Petitioners Brief — Dow Chemical Co. v. United States

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FTITteEeED

JUL 25 1985

No. 84-1259

L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

October Term, 1984

THE DOW CHEMICAL COMPANY,

Petitioner,

versus

UNITED STATES OF AMERICA,

BY AND THROUGH ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

—_—- —

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

— —

PETITIONER’S BRIEF ON THE MERITS

— —

JANE M. GOOTEE, Esq.

Counsel of Record

JAMES H. HANES, Esq.

BERND W. SANDT, Esq.

THE DOW CHEMICAL COMPANY

1111 Washington Street

Midland, Michigan 48674

(517) 636-2663

Counsel for Petitioner

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

BEST AVAILABLE COPY |

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“

QUESTIONS PRESENTED FOR REVIEW

IS A HIGHLY SECURED YET OPEN-AIR MANUFACTURING

FACILITY AN “OPEN FIELD” WITH NO FOURTH AMEND-

MENT PROTECTION IN THE MINUTE DETAILS OF ITS

COMPLEX PLANT FROM THE GOVERNMENT'S INTRUSIVE,

VISUALLY AIDED AERIAL SURVEILLANCE?

II.

DOES SUBSECTION 114(a) OF THE CLEAN AIR ACT

AUTHORIZE THE ENVIRONMENTAL PROTECTION

AGENCY TO UTILIZE AERIAL PHOTOGRAPHY AS A SITE

INSPECTION TECHNIQUE?

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ....... i

TABLE OF AUTHORITIES ........-----+++>: Vv

OPINIONS BELOW ........----++eeee5e55 ]

JURISDICTION ......--- eee rere eres 1

CONSTITUTIONAL AND

STATUTORY PROVISIONS .........--++5: 2

STATEMENT OF THE CASE .......--++++>> 4

1. THE DOW MIDLAND, MICHIGAN PLANT

ll. EPA’s SEPTEMBER 1977 ON-SITE INSPECTION,

REPETITIVE INSPECTION REQUEST, AND

YU 7

DETAILED AERIAL PHOTOGRAPHY ....... 10

Ill. LOWER COURTS’ OPINIONS .......----. 15

SUMMARY OF THE ARGUMENTS .........-.-. 15

PS Oe ee a a ee 18

1. EPA‘ INTRUSIVE AERIAL PHOTOGRAPHY WAS

Cn ES a ee ee 19

A. A Secured, Developed Industrial Facility

Is Not An Open Field. ....-..--.-- 19

B. The Open Fields Doctrine Has No Appli-

cation To Cases Where Sophisticated,

Intrusive Surveillance Devices Are

Employed. ......----++++eeee> 24

C. EPA% Intrusion Infringed Upon The Per-

sonal And Societal Values Protected By

The Fourth Amendment. ......-.-.-. 27

Page

I. THE INTRUSIVE AERIAL PHOTOGRAPHY VIO-

LATED DOW’S ACTUAL AND REASONABLE

EXPECTATION OF PRIVACY. ------++3> 31

A. Dow’s Reasonable Expectation Of Privacy 32

B. Mischaracterization Of “Interior Regions

Of The Plant” And “Mere Aerial

Observation” ......--eeeseeeee 35

C. The Search Was Unreasonable. .....- 39

Ill. SECTION 114(a) OF THE CLEAN AIR ACT DOES

NOT AUTHORIZE, EITHER EXPLICITLY OR BY

LACK OF PROHIBITION, THE USE OF AERIAL

PHOTOGRAPHY AS A SITE INSPECTION

TECHNIQUE... - ee eer rer er erese® 41

A. The Decision Is Inconsistent With Both

The Plain Meaning Of The Statutory Lan-

guage And Congressional Intent... . . 42

B. The Court Of Appeals Cites No Legal

Authority For Its Holding That The Lan-

guage Of The Act Does Not Foreclose Use

Of Aerial Photography As An Investiga-

tion Technique. ...-----+++ee%> 45

C. The Decision Is Inconsistent With The

Clean Air Act’s Provision Protecting Trade

Secrets And With Existing Tort And

Criminal Law. ..--- eee eee reer 47

CONCLUSION .....- 2c ccc ccceeeecerces 49

TABLE OF AUTHORITIES

Page

CASES:

Air Pollution Variance Board v. Western Alfalfa

Corp., 416 U.S. 861 (1974) ... 15, 18, 22, 24, 26, 37

Almeida-Sanchez v. United States, 413 U.S. 266

se ee ae ee 18

Berger v. New York, 388 U.S. 41 (1967) ...... 25, 46

Boyd v. United States, 116 U.S. 616 (1886) ...... 40

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. —, 81 L.Ed.2d 694

ing gb on ask 6 OK Oe OO ee 42, 44

Consumer Product Safety Commission v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) ......... 42, 44

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .. 40

Dean v. Superior Court, 35 C.A.3d 112, 110 Cal.

Rptr. 585 (1973) .. 2... eee eee ee eeees 30

Delaware v. Prouse, 440 U.S. 648 (1979) ....... 41

Donovan v. Dewey, 452 U.S. 594(1981) .. 17,25, 40, 41

DuPont v. Christopher, 431 F.2d 1012 (5th Cir.

I aes ews 6 OU As 0S ees 47, 48

Federal Trade Commission v. Raladam Company, 283

REG GORD ch cee eri h ect cewee 18, 44

G.M. Leasing Corporation v. United States, 429 U.S.

EP eee ee oe ee eee 18

Griswold v. Connecticut, 381 U.S. 479 (1965) ... 49,50

Hester v. United States, 265 U.S. 57 (1924)... 15, 19,

21, 22, 24, 25

Page

In the Matter of An Application of the United States

for an Order Authorizing Interception Of Oral

Communications And Video Surveillance, 513

F.Supp. 421 (1980) ...---- +s errr 29-30

Katz v. United States, 389 U.S. 347 (1967) . . . 16, 18,

20, 24, 25, 27, 33, 40

Ker v. California, 374 U.S. 23 ee 32

Kewanee Oil Company v. Bicron Corporation, 416

U.S. 470 (1974)... eee eee eee eee: 23, 47

Marshall v. Barlow's Inc., 436 U.S. 307 (1978) ... 15,

18, 19, 20, 24, 26

Oliver v. United States, — U.S. —, 80 L.Ed.2d 214

> re ae aa 15, 18, 20, 22, 24

Olmstead v. United States, 277 U.S. 438 (1928) ... 24,

33, 49

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ... @

See v. City of Seattle, 387 U.S. 541 (1967) ... 15, 18,

19, 20

Silverthorne Lumber Co. v. United States, 251 U.S.

0 ee ee ee 15

United States v. American Trucking Associations,

Inc., 310 U.S. 534 (1940) ..-- eee eres 17, 43

United States v. FMC Corp., 428 F.Supp. 615

(W.D.N.Y. 1977)... -- eee 20, 21

United States v. Kim, 415 F.Supp. 1252 (D.Ha.

ccc akorns ep ere 16, 25, 27, 28, 29, 37

United States v. Lace, 669 F.2d 46 (2nd Cir.

i Se eo 16, 25, 27

United States v. Oregon, 366 U.S. 643 (1961) ..-- 43

vii

Page

United States v. Swart, 679 F.2d 698 (7th Cir. 1982) 20

United States v. Taborda, 491 F.Supp. 50 (E.D.N.Y.

EE Gnas a8 er ee eee ks ee Wee eS 29

United States v. Taborda, 635 F.2d 131 (2nd Cir.

NE ied ae a ee Le aN ae 16, 25, 27, 29, 37

Wattenburg v. United States, 388 F.2d 853 (9th Cir.

ee re are re ere ke ee 20

Wolf v. Colorado, 338 U.S. 25 (1949) .......... 40

STATUTES:

lk ea aa a ee ee ace 5

jf at | a ae ee ae ae ee ee 4

4 kl Perr ae ae ae eee oe 46

MED 0-0 4. 0 ob 0 Se 0 6 sb oh 98 8 29, 46

SC pene ce ect ek aaa eee es 1

jl tT OM | PT eee CELE R OTE 4

MA eee ee ee ee ee ee ee 4

DORR UE 6 kc a ck ucee eu we anee ee 6% 4

RE Se Ee a es 4

DP UETEEE wth Sew ee ees eee eee ess 4

33 U.S.C. § 1308 (§ 308 Clean Water Act) ..... 44

CO eo Saree Os Ree ences nes 26

42 U.S.C. § 7414(a) (§ 114 Clean Air Act)..... ye '

17, 41, 42, 43, 44, 45

gk a) eee eee ee ee 3, 4, 47

NN esi ddd das ale Bs 48

vill

M.C.L. § 752.771 2... eee eee e cere erenes 48

Vie | +. Seer eee ee, 48

REGULATIONS:

ik) 2) Seer ee, 46

40 C.F.R. § 2.201 et seq. ..-- eee e errr? 47

UNITED STATES CONSTITUTION:

Fourth Amendment .....--+--++:> 2, 30, 33, 41

MISCELLANEOUS:

Emerson, NINE JUSTICES IN SEARCH OF A DOC-

TRINE, 64 Mich. L.R. 219 (1965) ....----+-: 50

EPA, MEMORANDUM ON INSPECTION PROCE-

DURES, 41 Envir. Rptr. (BNA) 2451 (April 11,

rer ere ees Tee 46

Fried, PRIVACY, 77 Yale L.J. 475 (1968) ..----- 50

Grange, VISUAL REMOTE SENSING AND PRIVACY

INTERESTS OF THE FOURTH AMENDMENT, 1

Northrop U.L.J. of Aerospace, Energy & Envi-

ronment 33 (1979) .----- essere rere 28

La Fave, SEARCH & SEIZURE § 2.4 (1978) ..--- 21

Martin, EPA AND ADMINISTRATIVE INSPECTIONS,

7 Fla. St.L.R. 123 (1979) ..----+-e eres 25, 26

Restatement of Torts § 757 (1939) ..-----++:> 47

S. Rep. No. 92-414, 92nd Cong., 2nd Session,

U.S. Code Cong. & Ad. News 3668 ....--- 44

Uniform Trade Secrets Act ...----+eseee0% 48

No. 84-1259

IN THE

Supreme Court of the United States

October Term, 1984

—-+

THE DOW CHEMICAL COMPANY,

Petitioner,

versus

UNITED STATES OF AMERICA,

BY AND THROUGH ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

——

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITIONER’S BRIEF ON THE MERITS

——

OPINIONS BELOW

The opinion of the Court of Appeals decided and filed

on November 9, 1984 (Petition Appendix A), is reported

at 749 F.2d 307. The opinion of the District Court for the

Eastern District of Michigan decided and filed April 19,

1982 (Petition Appendix B), is reported at 536 F.Supp.

1355.

JURISDICTION

Jurisdiction of this Court to review the decision of the

United States Court of Appeals for the Sixth Circuit is

founded upon 28 U.S.C. § 1254(1).

