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

Supreme Court, U.S.

FILED

© MAR 1 3 OO

No. 99-1178 CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

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 Seventh Circuit

BRIEF OF AMICUS CURIAE

CARGILL, INCORPORATED

IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

EDGAR B. WASHBURN

Counsel of Record

CHRISTOPHER J. CARR

WASHBURN, BRISCOE & MCCARTHY

55 Francisco Street, Suite 600

San Francisco, California 94133

(415) 421-3200

Attorneys for Amicus Curiae

Cargill, Incorporated

2\ePr

QUESTION PRESENTED

Whether the United States Army Corps of Engineers,

consistent with the Clean Water Act and the Commerce

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.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3, Cargill,

Incorporated (“Cargill”) respectfully submits this brief amicus

curiae in support of the Petition for Writ of Certiorari.'

Written consent for amicus participation in this case was

granted by counsel of record for Petitioner and Respondent

U.S. Army Corps of Engineers (“Corps”). Consent was

withheld by Intervenor-Respondent City of Bartlett.

Cargill, besides its holdings in other states, is the successor

of Leslie Salt Co. and, as such, is the largest private landowner

in the San Francisco Bay Area, owning some 17,000 acres and

holding a perpetual right for salt-making and related uses over

an additional 12,000 acres. On much of the acreage, Cargill is

engaged in salt-making by the process of solar evaporation and

precipitation. Portions of Cargill’s acreage, after having been

used in the industrial salt-making operation for many years,

were decommissioned a number of years ago. Other areas

remain in active use as an industrial concern.

Because of ihe Corps’ aggressive assertion of Clean Water

Act (“CWA”) jurisdiction over its lands, purportedly under the

authority of the “migratory bird rule,” Cargill has in the past

sought to challenge the “rule” in this Court. Leslie Salt Co. v.

United States, 498 U.S. 1126 (1991); Cargill, Inc. v. United

States, 516 U.S. 955 (1995). In addition, because operations

on its lands are, and may be, affected by other federal

environmental laws, Cargill has participated as amicus curiae

before this Court concerning the validity of expansive agency

interpretations of such laws. Babbitt v. Sweet Home Chapter

of Communities for a Greater Oregon, 515 U.S. 687 (1995).

Cargill’s perspective and litigation experience in dealing

with the issues presented in this case will provide a unique

' Pursuant to Supreme Court Rule 37.6, amicus curiae affirms 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.

viewpoint that will aid the Court in evaluating the merits of the

Petition.

Disputes between the Corps, various environmental

groups, and Cargill and its predecessor Leslie Salt Co.,

concerning the extent of CWA jurisdiction over Cargill’s

property span more than 25 years. Initially, the focus was

upon the interrelationship between the CWA Amendments of

1972 (33 U.S.C. §§ 1311(a), 1344(a), 1362(12) and 1362(7))

and the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 401, et

seq.) under which the Corps had historically exercised

regulatory authority over navigable waters of the United

States. See Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292

(N.D. Cal. 1974); Sierra Club v. Leslie Salt Co., 412 F. Supp.

1096 (N.D. Cal. 1976); Leslie Salt Co. v. Froehlke, 578 F.2d

742 (9th Cir. 1978). However, with the creation of the

“migratory bird rule” in 1986 by the Corps and the U.S.

Environmental Protection Agency (“EPA”), ignore the focus

changed. No longer was the concern about the status of true

waters on Cargill’s lands, but whether manmade facilities no

longer used for solar salt production—neither part of nor

adjacent to navigable waters, and possessed of no hydrologic

connection (surface or otherwise) to any navigable water—

could be subject to jurisdiction under section 404 of the CWA

solely based on the.r use or potential use by migratory birds.

Assertions of regulatory jurisdiction on this ground over

certain portions of Cargill’s lands led to two decisions of the

Ninth Circuit Court of Appeals,’ relied upon heavily by the

Seventh Circuit here, together with two petitions for certiorari

to the Court’ and a number of district court decisions.*

? Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990) (“Leslie /’”)

Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) ( “Leslie II”).

> Leslie Salt Co. v. United States, 498 U.S. 1126 (1991); Cargill, Inc. v.

United States, 516 U.S. 955 (1995).

