Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

MOTION FILED

FEB9 2000 am

(®

No. 99-1178

In the

Supreme Court of the United States

+

SOLID WASTE AGENCY OF NORTHERN

COOK COUNTY, Petitioner,

v.

UNITED STATES ARMY CORPS

OF ENGINEERS, et al., Respondents.

>

On Petition for Writ of Certiorari to the United States

Court of Appeals for the . -venth Circuit

~——-- —

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIA‘ OF PACTFIC

LEGAL FOUNDATION AND RANDY PETERSON IN

SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI

+

ANNE M. HAYES

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

Randy Peterson

i

QUESTION PRESENTED

Whether the United States Army Corps of ‘“ngineers,

consistent with the Clean Water Act and the Comm: rce Clause

of the United States Constitution, may assert jurisdiction over

isolated intrastate waters solely because those waters do or

potentially could serve as habitat of migratory birds.

— —~

l

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3, Pacific Legal

Foundation (PLF) and Randy Peterson respectfully submit this

brief amicus curiae in support of the Petition for Writ of

Certiorari.' Written consent for amici participation in this case

was granted by counsel of record for Petitioner and Respondent

United States Army Corps of Engineers. Consent was withheld

by Intervenor-Respondent City of Bartlett.

Pacific Legal Foundation is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Founded in 1973, PLF provides a voice in the

courts for mainstream Americans who believe in limited

government, private property rights, individual freedom, and

free enterprise. PLF litigates nationwide in state and federal

courts with the support of thousands of citizens from coast to

coast. PLF is headquartered in Sacramento, California, and has

offices in Miami, Florida; Honolulu, Hawaii; Bellevue,

Washington; and a liaison office in Anchorage, Alaska.

PLF has participated as amicus curiae in numerous cases

before this Court concerning the Commerce Clause, statutory

interpretation, administrative law, and other matters. For

example, PLF participated as amicus curiae in Alden v. Maine,

119 S. Ct. 2240 (1999); Printz v. United States, 521 U.S. 898

(1997); United States v. Lopez, 514 U.S. 549 (1995); and

Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981), and is appearing as

amicus curiae before the Court this term in several cases,

including Jones v. United States, cert. granted, 120 S. Ct. 494

(1999), Public Lands Council v. Babbitt, cert. granted,

‘ Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no

counsel for any party in this case authored this brief in whole or in part;

and, furthermore, that no person or entity has made a monetary

contribution specifically for the preparation or submission of this brief.

2

120 S. Ct. 320 (1999), Food and Drug Administration v.

Brown & Williamson Tobacco Corp., cert. granted, 119 S. Ct.

1495 (1999), and United States v. Morrison, consolidated with

Brzonkala v. Morrison, cert. granted, 120 S. Ct. 11 (1999).

PLF seeks to augment the arguments of Petitioners by

providing additional background on the regulatory scheme

under which the Respondent federal agency is operating. PLF

believes its public policy perspective and litigation expenence

dealing with the issues involved will provide a unique viewpoint

on the issues presented in this case. PLF believes this viewpoint

will aid this Court in evaluating the merits of the Petition.

Amicus Randy Peterson owns land in West Valley City,

Utah, a suburb of Salt Lake City. Although there is no surface

water evident on the land, the Army Corps of Engineers asserted

that the lands were “wetlands,” basing their determination upon

the saturation of soil below the surface for a period of 12% of

the growing season, which, in this Utah location, amounts to

roughly 2-3 weeks of the year. The Corps also asserted

jurisdiction based upon the migratory bird rule.

Accepting the Corps’ determination, Mr. Peterson was told

he could develop his suburban property through mitigation.

Consequently, he purchased a parcel of property close to the

Farmington Bay Wildlife Management area that contained high-

quality wetlands. Despite Mr. Peterson’s proposals, however,

the Corps has told him plainly not to submit a permit application

because it will not grant him a permit based on any mitigation

plant that includes this parcel. Instead, he has been told he must

provide mitigation within the suburban area that is already

largely under development by private landowners. When

Mr. Peterson pointed out that these other private landowners

were either developing without any Section 404 permits, or had

been able to obtain permits through mitigation off-site just as he

proposed, the supervising Corps employee responded that the

Corps could make up whatever rules it wanted.

3

Further, Mr. Peterson asked the Corps how it made its

jurisdictional determination, pointing out that any “wetlands” on

his property were isolated and, therefore, not subject to the

Corps’ jurisdiction under United States v. Wilson, 133 F.3d 251

(4th Cir. 1997). Rather than explain the basis of the Corps’

jurisdiction, the same Corps supervisor responded by daring him

to use his property to see what they would do to him.

Mr. Peterson is well aware of the Corps’ abusive and

extortionate tactics. He supports the Petition for Writ of

Certiorari in the hope that this Court will provide much-needed

clarification on the scope of the Corps’ jurisdiction under the

Clean Water Act. Mr. Peterson believes his experience, as

reflective of the experience of many landowners across the

nation, will provide this Court with a viewpoint not represented

by the parties to this litigation.

For the reasons stated above, Amici respectfully request

that this Court GRANT Amici’s motion fc" ieave to file this

brief.

