Amicus Curiae Brief — Joan V. Bayley, et al., Petitioners v. United States

NO. 25-700

In the

Supreme Court of the United States

Joan V. Bayley, et al.,

Petitioners,

v.

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

Brief of Amici Curiae Constitutional Advocates for

Liberty in Support of Petitioners

David Willson

Counsel for Amicus Curiae

Disabled Rights Advocates

P.O. Box 1351

Monument, CO 80132

(719) 648-4176

David@DRAdvocates.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

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

IDENTITY & INTEREST OF AMICI CURIAE ...... 1

INTRODUCTION ...................................................... 2

SUMMARY OF THE ARGUMENT ........................... 3

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

1. This Court should grant certiorari to address

which one of the three definitions of “United

States” Congress uses in “waters of the United

States.”.................................................................. 3

2. This Court should grant certiorari to address clear

manifest intent by Congress in 43 U.S.C.

§1311(b)(2) that it releases and relinquishes

claims by the United States when people, such as

Petitioners, follow State authority. ..................... 5

3. This Court should grant certiorari to address

Respondent's lack of standing. .......................... 11

4. This Court should grant certiorari to address if

the CWA is currently void for federal agencies

violating the Equal Protection Clause and

administering it in a manner that is arbitrary. 15

A. The CWA may be void because federal

agencies administering the CWA have a

pattern of unequal application of the law. .. 15

B. Arbitrary CWA powers have introduced

Endangered

Species

Act

Section

7

Consultations

as

an

unconstitutional

condition for property uses. ......................... 21

CONCLUSION ..........................................................26

i

TABLE OF AUTHORITIES

United States Supreme Court Cases

Bolling v. Sharpe, 347 U.S. 497 (1954)……..……....15

Bond v. United States,

564 U.S. 211 (2011)……………………….………..21

Borax Consolidated, Ltd. v. Los Angeles,

296 U.S. 10 (1935)…………………………...….….23

City and County of San Francisco v. Environmental

Protection Agency, 604 U.S. 334 (2025)………...12

Davis v. Passman,

442 U. S. 228 (1979)…………………………...…..15

Hooven & Allison Co. v. Evatt,

324 U.S. 652 (1945)………………………………….3

J. W. Hampton Jr. v. United States,

276 U.S. 394 (1928)………………………………...20

Kansas v. Colorado,

206 U.S. 46 (1907)………………………………...4, 8

Loper Bright Enterprises v. Raimondo,

603 U.S. 369, 144 S.Ct. 2244,

219 L.Ed.2d 832 (2024)……………………………20

Rapanos v. U.S.,

547 U.S. 715 (2006)………………………………...16

Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985)………………………………...10

Sackett v. Environmental Protection Agency,

598 U.S. 651 (2023)…………………9, 16, 20, 23-24

ii

Federal Court of Appeals

Borden Ranch P’ship v. U.S. Army Corps of Eng’rs,

261 F.3d 810 (9th Cir. 2001)………………………10

United States v. Milner, 583 F.3d 1174

(9th Cir. 2009)……………………………………….17

Washington State Supreme Court Cases

Chelan County v. Nykreim, 146 Wash. 2d 904,

52 P.3d 1 (2002) …………………………………….13

Community Treasures v. San Juan County,

192 Wn. 2d 47, 427 P.3d 627 (2018)…………….13

Durland v. Island County, 182 Wn. 2d 65,

340 P. 3d 491(2014)………………………………...13

Samuels Furniture, Inc. v. State Department of

Ecology, 147 Wn. 2d 440, 54 P. 3d 1194 (2002)..13

United States Constitution

Art. 1, §8, cl. 3 (Commerce Clause)…………………...6

Art. 1, §8, cl. 17 (U.S. Enclave Clause)………..4, 7, 11

Art. 1, §9 (Ex Post Facto Clause)…………………….16

Art. 4, §2a (Privileges and Immunities).....………...21

Art. 4, §3, Clause 1 (Equal Footing Doctrine)..2, 8, 11

Fifth Amendment

Due Process Clause………….……………..12-15, 26

Takings Clause…………………...……15, 21-22, 26

Ninth Amendment………………………………..……21

Tenth Amendment…………………………...…5, 21, 26

Fourteenth Amendment

Equal Protection Clause...………1-2, 15, 18-20, 26

iii

Federal Acts

Clean Water Act of 1972……………………2-4, 6, 8-26

Coastal Zone Management Act….4-6, 8, 12-14, 22, 24

Endangered Species Act…………………..19-21, 23-26

Submerged Lands Act 1953……………………….……4

Federal Act Sections

CWA Section 404…………………………...8, 10, 13, 18

CWA Section 502(7)…………………………………..3, 4

CWA Section 502(12)……………………………………9

Federal Statutes

16 U.S.C. §1455(d)(1).……………………………..13, 24

16 U.S.C. §1455(d)(2)…………………………………..24

33 U.S.C. §1251(a)……………………………………….3

33 U.S.C. §1251(b) ………………..………3-5, 7, 11, 21

33 U.S.C. §1319………………………...…6-8, 11, 20-21

33 U.S.C. §1323(a)……………………………………….7

33 U.S.C. §1344(g)(1)…………………………………..20

43 U.S.C. §1311……………………………………….5, 7

43 U.S.C. §1311(b)(2)………….…3, 5, 7, 10-11, 21, 26

43 U.S.C. §1311(d)……………………………………….8

43 U.S.C. §1311(e)……………………………………….8

43 U.S.C. §1313…………………………………….…….7

43 U.S.C. §1313(a)…………………………………….…7

43 U.S.C. §1313(b)…………………………………….…7

43 U.S.C. §1313(c)…………………………………….…8

Code of Federal Regulations

15 C.F.R. §930…………………………………………..12

iv

Washington State Constitution

Article XVII §1………………………………………….22

Washington State Acts

Shoreline Management Act of 1971…………………22

Washington State Statutes

RCW 90.58.030(2)(c)……………………………………22

Other Authorities

42 Federal Register 37128 (1977)……………………17

v

IDENTITY

& INTEREST OF AMICI CURIAE 1

Amici are Constitutional advocates. They share a

commitment to the proper interpretation of the

Constitution for the promotion of equal protection of

liberty for all Americans. They each have real estate

interests in nearshore, shoreline and water

regulations. A list of all amici is included as an

appendix.

