Opposition — Buttrey v. United States

= aia Oitice Supreme Court, U.S.

| FILED

APR 23 1983

v ALEKANDER L. STEVAB,

No. 82-1303 ns weet

du the Supreme Court of the Hnited States

OcTOBER TERM, 1982

JOHN BUTTREY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Rex E. Lee

Solicitor General

Caro_ E. Dinxins

Assistant Attorney General

AnnNgE S. ALMY

Kay L. RICHMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether Section 404 of the Clean Water Act, 33

U.S.C. 1344, is unconstitutional insofar as it delegates to

the United States Army Corps of Engineers regulatory

authority over civilian activities.

2. Whether the procedures employed by the Corps in

processing petitioners’ permit application under Section

404 satisfied the requirements of the Administrative Proce-

dure Act and the Due Process Clause of the Fifth Amend-

ment.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Atkins v. United States, 556 F.2d 1028,

cert. denied, 434 U.S. 1009 ....... eee eee ee eee 6

Basciano v. Herkimer, 605 F.2d 605,

cert. denied, 442 U.S. 929 ....... cece eee eee 14

Costle v. Pacific Legal Foundation,

WP Rs BOE. cee revesecsccccecccccccees 10, 15

Environmental Defense Fund, Inc. v. Costle,

631 F.2d 922, cert. denied, 449 U.S. 1112 ..... 10

Goldberg v. Kelly, 397 U.S. 254 ......450- 12, 14

Laird v. Tatum, 408 U.S. 1 2... cece eee eee eee 7

Leslie Salt Co. v. Froehlke, 578 F.2d

SD 0k b6i50dnbeend kneenbekabseeeseeeener 5

Marathon Oil Co. v. EPA, 564 F.2d 1253 ...... 10

Mathews v. Eldridge, 424 U.S.319 ..... 11-12, 14

McCulloch v. Maryland, \7 U.S. (4 Wheat.)

DR Ach Cite Cekcdekbevavdhdnseebtssuss ness 6

Morrissey v. Brewer, 408 U.S. 471 .......0005- 12

IV

Page

Cases—Continued:

Nofelco Realty Corp. vy. United States,

EE sdsecséccasveveccenerevece 11

Se he Pe Ws BF Scheercecccccccccs 6-7

Seacoast Anti-Pollution League v. Costle,

572 F.2d 872, cert. denied, 439 U.S. 824 ...... 10

Taylor v. District Engineer, 567 F.2d

ARSE Re Oe 10

United States v. Federal Maritime Commission,

i Ceci pseenbastesveticsescccess 9

United States vy. Ashland Oil and Transportation

Rl UME ENED cescecdecnceccrrecesseses 5

United States v. Byrd, 609 F.2d 1204 ........... 5

United States v. Florida E.C. Ry.,

DE ME cccnccsabacescccncrbocercccveces 9

United States Steel Corp. v. Train,

EL 0. pandas nes.s000500 0 600.0.0.0.0.0.0 10

Weinberger v. Hynson, Westcott & Dunning,

ig OEE latte GUT on 60606 0.0000.00000.0 0.00008 13

Constitution, statutes and regulations:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) ........ ee

Art. 1, § 8, Cls. 11-14 (War Power

Dei. cee ehsehe sea bassossaceeee 5,6

Art. I, § 8, Cl. 18 (Necessary and Proper

ME Waser etn eeuseeesehedacccceces WEB 6

Page

Constitution, statutes and regulations— Continued:

Te UA. GOR. VP FEISS cccccrcccciccvsensees &

ee a SE ban bine e'e cae ceedeaneees se sees 7

Administrative Procedure Act, 5 U.S.C.

Ce BORO. VP FS) CT BOE. ca vcncccstosceencesss 8

EE EN os sain’ oo 6 406 cee E wet bee ees 12

a: SEE 66a 6chuVeccsaveonceesseceds 12

Pet, UETe 4 0446600455 24 0wRCsR beKES 12

Pers es ha pbe ps oa Cereeriéntse oes 12

PO SR. CE ey ye )

ee ee odkebvekkesdseccesusereteves )

$ U.S.C. (& Supp. V) SS4(a) ...cecccccceces i)

$ U.S.C. (& Supp. V) S56 ..cccccccccccee 8,9

Da ED bvecs daceénncteeussetires 9

el ee OE 6b 04060 b6d0 bce censdesseee 12

Clean Water Act, 33 U.S.C. (& Supp. V)

1251 et seq. :

Section 101, 33 U.S.C. 1251(a) ...... eee eens 6

Section 402, 33 U.S.C. 1342 ....ccecvccoes 10

Section 402(a)(1), 33 U.S.C.

