 U.S.C. § 1311

(b)(2), which provides,

[T]he United States releases and relinquishes

all claims of the United States, if any it has,

for money or damage arising out of any

operations of said States or persons pursuant

to State authority upon or within said lands

and navigable waters.

Thus, the SLA established that the federal government waived its right to administer Petitioners’

property and released Respondent’s claims against

Petitioners following state authority. By extension,

the complaint and lower court’s orders are moot.

B. The Clean Water Act (1972).

As explained by this Court in Sackett, Congress

enacted the Clean Water Act25 in 1972, and it has

served as a “potent weapon” in regulating water

pollution on a federal level.26 The Court noted the

CWA “imposes what have been described as ‘crushing’

consequences ‘even for inadvertent violations.”27

Petitioner agrees that the CWA provides the federal government the ability to regulate the environment

(1) where it has Enclave Clause authority and (2) to

prevent obstructions to WOTUS under its Commerce

Clause powers. However, Petitioner disagrees that

25 33 U.S.C. § 1251, et seq.

26 Sackett, 143 S.Ct. at 1330.

27 Id.

the CWA28 can be conflated to either invalidate 33

U.S.C. § 1251(b), excuse itself from 15 C.F.R. § 930

“cooperative federalism” requirements, or as an exemption from 43 U.S.C. 1311(b)(2) and the CZMA. Accordingly, § 1251(b) affirms 43 U.S.C. § 1311 and protects

the State of Washington’s primary authority, which

includes regulation of the environment, a reserved

power under the Tenth Amendment. Hence, why

Congress passed the CZMA and CZARA because 33

U.S.C. § 1319 has limited authority within the states.

C. The Coastal Zone Management Act (1972).

Congress passed the CZMA concurrently with the

CWA to address (1) its lack of constitutional power to

regulate the environment where the states exercise

primary authority (2) and how it requires federal

agencies to engage in “cooperative federalism.” As

opined by the Ninth Circuit,29

The Coastal Zone Management Act was

enacted in 1972 “to preserve, protect, develop,

and where possible, to restore or enhance,

the resources of the Nation’s coastal zone.”

16 U.S.C. § 1452(1). The coastal zone includes

both the coastal waters and the adjacent

shorelands. 16 U.S.C. § 1453(1). The CZMA,

invoking cooperative federalism, encourages

states to develop management programs for

their coastal zones. 16 U.S.C. § 1451(i).

Once approved by the National Ocean and

Atmospheric Administration (NOAA), each

28 See 15 C.F.R. § 930.31(a).

29 S.F. Bay Conservation Dev. Comm’n v. U.S. Army Corps of

Eng’rs, 8 F.4th 839, 844 (9th Cir. 2021).

such state-submitted coastal zone management program becomes the governing federal

standard for federal agency activity involveing that coastal zone.30

In the instant matter, the State of Washington’s

coastal zone management program has been approved

since 1976, and thus, it has become the governing federal standard for federal agency activity involveing

that coastal zone. This fact makes the complaint’s

allegations meritless and moot as they don’t comply to

the maximum extent of Mason County’s legally binding

decisions arising from Washington State’s CZMA

program.

Relevant to this case is 16 U.S.C. § 1456(f), which

provides, in pertinent part,

[n]othing in this chapter shall in any way

affect any requirement (1) established by the

Federal Water Pollution Control Act [now

CWA], as amended [33 U.S.C. § 1251 et

seq.] . . . or (2) established by the Federal

Government or by any state or local government pursuant to such Acts. Such requirements shall be incorporated in any program

developed pursuant to this chapter and shall

be the water pollution control and air

pollution control requirements applicable to

such program.”

(Emphasis added.)

Thus, pursuant to 16 U.S.C. § 1456(f), the requirements of the CWA were incorporated into the State of

30 Id. (citing 16 U.S.C. § 1455, 1456(c)(1)(A); 15 C.F.R. § 930.11(h)

(emphasis added)).

Washington’s CZMA program and are considered the

water pollution control and air pollution control requirements applicable to the program.

In other words, the federally approved State of

Washington CZMA program has already incorporated

the requirements of the CWA as the water pollution

control requirements of the program. Accordingly,

Petitioners could not have violated the CWA without

violating the State of Washington’s federally approved

CZMA program, and Mason County, the administrator

of that program, has already determined that Petitioners’ bulkhead activities did not violate the CZMA

program.

Additionally, due to Mason County determining

Petitioners’ activities complied with Washington State’s

CZMA program, and Respondent’s failure to follow its

“cooperative federalism” requirements prescribed in

15 C.F.R. § 930, the federal government lacked standing to allege CWA violations.

D. The Coastal Zone Act Reauthorization

Amendments of 1990.

In 1990, Congress amended the CZMA with the

passage of the Coastal Zone Reauthorization Amendments (“CZARA”).31 One court has noted that “Congress indicated in the legislative history that the term

‘affects’ is to be construed broadly, including direct

effects which are caused by the activity and occur at

the same time and place, and indirect effects which

may be caused by the activity and are later in time or

31 California ex rel. California Coastal v. Norton, 150 F.Supp.2d

1046, 1052 (N.D. Cal. 2001) (citing H.R. Rep. No. 101-964 reprinted

at 1990 USCCAN 2374, 2675).

farther removed in distance but are still reasonably

foreseeable.”32 The legislative history makes clear that

the amendments should “leave no doubt that all federal agency activities and all federal permits are subject to the CZMA’s consistency requirements.”33

E. Petitioners Obtained the Required

Authorizations Under the Federally

Approved State Program.

As explained previously, the Respondent approved

the State of Washington’s CZMA programs. In 2017,

Petitioners obtained approval to perform maintenance

of the 1937 bulkhead from the CZMA’s approved state

lead agency with primary jurisdiction over the property. Mason County made legally binding determinations upon Respondent in accordance with the state’s

CZMA programs. In 2020, Mason County performed a

final inspection, found that all the permitted work

was completed in compliance and closed its permit,

affirming Petitioners’ adherence to state and federal

law.

F. The Federal Government Does Not Allege

in Its Complaint the State Erred in

Administering the Federally Approved

CZMA Program.

As stated above, the CWA water pollution requirements were incorporated into the State of Washington’s

CZMA program, which was approved by the federal

government on numerous occasions. However, instead

of alleging in its complaint that Washington State

32 Id. (citing H.R. Rep. No. 101-964, 1990 USCCAN at 2675).

33 Id. (emphasis added).

erred in administrating its CZMA program, Respondent alleged CWA violations against Petitioners, who

lawfully participated every step of the way in the

State’s CZMA program.

G. The Respondent and Lower Courts Failed

to Uphold Congress’s “Cooperative

Federalism” Requirements in 15 C.F.R.

§ 930.

Per the CZMA34 and 15 C.F.R. § 930,35 Congress

and the Executive Branch are in lock-step agreement

34 See 16 U.S.C. § 1456(c)(1)(A), which provides, in pertinent

part

Each Federal agency activity . . . shall be carried out

in a manner which is consistent to the maximum

extent practicable with the enforceable policies of

approved State management programs . . .

See also, 16 U.S.C. § 1456(c)(1)(c), which provides

Each Federal agency carrying out an activity subject

to paragraph (1) shall provide a consistency determination to the relevant State agency.