The opinion of the Court of Appeals (Pet. App. A),

was decided and filed on November 9, 1984. A Petition

for Rehearing was not filed. The Petition for Writ of Cer-

tiorari was filed February 7, 1985, and was granted June

10, 1985.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. IV provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

Subsection 114(a) of the Clean Air Act, 42 U.S.C.

§ 7414(a), provides:

Authority of Administrator

or authorized representative

For the purpose (i) of developing or assisting in

the development of any implementation plan

under section 7410 or section 7411(d) of this title,

any standard of performance under section 7411

of this title, or any emission standard under sec-

tion 7412 of this title, (ii) of determining

whether any person is in violation of any such

standard or any requirement of such a plan, or

(iii) carrying out any provision of this chapter

(except a provision of subchapter II of this chap-

ter with respect to a manufacturer of new motor

vehicles or new motor vehicle engines) —

(1) The Administrator may require any person

who owns or operates any emission source

or who is subject to any requirement of this

chapter (other than a manufacturer subject

to the provisions of section 7525(c) or 7542 of

this title) with respect to a provision of sub-

chapter II of this chapter to (A) establish and

maintain such records, (B) make such

reports, (C) install, use, and maintain such

monitoring equipment or methods, (D) sam-

ple such emissions (in accordance with such

methods, at such locations, at such intervals,

and in such manner as the Administrator

shall prescribe), and (E) provide such other

information as he may reasonably require;

and

(2) the Administrator or his authorized repre-

sentative, upon presentation of his creden-

tials —

(A) shall have a right of entry to, upon, or

through any premises of such person

or in which any records required to be

maintained under paragraph (1) of this

section are located, and

(B) may at reasonable times have access to

and copy any records, inspect any moni-

toring equipment or method required

under paragraph (1), and sample any

emissions which such person is re-

quired to sample under paragraph (1).

Subsection 114(c) of the Clean Air Act, 42 U.S.C.

§ 7414(c), provides:

Availability of records, reports, and information

to public; disclosure of trade secrets

Any records, reports or information obtained

under subsection (a) of this section shall be avail-

able to the public, except that upon a showing

satisfactory to the Administrator by that person

that records, reports, or information, or particular

part thereof, (other than emission data) to which

the Administrator has access under this section if

made public, would divulge methods or pro-

cesses entitled to protection as trade secrets of

such person, the Administrator shall consider

such record, report, or information or particular

portion thereof confidential in accordance with

the purposes of section 1905 of Title 18, except

that such record, report, or information may be

disclosed to other officers, employees, or author-

ized representatives of the United States con-

cerned with carrying out this chapter or when

relevant in any proceeding under this chapter.

STATEMENT OF THE CASE

The genesis of this case was EPA’s purposeful surrep-

titious acquisition of aerial reconnaissance photographs

of Dow’s entire 2,000 acre fenced and secured Midland,

Michigan, manufacturing facility for use as evidence in

a Clean Air Act enforcement action concerning emis-

sions from Dow’s two powerhouses. After learning of

the flyover from the EPA contractor, Dow brought this

action under 28 U.S.C. § 1331* to preserve its privacy

interests and to protect the details, confidential business

* Jurisdiction was also based on 28 U.S.C. §§ 1337, 1361, 2201,

2202 and 5 U.S.C. § 701.

information and trade secrets of its open-air operations

from public disclosure through the Freedom of Informa-

tion Act (5 U.S.C. § 552) or any other mechanism.

The District Court placed the aerial photographs

under seal (Dist. Ct. Dkt. 15), and later held that EPA‘’s

actions constituted an unreasonable search in violation

of the Fourth Amendment and exceeded its statutory

inspection authority under the Clean Air Act (Pet. App.

B-45). The Court of Appeals reversed on both issues,

holding that the secured, developed Dow facility was an

open field so no search occurred, and that aerial photo-

graphy is not foreclosed as a site inspection technique

under the Act (Pet. App. A-9, 14).

THE DOW MIDLAND, MICHIGAN PLANT

Dow has been manufacturing chemicals at its Midland

facility since the 1890's. For reasons of worker safety,

economics, maintenance and industry custom, many of

the chemical process plants within the Dow Midland

facility are open-air plants (A. 59-60, 64-65, 71-72)

Research, competition, and protection of its intellectual

property such as patents, trade secrets and confidential

business information, have always been an integral part

of Dow’s everyday existence (A. 15, 16, 62, 68).

Dow has thirty-seven (37) secured manufacturing loca-

tions in nineteen (19) states. Those locations encompass

about two hundred and ten (210) separate manufac-

turing units, most of which are open-air plants. Dow

has not installed “dummy” tanks, pipes, procees equip-

ment, buildings, utility lines or roofs to confuse a photo-

interpreter (Kelyman Depo. pp. 55-62, 126-130, Dist. Ct.

Dkt. 131). The costs would be prohibitive (Kelyman

Depo. p. 56, Dist. Ct. Dkt. 56), and such a requirement

would be unreasonable and devoid of either common

sense or common practice.

a“

Even the government recognizes that “... for eco-

nomic and engineering reasons it [Dow] has not taken

any measures to prevent the aerial viewing and possible

photographing of the plant” (Government Memoran-

dum, p. 3, Dist. Ct. Dkt. 124).

To aid in the efficient trial preparation of this case,

Dow requested and received approval to designate a

representative plant, a brine chemicals plant, within its

Midland facility so that discovery and proofs could be

more manageable (Dist. Ct. Dkt. 79, 96 and 99). One

reason that particular plant was designated is that it also

appears on the enlargements made by EPA (A. 34, 37,

41-42; see Enlargements 2A-2F, 5A-5F and 10A-10F under

seal per Dist. Ct. Dkt. 15).

The one representative plant discussed in this case

covers thirty (30) acres* and although not deemed prac-

tical by the plant manager/engineer, would have cost at

least $15,000,000 to roof in 1978. The practical problems

of installing large bridge cranes with sufficient lift capa-

bility in the roof structure, or building the roof high

enough to move a 100-125 foot high mobile crane under-

neath are overwhelming (A. 74-75).

Extensive security steps are taken to protect the Dow

technology at the Midland facility. At the time of the

EPA overflight Dow had a security contingent of approxi-

mately one hundred (100) people whose specific func-

tion and responsibility was site security. The 3.25 million

dollars (1977 dollars) spent per year on the security for

the 2,000 acre manufacturing facility to guard against

* See Photographs 1 and 2, Sealed Joint Appendix [The white

ground cover is snow].

unauthorized entry or loss of any proprietary process

technology includes:

* A chain-link fence at least 8 feet high installed com-

pletely around the production facility;

* gates for ingress and egress at various intervals in the

fence have an attendant (guard) on duty when any

given gate is in operation to admit or allow people to

leave the facility;

* closed-circuit television surveillance for continuous

monitoring of the various gates and the area along the

fence surrounding the facility;

* alarm systems which will indicate unauthorized entry

at various locations;

* motion detectors at strategic locations in the facility to

indicate movement of personnel in certain restricted

areas;

* roving patrols which travel throughout the facility and

around the perimeter to augment the other security

systems;

* liaison with local public law enforcement officials

including radio communication to assist in the appre-

hension of persons engaged in unlawful activities re-

lating to the production facility;

* a requirement that employees entering the facility

must exhibit an identification badge in every instance

of entry;

* a requirement that non-employees who wish to visit

the facility must be approved and must obtain a visi-

tors pass including a badge which must be exhibited

at all times while in the facility;

* a requirement that non-employees who have been

approved to visit be greatly restricted in their move-

ments and that some areas of the facility remain off-

limits to all non-employees;

* a requirement that cameras by anyone other than an

authorized representative of Dow are prohibited at all

times and in all places in the facility;

* a requirement that persons visiting for technical reasons

must obtain a technical pass which provides among

other things that the visitor will not disclose any tech-

nical information learned as an incident to the visit;

* a staffing program such that security personnel are on

duty twenty-four hours a day and seven days a week

with at least twenty-five such people on duty at all

times and with about fifty people on duty during

normal work hours; and

* a policy that, in the event the engineering drawings

and/or blueprints of a specific production plant are to

be disposed of at the conclusion of construction, the

drawings and/or blueprints would be packaged and

incinerated under the direction of security personnel

who would also witness the incineration (A. 55-57,

60, 65).

In addition to the above on-going security measures,

during the creation of plants involving proprietary tech-

nology or design, Dow people handle all the research,

design and engineering (A. 69). Such plants are designed

by “absolute need to know” Dow employees using a pro-

cess flow sheet written in code (A. 60-61, 73). The actual

construction is done by contractors from piece-meal

construction-type plans that do not disclose the overall

process. The construction site is always fenced; there is

always a 24-hour-a-day patrol and non-Dow cameras are

never allowed (A. 16-20, 69-70, 72-74). In addition, all

technical people, both Dow employees and contractors,

sign secrecy agreements and are usually not completely

educated in an entire process (A. 17, 60-61, 74). The

plant layout is designed in such a way that the more sensi-

tive, proprietary technology areas are not visible from the

public rights-of-way outside the fence (A. 60, 65, 70, 75).

The general public’s view of the facility from the ground

outside the fence is the view that Dow chooses to show

(A. 83).

Dow has a long-standing security procedure that pro-

hibits the taking or releasing (outside of Dow) of photo-

graphs of the plant without specific Division Manage-

ment review and approval (A. 13, 18, 20, 56, 66, 70).

Absolutely no non-Dow cameras are allowed on plant

property (A. 19-20, 73). The only photographs taken on-

site are those taken by a Dow photographer after Major

Manager authorization (A. 56, 61, 70).

As part of its overall security program, Dow has speci-

fically instructed its security people to watch for and

attempt to identify suspicious aircraft (multiple passes

over the plant). Dow’s concern about aerial photographs

of its open-air facilities dates back to World War II (A.

13, 78; Kelyman Depo. pp. 26-27, Dist. Ct. Dkt. 131).

The written procedure for Reporting Planes Over The

Plant, which was in effect at the time of the EPA over-

flight, included obtaining a description of any uniden-

tified plane over the plant and then working with the

Michigan State Police for follow-up* (A. 13-14, 79-81).

That aerial security procedure was known to the people in

the clockrooms and at the gates and to all Dow Security

personnel, including captains, dispatchers, scouts, inspec-

tors, and patrolmen (A. 13, 15). Additional information on

the overflights of concern and Dow’s liaison with the local

* Between February of 1973 and April of 1978, Dow’s contact for

information on plane registrations changed from the Michigan State

Police to the Federal Aviation Administration and the local airports

(Kelyman Depo. p. 98, Dist. Ct. Dkt. 131).

Federal Aviation Administration office and the local air-

ports was distributed to Dow Security personnel shortly

after the EPA overflight (A. 21-22).