DATED: February, 2000.

Respectfully submitted,

ANNE M. HAYES

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

Randy Peterson

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..............00.00c0000-

TABLE OF AUTHORITIES ..............0..000005. ii

INTEREST OF AMICI CURIAE .................05. 1

STATEMENT OF THE CASE ................00005- 1

SUMMARY OF ARGUMENT...................--. 2

ESSE a 4

1. THIS COURT SHOULD GRANT THE

PE! fTION TO RESOLVE A CONFLICT IN

THE CIRCUITS OVER THE REACH OF

THE CORPS’ JURISDICTION UNDER THE

CE COED ccecrebcteteocosecccess a

fl. THIS COURT SHOULD GRANT THE

PETITION TO RECTIFY INTOLERABLE

INCONSISTENCIES AND INJUSTICE IN

THE CORPS’ APPLICATION OF THE

CR HEUER AEED cecuscescesescccecccees 9

A. This Court Should Resolve This Issue Now

Because the Corps’ Regulatory Practices

Are Calculated to Preclude the Ability of

Litigants to Challenge This Oppressive Rule .... 9

B. This Court Should Prevent the Corps from

Engaging in Additional Pernicious

Manipulation of Regulatory and Judicial

Processes, by Which It Intentionally Evades

Judicial Review of Erroneous Assertions of

CED a¢0660350060Gs5d006 - 40088403 14

GPT 0 66 Fd ccccccccocesesecoesoococeees 19

TABLE OF AUTHORITIES

Page

Cases

Hoffman Homes, Inc. v. Administrator, United

States Environm tal Protection Agency,

jl} we Fe 8 | Pe rrrrrrrrr rr rry 9

Laguna Gatuna, Inc. v. Browner, 58 F.3d 564

es cccecneeeicedesdabedvercdes 9-10

Leslie Salt Co. v. United States, 55 F.3d 1388

(9th Cir.), cert. denied sub nom. Cargill, Inc. v.

United States, 516 U.S. 955 (1995) ... 0.0... cece eee 9

Leslie Salt Co. v. United States, 896 F.2d 354

i is sh scenes edeteens eb ecccceseees 4

Moore v. United States, 943 F. Supp. 603

RR CRT TT Tree 11-13

National Association of Home Builders v. Carroll,

ee EN SEP Wiss tocausescceceseccccces 17

National Mining Association v. United States

Army Corps of Engineers, 145 F.3d 1399

eS CETTE TTT TTT TTTTTTTTTTTe 18

North Carolina Wildlife Federation v. Tulloch,

Civ. No. C90-713-CIV-5-BO (E.D. N.C. 1992) ...... 18

Panama Refining Co. v. Ryan,

eee nant cestednnedeccesoues 19

Rueth v. United States Environmental Protection

Agency, 13 F.3d 227 (7th Cir. 1993)...........005. 10

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

998 F. Supp. 946 (N.D. Ill. 1998) ................ 2,7

TABLE OF AUTHORITIES—Continued

Page

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

191 F.3d 845 (7th Cir. 1999) ............ 1, 2, 4-5, 7-9

Southern Ohio Coal Co. v. Office of Surface

Mining, Reclamation and Enforcement,

Department of Interior, 20 F.3d 1418

(6th Cir.), cert. denied, 513 U.S. 927 (1994) ......... i)

Southern Pines Associates v. United States,

ee PU GED oc ccccccnssccesevcers i)

Tabb Lakes, Lid. v. United States,

715 F. Supp. 726 (E.D. Va. 1988), aff'd

per curiam, 885 F.2d 866 (4th Cir. 1989)............ 8

United States v. Lopez, 514 U.S. 549 (1995) ............ 4

United States v. Wilson, 133 F.3d 251

ES ED ond od 5cebd ene sbbedeeeessss 2, 5-7, 15

Village of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962 (7th Cir. 1994) ............200.. 4

Statutes

DPE! oécecdsseeesuetioseescscens 2, 5, 18

PE pkhebdebdendeesebuness-cdesseesonseses 5

DED . 5 ¢b0eetseseeedessbesceeseveceesésce 2

Federal Regulations

BO Ce B TEMP CROOOD oc ccccccccvcccccess 14, 15

Pci ob Gedsvesecesvaworsceséouveserees 5

DT sceecsndenessncassetessenesd 5, 15-16

DE sé cectedouesewseneseesensieséeee 14

eee eee...

iV

TABLE OF AUTHORITIES—C oatinued

51 Fed. Reg. 41,210 (1986) ..........0.ceeeeees

. Le | >} * ee

Miscellaneous

Builders Lose Round One in Fight Over Wilson

Guidance, Endangered Species & Wetlands

Report, Vol. 4, No. 12 (Sept. 1999) ...........

Guidance for Corps and EPA Field Offices

Regarding Clean Water Act Section 404

Jurisdiction Over Isolated Waters in Light of

United States v. James J. Wilson

Ss SUE hud dcuessucedsdscesveseses

Lawrence R. Liebesman, Tulloch and Its

Aftermath: Are the Limits of 404 Regulation

Any Clearer?, EPA Administrative Law

Reporter, Vol. 14, No. 5 (Nov. 1999) ..........