1 Under Supreme Court 37.6, no counsel for any party authored

this brief in whole or in part and no such counsel or a party made

a monetary contribution intended to fund the preparation or

submission of this brief.

1

INTRODUCTION

Petitioners’ case shows what likely would have

occurred to the Sacketts in Idaho State if they had

attempted to enjoy their “local permit in hand” and

performed authorized discharges on their private

property. What Petitioners in Washington State

experienced while acting upon their “local permit in

hand” demonstrates the unconstrained full force of

the enforcement powers of Clean Water Act (CWA)

being deployed against a landowner. Petitioners faced

a multi-year United States Environmental Protection

Agency (EPA) criminal investigation and then civil

enforcement seeking $323,134,524 in penalties. At

the same time, the EPA ignored an unauthorized

December 2016 discharge of roughly 20,000 cubic

yards of gravel that filled a creek within eyesight of

Petitioners’ property, burying thousands of salmon.

While litigating Petitioners, Respondent approved an

identically placed adjoining bulkhead, disclosing it

lacked jurisdiction at the face of the bulkhead.

Currently, the CWA is administered unequally

and arbitrary. It treats the several States as vassals

of the District of Columbia under a feudal system.

The CWA as applied deprives the Sovereigns of

their inheritance obtained from the Crown at the time

of the Revolution and the several States of their Equal

Footing status to each of the 13 fully sovereign States.

Petitioners presented remedies halt the “repeated

injuries and usurpations, all having in direct object

the establishment of an absolute Tyranny over these

States. To prove this, let Facts be submitted to a

candid world.” Congress of 1776’s Declaration of

Independence. The amici shall provide such facts.

2

SUMMARY OF THE ARGUMENT

As the Clean Water Act is currently administered,

it should be deemed void due to the federal agencies

administering it having shown a pattern of being

unrestrained by the Constitution. This Court should

grant certiorari to address 43 U.S.C. §1311(b)(2) given

the district court and Respondent admitted

Petitioners’ activities were sanctioned by Washington

State authority, making the default in err. In its

analysis of this statute’s exceptions, it should address

the gross misinterpretation of the CWA’s “waters of

the United States” (“WOTUS”). Once “United States”

is correctly interpreted in “WOTUS,” it is self-evident

why Congress relies upon “cooperative federalism” to

accomplish its CWA goals (33 U.S.C. §1251(a)) while

upholding State Rights (33 U.S.C. §1251(b)).

ARGUMENT

1. This Court should grant certiorari to address which

one of the three definitions of “United States”

Congress uses in “waters of the United States.”

In CWA Section 502(7), Congress states, “The

term "navigable waters" means the waters of the

United States, including the territorial seas.”

Per Hooven & Allison Co. v. Evatt, 324 U.S. 652

(1945), there are three official definitions of the key

term “United States.” Each definition has separate

and distinct meanings. These include:

1) It may be the name of a sovereign occupying

the position of other sovereigns in the family of

nations.

3

2) It may designate the limited territory over

which the sovereignty of the United States [(District

of Columbia; Federal Government; Enclave Clause)].

3) It may be the collective name for the fifty

States, which are united by and under the U.S.

Constitution.

We contend that the second definition applies to

CWA Section 502(7). Given that this Court found the

term “United States” can be used to describe the

United States’ exclusive jurisdiction within the

Enclave Clause, we argue that Congress intended for

“waters of the United States” to define navigable

waters within the U.S.’ Enclave Clause jurisdiction.

Correctly interpreting “United States” in “waters

of the United States” will make the CWA consistent

with the Constitution, the Submerged Lands Act of

1953, 33 U.S.C. § 1251(b), Coastal Zone Management

Act (CZMA) and this Court’s prior decisions. It also

means that the CWA is currently incorrectly

administered within the several States.

To affirm that Congress must be referring to its

waters within U.S.’ Enclave Clause jurisdiction, this

Court can look at its Kansas v. Colorado, 206 U.S. 46

(1907). It wrote,

The government of the United States is

one of enumerated powers; that it has no

inherent powers of sovereignty; that the

enumeration of the powers granted is to

be found in the Constitution of the

United States, and in that alone; that

the manifest purpose of the Tenth

Amendment to the Constitution is to put

4

beyond dispute the proposition that all

powers not granted are reserved to the

people, and that if, in the changes of the

years, further powers ought to be

possessed by Congress, they must be

obtained by a new grant from the

people. While Congress has general

legislative

jurisdiction

over

the

territories, and may control the flow of

waters in their streams, it has no power

to control a like flow within the limits of

a state except to preserve or improve the

navigability of the stream; that the full

control over those waters is, subject to

the exception named, vested in the state.

Emphasis Added.

In summary, we urge this Court to provide clarity

on which definition of “United States” that Congress

is referring to in “WOTUS.”

2. This Court should grant certiorari to address clear

manifest intent by Congress in 43 U.S.C.

§1311(b)(2) that it releases and relinquishes claims

by the United States when people, such as

Petitioners, follow State authority.