If Dow discovers aerial photographs have been taken,

Dow either develops and/or replaces the film, or reviews

the photographs, or institutes litigation to protect its pri-

vacy and proprietary technology (A. 79-81).

Il.

EPA’s SEPTEMBER 1977 ON-SITE INSPECTION, REPETITIVE

INSPECTION REQUEST, AND DETAILED

AERIAL PHOTOGRAPHY

Prior to September 1977, EPA was conducting an

investigation of Dow’s two powerhouses (EPA Answer,

€ 22, Dist. Ct. Dkt. 76). EPA stated that the September 9,

9, 1977, inspection was motivated by an impending en-

forcement action against Dow (A. 26). However, before

making the September on-site inspection EPA felt it had

enough information to proceed with its enforcement

action without additional information from or about

Dow (A. 27-28).

On September 9, 1977, with Dow’s consent, EPA made

a three-hour inspection of the Dow power plants (A. 23-

26). EPA received the full cooperation of Dow, complete

tours through both powerhouses, and all the informa-

tion it requested to see or gather (A. 23, 26-27). Dow

withheld nothing from EPA that EPA asked to inspect or

see (A. 27).

After the inspection an EPA contractor, who was present

at the inspection, requested additional documentation on

the physical layout around each of the powerhouses

and on the boilers and turbines within the power-

houses (A. 23-24). On September 21, 1977, Dow volun-

tarily provided the schematic drawings as requested

(A. 25; EPA Answer, { 25, Dist. Ct. Dkt. 76). EPA

received the schematics of the Dow powerhouses before

the EPA aerial photography of the Dow Midland facility

on February 7, 1978 (Beyer Depo. p. 31, Dist. Ct. Dkt. 30).

On December 1, 1977, EPA requested entry to Dow’s

Midland facility on December 5th to inspect and photo-

graph the powerhouses and incinerator (A. 28-29). On

December 2, 1977, Dow notified EPA that the proposed

December 5th repetitive inspection was refused (A. 29),

and discussed the possibility that EPA would seek a

search warrant to gain entrance to Dow’s facility (Pribila

Affidavit, Exh. A to Dow’s Motion For Partial Summary

Judgment, Dist. Ct. Dkt. 120). EPA did not seek a search

warrant (EPA Answers to Interrogatories No. 38, Dist.

Ct. Dkt. 22).

After being refused admission for a repetitive inspec-

tion and the taking of ground photographs, EPA Region

V requested aerial photographs of the Dow facility from

the EPA’s Environmental Monitoring And Support Lab-

oratory (EMSL) in Las Vegas by letter dated February 3,

1978 (A. 32). EPA's request states that the photographs

would be used as direct evidence in the impending en-

forcement action relating to the powerhouse emissions

(A. 32).

On February 6, 1978, Abrams Aerial Survey of Lans-

ing, Michigan, received an order for services from

EMSL. Abrams was to take aerial photographs of the

Dow Midland facility from various altitudes and per-

spectives as soon as business schedules and weather

conditions would permit (A. 36, 39-41, 45-47).

Between 2 and 3 p.m. on February 7, 1978, Abrams

Aerial Survey flew over (6 passes) and photographed the

Dow Midland facility with a precision, floor-mounted

certified aerial mapping camera in accordance with the

instructions given by EPA (A. 39-46).

Abrams sent the undeveloped film to EMSL via com-

merciai air baggage (A. 41, 46). Personnel at EPA’s EMSL

facility printed various sets of color contact prints and

fifty color enlargements (A. 34, 37, 41-42; see also photo-

graphs under seal per Dist. Ct. Dkt. 15). EPA personnel

with experience in photographic analysis, photographic

enhancement, or photographic reconnaissance examined

the photographs (A. 36, 44). Most of the prints were

sent by commercial air freight from EMSL in Las Vegas

to EPA Region V in Chicago, where enlargements were

hung on an office wall and the remaining enlargements

and prints were kept on a desk or table in one office,

and the floor or heating duct of another office for a

month (A. 37, 52, 53).

The scale of the aerial negatives taken by EPA from

1200 feet is 1:2400 (1 in. = 200 ft). Aerial negatives taken

from a vertical perspective at approximately 1200 feet

with the equipment and film utilized in this case can be

enlarged to a scale of approximately 1 inch equals 20 feet

or greater without significant loss of resolution (A. 46).

Examination of the original aerial contact prints (unen-

larged) under magnification reveals items as small as ‘2

inch in diameter (A. 53-54)*. Examination of the photo-

graphs enlarged to a scale of 1 inch equals 10 feet (Dist.

Ct. Dkt. 171, Exhibits 4A-D and 5A-B - under seal; see

also Photograph #§ in Sealed Joint Appendix) shows no

significant loss of resolution.

EPA did not notify or in any other way involve the

state or other federal agency in the photographing of

Dow’s plant (A. 35). Dow was not advised by EPA about

* The District Court (Pet. App. B-3) and the Court of Appeals

(Pet. App. A-3) both note that items as small as 2 inch in diameter

are discernible when the enlargements are viewed under magnifica-

tion. That detail is also visible when the unenlarged, original contact

prints are viewed under magnification.

the photographic mission either before or subsequent to

its occurrence (Kee Depo. p. 51, Dist. Ct. Dkt. 28). The

aerial photographs taken of the Dow Midland facility on

February 7, 1978, by Abrams Aerial Survey are the only

photographs taken, or procured, of the Dow facility by

EPA (A. 33).

In the aerial photographs EPA captured not only

Dow’s 2,000 acre fenced manufacturing area, but also

Dow’s research and corporate office areas, other corpor-

ations’ open-air structures and activities, and most of the

city of Midland (see photographs under seal per Dist. Ct.

Dkt. 15). The photographs depict minute items which

are located in interior, non-public, regions of the open-

air brine chemicals plant and which are surrounded by

structures and equipment which make observation from

anywhere but directly next to or directly above, a near

physical impossibility (Wait Depo. (Sealed), Vol. III p.

97, Dist. Ct. Dkt. 152). The camera saw a great deal

more than the human eye could ever see (Pet. App. B-

27).

III.

LOWER COURTS’ OPINIONS

Upon learning of the overflight and the taking of

aerial photographs, Dow filed suit on March 15, 1978,

alleging EPA’s actions were unconstitutional and beyond

its statutory authority (A. 1). Dow sought and received a

temporary restraining order and a preliminary injunction

which prohibited EPA from disseminating, relcasing,

copying or duplicating the photographs (or derivative in-

formation), taken of Dow’s facility in Midland, Michigan

(A. 2-4). Dow objects to the government's taking of any

detailed, intrusive photographs of its facility from any

perspective — aerial or otherwise. The fact that the photo-

graphs were exculpatory in that no powerhouse emissions

were depicted (A. 31), does not alter Dow’s objection.

The District Court granted Dow’s Motion for Partial

Summary Judgment on April 19, 1982, and found that

EPA’s actions of capturing the entire facility in vivid

detail (to the point of discerning items 2 inch in size)

after consent for an inspection had been refused and

without judicial authorization was a violation of Dow’s

reasonable expectation of privacy and an unreasonable

search in violation of the Fourth Amendment (Pet. App.

B-32). The District Court also found that aerial photo-

graphy is outside of EPA’s inspection authority since the

practice of aerial photography cannot comply with the

plain language of Section 114(a)(2) of the Clean Air Act,

which requires EPA to present credentials before

entering to, upon or through a site to inspect records,

check monitoring equipment, or take samples (Pet. App.

B-44).

After the District Court’s ruling on the cross-motions

for partial summary judgment, Dow dismissed without

prejudice its Fifth Amendment claim of taking of prop-

erty without due process (Dist. Ct. Dkt. 219), and final

judgment was entered. The government appealed.

On November 9, 1984, the Court of Appeals reversed

the District Court’s opinion. The Court of Appeals found

that Dow’s 2,000 acre secured commercial development

was an open field from the air and hence there was

no search (Pet. App. A-9). The Court also held that

“{ajlthough the [Clean Air Act] does not expressly

authorize enhanced aerial observation, the language of

Section 114 clearly does not foreclose this technique”

(Pet. App. A-14).

No petition for rehearing was filed. The Petition For

Writ of Certiorari was filed February 7, 1985, and was

granted June 10, 1985 (A. 94).

SUMMARY OF THE ARGUMENTS

I. and II.

EPA‘’s intrusive aerial photographs infringe upon the

personal and societal values protected by the Fourth

Amendment. The Court of Appeals held ‘hat if EPA‘s

action constituted a search, then AM >rshail v. Barlow's

Inc., 436 U.S. 307 (1978), controls, and EPA’s warrantless

search violated Dow’s Fourth Amendment rights (Pet.

App. A-5) However, the Court of Appeals, relying on

Oliver v. United States, 80 L.Ed.2d 214 (1984), found that

Dow’s secured facility was “like an open field” (Pet.

App. A-9). Once Dow’s developed and secured commer-

cial structure was held to be an “open field,” by defini-

tion no search occurred. Hester v. United States, 265 U.S.

57 (1924).

The Court of Appeals decision that Dow’s secured,

multi-million doilar industrial complex is an open field is

novel, startling and absolutely unsupported in either fact

or law. A secured, developed industrial facility is not,

and has never been held to be, an “open field.”

The decision misapplies the open fields doctrine as

reaffirmed in Oliver. In doing so, the decision is clearly

inconsistent with a long line of prior holdings of this

Court that a commercial establishment is entitled to

Fourth Amendment protection. Silverthorne Lumber Co. v.

United States, 251 U.S. 385, 392 (1920); See v. City of Seattle,

387 U.S. 541 (1967); Marshall v. Barlow’s Inc., supra; Air

Pollution Variance Board v. Western Alfalfa Corporation, 416

U.S. 861 (1974); and Oliver v. United States, supra.

Dow’s reasonable expectation of privacy is its expecta-

tion that the minute details of its outdoor manufacturing

plants, detail which is not visible to the airborne eye and

which Dow seeks to protect, will remain private. That

expectation is legitimate and reasonable.

It is well established that intrusive government sur-

veillance into a protected area or activity — such as a

home or apartment, or a commercial structure, or a pri-

vate conversation in a phone booth, is an unreasonable

search. Katz v. United States, 389 U.S. 347 (1967); United

States v. Lace, 669 F.2d 46 (2nd Cir. 1982), cert. denied,

459 U.S. 854; United States v. Taborda, 635 F.2d 131 (2nd

Cir. 1980); United States v. Kim, 415 F.Supp. 1252 (D.Ha.

1976). In this case EPA used sophisticated aerial photo-

graphy to capture and seize the details of Dow’s

commercial structures and activities which were not

otherwise accessible from the ground and which were

not visible to the human eye from an aerial perspective

(Pet. App. B-27). The method or perspective of the

government's constitutionally offensive scrutiny is of no

great moment. Intrusive surveillance through a wire,

through a horizontal window, or as in this case, through

a vertical “window,” are all patently unconstitutional.