* Leslie Salt Co. v. United States, 660 F. Supp. 183 (N.D. Cal. 1987);

Leslie Salt Co. v. United States, 700 F. Supp. 476 (N.D. Cal. 1988); Leslie

Salt Co. v. United States, 820 F. Supp. 478 (N.D. Cal. 1992).

ll

ee

Following the conclusion of the Leslie Sait litigation, a

further assertion of jurisdiction under the “migratory bird rule”

by two environmental groups led to a radical expansion of the

reach of the rule. San Francisco BayKeeper v. Cargill Salt

Division, No. C96-02161 CAL (N.D. Cal., Apr. 15, 1999).

The district court’s decision is now on appeal before the Court

of Appeals for the Ninth Circuit (Case No. 99-16032).

The district court in the original Leslie Salt Co. proceedin

found that the periodic collections of rainwater were so ’

temporary and ephemeral that they did not constitute a

waterbody, much less a “water of the United States” that could

be subject to the CWA. Leslie Salt Co. v. United States, 700 F.

Supp. 476, 485-486 (N.D. Cal. 1988). Its decision in favor of

Leslie Salt was reversed cn appeal.in Leslie / in a divided

opinion. 896 F.2d at 354. After concluding that the temporary

nature of the ponded rainfall was not an impediment to CWA

Junsdiction, the panel majority—in one sentence, without

analysis—sustained the “migratory bird rule” on the theory

that “commerce clause power, and thus the Clean Water Act, is

broad enough to extend the Corps’ jurisdiction to local waters

which may provide habitat to migratory birds and endangered

species.” Jd. at 360.

Following remand to determine the extent of temporary

ponding and migratory bird use, Leslie Salt again appealed to

the Ninth Circuit. On the second appeal, a differently

constituted panel of the Ninth Circuit affirmed on the basis

that, in the panel’s view, it could not reconsider the prior

decision, even if persuaded the decision was wrong, so long as

it was not “clearly wrong.” Leslie II, 55 F.3d at 1393.

Following this unusual standard for questions of law, the court

addressed whether application of the “migratory bird rule” to

very shallow, non-navigable seasonal ponds wholly

unconnected to any other waterbody was authorized by the

CWA. The court found that “Cargill’s arguments might well

deserve closer consideration” if the issue were being presented

to it for the first time. Leslie IJ, 55 F.3d at 1395. However,

ill

court concluded that the initial panel’s earlier

pana not “clearly erroneous,” it did not a

question. /d. Nonetheless, the court ee a

“migratory bird rule” “certainly tests the limits 0 —

commerce powers and, some would argue, the bounds o

reason.” Leslie II, 55 F.3d at 1396.

ill, as successor to Leslie Salt Co., petitioned this

a a writ of certiorari following the Ninth Circuit -

Leslie II decision. In dissenting from denial of the a -

Thomas argued that United States v. Lopez, 514 —_ on

(1995), reaffirmed the well-accepted doctrine that the ac

to be regulated must substantially affect — commerce

before Congress can regulate it pursuant to the yoy

Clause. Cargill, Inc. v. United States, 516 U.S. 955, AT

(1995). He observed that no such showin g —- —

support application of the “migratory bird rule” to Cargi

property. Jd. ee:

of Leslie J and Leslie 1/, 5an

cael een. oom Committee to Complete the

Refuge sued Cargill for violations of the CWA on the —

that rainwater that periodically fell on saline brine wi tad

isolated, self-contained waste treatment facility, = orm

that portion of the facility covered with brine into a “water

the United States” because it was occasionally used by me

migratory birds. The same district judge that heard Leslie

and Leslie I] felt compelled by the Ninth Circuit’s a

opinions to rule in plaintiffs’ favor, in the process — g

the unreasonableness of the result.* San Francisco BayKeeper

~ . . . . . s ”

* Cargill maintains that the site in question is a “waste Teatment rs

and, therefore is not a water of the United States under the CWA

v. Cargill Salt Division, No. C96-02161 CAL (N. D. Cal., Apr.

15, 1999). In its pending appeal to the Ninth Circuit, Cargill is

challenging the district court’s expansion of the reach of the

Leslie Salt decisions and the “migratory bird rule” on many of

the same grounds asserted by Petitioners here.’ —

Given Cargill’s previous CWA jurisdictional disputes with

the Corps, the pending BayKeeper litigation now before the

Ninth Circuit and the fact that Cargill continues to operate

some 29,000 acres—much of which is potentially subject to

the claim of migratory bird jurisdiction—it is plain that Cargill

has a real interest in the outcome of this case. Cargill’s special

position will bring to bear a fresh perspective that will be

helpful to the Court’s resolution of the issue.

For the reasons stated above, Cargill respectfully requests

that this Court GRANT its motion for leave to file this brief.