SEED ccscedectaseceeReatevavtancs 9

Section 404, 33 U.S.C.

SE esses vehasenaeus 2,4, 5,6, 7,8, 10, 11

Section 404(a), 33 U.S.C. 1344(a) .......... )

Rivers and Harbors Appropriation Act of 1899,

Sees SO, FP We OE ct cccccctsnccses 4,10

33 C.F.R. 209.120(g) (1972) 2... cece eee eeveces 10

33 C.F.R. :

DORR TIPS pvcerecccccccecesenece 14

DOGO SEOMMOMTE cecreevecsdcrocesesese 13

VI

Page

Constitution, statutes and regulations—Continued:

BORON FET 6 ke vdcceeesceeasae 2,8, 12

POE BOP oo vac vndddues cecceninno. eee X

SR Far UD 2. 0b 00 aso bensdaeeaweaeene XK

SD SOFT bb kvccavscuvescicseeeuenen &

SOOO FETE kde vdcudsévesscssnckeeenee 8

DOOD FET) pv nckocrencoceceereeeeaaan 8

Miscellaneous:

2 K. Davis, Administrative Law Treatise

COR 6 CRTOD vvccscccachsrvveetsacaie 9,13, 14

Friendly, “Some Kind of Hearing,” 123 U. Pa.

in HOVs BOOT LODTEE sc-ncaced chicas dceewes 12, 14

Gellhorn & Robinson, Summary Judgment in

Administrative Adjudication, 84 Harv.

L. Mavs GES CIP ED vbcacdeucheauecacearseans 14

The Federalist No. 24(A. Hamilton) ........... 7

Warren, The Bill of Rights and the Military,

37 N.Y.U.L. Rev. 181 (1962) ......... eee eee 7

118 Cong. Rec. 33699 (1972) .... cece cence 6, 10

H.R. Conf. Rep. No. 95-830, 95th Cong.,

ey a errr rn 11, 15

S. Rep. No. 95-370, 95th Cong., Ist Sess.

CURT FY vcnccdcdctecsdevesstvactenusanes 11, 15

In the Supreme Court of the Hnited States

OcTOBER TERM, 1982

No. 82-1303

JOHN BUTTREY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals in C.A. No. 81-3234

(Buttrey 1) (Pet. App. A-1 to A-33) is reported at 690 F.2d

1170. The opinion of the court of appeals in C.A. No.

81-3649 ( Burtrey 11) (Pet. App. A-34 to A-44) is reported at

690 F.2d 1186. The opinions of the district court in both

cases (Pet. App. A-45 to A-55, A-57 to A-76) are not

reported.

JURISDICTION

The judgments of the court of appeals in both cases were

entered on November 8, 1982. The petition for a writ of

certiorari was filed on February 4, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

2

STATEMENT

These cases challenge both the procedures used by the

United States Army Corps of Engineers (the Corps) when it

processes permit applications under Section 404 of the

Clean Water Act, 33 U.S.C. (Supp. V) 1344, and, more

broadly, Congress’ delegation of regulatory authority to the

Corps under Section 404.

1. a. The procedural challenge in Buttrey / arises from

petitioners’ unsuccessful attempt to obtain from the Corps a

permit, required by Section 404, to undertake a dredge and

fill operation ina wetland area known as Gum Bayou, near

Slidell, Louisiana (Pet. App. A-2, A-32). Following peti-

tioners’ submission of a permit application, the Corps, on

February 2, 1979, issued a formal public notice of the

proposed operation (id. at A-2). Comments opposing issu-

ance of the permit were then received from numerous pri-

vate organizations and individuals, as well as three federal

agencies, the Fish and Wildlife Service, the Environmental

Protection Agency, and the National Marine Fisheries Ser-

vice (ibid.).'

