Opposition Brief — Dow Chemical Co. v. United States

j Office - Supreme Court,

(3) fo FILED

No. 84-1259 MAY 21 1965

rite pemerm STEWAS,

CLERK

In the Supreme Court of the Hnite

OCTOBER TERM, 1984

THE Dow CHEMICAL COMPANY, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

F. Henry HABICcHrT II

Assistant Attorney General

Dirk D. SNEL

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency

(EPA) violated the Fourth Amendment by contracting with

a private company to take aerial photographs of a chemical

plant from navigable airspace with standard aerial camera

equipment.

2. Whether the procurement of aerial photographs of

chemical plants by EPA exceeds its statutory authority.

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TABLE OF CONTENTS

Page

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DT PEER GECGCSGeS echt e Ses cveccccceccecccce 4

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TABLE OF AUTHORITIES

Cases:

Katz v. United States, 389 U.S. 347 ............ 3

United States v. Allen, 675 F.2d 1373,

cert. denied, 454 U.S. 833 .............00005- 5

United States v. DeBacker,

SE TEE cuccbescccceccccccececece 5

United States v. Hensel, 699 F.2d 18,

cert. denied, 461 U.S. 958 ................. 5, 6

United States v. Karo, No. 83-850

PT ERC GteGeWheeseteccccccccccecs 7

United State» v. Kim, 415 F. Supp. 1252 ....... 6

United States v. Knotts, 460 U.S. 276 .......... 7

United States v. Lace, 669 F.2d 46,

cert. denied, 459 U.S. 854 ................. 5-6

United States v. Minton, 488 F.2d 37,

cert. denied, 416 U.S. 936 ..............200ee 6

United States v. Oliver, 657 F.2d 85,

rev'd, 686 F.2d 356, aff'd, No. 82-15

TT cece cece nasseascceccescess 3,5

United States v. Taborda, 635 F.2d 131 ........ 6

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Constitution and statutes:

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Clean Air Act, 42 U.S.C. 7401 et seg. ........... 2

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$ 114(a)(2), 42 U.S.C. 7414(a)(2) .......0... 7

@ Tite), 42 U.S.C. FOIMe) 2... nc ccccccccecs 8

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Miscellaneous:

2 Congressional Research Service, A Legislative

History of the Clean Air Act Amendment of

1970, for the Senate Comm. on Public Works,

93d Cong., 2d Sess. (Comm. Print 1974) ...... s

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1259

THE Dow CHEMICAL COMPANY, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the district court (Pet. App. B1-B2) is

reported at 536 F. Supp. 1355. The opinion of the court of

appeals (Pet. App. Al-A14) is reported at 749 F.2d 307.

JURISDICTION

The judgment of the court of appeals was entered on

November 9, 1984. The petition for a writ of certiorari was

filed on February 7, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner owns and operates a large manufacturing facil-

ity in Midland, Michigan, which occupies approximately

2,000 acres in an area that is characterized by light to

medium development. Petitioner’s facility is also located

near an airport, and commercial aircraft frequently pass

over and near the property. At the Midland location, peti-

tioner owns and operates two power plants. In late 1977 and

(1)

2

early 1978, enforcement officials of the Environmental Pro-

tection Agency (EPA) were gatherin, information concern-

ing these power plants with the intention of bringing an

enforcement action under the Clean Air Act, 42 U.S.C.

7401 et seq. Pet. App. A2.

In early 1978, EPA enforcement officials decided to

obtain aerial photographs of petitioner’s Midland power

plants. They contacted EPA’s Environmental Monitoring

and Surveillance Laboratory (EMSL) in Las Vegas, Nev-

ada, and ordered the photographs. EMSL, in turn, con-

tracted with Abrams Aerial Survey Corporation (Abrams),

a Midland aerial photography business, to take photo-

graphs of the Dow plant. On February 7, 1978, an Abrams

employee flew over petitioner’s facility and took photo-

graphs. These photographs were taken when the airplane

was flying at altitudes of 12,000, 3,000, and 1,200 feet. The

camera used was a Wild RC-10 aerial mapping camera with

a six-inch lens and a focal length of 150 millimeters. The

photographs taken at 1,200 feet show the plant at a scale of

1 inch equals 20 feet. Abrams sent the undeveloped film to

EMSL by courier service. There, EPA technicians deve-

loped the film and made several prints and enlargements of

the power plants. The film and enlargements were then sent

to EPA’s Region V enforcemc nt office in Chicago, Illinois.

Pet. App. A2-A3.

2. On March 15, 1978, petitioner brought an action for

injunctive and declaratory relief against the United States

and EPA. It alleged that aerial photography of its Midland

plant violated its Fourth Amendment rights and deprived it

of trade secret property interests in violation of the Fifth

Amendment. Petitioner sought to obtain the photographs

and to enjoin EPA’s future use of aerial photography of the

Midland plant.