]

INTEREST OF AMICI CURIAE

The interest of Amici Curiae Pacific Legal Foundation and

Randy Peterson is set forth in the preceding motion.

STATEMENT OF THE CASE

The Petitioner, Solid Waste Agency of Northern Cook

County (SWANCC), is a municipal corporation made up of

23 municipalities in Northern Cook County, Ilinois. Solid

Waste Agency of Northern Cook County v. United States Army

Corps of Engineers, 191 F.3d 845, 847 (7th Cir. 1999)

(SWANCC). SWANCC was created to address, in a

comprehensive way, the need for a safe and cost-effective means

of disposing of non-hazardous waste. /d.

To this end, SWANCC purchased a 533-acre parcel

intended to be utilized as a balefill site. /d. at 847-48. The

parcel had an assortment of trenches and depressions on it,

reflecting the land’s prior use as a strip mine. /d. at 848. Some

of these tremches and swales were seasonally or permanently

wet. /d. On two separate occasions, SWANCC asked the

Army Corps of Engineers whether it would need a permit under

Section 404 of the Clean Water Act (Act) to carry out its

project. /d. Both times, after on-site inspections, the Corps

concluded that the site did not fall within its regulatory

jurisdiction. /d.

Thereafter, however, an Illinois state agency informed the

Corps that migratory birds used the site. Jd. As expressed by

the court below, “[t]his new information made all the difference

to the Corps, because of the so-called migratory bird rule.” /d.

Pursuant to this rule, the Corps asserted jurisdiction. Under the

agency’s reckoning, migratory bird use satisfies the

constitutional requirement that the federal government may only

reach activities substantially affecting interstate commerce

because people spend millions of dollars every year hunting and

observing migratory birds. /d. at 849.

2

Based on the Corps’ assertion of jurisdiction, SWANCC

applied for a Section 404 permit. /d. The Corps denied it. A

revised permit application was also denied. /d. Subsequently,

SWANCC filed this action challenging the Corps’ jurisdiction.

SWANCC contends that migratory bird use is insufficient to

establish federal commerce jurisdiction over isolated waters.

The district court ruled in favor of the Corps. Solid Waste

Agency of Northern Cook County v. United States Army Corps

of Engineers, 998 F. Supp. 946, 951-52 (N.D. Ill. 1998) (Solid

Waste). The Seventh Circuit Court of Appeals affirmed.

SWANCC, 191 F.3d at 847. SWANCC petitions this Court for

a writ of certiorari to determine whether the Corps’ assertions

of jurisdiction comports with the Clean Water Act and the

Commerce Clause.

SUMMARY OF ARGUMENT

The migratory bird rule, by which the Corps has expanded

its jurisdiction to reach isolated waters having no surface or

hydrological connection to any navigable or interstate body of

water solely upon the basis that migratory birds use such waters,

is a gross distortion of the Clean Water Act. When Congress

drafted the Act to allow the Corps to protect “navigable

waters,” 33 U.S.C. § 1344, it could not have intended the Corps

to corrupt the law’s statutory definition, “waters of the United ~

States,” 33 U.S.C. § 1362(7), to mean every conceivable

puddle, birdbath, or sinkhole that a passing duck might wish to

call “home.” Yet, this is precisely how the Corps has

interpreted the term, with the sanction of the court below.

SWANCC, 191 F.3d at 850. The decision below conflicts with

the decision of another circuit, which held that the Clean Water

Act reaches only waters closely connected to navigable or

interstate waters. United States v. Wilson, 133 F.3d 251, 257

(4th Cir. 1997). This Court should grant the Petition for Writ

of Certiorari to resolve this conflict in the circuits.

3

The need for this Court to address the reach of the Corps’

jurisdiction under the Clean Water Act is difficult to overstate.

The Corps has engaged in a concerted and aggressive effort to

expand its jurisdiction through the promulgation of informal

“rules” with dubious or nonexistent bases in the Clean Water

Act’s statutory delegation, while at the same time creating and

manipulating administrative and regulatory roadblocks to

prevent the regulated community from being able to challenge

these erroneous assertions of jurisdiction. In particular, the

Corps engages in a pattern and practice of flatly asserting

jurisdiction over land use activities by issuing cease and desist

orders to landowners, thereby forcing them to face the Hobson’s

choice of risking criminal or civil penalties, or submitting to the

regulatory permitting process. Once in the process, the Corps

Strings permit applicants along until they either give the Corps

whatever mitigation the Corps demands, or give up from

economic hardship. It is rarely the case, as happened here, that

the Corps issues a permit denial, allowing a landowner to seek

redress in the courts. This Court should grasp this opportunity

to address an important question of statutory and constitutional

interpretation that affects landowners across the nation.

Finally, the notion that migratory bird use animates the

interstate commerce power is so flatly absurd, and so clearly

beyond any commerce justification ever upheld—or rejected—by

this Court, that it should not be further countenanced. This_

Court should grant the Petition for Writ of Certiorari to

affirmatively rebuff the migratory bird rule.