As required by Corps regulations, 33 C.F.R. 325.2(a)(3),

all of the comments were forwarded to petitioners, who

requested and were granted a six-month extension of time

for submitting their response (Pet. App. A-3). Eventually,

petitioners submitted a comprehensive response that in-

cluded rebuttal of adverse comments; separate written

comments prepared by a consulting engineer, a biology

professor at Tulane University and several private individ-

uals; and a legal memorandum supporting issuance of the

'As noted by the court of appeals (Pet. App. A-2 to A-3), those

commenting objected that the proposed project would “destroy natural

drainage and sewage treatment capacity, replace a habitat and nursery

ground for wildlife with residential homes, perhaps irrevocably damage

an aesthetically pleasing wetland area, and, finally, increase the risk of

flooding.”

3

permit (id. at A-3, A-17). Petitioners also sought notifica-

tion of any specific objections considered by the Corps to

warrant denial of the permit and an opportunity to respond

to those objections; a conference with Corps officials; and

an adversary hearing, with an opportunity to cross-examine

witnesses, if the Corps was of the view that any particular

objection might preclude issuance of the permit (id. at A-3).

The responsible Corps official, District Engineer Colonel

Ryan, responded that Corps regulations preclude a full

adversary hearing; however, an informal conference took

place on February 8, 1980.

On April 2, 1980, the Corps denied petitioners’ permit

application. The decision was explained and supported in

three separate documents: an “Environmental Assess-

ment,” an “Evaluation of the Effects of the Discharge of

Dredged or Fill Material Into Waters of the U.S. Using the

Section 404(b) Guidelines,” and a document entitled “Find-

ings of Fact” (Pet. App. A-4, A-17). Pursuant to Corps

regulations, these documents were mailed to petitioners (id.

at A-17 to A-18).

b. On May 2, 1980, petitioners filed suit against the

United States, the Secretary of the Army, and two Corps

officials in the United States District Court for the Eastern

District of Louisiana, challenging, inter alia, the procedures

used by the Corps in processing Section 404 permit applica-

tions (Pet. App. A-4 to A-5). On cross-motions for sum-

mary judgment, the district court entered summary judg-

ment in favor of respondents and against petitioners (id. at

A-45 to A-56). The court held, so far as here relevant, that

the Corps is not required to afford permit applicants formal

adjudicatory hearings and that the procedures employed by

the Corps in processing petitioners’ permit application were

not unconstitutional (id. at A-45 to A-46, A-50 to A-51).

4

2. a. The constitutional challenge, in Burtrey //, to Con-

gress’ delegation of regulatory authority to the Corps arises

in the context of the Corps’ issuance of two cease and desist

orders to petitioners. The first, dated May 5, 1980, advised

petitioners that their placement of fill in a wetland area

preparatory to construction of a sewage treatment plant

was regulated by the Corps and that initiating such work

without a permit violated Section 404 of the Clean Water

Act, 33 U.S.C. 1344. The second order, dated November 21,

1980, advised petitioners that their construction of a levee

and dredging of a wetland area adjacent to the Morgan

River were similarly regulated by the Corps and that initiat-

ing such work without a permit violated Section 10 of the

Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.

403, and Section 404 of the Clean Water Act. (Pet. App.

A-34 to A-35.)

b. In response to these cease and desist orders, petition-

ers filed suit in the United States District Court for the

Eastern District of Louisiana on January 21, 1981. Count I

of the complaint, the only count here relevant, alleged that

the Corps’ exercise, under Section 404, of regulatory juris-

diction over private property and private activities of Uni-

ted States citizens is in violation of the Constitution because

the Corps is a part of the military. Following submission of

cross-motions for summary judgment on this issue, the

court, finding no constitutional infirmity in the Corps’

administration of the Section 404 program, granted the

Corps’ motion and denied petitioners’. (Pet. App. A-34 to

A-36, A-72 to A-73.)

3. The court of appeals affirmed the district court's

judgments in both cases (Pet. App. A-1 to A-33; id. at A-34

to A-44). Specifically, the court of appeals held that the

delegation of authority to the Corps in Section 404 of the

Clean Water Act is constitutional (Pet. App. A-44); that

5

neither the Administrative Procedure Act nor the Due Pro-

cess Clause of the Fifth Amendment entitles petitioners toa

trial-type hearing on their permit application (Pet. App.