In the ongoing case of United States v. Tammy

Blakey and Flying T. Ranch, 2:23-cv-01910 (Blakey),

the U.S. is repeatedly referencing Petitioners’ case to

counter defendants’ arguments citing 43 U.S.C.

§1311, 33 U.S.C. §1251(b), and Coastal Zone

Management Act (CZMA).

As in Petitioners’ case, the U.S. disregards federal

statutes which preserve State rights (33 U.S.C.

§1251(b)). Instead, it exclusively argues 33 U.S.C.

5

§1319’s Commerce Clause powers are unlimited while

inferring the 10th Amendment rooted arguments are

“meritless” without explanation.

On December 19th, 2025, in response to Blakey’s

“Motion to Stay” dkt 65, the U.S., dkt 66, testified that

Petitioners’ activities were authorized by Washington

State in accordance with its federally approved State

program, and then concurrently declared their

activities illegal. The Respondent wrote in Blakey’s

case,

In a nutshell, Mr. Bayley’s meritless

appeal argues that the Coastal Zone

Management Act prohibits the United

States from enforcing the Clean Water

Act against him because he obtained a

county

permit

before

illegally

constructing a bulkhead on Hood Canal.

Joan Bayley, et al. v. United States, No.

25-700 (filed Dec. 1, 2025) at 6–7 (Pet.

For Cert.). Dkt. 66 at 3.

Respondent’s admission compliments 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.”

Respondent

and

the

district

court’s

acknowledgement that Petitioners’ followed State

authority triggers Congress’s release of the U.S.’

claims, environmental injuries, and the monetary

judgment against Petitioners’ county authorized

6

bulkhead activities under 43 U.S.C. §1311(b)(2). 2

Respondent cannot refute the clear manifest

intent of this Congressional statute. Congress

released Respondent’s claim, injuries, and judgment

against Petitioners the moment the Respondent and

district court acknowledged Petitioners obtained

State approval for their bulkhead activities. This

indisputable fact provides this Court the opportunity

to issue an 9-0 ruling in favor of Petitioners.

However, from an academic perspective,

Petitioners’ Petition did not cover exceptions

available to Respondent outlined in 43 U.S.C. §1311

and §1313 but important for this Court’s analysis of

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 3 out of any operations of

said States or persons pursuant to State

authority upon or within said lands and

navigable waters.

First, 43 U.S.C. §1313(a) and (b) are not satisfied.

The U.S. failed to acquire title to Petitioners’ site.

Doing such would have provided the U.S. exclusive

jurisdiction under the Enclave Clause to not be

governed under Congress’s statutes preserving State

rights and “cooperative federalism” agreements under

2 These admissions also trigger 33 U.S.C. §1251(b), which make

33 U.S.C. 1319 actions against Petitioners improper and the

lower court orders void.

3 Congress uses the word “arising” in 33 U.S.C. §1323(a).

7

programs such as the CZMA. The complaint admits

that Petitioners owned or controlled the site at all

relevant times to the matter. See Complaint #7, #8,

#9, #10, and #11.

Second, 43 U.S.C. §1313(c) is not addressed.

Petitioners never voluntarily converted their “State

authorized project” into a “federal activity within the

State.” If Petitioners had requested a federal permit,

this exception would be applicable. The complaint

admits Petitioner never obtained a federal permit.

See Complaint #1, #28, #45, #48, #69, and #70.

Third, 43 U.S.C. §1311(d) does not include a

constitutional authority for Congress to regulate the

environment or water quality. This is consistent with

Kansas v. Colorado, 206 U.S. 46. The complaint did

not allege obstructions or deterioration of navigation

within navigable waters in fact of Hood Canal. The

relevant part of the statute reads, “Nothing in this

subchapter or subchapter I shall be construed as the

release or relinquishment of any rights of the United

States arising under the constitutional authority

of Congress to regulate or improve navigation…”

Congress recognizes that the Equal Footing Doctrine,

as well as the 10th Amendment, provides

constitutional restrictions upon federal powers within

the several States.

Fourth, 43 U.S.C. §1311(e) expressly states

Congress relinquishes all waters and natural

resources within Petitioners’ private property, which

is west of the 98th meridian line. Washington State is

west of this line. The U.S. expressly stated its CWA

Section 404 permit violations and 33 U.S.C. §1319

enforcement authority to allege CWA violations

8

arises from “discharges on private property.”

The U.S. alleged a CWA violating discharge of a

pollutant (CWA Section 502(12)) on Petitioners’

property with adjacent wetlands before Sackett, 4 and

then denied making the following admissions after

Sackett:

The complaint at #1 does not allege a blockage to

navigable-waters-in-fact but says that discharges

were “into waters of the United States including the

Hood Canal on property then owned by Big D’s Beach

Cabin, LLC…” Emphasis added. Respondent later

provided confirmation the discharges were “on

private property.”

The U.S. in its “U.S. Motion to Dismiss Def.

Counterclaims,” dkt 80, No. 3:20-cv-05867 (W.D.

Wash. Oct. 12, 2021) at 14 lines 7-11 stated,

Defendant-Counterclaimants attempt to

buttress their argument that they are

not liable under the CWA by claiming

without basis that the CWA does not

apply to private property such as theirs.

Resp. (Dkt. 85) at 4-5. Of course,

Defendant-Counterclaimants

cannot

cite any case law supporting this

fallacious claim. Indeed, to the contrary,

the Supreme Court and every other

federal court to reach the issue to our

knowledge has concluded that the CWA

applies to discharges on private

4

Sackett v. Environmental Protection Agency, 598 U.S. 651

(2023).