ARGUMENT

I

THIS COURT SHOULD GRANT THE PETITION TO

RESOLVE A CONFLICT IN THE CIRCUITS OVER

THE REACH OF THE CORPS’ JURISDICTION

UNDER THE CLEAN WATER ACT

It was said of the late Justice Story, that if a bucket

of water were brought into his court with a corn cob

floating in it, he would at once extend the admiralty

jurisdiction of the United States over it.

Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d

962, 965 (7th Cir. 1994) (citing Note, 37 Am. L. Rev. 911, 916

(1903)). Likewise, if the Corps happens upon a puddle with a

duck floating in it, the agency at once extends the commerce

authority of the United States over it. This case deals with the

constitutional and statutory validity of this proposition, known

as the “migratory bird rule.”

The migratory bird rule was developed by the Corps’ to

justify regulating isolated waters under the Clean Water Act.

Because courts have held that the reach of the Act extends as far

as the commerce power allows, SWANCC, 191 F.3d at 851, the

Corps developed the rule to bring even more properties within

its regulatory jurisdiction. The theory goes: people hunt and

observe migratory birds; people may travel interstate, or

purchase hunting and bird-watching equipment that may have

moved in interstate commerce, to engage in these activities;

therefove, filling a water body used by migratory birds

“substantially affects” interstate commerce consistent with

United States v. Lopez, 514 U.S. 549, 559 (1995).

The court below held that migratory bird use satisfies the

constitutional commerce requirement. SWANCC, 191 F.3d

at 850. It further held that the migratory bird rule was

5

consistent with the Clean Water Act. /d. at 852. This latter

decision—that the rule is consistent with the Act—conflicts with

the decision of another circuit, United States v. Wilson,

133 F.3d 251 (4th Cir. 1997), which held that the Act extended

only “to waters which, if not navigable in fact, are at least

interstate or closely related to navigable or interstate waters.”

Id. at 257.

The Act requires individuals to obtain a permit from the

Corps “for the discharge of dredged or fill material into the

navigable waters.” 33 U.S.C. § 1344. By statute, “[t]he term

‘navigable waters’ means the waters of the United States,

including the territorial seas.” 33 U.S.C. § 1362. The Corps

has further defined “waters of the United States” by regulation.

33 C.F.R. § 328.3(a) (1999) (emphasis omitted). This case, like

Wilson, deals with one provision of that regulation, Subsection

(a3), by which the Corps asserts jurisdiction over

[a}ll other waters such as intrastate lakes, rivers, streams

(including intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation or

destruction of which could affect interstate or foreign

commerce.

33 C.F.R. § 328.3(aX3) (1999). The Fourth Circuit struck

down this regulation as beyond the Corps’ statutory authority.

Wilson, 133 F.3d at 257.

In Wilson, areal estate developer named James Wilson was

convicted of violating the Clean Water Act for “knowingly

discharging fill and excavated material into wetlands of the

United States without a permit.” /d. at 253. He challenged his

conviction by challenging the validity of the Corps’ jurisdictional

regulation, 33 C.F.R. § 328.3(a\3), as beyond the Corps’

authority under the Commerce Clause. Wilson, 133 F.3d

at 253. The Fourth Circuit, without ruling on the constitutional

question, held the regulation invalid because it purported to

6

grant the Corps jurisdiction beyond its statutory grant of

aut! ority. /d. at 257. The court’s analysis left no doubt that the

Corps’ assertion of jurisdiction in cases-such as the one here are

imperm’ssible:

This regulation purports to extend the coverage of the

Clean Water Act to a variety of waters that are

intrastate, nonnavigable, or both, solely on the basis that

the use, degradation, or destruction of such waters

could affect interstate commerce. The regulation

requires neither that the regulated activity have a

substantial effect on interstate commerce, nor that the

covered waters have any sort of nexus with navigable, or

even interstate, waters. ... Absent a clear indication to

the contrary, we should not lightly presume that merely

by defining “navigable waters” as “the waters of the

United States,” 33 U.S.C. § 1362(7), Congress

authorized the Army Corps of Engineers to assert its

jurisdiction in such a sweeping and constitutionally

troubling manner. Even as a matter of statutory

construction, one would expect that the phrase “waters

of the United States” when used to define the phrase

“navigable waters” refers to waters which, if not

navigable in fact, are at least interstate or closely related

to navigable or interstate waters. When viewed in light

of its statutory authority, 33 C.F.R. § 328.3(a\3)

(1993), which defines “waters of the United States” to

include intrastate waters that need have nothing to do

with navigable or interstate waters, expands the

Statutory phrase “waters of the United States” beyond

its definitional limit.

Accordingly, we believe that in promulgating

33 C.F.R. § 328.3(aX(3) (1993), the Army Corps of

Engineers exceeded its congressional authorization

under the Clean Water Act, and that, for this reason,

33 C.F.R. § 328.3(a)(3) (1993) is invalid.

7

Id. Thus, unless waters are either navigable in fact or closely

tied to navigable or interstate waters, the Corps may not reach

them in the Fourth Circuit. Jd. Here, the Corps did not even

attempt to show that the wet depressions on SWANCC’s land

were connected to interstate or navigable waters. Indeed, the

Corps specifically found that the ponds did not constitute

wetlands, lakes, or any other waters defined by the Corps’ other

jurisdictional regulations. Solid Waste, 998 F. Supp. at 949.