A-27); and that petitioners were given all the procedural

protections to which they are entitled under the Due Pro-

cess Clause (ibid.).

ARGUMENT

The decisions of the court of appeals are correct, do not

conflict with any decision of this Court or any other court of

appeals, and do not warrant review by this Court.

1. Petitioners argue (Pet. 8-15) that Section 404 of the

Clean Water Act unconstitutionally delegates regulatory

authority over civilian activity to the Corps, a branch of the

military.

Petitioners rely on Article 1, Section 8, Clauses 11-14 of

the Constitution (the “war powers”) and on several cases

limiting the authority that Congress can extend to the mil-

itary under its war powers. However, congressional author-

ity to regulate discharges of dredged or fill material into

waters of the United States is founded, not on the war

powers, but on the Commerce Clause, and the Section 404

program has consistently been upheld as a proper exercise

of the commerce power.’ Delegation of this regulatory

authority to the Corps, moreover, is an appropriate means

of exercising this power. Prior to passage of the 1972

Amendments to what is now called the Clean Water Act,

there was some dispute as to whether the Environmental

Protection Agency or the Corps should be selected as the

agency to implement the Section 404 program. Ultimately,

however, the Corps was chosen because it had the expertise

*See, e.g., United States v. Byrd, 609 F.2d 1204, 1209-1210 (7th Cir.

1979); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir. 1978);

United States v. Ashland Oil and Transportation Co., 504 F.2d 1317,

1319, 1323-1324, 1325 (6th Cir. 1974).

6

and the administrative machinery necessary to implement

the program. As Senator Muskie explained in presenting

the conference agreement to the Senate:

The Conferees were uniquely aware of the process by

which the dredge and fill permits [under Section 10 of

the Rivers and Harbors Act of 1899] are presently

handled and did not wish to create a burdensome

bureaucracy in light of the fact that a system to issue

permits already existed.

118 Cong. Rec. 33699 (1972). Thus, as the court of appeals

concluded (Pet. App. A-40), the end of the legislation — “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters” (33 U.S.C. 1251(a)) — is

clearly legitimate, and the means selected for achieving that

end — granting regulatory authority to the Corps — are

entirely appropriate under the Necessary and Proper Clause

(U.S. Const., Art. 1, § 8, Cl. 18). See McCulloch v. Mary-

land, 17 U.S. (4 Wheat.) 316, 421, 423 (1819); Atkins v.

United States, 556 F.2d 1028, 1061 (Ct. Cl. 1977), cert.

denied, 434 U.S. 1009 (1978).

Nor is administration of the Section 404 program by the

Corps prohibited by any other constitutional provision,

Petitioners argue (Pet. 13-14) that the war powers clauses

constitute a clear prohibition on use of a branch of the

military for civilian functions and, further, that if Congress

can legislate with respect to the military to the full extent of

its commerce power, then the war powers provisions have

no application or meaning. But nothing in the war powers

clauses even addresses use of the military for civilian func-

tions. See U.S. Const., Art. 1, § 8, Cls. 11-14. Moreover,

‘In the court-martial cases on which petitioners principally rely (Pet.

12-13), the military’s statutory authority to try civilians by court-

martial was found to conflict with the civilians’ constitutional rights to

trial by jury and indictment by grand jury. See, e.g., Reid v. Covert, 354

7

the fundamental purpose of the Founders in setting forth

Congress’ war powers was to limit executive action with

respect to the military.4 This purpose is in no way comprom-

ised by the Corps’ administration of Section 404, because

Congress explicitly authorized the program and selected the

Corps to administer it.

Finally, as the court of appeals suggested (Pet. App. A-43

to A-44), the Corps’ exercise of regulatory functions under

Section 404 does not elevate military over civilian power in

U.S. 1, 7, 19, 22 (1957). In contrast, petitioners have failed to cite any

constitutional provision that is infringed by the Corps’ administration

of the Section 404 program. Furthermore, unlike the court-martial

cases, the Section 404 program, as we have already noted, is authorized

under the Commerce Clause, not the war powers, and Corps adminis-

tration of the program is an appropriate exercise of the commerce

power.