9

property. See, e.g., Riverside Bayview

Homes, Inc., 474 U.S. at 135 (“[A]

definition of ‘waters of the United States’

encompassing all wetlands adjacent to

other bodies of water over which the

Corps has jurisdiction is a permissible

interpretation of the Act. Because

respondent’s [private] property is part of

a wetland that actually abuts on a

navigable waterway, respondent was

required to have a permit...”). Emphasis

added.

The U.S. in its “Respondents’ Reply ISO Motion to

Dismiss Def. Counterclaim,” dkt 86, No. 3:20-cv05867 (W.D. Wash. Nov. 5, 2021) at 5 lines 19-28,

Defendant-Counterclaimants’ claim that

the

United

States

lacks

CWA

jurisdiction over private property also

fails as a matter of law, as courts

regularly apply the CWA to discharges

occurring on private property. See, e.g.,

United States v. Riverside Bayview

Homes, 474 U.S. 121 (1985) (applying

CWA Section 404 permit requirement to

private property); Borden Ranch P’ship

v. U.S. Army Corps of Eng’rs, 261 F.3d

810 (9th Cir. 2001) (same). Emphasis

added.

Without the U.S. satisfying the previously cited

exceptions in the lower courts or the district court’s

default order addressing these exceptions, this Court

should accept review and address 43 U.S.C.

§1311(b)(2)’s effect on the CWA enforcement.

10

In this Court’s analysis of the exceptions to 43

U.S.C. 1311(b)(2), it can address the “DualFederalism” and the separate jurisdictions for 33

U.S.C. §1319 verses 33 U.S.C. §1251(b).

Congress, in its brilliance, provided 43 U.S.C.

§1311(b)(2) as the remedy to what it knew as the

inherent inability of federal agencies to restrain

themselves from infringing upon a) Americans’

sovereignty inherited from the Crown at the time of

the Revolution, and b) the several State’s Equal

Footing status and “reserved powers” in their 10th

Amendment of the U.S. Constitution.

3. This Court should grant certiorari to address

Respondent's lack of standing.

To accomplish its CWA goals, Congress created

programs under “cooperative federalism” to address

the constitutional limitations of the CWA where

several States exercise authority. This fact

demonstrates that Congress recognizes its CWA’s

enforcement over water quality (environmental

injuries) is solely within U.S. Enclave Clause

jurisdiction. It also shows Congress’s recognition of 43

U.S.C. §1311(b)(2)’s protection for persons following

State authority, typically through a warrant

sanctioning specific activities. This is why Congress

needs State laws to be consistent with the CWA’s

goals and requires it have a means of enforcement.

This case symbolizes the profound and alarming

departure from the principles of “cooperative

federalism” that Congress relies upon to achieve its

CWA goals. This departure has created chaos in

permitting

predictability

and

administrative

regularity. The federal government's enforcement

11

actions, sanctioned by the lower courts, appear to

disregard established legal frameworks and

processes, leading to considerable professional

perplexity regarding the lack of federal participation

in agreed-upon review procedures.

This specific argument aims to underscore

Respondent’s lack of standing to allege any claims

against the State’s permitted activities of Petitioners,

and the far-reaching and detrimental consequences of

allowing such actions to stand, impacting citizens and

State environmental programs nationwide.

This Court's review is imperative to address a

fundamental breakdown in “cooperative federalism”

and due process. The Petitioners, having sought and

received authorization for a property use that is

federally approved in Washington State’s CZMA

programs, were subsequently subjected to federal

enforcement under the CWA. The Respondent

(United States) never alleged that the State erred in

administering its approved program, or that it

exhausted the processes detailed in 15 C.F.R. §930

and the related processes in the State’s programs.

Petitioners followed these processes, availing

themselves of the opportunity for participation

through Mason County’s permitting framework,

which culminated in their activities being authorized.

Crucially, the Respondent, the United States, had

multiple opportunities for participation 5 within this

cooperative framework:

5 City and County of San Francisco v. Environmental Protection

Agency, 604 U.S. 334 (2025).

12

1. During the review and approval process of the

State’s CZMA programs, it could have objected to the

property uses it now claims violates the CWA, the

processes used by the county to issue permits and

provide due process for the Respondent’s interests. 6

2. It could have commented during the local

permit review process and requested Petitioners

obtain a CWA Section 404 permit. Then the county

could evaluate the request according to their

processes and make an appealable decision.

3. It could have appealed Mason County’s permit

determinations, hearing examiner’s findings of fact,

or the Department of Ecology’s consistency findings.

4. It could have submitted a CZMA Consistency

Determination for its desired enforcement activity

seeking to remove and penalize a vested structure

authorized by the program, which would have

provided an appealable decision.

Respondent entered contract with the State under

the CZMA and then failed to exhaust its available

administrative processes. Per the Washington State

Supreme Court, 7 Respondent lost standing to raise its

claims, injuries, and desire for $323,134,524 against

Petitioners’ State permitted activities.

In summary, after Respondent lost standing under

6 16 U.S.C. §1455(d)(1).

Chelan County v. Nykreim, 146 Wash. 2d 904, 52 P.3d 1 (2002);

Samuels Furniture, Inc. v. State Department of Ecology, 147

Wn. 2d 440, 54 P. 3d 1194 (2002); Durland v. Island County, 182

Wn. 2d 65, 340 P. 3d 491(2014); Community Treasures v. San

Juan County, 192 Wn. 2d 47, 427 P. 3d 627 (2018).

7

13

this “cooperative federalism” permitting framework,

it arbitrarily pursued CWA enforcement against an

authorized property use under a system it had itself

approved.