The court below, however, held that the Clean Water Act

does not confine itself to navigable or interstate waters. In fact,

the court found the character of the water to be irrelevant.

Though the Act delegates authority to the Corps to regulate

“navigable waters” or “waters of the United States,” the

Seventh Circuit found that, in reality, it gives the Corps

authority to regulate bird habitat:

The United States is home to somewhere between 2.5

and 6 billion birds, two-thirds of which migrate.

Virtually any body of water could serve as a temporary

habitat for at least some of these birds. However, any

suggestion that next the Corps will be trying to regulate

the filling of every puddle that forms after a rainstorm,

at least if a bird is seen splashing in it, misses the point.

A “habitat” is not simply a place where a bird might

alight for a few minutes, as SWANCC suggests, but

rather “the place where a plant or animal species

naturally lives or grows.” Before the Corps may assert

jurisdiction under the migratory bird rule, it must first

make a factual determination that a particular body of

water provides a habitat for migratory birds.

SWANCC, 191 F.3d at 850 (citation omitted). One can only

wonder how the court divined this intent from the terms

“navigable waters” and “waters of the United States” in the bare

text of the Clean Water Act.

8

Ironically, the Seventh Circuit impliedly recognized the

conflict between its holding and the decision in Wilson by

purporting to find Wilson inapposite:

Moreover, we note that SWANCC has not attacked

33 C.F.R. § 328(a(3) here. Instead, it has limited its

objections to the propriety of the migratory bird rule as

an interpretation of 33 C.F.R. § 328(a\3).

Id. at 852. In other words, the Seventh Circuit concluded that

its upholding of the migratory bird rule, concededly an

interpretation of the regulation struck down in Wilson,

nevertheless does not conflict with Wilson’s holding that the

regulation itself is unlawful. This is untenable. The Fourth

Circuit held the Corps’ regulation invalid precisely because ail

the waters reached by the regulation, being neither navigable nor

interstate, were outside the scope of the Act.’

Accordingly, because the decisions of the Fourth Circuit and

the Seventh Circuit directly conflict over the scope of the Corps’

jurisdiction under the Clean Water Act, this Court should grant

the Petition for Writ of Certiorari.

* Moreover, the Fourth Circuit has already held the migratory bird rule

invalid, on the basis that the Corps and EPA violated the Administrative

Procedures Act in promulgating it. Tabb Lakes, Lid. v. United States,

715 F. Supp. 726 (E.D. Va. 1988), aff'd per curiam, 885 F.2d 866 (4th

Cir. 1989). Thus, though the APA issue was not preserved in this

petition, the conflict between these circuits is even more stark because

the Corps is already collaterally estopped from enforcing the rule in the

Fourth Circuit. See Fourth Circuit Rule 36.6.

9

THIS COURT SHOULD GRANT THE PETITION TO

RECTIFY INTOLERABLE INCONSISTENCIES AND

INJUSTICE IN THE CORPS’ APPLICATION OF

THE CLEAN WATER ACT

A. This Court Should Resolve This Issue Now Because

the Corps’ Regulatory Practices Are Calculated to

Preciude the Ability of Litigants to Challenge This

Oppressive Rule

The validity of the migratory bird rule has not arisen

frequently in litigation and has been upheld in the Seventh and

Ninth Circuits. SWANCC, supra, Hoffman Homes, Inc. v.

Administrator, United States Environmental Protection Agency,

999 F.2d 256 (7th Cir. 1993); Leslie Salt Co. v. United States,

896 F.2d 354 (9th Cir. 1990); Leslie Salt Co. v. United States,

55 F.3d 1388 (9th Cir.), cert. denied sub nom. Cargill, Inc. v.

United States, 516 U.S. 955 (1995). But the dearth of cases is

not indicative of the true impact this rule has on the regulated

community.

The infrequency of litigation on this issue is due primarily to

the procedural difficulties of ripening a case. A mere assertion

of jurisdiction does not constitute agency action subject to

judicial review. See Laguna Gatuna, Inc. v. Browner, 58 F.3d

564 (10th Cir. 1995); Southern Ohio Coal Co. v. Office of

Surface Mining, Reclamation and Enforcement, Department of

Interior, 20 F.3d 1418 (6th Cir.), cert. denied, 513 U.S. 927

(1994); Rueth v. United States Environmental Protection

Agency, 13 F.3d 227 (7th Cir. 1993); and Southern Pines

Associates v. United States, 912 F.2d 713 (4th Cir. 1990). As

demonstrated below, as a practical matter, this means that once

the Corps asserts jurisdiction, the Corps in fact has jurisdiction

and the property owner is left without an effective judicial

recourse.