DATED: March 2000 Respectfully submitted,

EDGAR B. WASHBURN

Counsel of Record

CHRISTOPHER J. CARR

WASHBURN, BRISCOE & MCCARTHY

Attorneys for Amicus Curiae

Cargill, Incorporated

they've been leveed off for one purpose or another, it doesn’t make any

practical sense to say, ‘Well, we'll a small area of this and water gets

in it, so we define it as a water of the United States.’ [{] Maybe it doesn’t,

but I have to be governed by the definitions of the Ninth Circuit and the

definitions of the regulations, and | think this battle got fought out at least

four times in the Leslie Salt litigation and that’s twice before me and twice

— rth Circuit.” Tr. of Jan. 26, 1998 hrg. at 34-35 (No. C96-

Cargill maintains that subjecting the area covered by liquid brine within

ill’s waste treatment facility to CWA jurisdiction on the that

~ oy eigen Cade een ae ree Cand Same be ban

its use by migratory bi reach of the CWA migratory bird

tule well beyond the earlier Leslie Salt decisions. The saline brines

within Cargill’s waste treatment facility are, of course,

lves pollutants under the CWA.

{

_

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS

A.

THE MIGRATORY BIRD RULE’S EXTENSION OF

REGULATORY JURISDICTION IS INCONSISTENT

WITH ANY REASONABLE CONSTRUCTION OF THE

ee

THE MIGRATORY BIRD RULE EXCEEDS THE

POWER OF CONGRESS UNDER THE COMMERCE

THE MIGRATORY BIRD RULE Is

UNCONSTITUTIONAL AS RESULTING FROM AN

EXCESSIVE DELEGATION OF LEGISLATIVE POWER

Sas Ovceveczscencevocevesecssenssseszcenccseseseenenes nmeemene

SEES EEE ESET EEE EEE EEE EEE EEE EEE EE EEE EEE EEE HEHEHE HHH HHH ee

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS

(PPP PPP PPP PPP REESE EEE EES EEE EE EERE

sresenenes 2

TABLE OF AUTHORITIES

Page(s)

Cases

American Trucking Association, Inc. v. EPA,

175 F.3d 1027 (D.C. Cir. 1999), order on reh'g 195

Fe ais Tats ST ntctanciisannationicintasenstehideanenanenninéineiiens 15

Andrus v. Allard,

ee ee Se acvtcenresnttnensninnsinnstsenmbetnsisinetianmensies 12, 13

Andrus v. Sierra Club,

Re I I TTT aricsiantncensntannninisnindaninnnensmsntniinnemneiabat 10

Arizona Electric Power Co-Op, Inc. v. United States,

BOO Fe BE GP Ge BOD cnccccccccnesccsecesncsesesteccenecesconscees 8

Ayala-Chavez v. INS,

PEN EPETE DUTT cnidncnscsnsscnncnptncesenssinmnenetennientes 17

Babbitt v. Sweet Home Chapter of Communities for a

Greater Oregon,

ee etitrcictncistemnitasasiensnnemesinitsisatemmenizesiiniasii i

Bowen v. American Hosp. Ass'n,

So TEI TITIITEciaciecnthesncindnteciibiiasetatennesasenecideseaecsodiatsiiniel 8

Bowen v. Georgetown University Hosp.,

ca TTTITTITITTITTIissiirctinielsidnescsasirecsieenetsdipensntiigratiniiddiiananeiiaasiatbal 8

Cargill, Inc. v. United States,

ee I scnncanedetntentnocensauninenhabitntenisinies i, li, iv, 14

Chevron USA v. NRDC,

4g TEES Nae eR a ROME mTOR 8

Dole v. United Steelworkers,

ee TTT oeiitorsdusidiustenteepeasitenntehinidnininatbseciiniiinilapaniiatunniia 8

Douglas v. Seacoast Products, Inc.,

ee TIE T Richiicreccceussadinnsssdinsecanneciiennasebetdenibedsitnies 13

Economy Light & Power Co. v. United States,

Ee STE icinsiiisiaicnleieninstdanpeninidempnmdtiniiniaiinninmanetl 6

ETSI Pipeline Project v. Missouri,

ee ee a UE rnciibeiibeicsidentnneaniinsentinciitittininiintiattiannstinnateniol 8