The federal government’s actions—and the lower

courts’

affirmation—demonstrate

a

profound

disregard for existing regulations (the CZMA

framework), a failure to utilize opportunities for

participation within the State’s administrative

process, a clear lack of participation in challenging

State decisions through proper channels, and

ultimately, acting outside of the process established

by Congress for federal-state environmental

governance. Allowing this outcome to stand would

normalize arbitrary CWA enforcement against Stateauthorized activities, nullify the protective elements

of federally approved State programs, and undermine

fundamental due process protections for property

owners nationwide. This Court should grant

certiorari to reaffirm the principles of “cooperative

federalism,” enforce administrative regularity, and

ensure consistent application of environmental law.

This approach constitutes a profound instance of

acting outside of the process. It allows federal

agencies to circumvent the very mechanisms designed

to resolve federal-state consistency issues, rendering

the federal approval of State CZMA programs a

hollow gesture. Such arbitrary enforcement nullifies

the predictability property owners rely upon and

directly undermines the congressional intent for a

streamlined permitting process, injecting "arbitrary

chaos" into what should be a coherent and

coordinated regulatory environment. It also

effectively creates a Takings by entrapment,

14

penalizing property owners for relying on processes

the federal government explicitly approved.

The Petition for a Writ of Certiorari reveals critical

failures

concerning

established

regulations,

participatory processes, and the boundaries of federal

authority. The lower courts’ affirmation of a default

judgment, despite these failures, demands this

Court's intervention.

In summary, for the foregoing reasons, and to

address the foundational concerns regarding existing

regulations, opportunity for participation, lack of

participation, and acting outside of the process, the

amici respectfully urge this Honorable Court to grant

the Petition for a Writ of Certiorari.

4. This Court should grant certiorari to address if the

CWA is currently void for federal agencies violating

the Equal Protection Clause and administering it

in a manner that is arbitrary.

A. The CWA may be void because federal agencies

administering the CWA have a pattern of

unequal application of the law.

Federal courts recognize the Equal Protection

Clause of the Fifth Amendment is a component of due

process of law. Bolling v. Sharpe, 347 U.S. 497, 499500, 74 S. Ct. 693, 98 L.ED. 884 (1954); Davis v.

Passman, 442 U. S. 228, 236, 99 S.Ct. 2264 (1979).

It appears that the courts have misinterpreted the

CWA and inadvertently provided a license to federal

agencies to unequally apply the CWA while

concurrently administering it in a manner that is

arbitrary, capricious, and an abuse of discretion. This

has allowed federal agencies to form an

15

unconstitutional “[federal] local zoning board”

(“Board”).

8

There have been two notable consequences upon

property owners due to this current “federal local

zoning board.” First, it violates the “Ex Post Facto

Clause” to manifest retroactive liability upon

property owners, something Congress cannot do (See

Art. 1, §9). Second, it creates unconstitutional

conditions upon property owners’ enjoyment of

federal and State approved property uses.

The following public facts demonstrate the harm

by this “Board’s” “absolute Tyranny over these States”

upon law abiding people, our environment and

navigable waters.

A. In 2006, shortly after Rapanos, Michael and

Chantell Sackett, were faced with the threat of civil

and criminal charges under the CWA if they didn’t get

federal permission prior to enjoying their local

permits to construct a home within their uplands as

defined under Idaho State law. It took 16 years before

they did not have to fear criminal prosecution for

following State authority. See Sackett.

B. Between

2017-2020

Petitioners,

by

authorization of the State, maintained 48’ of a 1937

bulkhead next to Hood Canal. They experienced years

of criminal investigations by the EPA and NOAA

Fisheries, and then years of civil litigation seeking

$323,134,524 of CWA penalties. Federal agencies

claimed jurisdiction six-feet into Petitioners’ uplands,

8

Rapanos v. United States, 547 U.S., at 738 (2006) (plurality

opinion) (Rapanos)).

16

contrary to United States Army Corps of Engineers’

(USACE) 1977 statement, “…We do not intend, by

this clarification, to assert jurisdiction over those

areas that once were wetlands and part of an aquatic

system, but which, in the past, have been transformed

into dry land for various purposes…” 42 Fed. Reg.

37128. 9 This dispute is approaching nine years.

C. In 2023, U.S. v. Tammy Blakey and Flying T

Ranch, INC., No. 2:23-cv-01910, a CWA complaint was

filed after USACE closed its enforcement case with no

action taken and made no referral to the EPA. The EPA

issued a notice of violation against the ranch’s 2018 act

of placing roughly $2,000 worth of 120 cubic yards of rip

rap rocks10 on its property near the Stillaguamish river.

The EPA refused to return calls and emails from Ms.

Blakey and did not appeal official county and hearing

examiner decisions about her activities being a

permittable property use. Ms. Blakey’s 2018 activities

stopped high voltage power lines, agricultural non-point

pollution, and silt from going into the Stillaguamish

river if her property avulsed further. This dispute

remains ongoing.

D. In 2019, a historical 1875 ranch performed

routine maintenance of structures as allowed under

Idaho law. In 2024, a CWA complaint was filed in U.S.

v. Ace Black Ranches, LLP, No. 1:24-cv-00113. In its

amended complaint, the federal government alleges

that the defendant unlawfully polluted waters that

9 Also see,

2009).

United States v. Milner, 583 F.3d 1174, 1195 (9th Cir.

10 Rip rap has historically been used for bank stabilization along this

river.

17

are within “federal jurisdiction,” including areas on

defendant’s property that the EPA says were

“adjacent wetlands.” This dispute has been ongoing

since 2021.

These examples demonstrate how law-abiding

people are being harmed by this “[federal] local zoning

board” acting arbitrary, capricious, and abusing their

discretion. As David Erlanson’s Amicus Curiae

argued, this arbitrary behavior is because Congress

delegated its duties to federal agencies to define and

interpret the limits of the CWA’s federal jurisdiction.