Although the Court's opinion in Laird v. Tatum, 408 U.S. 1, 15

(1972), also cited by petitioners (Pet. 10-12), contains dicta referring to

the “traditional and strong resistance of Americans to any military

intrusion into civilian affairs,” the court of appeals correctly noted (Pet.

App. A-43) that “nothing in the opinion suggests that the type of

extension of authority involved in this case would come within that

tradition.”

4See, e.g., Warren, The Bill of Rights and the Military, 37 N.Y.U.L.

Rev. 181, 184-185 (1962) (“The President was made the Commander-in-

Chief of the armed forces. But Congress was given the power to provide

for the common defense, to declare war, to make rules for the Govern-

ment and regulation of the land and naval forces, and to raise and

support armies."); Reid v. Covert, supra, 354 U.S. at 68 (Harlan, J..

concurring) (emphasis in original; footnote omitted) (“what [the

Founders] feared was a military branch unchecked by the /egis/ature,

and susceptible of use by an arbitrary executive power”), The Federalist

No, 24(A. Hamilton) (restraints upon the discretion of the legislature,

in respect to military establishments, would be improper).

‘In this context, petitioners’ reliance (Pet. 9-10) on the legislative

history of the Posse Comitatus Act is most curious. That Act prohibits

use of the Army to execute the laws, “except in cases and under

circumstances expressly authorized by the Constitution or Act of Con-

gress.” 18 U.S.C. 1385 (emphasis added). Thus, Congress explicitly

reserved for itself the authority to direct the Army to execute the laws.

any proscribed fashion. The Corps exercises only that

power which Congress directs it to exercise. Judicial review

of the Corps’ decisions is available in the civilian courts

under the same standard of review that applies to other

agency decisionmaking; no particular deference is given to

“military judgment.” And civilian control is also ensured by

10 U.S.C. (Supp. V) 3013, which requires that the Assistant

Secretary for Civil Works, whose principal duty is supervi-

sion of Army functions relating to water resources conser-

vation and development, “be appointed from civilian life by

the President, by and with the advice and consent of the

Senate.” Clearly, the Corps’ administration of the Section

404 program — like its historic responsibility for civilian

functions relating to preservation and development of our

Nation’s water resources (see Pet. App. A-43) — is fully

consistent with the Constitution.

2. Petitioners argue (Pet. 15-19) that, prior to denying

their application for a permit under Section 404, the Corps

was required, under the Administrative Procedure Act

(APA), 5 U.S.C. (& Supp. V) 551 e7 seq., to hold a formal

adjudicatory hearing, including opportunity for oral pres-

entation of evidence and cross-examination.® Under the

terms of the APA, however, the provisions governing for-

mal agency hearings, 5 U.S.C. (& Supp. V) 556, apply only

if the substantive statute authorizing the agency to act

requires disputes to be “determined on the record after

opportunity for an agency hearing.” 5 U.S.C. (& Supp. V)

*Corps regulations provide permit applicants with a “paper hearing”

— notice of objections to issuance of the permit and an opportunity to

submit rebuttal to those objections. 33 C.F.R. 325.2(a)(3). The regula-

tions also provide for “public hearings.” 33 C.F.R. Part 327. But these

are informal, information-gathering proceedings rather than trial-type

adversary hearings. See 33 C.F.R. 327.3(a), 327.7, 327.8. Cross-

examination of witnesses is not permitted. 33 C.F.R. 327.8(c).

9

554(a) (emphasis added).’ In this case, the relevant statu-

tory provision, Section 404(a) of the Clean Water Act,

provides simply that the “Secretary [acting through the

Chief of Engineers] may issue permits, after notice and

opportunity for public hearings [*] for the discharge of

dredged or fill material into the navigable waters at speci-

fied disposal sites.” 33 U.S.C. 1344(a). Clearly the statute

does not expressly require an adjudication “on the record.”

While the absence of these words is not necessarily dis-

positive, there must be some evidence of congressional

intent to require a trial-type hearing. United States v.

Florida E. C. Ry., 410 U.S. 224, 238 (1973); United States

Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519,

536 (D.C. Cir. 1978).9 Petitioners, however, have cited no

5 U.S.C. 556(a) provides:

This section applies, according to the provisions thereof, to

hearings required by section 553 or 554 of this title to be con-

ducted in accordance with this section.