Federal Power Comm'n v. Union Electric Co.,

381 U.S. 90 (1965)........scscsssssesssessssensnscsrsssesnenenaransnncnsenennnney

Flores v. Meese, |

942 F.2d 1352 (9th Cir. 1991) .......cecesecceseesreseeenenenrenseneees

Greene v. McElroy,

360 U.S. 474 (1959).....cscsccscsesceeesessenssenssesennsnsnannenasenneness

Hampton v. Mow Sun Wong,

426 US. 88 (1976) -.oeeesssseeesssseernnseesernnneees scincnaniitensnetininn

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, '

452 U.S. 264 (1981).......cccccssecseeseseeeneessenseesnesnennennnensnes 11,1

Hughes v. Oklahoma,

4A1 U.S. 322 (1979)......csceceseseseseenseenssentnensnennnnenennenes ‘

INS v. Cardoza-Fonseca,

ABO U.S. 421 (1987)......ccsceceseseeesenesessssseersnnsnsnensnnsnanenensnnnens

Katzenbach v. McClung, |

379 U.S. 294 (1964)........cscccccsseeresseesnessenesesnnsnssnansenennnennnes

Leslie Salt Co. v. Froehlke, i

403 F. Supp. 1292 (N.D. Cal. BOP D ccccecceccecocesscsossnsesescesoses il

Leslie Salt Co. v. Froehlke, -

578 F.2d 742 (9th Cir. 1978) .......ceccsceseesesseseeensnenenneeneess '

Leslie Salt Co. v. United States, -

4OB U.S. 1126 (1991)......cccccccceseeceesensneeeesesteseesensnennesnesnees ,

Leslie Salt Co. v. United States, mn ae

"55 F.3d 1388 (9th Cir. 1995) ¢“Leslie ID”) .....---.+++++ ii, ili, 1V

Leslie Salt Co. v. United States, ‘

660 F. Supp. 183 (N.D. Cal. DOD ccccccecencsnesenvccssccsonsnssenee ii

Leslie Salt Co. v. United States, =

700 F. Supp. 476 (N.D. Cal. 1988) .....-..----sseseseererersrsnenenees ill

Leslie Salt Co. v. United States, 2

820 F. Supp. 478 (N.D. Cal. BOD) nncecencerscseccecesscscsevsocsscoses ii

Leslie Salt Co. v. United States, ee eae

896 F.2d 354 (9th Cir. 1990) (“Leslie 1°) ......0.0-0-seeeee ii, ill

Vill

Lorillard v. Pons,

434 U.S. 575 (1978)

Maine v. Taylor,

UE i

Martin v. Refrigeration School,

968 F.2d 3 (9th Cir. 1992)

Maryland v. Wirtz,

392 U.S. 183 (1968)

Metro Broadcasting v. FCC,

497 U.S. 547 (1990)

Missouri v. Holland,

TTS TT

National Ass'n of Home Builders v. Babbitt,

130 F.3d 1041 (D.C. Cir. 1997), cert. denied 524

eae

NRDC v. Callaway,

392 F. Supp. 685 (D.D.C. 1975).

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

i NRL Ta

Polish National Alliance v. NLRB,

Ne iinietiensisihtnssnininresnitinnartniieanienter i

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989)

San Francisco BayKeeper v. Cargill Salt Division,

No. C96-02161 CAL (N.D. Cal., Apr. 15, ee ili, iv

Schechter v. United States,

tet ite Bag, TILA 15

Sierra Club v. Leslie Salt Co.,

412 F. Supp. 1096 (N.D. Cal. 1976) oooccocccccccccccccoeeeceseece.... ii

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers,

191 F.3d 845 (7th Cir. 1999) ooo cccccccecccssssssescsesseceeeeseecs.. 2

Sullivan v. Zebley,

NT I asrcesisicinieastaiaiacbsteiseanesssiiilition ne sie 8

Tabb Lakes, Ltd. v. United States,

715 F. Supp. 726 (E.D. Va. 1988), aff'd 885 F.2d

BEG (4 Cle. 19BD).....-crcccenrsoceccsccsccrscsscccccsrcesssseesseses 2, 10, 15

United States v. Appalachian Electric Power Co.,

B21 US. 377 (IDA) .0.cceccecccrcecorscseccsscessercscsessovssssnscesssnsosess 7

United States v. Leslie Salt Co.,

39D UB. BBD (1DSG)...ecrececsereresessereserecsesersscsscsessonsscosensonovenss 8