The Court of Appeals destroys Dow’s Fourth Amend-

ment rights by characterizing the items, and equipment

and activity Dow seeks to protect as “outdoor spaces

between plant buildings” (Pet. App. A-4) and the intru-

sive, aided surveillance as mere “observation” (Pet.

App. A-8). Dow seeks to protect the details and

technology of its outdoor plants, not outdoor “spaces.”

The Court of Appeals disregards the fact that we are

dealing with open-air plants comprised of a few “tradi-

tional buildings” integrally and inherently related to the

larger, contiguous open-air manufacturing equipment

(Photographs 1-5, Sealed Joint Appendix).

The decision attempts to conform to existing laws by

recognizing that Dow does have a reasonable expectation

of privacy from ground intrusion — that is, Dow’s facil-

ity is not an open field at ground level (Pet. App. A-8).

That finding and Dow’s Fourth Amendment rights are

then eviscerated by holding that Dow’s facility is an

open field from the air (Pet. App. A-9). An area cannot

be an open field from one perspective but not from

another. Also, Fourth Amendment rights from a terres-

trial intrusion are hollow if a more intrusive, and less

particularized search method such as aerial photography

is available at the sole discretion of government agents.

Dow’s Fourth Amendment right to be free from

unreasonable searches and seizures has been violated.

Dow requests that the decision of the Court of Appeals

be reversed.

Without citation to legal authority and despite the

plain language of Section 114(a) of the Clean Air Act [42

U.S.C. § 7414(a)], the Court of Appeals held that the

Statute does not foreclose EPA's use of aerial photo-

graphy as a site inspection technique (Pet. App. A-14).

The holding is patently wrong since it both defies the

plain meaning of the statutory language and ignores the

fact that it is a physical impossibility for aerial photo-

graphy to accomplish any of the prerequisites or pur-

poses specified by the statute. United States v. American

Trucking Associations, Inc., 310 U.S. 534, 543 (1940);

Donovan v. Dewey, 452 U.S. 594, 599 (1981).

Under the government's interpretation of Section 114,

whereby any inspection technique that is not clearly

foreclosed is fair game, surreptitious inspections could

be conducted at any time and with any frequency as the

Agency deems necessary. A statutory interpretation

could scarcely be more broad, more susceptible to abuse

of discretion, or more unreasonable.

Those charged with an investigative and prosecutorial

duty should not be the sole judge of when to utilize

constitutionally sensitive means in pursuing their tasks.

Almeida-Sanchez v. United States, 413 U.S. 266, 280 (1973).

Official powers cannot be assumed or extended by ad-

ministrative agencies beyond the terms and necessary

implications of the statutory grant. They must be con-

ferred by Congress. Federal Trade Commission v. Raladam

Company, 283 U.S. 643, 649 (1931).

The EPA’ use of aerial photography as a site inspec-

tion technique does not conform to the plain language

of the Clean Air Act or to Congressional intent. The

Agency exceeded its statutory grant of limited authority.

Dow requests that the decision of the Court of Appeals

be reversed.

ARGUMENTS

It is axiomatic that commercial and industrial estab-

lishments have a reasonable expectation of privacy and

are entitled to Fourth Amendment protection in their

non-public areas. Marshall v. Barlow's Inc., 436 U.S. 307

(1978); G.M. Leasing Corporation v. United States, 429 U.S.

338, 353 (1977); Air Pollution Variance Board v. Western

Alfalfa Corporation, 416 U.S. 861 (1974); See v. City of Seattle,

387 U.S. 541 (1967); Katz v. United States, 389 U.S. 347

(1967); and Oliver v. United States, 80 L.Ed.2d 214 (1984).

The Court of Appeals’ opinion is a radical departure

from those cases.

The primary legal difference between the District

Court Opinion (Pet. App. B), and the Court of Appeals

Opinion (Pet. App. A), is that the District Court found

that EPA’s actions were a search and the Court of

Appeals held they were not.

The Court of Appeals acknowledged that “If the

government action in this case — EPA’s aerial photo-

graphy of Dow Chemical’s Midland, Michigan plant —

constitutes a Fourth Amendment ‘search’, then Barlow’s

controls, and EPA’s warrantless search violated Dow’s

Fourth Amendment rights” (Pet. App. A-5).

EPA's INTRUSIVE AERIAL PHOTOGRAPHY WAS A SEARCH.

A. A Secured, Developed Industrial Facility Is Not

An Open Field.

In Hester v. United States, 265 U.S. 57, 59 (1924), the

Court held “[T]he special protection accorded by the

Fourth Amendment to the people in their ‘persons,

houses, papers and effects,’ is not extended to the open

fields. The distinction between the latter and the house

is as old as the common law.”

Fourth Amendment protection extends to “the por-

tions of commercial premises which are not open to the

public.” See v. City of Seattle, 387 U.S. 541, 545 (1967).

The businessman has a constitutional right to go about

his business free from unreasonable official entries upon

his private commercial property. See v. City of Seattle,

supra at 543; Marshall v. Barlow's, Inc., 436 U.S. 307, 312

(1978).

The “portions of commercial premises not open to the

public” and “open fields” would seem to be mutually

exclusive under the common understanding of those

terms. Certainly both the facts and photographs” in this

case clearly confirm that the Dow Midland facility is a

secured, developed industrial facility and not an open

field in either a legal or factual sense.

The rule of Hester that “an individual may not legiti-

mately demand privacy for activities conducted out of

* See Photographs 1-5, in the Sealed Joint Appendix, and in the

Record per Dist. Ct. Dkt. 15 and 171.

doors in fields, except in the area immediately sur-

rounding the home” was reaffirmed in Oliver v. United

States, 80 L.Ed.2d 214, 224 (1984). The Oliver decision

did not affect the reasonable expectation of privacy of

open-air industry in accord with See, Barlow's and Katz,

which hold that secured, developed plant sites are en-

claves which are free from arbitrary government interfer-

ence. The Court in fact reconfirmed the reasonable

expectation of privacy in the industriai setting. Discus-

sing the traditional sanctity of the home, the Court

noted that “The Fourth Amendment's protection of

offices and commercial buildings, in which there may be

legitimate expectations of privacy, is also based upon

societal expectations that have deep roots in the history

of the Amendment” (cites omitted). Oliver, 80 L.Ed.2d at

224, n. 8.

In discussing the distinction between open fields and

the settings or types of activities where there is a societal

interest in protecting privacy, the Court noted that open

fields “usually are accessible to the public and the police

in ways that a home, an office or commercial structure

would not be.” Oliver, 80 L.Ed.2d at 224. The Dow man-

ufacturing facility is a secured commercial structure to

which the public and the police do not have general

access.

Dow asserts that its open-air plants are commercial

structures and subject to Fourth Amendment protection.

Even if “structure” is defined to be “closed,” various

courts have recognized a business curtilage for areas

entitled to Fourth Amendment protection because of

proximity and relationship to a closed structure. United

States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982) [open-air

business premises where cars held to be within the cur-

tilage of business buildings]; and Wattenburg v. United

States, 388 F.2d 853 (9th Cir. 1968). See also, United States

v. FMC Corp., 428 F.Supp. 615, 618 (W.D.N.Y. 1977), affd

572 F.2d 902 (2nd Cir. 1978), where the District Court

found that the highly restricted access to an industrial

lagoon and the manner in which it was enclosed (8 ft.

fence) did not permit application of the “open fields”

exception.

The Court of Appeals found that “Dow had a kind of

actual privacy expectation ... to be free from ground

level intrusions from the street” (Pet. App. A-8). How-

ever, the Court also held the Dow plant is “like an open

field” as far as aerial observations are concerned (Pet.

App. A-9). The Dow plant is not “like an open field.”

It is contrary to common sense and public policy that

an industrial facility could be deemed to be an open

field from the sky, but not from the ground. An area is

either an open field or it is not. It cannot logically be

both. Having Fourth Amendment rights at ground level

is mecningless if a more intrusive, non-particularized,

surreptitious search method such as aerial photography

is available without restriction upon government agents.

Until the Court of Appeals’ decision, a secured and

developed industrial facility had never been held to be an

open field. The District Court specifically rejected the

applicability of the open fields exception to this case

(Pet. App. B-6, n. 5). Since Hester v. United States, 265

U.S. 57 (1924), the open fields doctrine has been gener-

ally applied to rural, agricultural land. “Field” has been

interpreted well beyond its literal meaning to include

wooded areas, deserts, vacant lots in cities, and open

beaches, but never a developed, secured industrial com-

plex. See, La Fave, Search and Seizure § 2.4 at 332

(1978). In those cases the land is “developed” only in an

agricultural sense. The security and expectation of pri-

vacy question usually revolves around agricultural-type

fencing and posting.

In Oliver v. United States, 80 L.Ed.2d at 225, n. 11, the

Court noted that “An open field need be neither ‘open’

nor a ‘field’ as those terms are used in common speech.

. a thickly wooded area nonetheless may be an open

field.” The Court adds to the clarification in the same

footnote “It is clear, however, that the term ‘open fields’

may include any unoccupied or undeveloped area outside of

the curtilage” (emphasis added). Occupied and developed

areas, such as the Dow manufacturing facility, are not

open fields in a legal or factual sense.

In its opinion the Court of Appeals found that the

District Court erred in dismissing the government's

“open field” argument (Pet. App. A-9). In its limited

citation to Hester v. United States, 265 U.S. 57 (1924) in

the District Court (Dkt. No. 165, pp. 14-15) and in the

Court of Appeals (Appellant's Brief, p. 12), the govern-

ment used Hester and Air Pollution Variance Board v.

Western Alfalfa Corp., 416 U.S. 861 (1974), to argue that

observations* from public places (the sky) are constitu-

tionally permissible. The government did not pointedly

argue that the place its observations were directed to,

that is, Dow’s Midland facility, was an “open field.” The

Court’s decision went far beyond both the government's

position and the law.

If complex manufacturing facilities are deemed to be

open fields in which the owners have no reasonable

expectation of privacy with respect to visually enhanced

intrusions, then companies such as Dow would have

difficulty asserting that their technology discernible

through such visually enhanced means has been main-

tained secret. Making reasonable efforts to maintain the

* The government consistently mischaracterized its detailed,

intrusive surveillance photographs as mere “observations.” The Dis-

trict Court found that “... the camera saw a great deal more than

the human eye could ever see” (Pet. App. B-27).

secrecy of a trade secret is a condition precedent to

alleging that information or technology in fact consti-

tutes a protectable trade secret. Kenawee Oil Company v.

Bicron Corporation, 416 U.S. 470, 476 (1974). Trade secrets

require a context of privacy, or at least the possibility of

privacy, for their existence. A threat to Dow’s privacy

threatens its very existence and integrity as a scientific,

technological and research-based company.