Section 553 deals with rulemaking and is, therefore, inapplicable. Sec-

tion 554, entitled “Adjudications,” provides, in pertinent part:

This section applies, according to the provisions thereof, in

every case of adjudication required by statute to be determined on

the record after opportunity for an agency hearing * * *.

5 U.S.C. (& Supp. V) 554(a). As the latter section indicates, the

requirement that the agency proceeding involve “adjudication” is a

necessary, but not sufficient, condition for application of trial-type

procedures under 5 U.S.C. (& Supp. V) 556.

*As noted by the court of appeals (Pet. App. A-10, quoting 2 K.

Davis, Administrative Law Treatise § 12:7, at 434 (2d ed. 1979)).

“ ‘when many are affected, [the term “public hearing™] usually means a

speech-making hearing rather than a [trial-type] hearing with a deter-

mination on the record.’ “

*Petitioners argue (17-18) that Section 404 requires trial-type hear-

ings because three circuits have construed virtually identical language in

Section 402(a)(1) of the Ciean Water Act, 33 U.S.C. 1342(a)(1), as

requiring that EPA, the permitting authority under Section 402, pro-

vide trial-type hearings to applicants for National Pollutant Discharge

10

such evidence. To the contrary, as the court of appeais

observed (Pet. App. A-8), the relevant legislative history

reflects that “Congress did not intend that the ‘public hear-

ings’ called for in section 404 be trial-type hearings on the

record.” As discussed above (see pages 5-6, supra), the

Corps, rather than EPA, was chosen as the authority to

issue permits under Section 404 because Congress was

“uniquely aware” of the process by which the Corps was

already handling permits under Section 10 of the Rivers and

Harbors Appropriation Act of 1899, 33 U.S.C. 403, and

Congress did “not wish to create a burdensome bureaucracy

in light of the fact that a system to issue permits already

existed.” 118 Cong. Rec. 33699 (1970) (remarks of Senator

Muskie). That pre-existing permit system operated pursu-

ant to Corps regulations that provided for informal public

hearings (33 C.F.R. 209.120(g) (1972)), but not for formal

adjudicatory hearings. See, e.g., Taylor v. District Engi-

neer, 567 F.2d 1332, 1334-1336 (Sth Cir. 1978). Thus, as the

court of appeals pointed out (Pet. App. A-8), “[t]his is one

of those rare instances when a statute's history leaves no

room for doubt.” Accordingly, the courts below correctly

Elimination System permits. As the court of appeals correctly noted

(Pet. App.A-7 to A-8), however, none of the three opinions construing

Section 402 held that the relevant statutory language — “after oppor-

tunity for public hearing” — was so clear that it was unnecessary to look

beyond that language for indications of congressional intent to require

a trial-type hearing. See Seacoast Anti- Pollution League v. Costle, 572

F.2d 872, 875-878 (Ist Cir.), cert. denied, 439 U.S. 824 (1978); Mara-

thon Oil Co. v. EPA, 564 F.2d 1253, 1262-1264 (9th Cir. 1977); United

States Steel Corp. v. Train, 556 F.2d 822, 833-834 (7th Cir. 1977). The

presence of the term “public hearing” in both statutory provisions,

accordingly, does not require that Section 404 be construed in the same

way as Section 402. See also Costle v. Pacific Legal Foundation, 445

U.S. 198, 218 (1980) (“opportunity for public hearing” requirement is

“rather amorphous”); Environmental Defense Fund, Inc. v. Costle,

631 F.2d 922, 927 (D.C. Cir. 1980), cert. denied, 449 U.S. 1112 (1981)

(“public hearing” may have different meanings, even in the same

Statute).

concluded that the APA does not require the Corps to

conduct trial-type hearings in deciding whether to issue

permits under Section 404. Accord: Nofelco Realty Corp.

v. United States, 521 F. Supp. 458, 461 (S.D. N.Y. 1981).!°

3. Finally, petitioners argue (Pet. 19-28) that they were

entitled, under the Due Process Clause of the Fifth

Amendment, to an adversary hearing on their permit appili-

cation. The court of appeals correctly rejected this argu-

ment. In so doing, the court applied the three factors identi-

fied by this Court in Mathews v. Eldridge, 424 U.S. 319,

335 (1976), as useful in determining what process is due ina

given situation:

First, the private interest that will be affected by the

official action; second, the risk of an erroneous depri-

vation of such interest through the procedures used,

and the probable value, if any, of additional or substi-

tute procedural safeguards; and finally, the Govern-

ment’s interest, including the function involved and the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

First, the court of appeals properly concluded (Pet. App.