This harm is multiplied by the fact that the tasked

federal agencies routinely violate Equal Protection

Clause with their CWA enforcement. Two such

examples include:

E. In 2022, while seeking $323,134,524 from

Petitioners, Respondent authorized the adjoining

easternly adjacent neighbor the exact same bulkhead

replacement upon the same 1937 continuous

bulkhead. A CWA Section 404 permit was requested

to be obtained for gravel fill discharges waterward of

its face. Respondent determined that it lacked

jurisdiction on the face of the neighbor’s bulkhead yet

concurrently claimed its jurisdiction extended six feet

landward of Petitioners’ identically located and

parallel bulkhead. Unlike Petitioners who passed all

permit inspections, the adjacent “federal activity

within the State,” failed to have any State or federal

inspections, and Respondent refuses to do

inspections, let alone open a complaint. Respondent

wrote to the neighbor that she can get permits later.

No such offer was made to Petitioners. Pictures and

letters about this project are in “Petitioners’

Declaration,” dkt 239-1, No. 3:20-cv-05867 (W.D.

18

Wash. September 21, 2023) at 6-19.

F. In December of 2016 and directly across the

navigable waterbody of Hood Canal, WADNR,

without local, state or federal permits, filled an entire

ESA-listed and salmon-spawning creek six feet deep

with 20,000 cubic yards of fill. The fill is so massive

that the CWA defined pollutants can be seen with

satellite imagery on Google Earth using the

coordinates 47°22’15”N 123°03’08”W. There is

undisputed legal evidence detailed in Washington

State Superior Court Brad Carey, et. al. v. Washington

State Department of Natural Resources, No. 19-200737-23. That case was won on summary judgment

and was later vacated due to a multi-million dollar

settlement for property damages of only three

Plaintiffs. The federal government was not a party to

that settlement. Despite the court record being full of

experts’ and WADNR employees’ testimony proving

each element of federal violations, the federal agencies

tasked with enforcement remain silent. They deployed

the full force of U.S. CWA enforcement upon the

previous mentioned law-abiding Americans while

refusing to open a complaint for the verified filling of

navigable-waters-in-fact

and

the

permanent

destruction of the aquatic environment. This specific

example demonstrates a clear abrogation of the 5th

Amendment by arbitrary enforcement and unequal

application of the law. USACE’s and EPA’s repeated

response to their refusal to open a complaint is that

they are unsure if the creek’s waters that continuously

adjoin Hood Canal waters year-round are within

federal jurisdiction, even though WADNR’s fill has

moved visible into Hood Canal on satellite imagery.

Today, the CWA pollutants remain obstructing the

19

waterway for human and aquatic species navigation

and prevent ESA-listed species from spawning.

WADNR has not obtained, let alone applied for local,

state or federal permits. Nor has it attempted to

remove or mitigate its environmental damage.

In summary, these facts demonstrate that the

CWA should be deemed void, at least as it is currently

arbitrarily administered and unequally applied.

Reviewing Petitioners’ case, it becomes apparent

that one reason this “federal local zoning board” exists

is because the lower courts have endorsed USACE’s

and EPA’s conflating 33 U.S.C. §1319 into federal

statutes that protects State rights and persons

following State authority.

This Court ruled 9-0 in its Sackett decision that 33

U.S.C. §1344(g)(1) could not be conflated into other

CWA statutes.

In Loper Bright Enterprises v. Raimondo, 603 U.S.

369 (2024) this Court determined that one branch of

the government may not perform another branch’s

exclusive constitutional duties. This is consistent

with the well-known maxim of law "delegata potestas

non potest delegari." 11 This Latin phrase is a legal

principle meaning "delegated power cannot be

delegated," emphasizing that a person or entity to

whom authority is granted cannot further delegate

that authority unless expressly permitted.

This Court should similarly strike down the

misapplication of 33 U.S.C. §1319 within the several

States and uphold the intent of Congress to preserve

11

J. W. Hampton Jr. v. United States, 276 U.S. 394 (1928).

20

State rights in §1251(b). The Court should make clear

to the people 12 who trust and follow State authority

that Congress recognizes their privileges and

immunities through 43 U.S.C. §1311(b)(2).

B. Arbitrary CWA powers have introduced

Endangered

Species

Act

Section

7

Consultations as an unconstitutional condition

for property uses.

The “federal local zoning board’s” unrestrained

powers have provided it the means to expand federal

jurisdiction into State defined private property

uplands. The purpose of expanding CWA permitting

is to trigger federal scrutiny over land-use matters

and require Endangered Species Act (ESA) Section 7

Consultations that subordinate Americans’ property

rights secured by the Fifth and Tenth Amendments 13

and creates unconstitutional conditions upon

property owners.

The CWA’s unconstitutional federal overreach,

now interconnected with an innovative ESA scheme

has resulted in a Takings without just compensation,

affecting property interests by the amici, Petitioners,

and millions of others.

In Washington State, the boundary between

waters and uplands within the State’s jurisdiction is

the Ordinary-High-Water-Mark (OHWM), which is a

12 See the Ninth Amendment. Also see U.S. Constitution Art. 4,

§2a: “The Citizens of each State shall be entitled to all privileges

and immunities of Citizens in the several States.”

13

Bond v. United States, 564 U.S. 211, 131 S.Ct. 2355, 180

L.Ed.2d 269 (2011).