Dow’s expectation of privacy in the minute details in

the heart of its open air plants is both deemed reason-

able and supported by society and shared by others in

similar circumstances. See pages 47-49 for a brief discus-

sion of tort and criminal laws protecting trade secrets

and privacy.

Other corporations, which unlike Dow were given

notice of EPA’s contemplated aerial photography of their

plants, responsed with similar concern (A. 86-93). FMC

Cv poration responded in part that “... the standard

inspection/right of entry provisions from the various

water, air, hazardous waste, and toxic substances stat-

utes . . . do not authorize the proposed surveillance and

photographing” (A. 89). Monsanto objected to aerial

photography of its facilities “... to protect valuable

proprietary information, which would be disclosed by

such aerial photography. In addition, such aerial photo-

graphy would violate the prohibition against unreason-

able searches .. .” (A. 92).

The wide-spread ramifications of holding that a multi-

muuion dollar developed and secured industrial facility is

an open field, and hence outside of the protection of the

Fourth Amendment, is especially grim. Protection of in-

dustrial privacy and trade secrets from sophisticated sur-

veillance into open-air operations is lost. The potential

for abuse by the government is manifest. Searches will be

indiscriminate with no judicial authorization, no restraint

on frequency, and no restraint on the nature or scope of

the surveillance.

The Court of Appeals, in reversing the District Court,

condoned the violation of Dow’s right to be protected

against unreasonable search and seizure as guaranteed

by the Fourth Amendment, and granted the government

carte blanche to conduct general searches contrary to

existing constitutional restraints and legislative direction.

In view of this Court’s decisions in Katz v. United

States, Marshall v. Barlow's Inc., Air Pollution Variance

Board v. Western Alfalfa, and Oliver v. United States, the

open fields doctrine was misapplied and Dow’s reason-

able, constitutionally justified, expectation of privacy

was violated.

B. The Open Fields Doctrine Has No Application To

Cases Where Sophisticated, Intrusive Surveillance

Devices Are Employed.

The open fields doctrine must be limited both to the

nature of the site inspected and to the unaided or unen-

hanced viewing application of Hester and Oliver. As Jus-

tice Brandeis cautioned in his dissent in Olmstead v.

United States, 277 U.S. 438, 473 (1928), and as the Court

accepted in Katz, 389 U.S. 347 (1967), the Fourth

Amendment must be capable of wider application than

the mischief which gave it birth. Aided and enhanced

government surveillance falls squarely within the scope

of the Fourth Amendment; it does not transform the

activity or object under surveillance into an open field.

Air Pollution Variance Board v. Western Alfalfa Corp., 416

U.S. 861 (1974) holds that a government agent can go to

areas where the public is not excluded and view what-

ever is exposed to the public. The public is not excluded

from the sky. However, the “view exposed to the public”

must mean an unenhanced, “naked eye” view”. An in-

trusive view, just like the intrusive ear in Berger v. New

York, 388 U.S. 41 (1967), and in Katz, is tortious or criminal

per the public and unconstitutional for the government.

Citing to Hester, the Court in United States v. Kim, 415

F.Supp. 1252, 1256 (D.Ha. 1976) [telescopic observation

into an apartment an unreasonable search], held that in

light of the powerful technology used by the govern-

ment, “the ‘plain’ in plain view must be interpreted as

permitting only an unaided plain view.” See also, United

States v. Lace, 669 F.2d 46, 51, 55 (2nd Cir. 1982), cert.

den. 459 U.S. 854, and United States v. Taborda, 635 F.2d

131, 139 (2nd Cir. 1980) [telescopic intrusions into homes

unconstitutional].

The current law that any enhanced, intrusive viewing

into a place where people have a reasonable expectation

of privacy, such as the private portions of developed

industrial property, is unconstitutional is correct and

should not be overturned in this case. Technology exists

and is being developed which can make a closed room

an “open field.” As the Court in Kim, supra at 1257, rec-

ognized “... as the technological capability of law en-

forcement agencies increases, the Fourth Amendment

must likewise grow in response.”

In a general discussion on the open fields exception,

a former EPA assistant regional counsel posits:

The recently filed Dow Chemical case against

EPA ... seems to involve a fact situation where

* See also Justice Rehnquist's concurring opinion in Donovan v.

Dewey, 452 U.S. 594, 608-609 (1981), which states: “As far as I can

tell, the stone quarry here was largely visible to the naked eye without

entrance onto the company’s property. ... the Fourth Amendment

is not extended to the open fields” (emphasis added). The open

fields concept makes good sense and good policy only in the naked

eye context (including minor visual aids such as glasses).

the open fields exception may have some applica-

bility. However, aerial surveillance would seem

to push the exception too far.

* + *

The important question that has to be faced is

what is constitutionally offensive scrutiny. It

would be fallacious to extend the open fields ex-

ception to the facts in Dow because if it were,

advanced technology has given us microphones

and cameras that can make an enclosed room an

“open field.” Spatially based criteria of eligibility

for fourth amendment protection ignore the perti-

nent question as to what it is we wish to see pre-

served from the offensive scrutiny.

Martin, EPA and Administrative Inspections, 7 Fla. St. L.R.

123, 134 n. 50 (1979).

The offensiveness of the scrutiny is apparent from the

facts. After entry ior a repetitive inspection was denied,

and without seeking judicial oversight as required by

Section 113 of the Act (42 U.S.C. § 7413), EPA embarked

upon a targeted surveillance mission that produced

aerial photographs capturing detail that is absolutely

beyond the perception of the unaided human eye or

mind (Pet. App. B-27).

Enforcement officers can observe (unaided) the

perimeter or exterior or plainly visible aspects of a

home, factory or apartment as much as they want. Air

Pollution Variance Board v. Western Alfalfa Corp., supra;

Marshall v. Barlow's Inc., supra. In fact, the EPA deployed

a smoke reader to the Dow facility after the September

1977 inspection and before the February 1978 flyover

(Smith Depo., Exh. 1, p. 2, Dist. Ct. Dkt. 29). However,

when the government uses observation or detection aids

to intrude in minute detail into the interior areas of a

eb ek

protected place, that action is unconstitutional. United

States v. Taborda, supra, 635 F.2d at 137; United States v.

Kim, supra; United States v. Lace, supra.

As the Court in Katz v. United States, supra, 389 U.S.

at 351, recognized: “What a person knowingly exposes

to the public, even in his own home or office, is not a

subject of Fourth Amendment protection. [Cite omitted. ]

But what he seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected”.

Intrusive aids which overcome reasonable expecta-

tions of, or reasonable attempts to preserve, privacy

cannot be sanctioned. They are repugnant to the Fourth

Amendment.

C. EPAS Intrusion Infringed Upon The Personal And

Societal Values Protected By The Fourth

Amendment.

At the November 12, 1981, oral argument in the Dis-

trict Court on cross motions for summary judgment, the

government admitted “All the Fourth Amendment cases

involve a search for evidence. Of course that’s what the

government was doing, we don’t deny that” (A. 94).

Apart from that admission, the facts of this case estab-

lish that EPA’s deliberate, detailed examination of the

Dow property by sophisticated aerial photography,

which was calculated to produce evidence in an enforce-

ment action that was concurrently referred to the

Department of Justice (A. 31, 32), constituted a search.

The government's intent in making the observation or

examination is a deciding factor. The fact that visual en-

hancement was employed, especially when it produced

and “captured” images beyond the capabilities of the

human senses for possible use as documentary evidence,

is a neoncontrovertible indication that the agency

engaged in a search.

It has been noted by one commentator that the

critical factor in deciding whether a search has

occurred is the mental processes of the searcher.

A functional observation occurs when the officer

engages in a mental quest for evidence of crime

and relies on his observation to assist in the

quest. In this instance, the observation is a

search.

Grange, Visual Remote Sensing and Privacy Interests of the

Fourth Amendment, 1 Northrop U.L.J. of Aerospace,

Energy & Environment 33, 51-52, n. 129 (1979).

In determining whether there was a search, the Court

of Appeals focused on two queries: 1) whether EPA‘

aerial photography was sufficiently intrusive to consti-

tute a search; and 2) whether the aerial photography in-

truded upon Dow’s actual and reasonable expectation of

privacy in the spaces between its buildings (Pet. App.

A-5, 6). Relying on factual errors and a mischaracteriza-

tion of Dow’s expectation of privacy and overlooking the

intrusion in this case (discussed at pages 32-33, 35-39),

the Court of Appeals found that the Dow plant was

“like an open field,” and thus found a “non-search for

Fourth Amendment purposes” (Pet. App. A-9).

The intrusion in this case is directly comparable to

other methods of intrusive searches. For instance, in

United States v. Kim, 415 F.Supp. 1252, 1256 (D.Ha.

1976), which involved a motion to suppress evidence

derived from telescopic surveillance through the window

of an apartment, the Court stated “It is inconceivable

that the government can intrude so far into an indi-

vidual’s home that it can detect the material he is

reading and still not be considered to have engaged in a

search.” Here, the EPA intruded into Dow’s facility so

far that items and equipment as small as '2 inch in

diameter are depicted (A. 53-54). “It is of the utmost sig-

nificance . . . that the sophisticated visual aids available

to the government can intrude on individual privacy as

severely as electronic surveillance in Katz, or the wire

tapping in Berger v. State of New York, 388 U.S. 41

(1977).” United States v. Kim, supra at 1255-56.

In United States v. Taborda, 491 F.Supp. 50, 53 (E.D.

N.Y. 1980), the Court cited Katz in suppressing evidence

obtained by means of a high-powered telescope aimed

through the window of a home, stating:

This court reads the Katz case to mean, as a

minimum, that the people may demand privacy

unless a policeman can see or hear them from a

place accessible to those members of the public

not preternaturally inquisitive. ... the court

[Katz] must have meant by “public” the ordinary

run of people, not those who happen to possess

powerful and sophisticated devices and curiosity

to use them to spy on their fellows.

In affirming that opinion, the Second Circuit held that

to the extent that agents used a telescope to identify

objects or activities that could not be identified without

it, those observations were searches. United States v.

Taborda, 635 F.2d 131, 139 (2nd Cir. 1980). In this case

the camera saw a great deal more than the human eye

could see (Pet. App. B-27).

Most people would regard [video surveillance],

standing alone, as even more intrusive than inter-

ception of oral communications, which is subject

to the strictures of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 [18 U.S.C.

2510 et seq.}.

In the Matter of An Application Of the United States for an

Order Authorizing Interception Of Oral Communications And

Video-Tape Surveillance, 513 F.Supp. 421, 423 (1980).

Aerial visual surveillance is no exception since the rea-

sonable expectation of privacy is not earthbound. In

finding that the owner of a % acre marijuana patch had

no reasonable expectation of immunity from overflight,

the Court in Dean v. Superior Court, 35 C.A.3d 112, 116,

110 Cal. Rptr. 585 (1973), stated: “The Fourth Amend-

ment guards the privacy of human activity from aerial

no less than terrestrial invasion.”