10

For example, in Laguna Gatuna, the “migratory bird rule”

was enforced against a company whose sole business was

disposing of industrial wastewater. Laguna Gatuna, 58 F.3d

at 565. Laguna Gatuna’s predecessor had asked EPA* in 1987

whether the sinkhole into which it dumped the wastewater was

subject to the Act. /d. EPA responded that “the sinkhole was

‘not hydrologically connected’ to other waters and there were

‘no recreational, industrial, or other uses that could affect

interstate commerce.’” /d. But in 1991, EPA discovered dead

migratory birds near the sinkhole. /d. Consequently, EPA

ordered Laguna Gatuna to cease and desist its operations. /d.

Laguna Gatuna filed a declaratory relief action challenging

EPA’s jurisdiction. /d. Following the decisions of its sister

circuits, the Tenth Circuit held that the issuance of a compliance

order did not constitute final agency action subject to judicial

review. /d. at 566. Notably, the court stated:

Laguna's policy argument that it should not be

necessary to violate an EPA order and risk civil and

criminal penalties to obtain judicial review is well

taken. Nevertheless, following the reasoning of our

sister Circuits, we reject Laguna’s conclusion such a

Situation is “constitutionally intolerable.”

Id. (emphasis added). Thus, whether or not EPA’s assertion of

jurisdiction over Laguna Gatuna’s sinkhole was lawful, Laguna

Gatuna was shut down.

As Laguna Gatuna shows, once the Corps asserts

jurisdiction through an order, the only way to ripen a case is to

ignore the order and risk an enforcement action, or submit to the

permitting process. Under the latter course, if a permit is

* Both the Corps and the EPA implement the Clean Water Act. Rules

and guidelines are promulgated by either, or both, agencies.

Consequently, reference to EPA regulation under the Act is attributable

to the Corps.

11

granted, the individual can comply with the permit’s conditions,

or spend additional resources challenging the Corps’

jurisdiction. Of course, a permit denial also constitutes final

agency action subject to judicial review. But the apparent

simplicity of ripening a case through receiving a permit denial is

illusory because the Corps has a remarkable talent for avoiding

final agency action, virtually ensuring that a regulated party will

never have the opportunity to see the inside of a courtroom.

To illustrate, in Moore v. United States, 943 F. Supp. 603

(E.D. Va. 1996), taxpayers sought a refund of taxes, claiming a

loss on the involuntary conversion of some investment property

(“the Boy Scout Tract”) because it was reclassified as wetlands.“

Id. at 607. The Moores argued that the denial of a permit

should not be a prerequisite to their claim, because seeking a

permit would have been futile. Supporting this argument was an

environmental consultant named Bernard Goode, who had

worked for the Corps for 34 years. /d. at 611.

When asked for his opinion concerning the

likelihood that a § 404 permit would be issued for the

Boy Scout Tract, Goode testified: “It is my opinion that

there was a very low likelihood that this project would

have been approved.” When asked about the likelihood

* As the court in Moore explains,

[early in 1989, the Governmeni, acting through the Corps and

the Environmental Protection Agency . . . adopted the 1989

Wetlands Manual .... The 1989 Manual superseded and

significantly changed the 1987 Manual’s criteria for identifying

protected wetlands. One study indicates that the 1989 Manual

had the effect of increasing the amount of protected wetlands in

the Tidewater region in Southeastern Virginia by 36,000 acres.

Moore, 943 F. Supp. at 605 (citations omitted). This, by itself, gives

some indication of the arbitrariness of the Corps’ jurisdictional

determinations.

12

that a § 404 permit for the Boy Scout Tract would have

been formally denied, Goode testified:

“lt has been my experience in studying this very

issue nationwide that there was a very low likelihood

that the Corps would have denied the application.

Because the Corps can’t reach that point until they have

gone through the full analysis, which includes the

mitigation sequencing.

“And it is a much more likely outcome that more and

more information is requested ‘itil eventually the

applicant loses staying power and either withdraws the

application himself, or the Corps says because of the

lack of information to continue the valuation, the Corps

withdraws the application.

“And that is the outcome of well over half of the 404

“Here in the Norfolk district | looked at some

Statistics and there is [sic] over 3/4 of the cases end up

being withdrawn for section 404 permit applications.

Only one percent end up being denied.”

Goode’s testimony on this latter point was

corroborated by the Moores’ other two expert

witnesses. Robert Kerr, an environmental consultant

with experience in over sixty § 404 permit applications,

testified:

“We advised the [Moores] that there was no chance

of getting a permit.

“We also told Mr. Moore [the Corps] would never

reject the permit.

“Because rejecting a permit could set a precedent

also. And as the government’s attorney stated, you have

to have a permit denial to go for a taking.

13

“Well, the Corps knows that and will not issue a

denial, an open denial. They will just request

additional information, and more _ additional

information, and the more you give them the more they

ask for .... They basically bleed a client to death

financially until you have spent so much money on the

alternatives analysis you've drained the profitability out

of the project.”

Doug Davis, an environmental consultant who at

one time worked in the Corps’ wetlands program,

testified that the likelihood of a permit being issued for

the Boy Scout Tract was “as close to zero as it can get,”

and that a permit would not have been finally denied

because projects like that contemplated for the Boy

Scout Tract “just sort of wither on the vine and no final

agency action is taken.” In addition, both Kerr and

Davis testified that completing the § 404 permit process

in this case would have been a very lengthy and

expensive proposition, costing hundreds of thousands of

dollars.