21

marker on the land identified by biological and soil

characteristics (a visual determination of where

water’s reach ends and uplands begin). The

Washington State Constitution Article XVII §1 and

Shoreline Management Act of 1971 (RCW

90.58.030(2)(c)) define the area at and landward of the

OHWM as uplands. An Area Habitat Biologist of the

Washington Department of Fish and Wildlife is

authorized to determine the OHWM in the field under

the State’s CZMA programs. The Area Habitat

Biologist located the OHWM at Petitioners project

site during permitting and again during its

construction. The Biologist ensured the project

remained landward of the OHWM. 14

After Petitioners’ project began, the reported line

of federal jurisdiction in Puget Sound was arbitrarily

changed, resulting in a Takings of “approximately

8,600 acres” of Washington defined uplands into

“WOTUS,” and arbitrarily expanding CWA

jurisdiction. 15 This was not done by the Washington

State Legislature or Congress but by means of a

federal judge who granted a voluntary remand by

Seattle District Army Corps of Engineers (USACE) to

redefine the reach of “waters of the United States.”

This Takings occurred in response to an

environmental activist organization that advocated

since at least 2012 to illegally subject private property

owners to ESA Consultations. To accomplish this

“Petitioners’ Motion to Dismiss,” dkt 10, No. 3:20-cv-05867

(W.D. Wash. March 24, 2021) at 9, 12.

14

Sound Action v. U.S. Army Corps of Eng’rs, Complaint, dkt 1,

No. 2:18-cv-00733, at 2, line 18 (W.D. Wash. May 21, 2018).

15

22

goal, it and cooperative staff within NOAA Fisheries

and EPA Region 10 advocated for Seattle District to

redefine “high tide line” to the “mean annual highest

tide,” a line that is much higher than OHWM 16 and

redefines 8,600 acres of State uplands into tidelands.

Public information gives explicit admissions to

federal regulators’ intentions here. The evidence

shows their goal is to exert control at a federal level

over private property within State jurisdiction and

then extract money from property owners to fund

environmental causes and groups.

U.S. Representative Dan Newhouse wrote in a

June 2, 2025, letter to EPA Administrator Lee Zeldin,

“I am writing today to request you immediately

investigate coordination between career staff in the

EPA Region 10 office in Seattle, Washington, and

extreme environmental activist groups… For the last

fifteen years, and perhaps longer, career staff—had

free rein to pursue their own activist agenda.”

The Petitioners’ and Sackett’s cases, plus other

evidence

demonstrate

that

the

goal

of

environmentalists is to subject more private property

uses to CWA permitting, which triggers ESA

Consultations as a condition of obtaining a federal

permit. 17

16 Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10 (1935)

ruled federal jurisdiction over waters that periodically cover

tidelands end at mean high water, also called ordinary high

water under common law.

17 See January 5, 2022 “Memorandum between the Department

of the Army (civil works) and the National Oceanic and

23

During oral arguments in Sackett, the Solicitor

General could not state what the “distance-factor” or

“adjacency” means to essentially define the limits of

the “nearshore environment” to navigable waters. He

admitted there is no “bright-line rule.” However,

Congress provides its clear manifest intent that there

must be a “bright-line rule” in recognition of a state’s

exclusive jurisdiction as evidenced in its CZMA

requiring a “bright-line rule” to define where coastal

waters end and uplands begin (16 U.S.C. §

1455(d)(2)), and that is determined between the

respective State and federal agencies (16 U.S.C.

§1455(d)(1)).

The

following

example

reveals

that

environmentalists consider any construction within

the “nearshore environment” should be subject to

ESA consultations and thus expanded CWA

jurisdiction.

In an email titled “Issue Paper #2: Determining

the Corps Jurisdictional Boundary in Puget Sound”

from Matt Longenbaugh, Chief of Central Puget

Sound Branch, NOAA Fisheries West Coast Region,

dated March 30, 2015, he wrote, “By adopting MHHW

as the high tide line, the Corps does not provide

NMFS with the opportunity to review a large number

of shoreline armoring actions under the ESA §7a2.”

Mr. Longenbaugh’s email further complained that

because the federal jurisdiction extended only to

Atmospheric Administration” and January 6, 2022 “Army and

NOAA to advance Endangered Species Act consultations.”

24

MHHW in Puget Sound at that time, about 93 percent

of the actions were so high on the beach profile that

the bulkheads were out of federal jurisdiction and

required only State permits. He was frustrated that

he could not impose ESA consultation on them all.

The Regional Administrator for NOAA Fisheries

boasts on her official website that she is responsible

for “innovating ESA consultations for the nearshore

environment.” 18 The Petitioners’ case clearly shows

that “innovating” means manufacturing federal

jurisdiction into upland private property.

In Petitioners’ case, the United States’ expert

stated that the new ESA consultation calculations for

discharges on their property resulted in 73% of

Petitioners’ tax assessed land value needing to be

paid to Non-Governmental Organization mitigation

banks. 19 In U.S. v. Tammy Blakey and Flying T

Ranch, INC., No. 2:23-cv-01910, dkt 65 at 5, it states

that the estimated ESA mitigation bank payment is

around $4 million for the placement of 120 cubic yards

of rip rap rock along agriculture uplands to stop a

power pole from falling into the river.

In summary, environmentalists within federal

agencies have arbitrarily used CWA powers to expand

federal jurisdiction with the goal of subjecting private

property to unnecessary federal scrutiny, CWA

permitting and ESA consultations. This violates our

18 See https://www.fisheries.noaa.gov/contact/jennifer-quan (last

visited December 29, 2025).

19 “Expert Report.” Exhibit C., dkt 186-4, No. 3:20-cv-05867

(W.D. Wash. Oct. 14, 2022) at 23.

25

Constitution’s Fifth and Tenth Amendment rights,

subordinating property owners and their respective

State’s ability to control private property.