Noting that a prime measure of the reasonableness of

expectation of privacy is mankind’s common habits in

the use of domestic and business property, the Dean

Court posits:

One who builds a swimming pool and sun-

bathing area in his backyard expects privacy

(hence immunity) from aerial inspection. Areas

reasonably used in ordinary business operations

are assumedly entitled to similar immunity. Such

areas are expectedly private according to the

common habits of mankind.

35 C.A.3d at 117.

Dow believes that those and similar decisions reflect

both the public’s expectations and sound Fourth Amend-

ment analysis.

As applied to this case, the EPA's intentional discern-

ment and capturing of minute details of Dow’s outdoor

commercial structures and activities which were not visible

without optical aid, was clearly a search. The government's

intrusion infringed upon the personal and societal values

protected by the Fourth Amendment.

THE INTRUSIVE AERIAL PHOTOGRAPHY VIOLATED

DOW’S ACTUAL AND REASONABLE

EXPECTATION OF PRIVACY.

The Court of Appeals did find that Dow had an expecta-

tion of privacy at ground level:

Here Dow had an actual expectation of privacy in

certain parts of its plant, privacy which included

the freedom from:certain kinds of intrusion. Dow

took great pains to be free from ground level

intrusion by building a perimeter security fence

and employing security guards. 536 F. Supp. at

1364-65. Hence, Dow had a kind of actual privacy

expectation in these parts of its plant, a privacy

interest to be free from ground level intrusions

from the street.

(Pet. App. A-8).

Despite its finding of a reasonable expectation of pri-

vacy at ground level, the Court of Appeals abandoned

consistency and found that Dow had no reasonable ex-

pectation of privacy from the air. To reach this remarkable

conclusion, the Court ignored the distinction between

mere aerial observation and detailed aerial photography,

held that EPA’s admitted search was not a search at all,

held that Dow’s security measures to protect against

aerial photography were nonexistent, found that the

Dow facility was on an airport flight pattern despite no

support in the record, and held the secured, developed

industrial complex to be an open field from the air.

The reasonableness of a search is ... [to be

determined] by the trial court from the facts and

circumstances of the case and in the light of the

“fundamental criteria” laid down by the Fourth

Amendment and in opinions of this Court apply-

ing that Amendment.

Ker v. State of California, 374 U.S. 23, 33 (1963). The Dis-

trict Court understood the facts and circumstances of the

case and found a search. The Court of Appeals misap-

prehended a number of material facts and circumstances

in reaching its decision that there was no search. Those

outcome determinative factual errors and omissions are

discussed below.

A. Dow’s Reasonable Expectation Of Privacy

In support of its opinion that Dow had no expectation

of privacy from aerial observation, the Court of Appeals

found that “Dow did not take any precautions against

aerial intrusions, even though the plant was near an air-

port and within the pattern of planes landing and taking

off” (Pet. App. A-8).

Dow does take precautions against aerial intrusion. As

described at pages 9-10, since World War II it has been

a specific job responsibility of Dow Security people to

watch for, report and follow up on suspicious aircraft

over the plant (A. 13-14, 21-22; Kelyman Depo. p. 26,

Dist. Ct. Dkt. 131).

The finding that the plant is near an airport and

within take-off or landing patterns, is not supported in

the record and appears to be an extension of Dow’s

acknowledgement that planes (undefined number and

frequency) fly over its Midland facility (A. 76-77). Planes

criss-cross this nation every day; most create no cause

for concern. However, assuming for the sake of issue

resolution that the finding is correct, it neither aids nor

detracts from Fourth Amendment analysis. The location,

and the size, of the place being searched is not an ele-

ment of Fourth Amendment analysis. The “location”

theory of Olmstead v. United States, 277 U.S. 438 (1928)

was overruled in Katz v. United States, 389 U.S. 347

(1967), which holds that the Fourth Amendment protects

people, not places.

If being “near” an airport is sufficient to strip a person

of an otherwise reasonable expectation of privacy, then

millions of homes and businesses in this country would

suddenly be deprived of Fourth Amendment protection’.

Population centers, including residential and commer-

cial properties, and airports tend to be found near one

another.

Although the Court of Appeals does recognize that

“[clertainly, no one could reasonably expect Dow to

build a dome over its entire Midland plant ...”, the

Court posits that “Dow could have shielded the critical

spaces in between its buildings, if it had an actual. ex-

pectation of privacy from aerial observation of these reg-

ions” (Pet. App. A-8). Dow’s expectation of privacy is in

the minute details in the non-public, internal portions of

its open-air facilities from visually enhanced surveil-

lance, not in “spaces in between its buildings” or from

mere “observations.” The small size and detail of items

and equipment of concern to Dow is not visible from a

distant, moving unaided aerial view. To suggest that

Dow must shield minute detail, detected during a gov-

ernment quest for evidence with a certified mapping

camera, to preserve its privacy is the antithesis of the

Fourth Amendment.

In addition to annihilating the Fourth Amendment

protection for open air industry, the Court of Appeals

* Using the proximity of an airport and the passage of “other”

aircraft as a factor in assessing the reasonableness of an expectation

of privacy is also misplaced since the Fourth Amendment protects

against governmental, not private, intrusions. Katz v. United States,

389 U.S. 347, 352 (1967).

decision wreaks havoc on protection for the home and

its attendant curtilage. Due to the nature of aerial photo-

graphy, where the camera is switched on and the run is

made, the area depicted (searched) cannot be described

with any sense of particularity before the fact. In this

case not only was Dow’s entire 2,000 acre facility photo-

graphed (the “targets” were the two powerhouses and

the incinerator), but other commercial properties and

homes in Midland were also captured on the detailed

photographs. What protective measures should a home-

owner take to protect the privacy in a fenced yard

against aerial surveillance?* None. It is unreasonable to

require citizens, be they individuals or corporations, to

take steps to protect their privacy from illegal surveil-

lance by the government when the government is doing

something it ought not do.

If an individual or a corporation has a legitimate

expectation of privacy in a place, such as a home or a

commercial structure, constitutional protection against

unwanted entry or surveillance is not forfeited if he fails

to take some action to totally secure the place. The

unlocked front door, the undrawn shade, and the un-

covered open-air plant are indicia of our free society and

not invitations for government surveillance. The protec-

tions of the Fourth Amendment are not forfeited by lack

of a perfect security system. It would be unreasonable to

force citizens to additionally protect what the constitu-

tion already protects.

The expectation of privacy only has to be reasonable,

not total. The law protects the reasonable expectation of

privacy, not the perfect security system. The perfect sec-

urity system has no need for protection. If achievement

* An explanation that the homeowner was not the target is akin

to telling the wounded innocent that the government was actually

shooting at a fleeing subject.

rather than expectation of privacy were the only thing

protected by the Fourth Amendment, then that Amend-

ment would be a nullity.

B. Mischaracterization Of “Interior Regions Of The

Plant” And “Mere Aerial Observation”

“Interior regions of the plant” are the structures both

inside of and not visible from the fenceline — not out-

door spaces between plant buildings. The District Court

noted that it had carefully examined all the photographs

and was struck by their vivid detail and resolution (Pet.

App. B-3). The Court found that “Many of these minute,

but observable items are located in interior regions of the

plant which are surrounded by buildings and other

structures which make observations from anywhere but

directly above, a near physical impossibility” (Emphasis in

the original) (Pet. App. B-3). The District Court also

found that “The photographs depict internal regions of

the plant in such vivid detail, capable of further enlarge-

ment and magnification, as to defy simply being de-

scribed as views of the exterior of the facility” (Emphasis

in the original) (Pet. App. B-22). “[T]he camera saw a

great deal more than the [unaided aerial] human eye

could ever see” (Pet. App. B-27).

Despite both the District Court's factual findings and

its own opportunity to view the photographs, the Court

of Appeals without explanation redefined the phrase

“interior regions of the plant” to mean “the open, out-

door spaces between plant buildings” (Pet. App. A-4).

That characterization completely misses the mark and is

not supported in the record. Yet it is repeated many

times in the opinion (Pet. App. A-6, 8, 9, 10, 11, 12 and

13), and Dow believes, is a major factor in the reversal

of the District Court decision.

The Court of Appeals’ characterization of Dow’s expec-

tation of privacy as referencing the “spaces between its

buildings” both supplies its own answer concerning rea-

sonableness and makes Dow’s position appear ridiculous.

Dow is not trying to protect space between its buildings;

rather, Dow is trying to protect the details of its open-air

commercial structures which are located inside its sec-

ured fenceline (A. 62, 68).

The Court of Appeals disregarded the complex mass

of pipes, vessels and equipment which comprise Dow’s

outdoor manufacturing areas which are neither buildings

nor open spaces between buildings. Those multi-million

dollar outdoor plants are the basis of Dow’s business, its

competitive edge, and the technological fruits of its in-

ventors and engineers. They are protected by Dow’s

multi-million dollar security system and our legal system.

The Court of Appeals found that “Dow’s reasonable

privacy interest in the interior of its buildings does not

extend into the areas between the buildings because,

unlike the home setting [curtilage], there is no compel-

ling reason in terms of privacy to justify this extension”

(Pet. App. A-12). That finding ignores the integral and

inherently related functions of the covered buildings,

e.g. a control room, and the contiguous and connected

pipes, vessels and equipment which comprise the oper-

ating plant. The buildings and the contiguous, open-air

process areas are as interrelated as the human mind and

body. They are mutually dependent and interrelated.

A review of the EPA aerial photographs (Photographs

1 and 2 — Sealed Joint Appendix; see also photographs

in the Record per Dist. Ct. Dkt. 15), clearly shows that

the representative brine chemical plant is not comprised

of buildings and open spaces between buildings, as per-

ceived by the Court of Appeals. Rather, the 30 acre

plant (A. 74) is comprised of only two “traditional”

buildings with no discernible “open space” between

them and the rest of the commercial structure, that is,

the web of pipe, tanks, vessels, utilities, and technical

process equipment that comprise the brine chemicals

plant (Photographs 1, 2 and 4 — Sealed Joint Appendix).

Some of the trade secret aspects of the plant that are vis-

ible on the photographs were discussed during deposi-

tion (Wait Depo., Vol. 1, pp. 112, 115-118, 122, 126, 131,

135-137, Dist. Ct. Dkt. 152 —- under seal; Wiseman Depo.

pp. 43-46, 60-65, 67-68, 70, Dist. Ct. Dkt. 255 - under

seal). The photographs reveal trade secrets and tech-

nology that is unique to Dow (e.g., Wiseman Depo. pp.

43, 44-46, 67, 70, Dist. Ct. Dkt. 255 — under seal).

Throughout its decision the Court of Appeals charac-

terizes EPA’s surveillance and detailed aerial photo-

graphy as “aerial observation” and the “area observed”

(Pet. App. A-8, 9). That characterization of casualness

belies the facts in the case at bar. It also reveals a major

misapprehension of the central contention of the Dow

case.