3

On April 19, 1982, the district court granted petitioner’s

motion for partial summary judgment and ruled that the

aerial photography violated petitioner’s Fourth Amend-

ment rights.! First, the court ruled that the aerial photog-

raphy was an unlawful warrantless administrative search

since EPA admittedly was engaged in a “quest for

evidence” (Pet. App. B6). Jd. at BS-B17. In the alternative,

the district court analyzed the case under Katz v. United

States, 389 U.S. 347 (1967), to determine whether petitioner

had a reasonable expectation of privacy upon which EPA

had infringed. It found that because petitioner had designed

its plant so that some outdoor portions of the facility were

in the interior, i.e., not visible on the ground from the plant

boundary, it had an expectation of privacy in the exterior

features of those facilities located in the inner areas of its

plant. The court also found that the aerial photography was

visually enhanced surveillance because “EPA could later

arlayze [the photographs] under enlarged and magnified

conditions” (Pet. App. B27). Jd. at B17-B32. Finally, the

court ruled that the “open fields” doctrine did not apply

when a property owner’s expectation of privacy was objec-

tively reasonable. In this regard, the district court relied on

the panel decision in United States v. Oliver, 657 F.2d 85

(6th Cir. 1981), which was subsequently reheard en banc

and reversed, 686 F.2d 356 (1982), aff'd, Oliver v. United

States, No. 82-15 (Apr. 17, 1984). Pet. App. B32-B38.

The district court also ruled that Section 114 of the Clean

Air Act, 42 U.S.C. 7414, which grants EPA inspectors the

“right of entry to, upon or through any premises” in certain

circumstances impliedly excluded EPA from using other

techniques, such as aerial surveillance or photography, as

an investigative tool. The court ruled that Congress

!Petitioner’s claims under the Fifth Amendment were later dismissed

without prejudice by a stipulation of the parties.

4

intended that “only land based inspections be utilized”

(Pet. App. B44). Hence, it held that the overflights exceeded

EPA’s statutory authority. /d. at B39-B44.

3. The court of appeals reversed (Pet. App. Al-A14).

Looking to whether petitioner had a reasonable expecta-

tion of privacy in the areas in question, the court concluded

that no reasonable expectation of privacy was invaded in

photographing from the air the “outdoor spaces of a chemi-

cal plant” (id. at A13). The court reasoned that petitioner

had exhibited no actual expectation of privacy from aerial

observation of its large industrial plant (id. at A7-A8). Even

if it had such an expectation, moreover, the court explained

that society would not deem it to be reasonable (id. at A9):

When the entity observed is a multi-building complex,

and the area observed is the outside of these buildings

and the spaces in between the buildings, and when the

complex is near an airport and within the pattern of

planes landing and taking off, it is difficult to see how a

reasonable person would have privacy expectations in

the outside of the buildings and the spaces between the

buildings.

Finally, the court of appeals reversed the district court’s

ruling that the flights were unlawful because EPA was not

authorized by statute to use aerial photography as an investi-

gative technique. It ruled that Congress’s delegation under

the Clean Air Act of general investigative authority to EPA

was sufficient statutory authority to conduct aerial observa-

tion that satisfied the Fourth Amendment. /d. at Al3-A14.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeals. Accordingly, it does not warrant review by

this Court.

5

l.a. Petitioner contends (Pet. 11-14) that its expectation

of privacy in its entire 2,000-acre Midland plant is indis-

tinguishable from that of the interior portion of a commer-

cial building or office and that an aerial “search” of any part

of these premises therefore presumptively required a war-

rant. It is undeniable, however, that the outdoor features of

petitioner’s facility for which it claims a reasonable expecta-

tion of privacy are continuously exposed to the open sky.

Overflights of the facility are a frequent occurrence, and

Congress has declared “a public right of freedom of transit

through navigable airspace,” 49 U.S.C. App. 1304. Thus, as

a practical matter, it is manifest that petitioner could not

expect privacy in these areas, at least with respect to aerial

observation, comparable to that in its offices.

As this Court noted in Oliver v. United States, No. 82-15

(Apr. 17, 1984), slip op. 4, there is ordinarily no bar to aerial

surveillance of lands by the general public and, by the same

token, the Fourth Amendment does not prevent aerial

observation by the police. See also United States v. Allen,

675 F.2d 1373 (9th Cir. 1980), cert. denied, 454 U.S. 833

(1981); United States v. DeBacker, 493 F. Supp. 1078

(W.D. Mich. 1980).? This is equally true when the observa-

tion is of areas that constitute the “curtilage” of a private

building, which may be endowed with an expectation of

freedom from physical intrusions. The courts have consis-

tently found that viewing the curtilage from the air, nearby

open fields, or public property, even with enhancing visual

aids, does not violate the Fourth Amendment. See, e.g.,

United States v. Hensel, 699 F.2d 18, 41 (1st Cir.), cert.

denied, 461 U.S. 958 (1983); United States v. Lace, 669

?Indeed, even the dissent from the en banc court of appeals’ decision

in Oliver premised its conclusion (that the entry onto private property in

that case violated the Fourth Amendment) partly on the assumption

that the less intrusive technique of aerial surveillance would have been

valid. See 686 F.2d at 372 (Keith, J., dissenting).