Moore, 943 F. Supp. at 612 (citations omitted) (emphases

added). This testimony—from three individuals intimately

familiar with the Corps’ permitting process—reveals the general

pattern and practice of the Corps of rarely rendering a final

decision. And, of course, if a landowner is unable to obtain final

agency action, judicial review of any of the Corps’ decisions is

precluded, including issues relating to jurisdiction.

Thus, the infrequency of litigation on the migratory bird rule

is not due to the infrequency of its application; rather, it is due

to the infrequency of anyone having the wherewithal, stamina,

and forbearance to navigate and survive the costly, time-

consuming, and callous procedural quagmire created by the

Corps to arrive at the courtroom door.

14

This makes SWANCC’s petition extremely significant.

SWANCC is in the unusual position of having had the issue of

the validity of the migratory bird rule ripened through the denial

of its Section 404 permit, and it is able to bring this matter to

this Court’s attention in clear and star’: terms. What is more,

the likelihood of future cases reaching litigation has been

rendered even more unlikely because of the Corps’ new

adjudicative process, see 33 C.F.R. §§ 331, et seg., by which

permit applicants must exhaust any administrative appeals “prior

to filing a lawsuit in the Federal courts based on a permit

denial.” 33 C.F.R. § 320.1(a)(2).

In short, as a practical matter, judicial review is beyond the

grasp of the regulated community. As a result, the Corps is free

to regulate as it pleases, assured that, with its endless supply of

resources, it will win its war of attrition. The validity of the

migratory bird sule will arise rarely in litigation regardless of

how often it is applied precisely because the Corps controls the

conditions under which litigation may be instituted. This Court

should not forego this opportunity to review this important

question.

B. This Court Should Prevent the Corps from Engaging

in Additional Pernicious Manipulation of Regulatory

and Judicial Processes, by Which It Intentionally

Evades Judicial Review of Erroneous Assertions of

Jurisdiction

As illustrated above, the Corps well understands the

difficulty landowners face in obtaining judicial review of its

decisions, and uses any available legal doctrines and procedural

mechanisms to limit opportunities for litigants to challenge its

conduct. The Corps’ manipulation of these processes should

not be complacently accepted where it insulates the agency from

having to answer for its unlawful conduct, or precludes the

ability of impacted individuals to obtain judicial resolution of

patently legitimate legal questions. This Court should not

countenance the utilization of even perfectly legal obstructionist

15

strategies where they are employed with the aim of allowing the

Corps to willfully engage in unlawful behavior.

To illustrate, in the case recounted above, United States v.

Wilson, the Fourth Circuit held that one of the Corps’

jurisdictional regulations, 33 C.F.R. § 328.3(a)(3), was invalid.

However, the Corps did not seek review from this Court.

Instead, the Corps chose to let the ruling stand and enforce its

regulation in the states of every other circuit. Whiie the federal

government is not obligated to resolve inconsistencies among

the circuits, the Corps’ failure to do so in cases such as this

inevitably leads to glaring inconsistencies in federal law.

But the Corps took additional measures to muddle the

Wilson decision. In May of 1998, EPA and the Corps issued a

document, Guidance for Corps and EPA Field Offices

Regarding Clean Water Act Section 404 Jurisdiction Over

Isolated Waters in Light of United States v. James J. Wilson

(May 29, 1998) (Wilson Guidance). In it, the Corps purports to

spell out its jurisdiction in the Fourth Circuit. The document is

awash in mendacity. In Wilson, the Fourth Circuit specifically

stated:

When viewed in light of its statutory authority,

33 C.F.R. § 328.3(aX3) (1993), which defines “waters

of the United States” to include intrastate waters that

need have nothing to do with navigable or interstate

waters, expands the statutory phrase “waters of the

United States” beyond its definitional limit.

Wilson, 133 F.3d at 257. Notwithstanding this holding, the

Corps recalcitrantly maintains in its guidance that

within the Fourth Circuit states, both the Corps and

EPA will continue to assert CWA jurisdiction over any

and all isolated water bodies, including isolated

wetlands.

Wilson Guidance at 1 (emphasis added).

16

Further, the regulation invalidated in Wilson purported to

give the Corps authority to regulate any waters:

(i) Which are or could be used by interstate or

foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken

and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial

purpose by industries in interstate commerce.

33 C.F.R. § 328.3(aX3). Nonetheless, the Corps boldly

pronounces that, in the Fourth Circuit, it will continue to assert

jurisdiction over intrastate isolated bodies of water for which

connections to interstate commerce include:

[U]}se for recreation by interstate or foreign travelers;

use for taking fish or shellfish sold in interstate or

foreign commerce; use by industries operating in

interstate or foreign commerce; use by migratory

waterfowl, other game birds, or other migratory birds

that are sought by hunters, birdwatchers, or

photographers, or are protected by international treaty.