Mere aerial observation (naked-eye) is akin to a

government agent watching a house from a public park,

or an EPA smoke reader observing a plume from a

public right-of-way. Air Pollution Variance Board v.

Western Alfalfa, 416 U.S. 861 (1974). Sophisticated aerial

photography, which perceives and captures detail which

is inaccessible to the unaided human eye or mind, is

analogous to using a telescope or telephoto lens to peer

into a structure to a degree where the details of human

activity are visible. Cf., United States v. Kim, 415 F.Supp.

1252 (D.Ha. 1976) [government use of telescope enabling

agents to determine reading material of suspect through

an apartment window is an unreasonable search], and

United States v. Taborda, 635 F.2d 131 (2nd Cir. 1980) [en-

hanced viewing through a window into interior of a

home with a high-powered telescope unlawful].

As a public policy and common sense matter, the loca-

tion of the “window,” that is, to the street or to the sky,

does not matter. Once the human relations that create

the need for privacy are established, the reasonable ex-

pectation of privacy is recognized and protected.

Since the inception of air flight, Dow has known that

its plants are visible by people in aircraft. In fact, in the

November 27, 1973, Dow Security directive on reporting

planes over the plant it is clearly stated that “Manage-

ment is very much concerned when other than commer-

cial passenger flights pass over the plant property” (A.

14). Why no concern about commercial passenger flights?

Because the view from a commercial plane is similar to

that depicted in Photograph 3 in the Sealed Joint Appen-

dix (Dist. Ct. Dkt. 168, Exhibit 7), which causes Dow no

consternation. Other reasons include: commercial planes

do not make multiple passes over the plant; commercial

planes are not equipped with floor-mounted certified

mapping cameras; and even if a passenger on a commer-

cial flight went beyond mere aerial observation to aided

photographic observation, between the oblique angle of

vision and the multi-layer plastic airline window, the

photograph would be similar to Photograph 3 in the

Sealed Joint Appendix.

Other than both being photographs, there is no com-

parison between the resolution and detail of the EPA

photographs and the typical “aerial observer” photo-

graph (cf. Photographs 1 and 2 versus 3 in Sealed Joint

Appendix), or the aerial photographs typically taken by

the Michigan Department of Natural Resources (DNR)

(Dist. Ct. Dkt. 167; A. 54), or other state or federal agen-

cies. The contact scale of the EPA photographs is 1:2400

(1 in. equals 200 feet); the scale of a typical Michigan

DNR photograph, such as the one used by EPA in the

District Court (Dkt. 167), is 1:24,000 (1 in. equals 2,000

feet) (A. 54). The degree of detail depicted at a scale of

1:24,00u does not cause Dow concern.

The phrases “aerial observation” and “area observed”

imply an unaided human eye. Dow would have no

quarrel if the “area observed” was its 2,000 acre man-

ufacturing plant or large parts -hereof. But, it is mate-

rially inaccurate to characterize the capturing of every

square inch on 2,000 acres of developed industrial prop-

erty as the “area observed.” It is neither area, which

implies large size, nor observed. It is the scrutiny of

minute detail not humanly possible without the use of

sophisticated technology.

The EPA aerial reconnaissance photographs, which

depict the inner workings of the open-air manufacturing

plants within the fenced and secured Midland facility,

are the product of extremely intrusive, aided and consti-

tutionally offensive scrutiny. The photographs are the

functional equivalent of technical process drawings and

blueprints revealing the details of Dow technology (A.

61-62, 68) — the very heart of Dow’s business.* EPA

searched the interior regions of the Dow facility — areas

where the public and government agents have no right

to be. EPA “saw” the minute details of interior portions

of the plant not merely by means of the aerial perspec-

tive, but through the aid of sophisticated visual

enhancement and capture via aerial photographs.

C. The Search Was Unreasonable.

A fundamental purpose of the Fourth Amendment is to

safeguard people from arbitrary government invasions of

* The ae ives offered by the photographs are in

some res two > mera blueprints. The photo-

graphs show anh Compare tanks and equipment depicted in

Photographs 1 and 2, and also 4 and 5 in the Sealed Joint Appendix. See

also Wiseman Depo. pp. 40-41, 60, Dist. Ct. Dkt. 255 — under seal.

legitimate privacy interests, and not simply those

interests found inside four walls and under a roof. Wolf

v. Colorado, 338 U.S. 25, 27 (1949); and Boyd v. United

States, 116 U.S. 616, 630 (1886).

This Court has strictly construed any proposed abro-

gations of the privacy interest protected by the Fourth

Amendment. “[S]Jearches conducted outside the judicial

process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment —

subject only to a few specifically established and well-

delineated exceptions.” Katz v. United States, 389 U.S.

347, 357 (1967) (footnote omitted). Schneckloth v. Busta-

monte, 412 U.S. 218, 219 (1973); Coolidge v. New Hamp-

shire, 403 U.S. 443, 454-455 (1971). The government bears

the burden of establishing that a warrantless search was

conducted within the narrow confines of an established

exception to the Fourth Amendment. Coolidge, 403 U.S.

at 455.

The Court of Appeals stated that if the open fields

exception does not apply, then the EPA’ activity was an

unreasonable search (Pet. App. A-5). Dow asserts that

the open fields exception does not apply and that the

search was unreasonable since, under the facts and

reasoning stated above, Dow’s reasonable expectation of

privacy in the details of its secured commercial struc-

tures was violated by the government's calculated, intru-

sive surveillance.

Donovan v. Dewey, 452 U.S. 594 (1981), addresses the

relationship between the Fourth Amendment and a spe-

cifically tailored and pervasively regulating statute and

thus is not directly on point. However, Dewey does state

that “Inspections of commercial property may be un-

reasonable if they are not authorized by law or are un-

necessary for furtherance of federal interests.” Donovan

v. Dewey, supra at 599.

The aerial photography at issue was not authorized by

law. See Dow’s argument at pp. 41-49. Nor was the sur-

reptitious aerial photography necessary to further federal

interests. The purpose of the mission was to obtain

documentary evidence of “excessive visible emissions”

(A. 32). The photographs showed no plume (A. 31). In

addition, without significant cost to the Agency and

giving Dow full opportunity to protect its trade secrets,

the Administrator could have requested, indeed required,

Dow to “. . . provide such other information as he [EPA]

may reasonably require.” Section 114(a)(1), reprinted on

p. 3.

Judged by a comparison of the severe intrusion on

Dow’s Fourth Amendment interests against the com-

plete lack of promotion of legitimate governmental

interests, the search in the case at bar is clearly un-

reasonable. Delaware v. Prouse, 440 U.S. 648, 654 (1979).

“Where Congress has authorized inspection but made

no rules governing the procedures that inspectors must

follow, the Fourth Amendment and its various restric-

tive rules apply” (cite omitted). Donovan v. Dewey, 452

U.S. 594, 599 (1981). Dow’s Fourth Amendment right to

be free from unreasonable search and seizure has been

violated.

lil.

SECTION 114(a) OF THE CLEAN AIR ACT DOES NOT

AUTHORIZE, EITHER EXPLICITLY OR BY LACK OF

PROHIBITION, THE USE OF AERIAL PHOTOGRAPHY

AS A SITE INSPECTION TECHNIQUE.

The legislative grant of authority with respect to EPA’s

inspection function under the Clean Air Act is contained

in Section 114(a), which is reprinted on pages 2-3.

The legislative enforcement/inspection scheme estab-

lished by Congress in Section 114 of the Act consists

primarily of self-reporting by owners and operators of

permitted facilities and on-site inspections. Owners and

operators are required by law to keep accurate emission

reports. Those reports are then reviewed within the Agen-

cy to determine whether there has been a violation of the

regulations (Beyer Depo. pp. 16-17, Dist. Ct. Dkt. 30).

EPA‘s on-site inspection authority is not carte blanche. In

Section 114 Congress has specifically defined EPA’s inves-

tigatory functions and powers with respect to Agency

requests for information (Section 114(a)(1)), and inspec-

tions, monitoring, and entry (Section i14(a)(2)). Congress

authorized EPA to conduct site inspections of the various

regulated establishments as part of an overview and

evaluation of the states’ performance in implementing

the Clean Air Act. Although the Act establishes a dual

state-federal system of air pollution enforcement, the

states have primary responsibility for enforcement of the

national ambient air quality standards. Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, 81 L.Ed.2d 694,

704-705 (1984).

A. The Decision Is Inconsistent With Both The Plain

Meaning Of The Statutory Language And Con-

gressional Intent.

“[T)he starting point for interpreting a statute is the lan-

guage of the statute itself. Absent a clearly expressed

legislative intention to the contrary, that language must

ordinarily be regarded as conclusive.” Consumer Product

Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980). “There is, of course, no more persuasive evidence

of the purpose of a statute than the words by which the

legislature undertook to give expression to its wishes.

Often these words are sufficient in and of themselves to

determine the purpose of the legislation. In such cases we

have followed their plain meaning.” United States v. Amer-

ican Trucking Associations, Inc., 310 U.S. 534, 543 (1940)

(footnote omitted); see also, United States v. Oregon, 366

U.S. 643, 648 (1961). The statute does not contemplate or

authorize the use of aerial photography as a site inspec-

tion technique. The Court of Appeals erred in finding that

the “language of Section 114 clearly does not foreclose this

technique” (Pet. App. A-14).

Once the agency decides to inspect a facility the Ad-

ministrator is both authorized and bound by Section

114(a). The EPA is required to present credentials before

the inspection. The Administrator's inspection/entry

authority is clearly limited to entry to, upon, or through any

premises. Once on the premises, the inspector's authority

and purpose is limited by Section 114 to: 1) the inspection

of monitoring equipment or methods which are required

under the Act; 2) the sampling of effluents which the

owner or operator of the facility is required to sample

under the Act; and 3) the examination of records which

are required to be kept under the Act. It is physically im-

possible for the EPA to carry out any of the investigative

purposes or functions, as defined or reasonably implied

by statute, by use of overflights and aerial photography.

The incongruity of the plain language of the authorizing

statute and the use of aerial photography as a site inspec-

tion technique is depicted in the following diagram:

STATUTORY REQUIREMENTS STATUTORY REQUIREMENTS MET BY

CAA 114(a)(2) SURREPTITIOUS AERIAL PHOTOGRAPHY

Yes No

(2) The Administrator. . . upon

presentation of his credentials - 7)

(A) shall have a right of ae to, upon, or

through any premises of such person ..., and UY

(B) may at reasonable times have

access to and copy any records,

inspect any monitoring equipment ..., and

sample any emissions which such

person is required to sample. . .

The physical impossibility of aerial photography to con-

form to the statutory prerequisites and purposes delineated

by Congress in Subsection 114(a) clearly establishes not

only that aerial photography is not expressly authorized,

but also that the language of the statute actually forecloses

the technique. Congress did not intend that the agency

use remote surveillance as a method of site inspection.