6

F.2d 46, 49-51 (2d Cir.), cert. denied, 459 U.S. 854 (1982);

United States v. Minton, 488 F.2d 37, 58 (4th Cir. 1973),

cert. denied, 416 U.S. 936 (1974).’ Thus, there is no basis for

contending that viewing petitioner’s plant from the air vio-

lated the Fourth Amendment.

b. Petitioner also contends (Pet. 10-11, 13) that the detail

that the photographs taken for EPA were capable of reveal-

ing independently gives rise to a Fourth Amendment viola-

tion, claiming that the camera used was “sophisticated pho-

tographic equipment * * * comparable to” a wiretap (Pet.

13). This contention is without merit. Even assuming

arguendo that the use of unusually sophisticated or not

commercially available equipment could involve an uncon-

stitutional privacy intrusion, there is no basis for question-

ing the decision below. The aerial camera used by the pri-

vate contractor in this case was standard equipment

available to, and used by, the public for aerial photographic

purposes.‘ Aerial photography itself is generally a lawful

commercial service openly conducted by private firms sim-

ilar to the one EPA engaged in this case, and there was

nothing extraordinary about the photographs taken in this

particular case. Certainly there is no reason to think that the

aerial photographs in this case were any more detailed than

those routinely taken all across the country by government

agencies for mapping purposes. Petitioner simply advances

no reason why the enhancement of the naked eye through

*The cases cited by petitioner (Pet. 13) as invalidating the use of

visual aids, such as a telescope, involve viewing the inside of a dwelling.

See United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980); United

States v. Kim, 415 F. Supp. 1252(D. Hawaii 1976). Even assuming that

these cases are correctly decided, they are plainly distinguishable from

this one. See United States v. Hensel, 699 F.2d at 41; United States v.

Lace, 669 F.2d at 51.

‘Indeed, one of the government's expert witnesses stated that photo-

graphs showing greater detail than those taken here could be taken from

a helicopter with a good quality 35 millimeter camera and a standard 70

millimeter lens. C.A. App. 310-311.

7

the use of standard camera equipment violates the Fourth

Amendment.

In any event, petitioner throughout this litigation has

focused on a different case — what details the aerial photo-

graphs were capable of revealing under magnification or

enlargement -— rather than what the photographs as pro-

cessed and printed by the government actually revealed. As

stated at the outset, the government prepared and enlarged

photographs involving the two large Midland power plants.

But petitioner does not claim an expectation of privacy in

the exterior of the power plants; rather, it focuses on other

portions of the facility also captured in the photographs.

See Pet. 11-12. The developed films in EPA’s possession

showed the remainder of the Midland facility at a scale of

one inch equals 20 feet in photographs taken at an altitude

of 1,200 feet. While these films could have been enlarged or

viewed under magnification to show greater detail of peti-

tioner’s plant, EPA did not do so, and the government

certainly cannot be accused of ferreting out the “minute

details” of petitioner’s facility by such techniques. The ques-

tion whether the use of certain technology violates the

Fourth Amendment depends upon the intrusion on privacy

actually experienced in an individual case rather than upon

the potential intrusion that the technology may be capable

of producing. Compare United States v. Knotts, 460 U.S.

276 (1983) (use of beeper to track location of automobile on

highway), with United States v. Karo, No. 83-850 (July 3,

1984) (monitoring of beeper in a private residence).

2. Petitioner also renews its contention (Pet. 14-16) that

EPA lacks statutory authority to investigate and obtain

evidence through the use of aerial photography. This con-

tention is completely without merit.

Petitioner’s argument is that Section 114(a)(2) of the

Clean Air Act, 42 U.S.C. 7414(a)(2), which authorizes entry

by EPA inspectors “to, upon or through any premises

8

****” impliedly forbids aerial inspection or photo-

graphy. Petitioner thus attempts to convert a positive con-

gressional grant of authority to enter premises at ground

level into a prohibition on aerial inspection, which is undis-

putedly a substantially lesser intrusion. Clearly, there is no

such negative implication in this broad grant of authority.

To the contrary, when Section 114 was enacted in 1970, the

intent was to expand federal officers’ powers to investigate

air pollution, not to restrict their powers. See 2 Congres-

sional Research Service, A Legislative History of the Clean

Air Act Amendments of 1970, for the Senate Comm. on

Public Works, 93d Cong., 2d Sess. 829 (Comm. Print 1974)

(remarks of Rep. Murphy). The public is allowed to take

aerial photographs (and, in fact, the photographs here were

taken by a private company), and nothing in the Clean Air

Act prevents EPA from using the same technique in dis-

charging its duties.°

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

F. Henry Hasicut II

Assistant Attorney General

Dirk D. SNEL

ANNE S. ALMY

Attorneys

May 1985

5’Petitioner also raises an unfocused claim (Pet. 16-17) that the deci-

sion below somehow threatens a company’s trade secrets. Whether or

- not it is required to do so by 42 U.S.C. 7414(c), EPA has adopted a

policy of notifying companies of overflights, and the provisions of 5

U.S.C. 552(b)(4) and 18 U.S.C. 1905 apply to any trade secrets that may

be established by the companies. Certainly there can be no claim here

that EPA's own use of the photographs of the power plants invades any

trade secrets of petitioner.

DO}J-1985-05

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