Wilson Guidance at 6. In other words, the guidance informally

reenacts the invalid regulation. However, the Corps generously

offers that, “in the Fourth Circuit, neither the Corps nor the

EPA will cite or rely upon 33 C.F.R. § 328.3(a)(3) as the basis

for asserting CWA jurisdiction over any area.” /d. at 2-3. Thus,

landowners in these states are subject to the same regulatory

abuse they were subjected to before, but the Corps will now

accord them the dubious distinction of not actually citing

33 C.F.R. § 328.3(a)(3) as the basis for its jurisdiction.

Similarly, the Corps conveniently excuses itself from

complying with the Tabb Lakes decision in its guidance:

[T]he decision did not prohibit the use of migratory

birds to establish a connection to interstate commerce

17

under the Clean Water Act. Consequently,

notwithstanding the Fourth Circuit’s decision in Tabb

Lakes, Corps and EPA field offices should continue to

assert CWA jurisdiction over all isolated, intrastate

water bodies that serve as habitat for migratory birds.

_ Wilson Guidance at 6 n.3. In light of the Corps’ demonstrated

agility at avoiding any consequences of its litigation losses, one

begins to wonder what the federal courts are for.

Understandably, the Wilson Guidance so incensed the

regulated community that parties at once filed suit challenging

it. National Association of Home Builders v. Carroll,

No. 99-11 (E.D. Va.). The result? A magistrate judge has

recommended that the suit be dismissed—on ripeness grounds.

See Builders Lose Round One in Fight Over Wilson Guidance,

Endangered Species & Wetlands Report, Vol. 4, No. 12 (Sept.

1999), at 9.

Repeatedly, the Corps has demonstrated its utter disregard

for the constraints placed upon its authority by law. Indeed its

maneuvering with respect to its Section 404 jurisdiction is epic.

For instance, for years, the Corps took the position that it had

no jurisdiction over dredging operations:

Section 404 clearly directs the Corps to regulate the

discharge of dredged material, not the dredging itself.

Dredging operations cannot be performed without some

fallback. However, if we were to define this fallback as

a “discharge of dredged material,” we would, in effect,

be adding the regulation of dredging to section 404

which we do not believe was the intent of Congress. We

have consistently provided guidance to our field offices

since 1977 that incidental fallback is not an activity

regulated under section 404.

51 Fed. Reg. 41,210 (1986) (emphasis added). But the Corps

changed its position with a self-serving lawsuit settlement.

18

Thus, following North Carolina Wildlife Federation v. Tulloch,

Civ. No. C90-713-CIV-5-BO (E.D. N.C. 1992), the so-called

“Tulloch rule” emerged, by which the Corps proceeded to

regulate “incidental fallback” from dredging operations as if the

fallback constituted “the discharge of dredged or fill material

into the navigable waters.” 33 U.S.C. § 1344.

The Corps enforced the Tulloch rule until the District of

Columbia Circuit Court of Appeals threw it out as ultra vires,

finding,

indeed its overriding purpose appears to be to expand

the Corps’s permitting authority to encompass incidental

fallback and, as a result, a wide range of activities that

cannot remotely be said to “add” anything to the waters

of the United States.

National Mining Association v. United States Army Corps of

Engineers, 145 F.3d 1399, 1405 (D.C. Cir. 1998). Predictably,

the Corps attempted to limit the import of the decision by

arguing that the nationwide injunction should be limited to the

reach of the Circuit Court—that is, the District of Columbia,

alone. /d. at 1409. The court declined the invitation. /d.

True to form, the Corps issued post-National Mining

“guidance” for its field offices in 1999. Again, the guidance

minimized the Circuit Court’s ruling, prompting the National

Association of Home Builders to file a motion to compel the

agency to comply with the court’s injunction. See generally

Lawrence R. Liebesman, Tulloch and Its Aftermath: Are the

Limits of 404 Regulation Any Clearer?, EPA Administrative

Law Reporter, Vol. 14, No. 5 (Nov. 1999), at 615.

Whatever the legal ramifications of the Corps actions, the

practical ramifications are manifestly unjust. Through semantic

gamesmanship, the Corps slickly skirts the consequerces of any

adverse court decisions. Without a definitive ruling from this

Court on the reach of the Clean Water Act, the Corps will

19

continue to oppress landowners through unlawful assertions of

jurisdiction. So long as there is no fixed stopping point, the

Corps appears committed to its inexorable quest for even

greater regulatory control. This Court should grant the Petition

for Writ of Certiorari to halt these ambitions.

CONCLUSION

However broadly one might construe the term “waters of the

United States” in isolation, the Corps is not free to regulate

waters in some manner untethered to the purpose and scope of

the Clean Water Act. Through the migratory bird rule, the

Corps has expanded its role beyond that of protecting the

nation’s waters, to that of protecting the nation’s feathered

visitors. This is not the Corps’ delegated function. As Justice

Cardozo fittingly framed the issue: “Discretion is not

unconfined and vagrant. It is canalized within banks that keep

it from overflowing.” Panama Refining Co. v. Ryan, 293 U.S.

388, 440 (1935) (Cardozo, J., dissenting). The migratory bird

rule ruptures the banks of the Clean Water Act.

For the foregoing reasons, Amici respectfully request that

this Court grant the Petition for Writ of Certiorari.

DATED: February, 2000.

Respectfully submitted,

ANNE M. HAYES

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

Randy Peterson