The Court of Appeals’ decision that the language of Sec-

tion 114 does not foreclose the use of aerial photography

as an on-site inspection technique is contrary to the plain

meaning of the statutory language. Consumer Product

Safety Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980). It is also contrary to what little legislative history

there is on the topic. In discussing EPA’s inspection

authority under Section 308 of the Clean Water Act [33

U.S.C. 1308], which is in pari materia with the inspection

authority under the Clean Air Act, Congress stated: “As

under the Clean Air Act, the Committee expects the au-

thority to enter will be used judiciously and upon any chal-

lenge to entry the Committee expects the Administrator to

obtain the necessary warrant.” S. Rep. No. 92-414, 92nd

Cong., 2nd Session, U.S. Code Cong. & Ad. News 3668,

3729. “Enter” and “challenge to entry” are subject to only

one interpretation: Congress intended that inspections be

conducted in a face-to-face, nonsurreptitious manner.

Congress has addressed the precise question at issue;

that is, the manner and purposes of a site inspection

under the Clean Air Act. Section 114(a)(2). Congress’ un-

ambiguously expressed intent must be given effect. Chev-

ron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

81 L.Ed.2d 694, 703 (1984). “If broader powers be desirable

they must be conferred by Congress. They cannot be

merely assumed by administrative officers; nor can they

be created by the courts in the proper exercise of their jud-

icial functions.” Federal Trade Commission v. Raladam Com-

pany, 283 U.S. 643, 649 (1931).

B. The Court Of Appeals Cites No Legal Authority

For Its Holding That The Language Of The Act

Does Not Foreclose Use Of Aerial Photography As

An Investigation Technique.

The District Court properly held that “Aerial surveil-

lance and photography is not authorized, either expressly

or impliedly, by Section 114 of the Clean Air Act” (Pet.

App. B-44). The Cour: of Appeals agreed that “the statute

does not expressly authorize enhanced aerial observation

...” (Pet. App. A-14). However, some misplaced analo-

gies were employed by the Court of Appeals to hold that

“. .. the language of Section 114 clearly does not foreclose

this technique” (Pet. App. A-14). Absolutely no legal

authority was cited in the Opinion to support the reversal.

The analogies proffered by the Court of Appeals are in-

appropriate both factually and legally. First cited are non-

site information-gathering techniques such as library

research, employee interviews (presumably off-site) and

off-site observations of the plant. These examples are not

supportive of the holding since they do not entail observ-

ing on-site, internal details of an industrial facility.

Next is a comparison with “other law enforcement offic-

ers who use aerial observation in their work” (Pet. App.

A-14)*. The vague, nonspecific assertion of the Court of

Appeals that other enforcement officers use aerial obser-

vation without presenting credentials in advance com-

pletely disregards the fact that in Section 114(a) Congress

has specifically required EPA to present credentials before

making an inspection, and to accomplish specific pur-

poses while inspecting.

Even if the EPA is denoted a law enforcement agency

rather than an administrative agency, law enforcement

* As stated above, mere aerial observation is not at issue; detailed,

enhanced and memorialized aerial surveillance is.

agencies are bound by the Constitution and statutes

which authorize and limit their activities. The govern-

ment’s assertion that all inspection techniques not specifi-

cally precluded by the Act are permissible runs afoul both

of the clear statutory language and purpose, and of exist-

ing law. There is a close analogy between intrusive audio

surveillance and intrusive optical surveillance. Both can be

conducted surreptitiously. Extra-judicial wiretapping by

government agents is illegal. Berger v. New York, 388 U.S.

41 (1967). See, Omnibus Crime Control And Safe Streets

Act, 18 U.S.C. § 2510 et seq. The EPA cannot employ wire-

taps even though Congress did not forbid use of the

technique in Section 114. The same is true of other consti-

tutionally offensive scrutiny, such as intrusive aerial

photography, which Congress did not specifically list as

forbidden.

Other administrative agencies, such as OSHA, have reg-

ulations that add definition to the agency’s statutory in-

spection authority. 29 C.F.R. § 1903 et seq. EPA has no

comparable regulations guiding the discretion of its in-

spectors as to which establishments to inspect or what

procedure to follow when entry is refused.*

The Court of Appeals’ analogy to military investigators

is especially inappropriate (Pet. App. A-14). Not only

does the military operate under a different system of jus-

tice, but it is expressly prohibited from aiding in civilian

law enforcement. 18 U.S.C. § 1385. Also, unlike the EPA,

the military generally keeps its files from public scrutiny.

* EPA does have an internal pelicy which states that “Barlow .

clearly establishes that the owner does have the right to ask for a

warrant under normal circumstances.” EPA MEMORANDUM ON

INSPECTION PROCEDURES, 41 Envir. Rptr. (BNA) 2451, 2452 (April

11, 1979); also at Dist. Ct. Dkt. 166.

C. The Decision Is Inconsistent With The Clean Air

Act’s Provision Protecting Trade Secrets And With

Existing Tort And Criminal Law.

The decision of the Court of Appeals annihilates the

protection for trade secrets offered by the Clean Air Act.

Section 114(c) [42 U.S.C. § 7414(c)] and 40 C.F.R. § 2.201

et seq. provide that an owner or operator may designate in-

formation as confidential business information when the

Agency acquires the sensitive information. The Agency’s

use of aerial photography abrogates any possible trade

secret protection since the person photographed has no

notice of the Agency’s acquisition of the photographs and

no opportunity to claim that the photographs contain con-

fidential business information.

The decision is also counter to the criminal law on theft

of trade secrets and the law of torts on misappropriation

of trade secrets. The Restatement of Torts § 757 (1939)

(Pet. App. C), is the basis of trade secret definition and

protection. As recognized by this Court, “The law also

protects the holder of a trade secret against any disclosure

or use when the knowledge is gained, not by the owner's

volition, but by some ‘improper means,’ Restatement of

Torts § 757(a), which may include theft, wiretapping, or

even aerial reconnaissance.” Kewanee Oil Company v.

Bicron Corporation, 416 U.S. 470, 475-476 (1974) (footnote

omitted).

DuPont v. Christopher, 431 F.2d 1012 (5th Cir. 1970), cert.

den. 400 U.S. 1024 (1971), cites the Restatement of Torts

§ 757 and discusses the tortious taking of trade secrets

from a plant under construction by means of aerial photo-

graphs. In that torts context, the Court discusses public

policy and a legal norm equally applicable here:

We should not require a person or corporation to

take unreasonable precautions to prevent another

from doing that which he ought not do in the first

place. Reasonable precautions against predatory

eyes we may require, but an impenetrable fortress

is an unreasonable requirement, and we are not

disposed to burden industrial inventors with such

a duty in order to protect the fruits of their efforts.

DuPont v. Christopher, supra at 1017.

The Uniform Trade Secrets Act (Pet. App. D), which

was approved by the National Conference of Commis-

sioners on Uniform State Laws in 1979, and which has

been adopted by at least seven (7) states, is an appropriate

index of society's values as reflected by the law. In part,

a trade secret under the Uniform Act (§ 1(4)) must not be

readily ascertainable by proper means, and subject to

efforts that are reasonable under the circumstances to

maintain its secrecy. The Dow trade secrets in its Midland

facility are subject to reasonable security to maintain their

secrecy and are not readily ascertainable by proper means.

If the Court of Appeals’ decision is allowed to stand, and

the government is allowed to capture trade secrets by im-

proper means, Dow’s ability to reasonably protect its

trade secrets will be placed in serious jeopardy.

Although Michigan has not yet adopted the Uniform

Trade Secrets Act, Michigan Compiled Laws (M.C.L.)

§ 752.772 (Pet. App. E), makes it a crime to steal a trade

secret. Photographs are explicitly recognized in M.C.L.

§ 752.771 (Pet. App. E), as one means of stealing trade

secrets. It is also illegal to invade one’s privacy by means

of surveillance in Michigan. M.C.L. § 750.539a and d (Pet.

App. E).

The intent of Congress and the statutory language are

both clear. EPA’s limited site inspection authority does not

include aerial photography. The Court of Appeals cites

neither legal authority nor compelling analogy in revers-

ing the District Court and holding that the Act does

not foreclose aerial photography as a site inspection

technique.

CONCLUSION

Dow does not dispute EPA‘s right, at reasonable times,

to enter Dow property to inspect Dow’s records or equip-

ment required to be kept or maintained under the Act, or

to sample emissions. In fact, in most instances Dow and

EPA have developed excellent working relationships.

Dow is not interested in hindering EPA‘ valid inspec-

tion or enforcement efforts. But those inspection and en-

forcement efforts must be conducted both within the

statutory authority granted by Congress and the Consti-

tutional strictures against unreasonable searches and

seizures. Intrusive, detailed aerial photography is not a

valid inspection method. The laudable objectives of the

Clean Air Act can be realized under procedures which pay

due regard to the Fourth Amendment. Valid constitu-

tional claims must be vindicated or the population as a

whole suffers.

In the historic dissent in Olmstead v. United States, 277

U.S. 438, 479 (1928), Justice Brandeis cautioned:

Experience should teach us to be most on our

guard to protect liberty when the Government's

purposes are beneficent. Men born to freedom are

naturally alert to repel invasion of their liberty by

evil-minded rulers. The greatest dangers to liberty

lurk in insidious encroachment by men of zeal,

well-meaning but without understanding.

As stated in a general discussion on privacy in the

context of Griswold v. Connecticut, 381 U.S. 479

(1965):

Protection of this private sector — protection, in

other words, of the dignity and integrity of the in-

dividual — has become increasingly important as

modern society has developed. All the forces of a

technological age — industrialization, urbaniza-

tion, and organization — operate to narrow the

area of privacy and facilitate intrusions into it. In

modern terms, the capacity to maintain and support

this enclave of private life marks the difference

between a democratic and a totalitarian society.

Emerson, NINE JUSTICES IN SEARCH OF A DOCTRINE, 64

Mich. L.R. 219, 229 (1965).

Privacy may generally be defined as the control we have

over knowledge or information about ourselves. Surrep-

titious data collection by the government of the details of

a person’s activities entails a complete lack of control over

the information and constitutes an invasion of privacy. To

be deprived of control over what we do and who we are

is the ultimate assault on liberty. Fried, PRIVACY, 77 Yale

L.J. 475, 482-485 (1968).

For the reasons stated above, the Opinion of the United

States Court of Appeals for the Sixth Circuit should be

reversed.

Respectfully submitted,

By: JANE M. GOOTEE, Esq.

Counsel of Record

JAMES H. HANES, Esq.

BERND W. SANDT, Esq.

The Dow Chemical Company

1111 Washington Street

Midland, Michigan 48674

(517) 636-2663

Dated: July 25, 1985 Counsel for Petitioner

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.