A-14) that petitioners’ private interest is not, in itself, suffi-

cient to demand imposition of full trial-type procedures. As

the court observed (ibid.), petitioner Buttrey is not a person

“on the very margin of subsistence” and denial of his permit

application will not deprive him of “the very means by

which to live.” Mathews v. Eldridge, supra, 424 U.S. at

This conclusion is also confirmed by the subsequent legislative

history of the Clean Water Act. As the court of appeals noted (Pet. App.

A-9 to A-10), when Congress amended the statute in 1977, it was not

concerned with increasing the amount of “process” accorded Section

404 permit applicants but, rather, with simplifying and expediting the

permit process. See S. Rep. No. 95-370, 95th Cong., Ist Sess. 80 (1977):

H.R. Conf. Rep. No. 95-830, 95th Cong., Ist Sess. 104, 105 (1977).

12

340 (quoting Goldberg v. Kelly, 397 U.S. 254, 264 (1970)).

Furthermore, the government in this instance was merely

denying a request, not taking action against petitioners.

This distinction is important, because “[rJevocation of a

license is far more serious than denial of an application for

one; in the former instance, capital has been expended,

investor expectations have been aroused, and people have

been employed.” Friendly, “Some Kind of Hearing,” 123 U.

Pa. L. Rev. 1267, 1296(1975).'' Thus, the degree of depriva-

tion at stake here docs not call for elaborate procedural

protections.

Second, the court of appeals also correctly concluded

(Pet. App. A-27) that the Corps’ “paper hearing” proce-

dures, together with an informal face-to-face conference,

afforded petitioners a great deal of process and that requir-

ing a trial-type hearing would probably not reduce the

chance of error. As required by Corps regulations (33

C.F.R. 325.2(a)(3)), all comments opposing issuance of the

permit were forwarded to petitioners, who then were given

six months to prepare a comprehensive response, which

included rebuttal of adverse comments, separate written

comments prepared by a consulting engineer and a biolo-

gist, and a legal memorandum (Pet. App. A-3, A-17). Con-

trary to petitioners’ suggestion (Pet. 24), the comments

"Cf. Mathews v. Eldridge, supra, 424 U.S. at 332 (continued receipt

of disability benefits is a protected property interest); Morrissey v.

Brewer, 408 U.S. 471, 481-482 (1972) (distinction between revocation of

parole and denial of parole).

The distinction here is similar to that which the APA makes between

applications for initiai licenses, and applications for renewal of licenses

or agency modification of licenses; in the former situation, an agency

may proceed without a hearing “on the record.” See 5 U.S.C. 556(d).

Contrary to petitioners’ assertion (Pet. 21), 5 U.S.C. 551 is not to the

contrary; it does not require a hearing whenever an agency permit is

granted, denied or revoked, but simply defines the process of “adjudica-

tion” as including these agency actions. See 5 U.S.C. 551(6) and (7). (9).

13

opposing issuance of the permit all tended to raise the same

few objections (see Pet. App. A-2 to A-3), so there was no

mystery regarding the nature of the comments to which

petitioners needed to respond. !2

The issues raised in the permit process, furthermore, were

amenable to effective written presentation. Although peti-

tioners argue (Pet. 25-28) that the court of appeals erred in

finding (Pet. App. A-12, A-24) that their dispute with the

Corps concerns only legislative facts, even at this stage they

have failed to raise any genuinely disputed “adjudicative”

facts.'? Even if the wetlands determination could be con-

strued as a question of adjudicative fact, petitioners con-

ceded below (see Pet. App. A-32) that the project area is a

wetland. As for the determinations of whether the proposed

project would have adverse environmental effects and

whether the public interest would be served by authorizing

the project, these clearly involve “legislative” facts. The

determinations do not entail review of past actions, but

'21t also must be presumed that petitioners were aware that, under

Corps regulations, their permit application would not be granted unless

they demonstrated: first, that “the benefits of the proposed alteration

outweigh[ed] the damage{s]”; second, that “the proposed activity [was]

primarily dependent on being located in, or in close proximity to the

aquatic environment”, and, third, that the proposed project could not

be located on any “feasible alternative sites.” 33 C.F.R. 320.4(b)(4). As

the court of appeals remarked (Pet. App. A-25, citing Weinberger v.

Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973)), petition-

ers did not even attempt to make these showings and even “trial-type

safeguards could do nothing to remedy so fundamental a flaw in the

prima facie case.”

'’Adjudicative facts usually answer the questions of who did

what, where, when, how, why, and with what motive or intent;

adjudicative facts are roughly the kind of facts that gotoajury ina

jury case. Legislative facts do not usually concern the immediate

parties but are the general facts which help the tribunal decide

questions of law and policy and discretion.

2 K. Davis, supra, § 12:3, at 413.

14

instead require predictive judgments that implicate ques-

tions of policy and discretion.'4 Thus, both determinations

turn on the application of agency expertise and neither can

be decisively resolved by the taking of testimony. Argu-

ments usefully addressing these issues are therefore particu-

larly appropriate for written presentation.'5 Oral presenta-

tion and cross-examination, on the other hand, are inappro-

priate because veracity and demeanor are not important

where the determinations at issue turn on scientific judg-

ment and expert opinion.'® What is needed in such cases is a

predecision opportunity, not to cross-examine, but to

comment. Petitioners had this opportunity and took advan-

tage of it. This is not a case where the permit applicant, his

lawyers, his expert biologist and his expert engineer lacked

ability to write effectively.'? Thus, the second Mathews

factor also does not entitle petitioners to an adversary

hearing.

'4As the court of appeals reasoned (Pet. App. A-19 to A-20, A-24),

certain basic policy judgments in this case have already been made and

these judgments foreclose much of petitioners’ argument. For example,

the Corps’ regulations state: “Wetlands are vital areas that constitute a

productive and valuable public resource, the unnecessary alteration or

destruction of which should be discouraged as contrary to the public

interest.” 33 C.F.R. 320.4(b)( 1).

'SSee Friendly, supra, 123 U. Pa. L. Rev. at 1280. See also Gellhorn &

Robinson, Summary Judgment in Administrative Adjudication, 84

Harv. L. Rev. 612, 630-631 (1971).

See, ¢.g., Mathews v. Eldridge, supra, 424 U.S. at 343-344 & n.28;

Basciano v. Herkimer, 605 F.2d 605, 610-611 (2d Cir. 1978), cert.

denied, 442 U.S. 929 (1979); 2 K. Davis, supra, § 12:8, at 437-438, 440.

"See Pet. App. A-16 & n.4. Compare Goldberg v. Kelly, 397 U.S.

254, 269 (1970) (written submissions unrealistic for most welfare recip-

ients, who lack the education to write effectively and cannot obtain

professional assistance). Inany event, the Corps also gave petitioners an

oral hearing with the District Engineer, thereby affording them an extra

measure of process (see Pet. App. A-26).

15

Third, the court of appeals also properly concluded (Pet.

App. A-14 to A-15) that requiring adjudicatory hearings in

Section 404 cases would impose a substantial and costly

burden on the government. As the court noted (Pet. App.

A-15), the Mobile District alone processes some 1,200

applications per year, yet the Corps has no administrative

law judges assigned to it. Under these circumstances, it is

clear that the public’s interest in seeing that the Corps carry

out its statutory mandate would be compromised if formal

hearings were routinely required.'*

Accordingly, petitioners are not entitled to an adjudica-

tory hearing under the Due Process Clause. As the court of

appeals concluded (Pet. App. A-27), this additional process

“would simply not be worth the cost.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

Caro E. DINKINS

Assistant Attorney General

ANNE S, ALMY

Kay L. RICHMAN

Attorneys

APRIL 1983

"See Costle v. Pacific Legal Foundation, supra, 445 U.S, at 215

(requiring EPA to hold hearings routinely would raise questions about

its ability to administer its program); S. Rep. No. 95-370, supra, at 80

(expressing congressional concern that delay in processing of Section

404 applications be eliminated); H.R. Conf. Rep. No. 95-830, supra, at

104 (same).

DOJ-1983-04