CONCLUSION

This Court should grant certiorari to address if

Congress provided 43 U.S.C. §1311(b)(2) as the cure

to “repeated injuries and usurpations, all having in

direct object the establishment of an absolute

Tyranny over these States” by the unequal

application and arbitrary administration of the Clean

Water Act. Alternatively, this Court may request

supplementary briefing on a specific issue raised by

Petitioners or the am ici.

If this Court denies certiorari, the facts presented

herein

demonstrate

that

unelected

federal

bureaucrats coordinating with environmentalists will

have control of all property across our United States,

subjecting Americans, States, and local governments

to a technocratic kind of feudalism. And do so without

due process or just compensation for their Takings.

Being the 250th birthday of these United States, it

may be the appropriate time for this Court to address

the constitutional issues raised in this case and

uphold the intent of the U.S. Continental Congress

that signed the Declaration of Independence.

Was it their intent to see the Sacketts spend 16 of

these 250 years facing federal criminal prosecution if

they acted upon their local permits to build a home on

their Idaho State private property uplands?

26

Respectively submitted,

David Willson

Counsel for Amicus Curiae

Disabled Rights Advocates

P.O. Box 1351

Monument, CO 80132

(719) 648-4176

David@DRAdvocates.com

Counsel for Amici Curiae

27

APPENDIX TABLE OF CONTENTS

List of Amici Curiae……………………………….A-2

A-1

APPENDIX – LIST OF AMICI CURIAE

Tammy Blakey

I am a retired female airline pilot with significant

nationally recognized accolades and for the previous

three decades, I have operated a small ranch along

the Stillaguamish River. In the 90s, I stood up for

women’s civil rights in the airline industry, Capt.

Tammy Blakey v. Continental Airlines, Inc., 992 F.

Supp. 731 (D.N.J. 1998). Now I am standing up for

ranchers who seek to enjoy federally approved

CZARA State property uses yet being targeted with

“allegations” under the CWA for these approved

property uses disliked by environmentalists.

Our liberties include our right to raise the food

that feeds America and care for our lands, so they

keep producing for generations to come. Our

Constitution is intended to keep us free of

interference from bureaucrats and environmentalists

scheming ways to twist our laws and agreements to

deprive us of our property rights.

Brad Carey

I am interested in this case because I live across

from the Petitioners and share the same regulations,

waterbody, and environment. I have a respectable

real estate portfolio and multiple businesses thanks

to being able to enjoy the liberties afforded by the U.S.

Constitution.

I have been stunned by the level of federal

attention upon Petitioners. Petitioner, Joan Bayley,

now 81-years-old, acted in good faith with our county

government and allowed State officials to direct her

workers. I estimate Petitioners discharged about 14

A-2

cubic yards of concrete on their property. Why should

anyone face $323,134,524 in federal penalties for

complying with a Washington State program?

Future generations of Americans need to have a

healthy environment, which includes public servants

who equally apply the law and obey the laws in a

manner consistent with our Constitution and as our

elected State Representatives dictate into law.

Ryan Crater

As a professional land use planner and biologist, I

have dedicated over two decades to land-use planning

and environmental regulations, serving both in local

governments and now private practice since 2019. My

specialized expertise lies in the Washington State’s

environmental

programs,

particularly

the

administrative processes and procedures governing

permit approvals under the CZMA and the CWA and

subsequent locally adopted Shoreline Master

Programs (SMP).

My direct experience in both quasi-judicial and

judicial settings, including testifying as an expert

witness in various courts and advising a defendant in

a related federal enforcement action (United States v.

Tammy Blakey and Flying T. Ranch, 2:23-cv-01910),

affords me unique insight into the practical

implications of this case. The integrity of federally

approved Washington State environmental programs

and the due process they afford are paramount to my

work and the clients I work for. I submit this Amici

Curiae brief to highlight critical issues of statutory

interpretation, administrative law, and constitutional

due process arising from the Petitioners' case, which

is occurring to millions of others and mostly

A-3

unmitigated across our United States. Public

servants are there to follow our rules, our policies, our

administrative

procedures,

our

laws,

our

Constitutions so that they may protect our liberties.

Mike Nykreim

I am 5th generation Washingtonian, GG

Grandfather homesteaded Gig Harbor, Washington.

A University of Washington grad class of ’77, School

of

Architecture,

Construction

Management.

Certainty of permitting is absolute necessity in

property ownership and use. I was a co-defendant in

Chelan County v. Nykreim, 146 Wash. 2d 904, 52 P.3d

1 (2002), State of Washington Supreme Court

Decision establishing certainty of finality of recorded

land use documents even in cases of JARPA, Joint

Aquatic Resources Permit Application.

In our case, had it not been upheld, the Amicus

Brief from the State of Washington Title Association

stated that they could no longer sell Title Insurance

in our state, had we not had our property rights

upheld.

Petitioners’ case is in the same category. Finality

of process is everything in property ownership. CWA

application has been used as an arbitrary and

capricious manner, repeatedly against property

owners, so therefore must be discontinued.

A-4

Dave Simpson

David P. Simpson is a Professional Engineer and

Licensed Geologist who has performed coastal

engineering since 1978 in government, research, and

consulting practices. Since 1990 as an employee and

then principal of a consulting firm specializing in

coastal engineering I have nearly continuously

worked with regulatory requirements for actions at

the water’s edge.

I seek to participate in this Amici Curiae in this

matter for two reasons. First, I am concerned about

the erosion of the founding principles of federalism.

Second, I am concerned about the ability of individual

property owners and State legislatures to control the

use and protection of private property.

For too long, unaccountable, unrestrained, and

unelected federal bureaucrats have coordinated with

environmentalists to use the people’s treasury to

deprive us of our constitutional rights. If we stand by

and do nothing, they will have control of all private

property across these United States, subjecting

Americans, States, and local governments to a

technocratic kind of feudalism.

A-5