United States v. Lexington Mill & Elevator Co.,

piv Ril BT | 4

United States v. Lopez,

CF) iv, 11, 12

United States v. Rio Grande Dam & Irrigation Co.,

174 U.S. G90 (1899)....ccseccscrocrerscorccccccsscossnsesseesrsorsevsssosnsoees 5

United States v. Riverside Bayview Homes, Inc.,

SPA ULSD. 131 (RGB). nccrccccsescescrecesesssesescsssssssesssssese 3, 6,9, 13

United States v. Security Industrial Bank,

GBD ULD. FO CID oncecsccoscccvccesccnescecececneeccncsevessessenssccensesstss 10

United States v. Wilson,

133 F.3d 251 (4th Cir. 1997) ..........c..cccsosssssccsererersssees 2, 10

Watt v. Alaska,

4S1 UG. BOD (IGBI ) .n0ccevcceccecceseescccsssscsccsssocecssossesosscssocesonsees 8

Statutes, Rules and Regulations

33 CER. § SAB.SAMS) .nceccrccrccsecsscrsecsvccessccrecssssesessveseosesess 3,10

BB UBC. © USE ..cccccarecresesescesccssescesesscosovcnsscssssscecsecsossovovoononses 3

33 UB.C. § 132 16) ...0.cccccscccrsersescessecssoreccccseseosecsssosnsnsesonsssoes ii

33 UBC. § 1348 ...000-ceccccccscrevscosesscossccecssscccssssosonecsesesossessoosoess 3

FB UBC. 6 1906 noceccocsccesescecescsscesesenescvsescnsncssssnsscsossosecsensnenees 3

33 UBC. § 1944) ...ccrcrccccscesccsscrecevceccsecssonsssesesescoses eccnensesesee li

33 U.S.C. § 136212) ....00.crccreccerssecseccecccseorsccsssensessssreneossoooses il

33 U.S.C. § 136207) ..nccccrccesccecsscerssvssevsecseccecssnsscsesessssoonsooses ii, 3

33 U.S.C. §§ 401, €f SO. .......0..cccccrcssessererrercsecssesersssseossessoesoes il

BO CBR. © 122.2 ...cecccsceveessscrscesecssccccoserssosscsssssssessscsssoosvossosses iv

tS SES NEO Seve SFE Ma no ne ne ae 16

Act of Feb. 19, 1895 § 2,

gg 1 _, A eee eR ne 3

Act of June 22, 1936 § 1,

EG Ue PUN idiliadiicliiinsintieadiiiaihatiisatdintsatmesenanicstiaiininisen 4

Act of June 29, 1888 § 1, >

4 ERERESRES RET IER aeRO PERE DTA OT RET NOR 5

Act of Sept. 15, 1922,

II Ce saisiciiisibicniniihiectlitaeiehaihicic ict cintsrneiinatainad 4

Bear River Migratory Bird Refuge Act of Apr. 23,

1928,

ch. 413, 45 Stat. 448, 16 U.S.C. § 690, ef $€q. .....cecceceeeeseees 8

Cheyenne Bottoms Migratory Bird Refuge Act of

June 12, 1930,

ch. 469, 46 Stat. 579, 16 U.S.C. § 691, ef Seg. .o.cceccccceeeeees 9

Emergency Wetlands Resources Act of Nov. 10, 1986,

Pub. L. 99-645, 100 Stat. 3582, 16 U.S.C. § 3901, et

WTAE, ccccesscsscsnensntetnssnstebadestntencsniatebtesebabsinieniscctesisssconnsesonssonsies 9

Endangered Species Act of Dec. 28, 1973,

Pub. L. 93-205, 87 Stat. 884, 16 U.S.C. § 1531, et

Ty cecncstvcncsncssenesnnnnianncatanbinensndasinstscesiseuteniatsssncscnnneenstecnsenees 9

Federal Power Act § 23(b),

EEE EE on eT oe ne 4

Migratory Bird Conservation Act of Feb. 18, 1929, -

ch. 3657, 45 Stat. 1222, 16 U.S.C. § 715, ef $eq v.cccccccceseeees 8

Migratory Bird Hunting Stamp Act Amendments of

Aug. 1, 1958,

Pub. L. 85-585, 72 Stat. 486, 16 U.S.C. § 718(b) &

iibcsecidenhtidetiadilhiadeiaipatiheiiindanicesiiabliasilatiataiitsiniatadabesasmianesens 9

Migratory Bird Hunting Stamp Act of Mar. 16, 1934,

ch. 71, 48 Stat. 451, 16 U.S.C. § 718, ef Seq. ...ccccccccccseeseees 9

Migratory Bird Treaty Act of July 3, 1918,

ch. 128, 40 Stat. 755, 16 U.S.C. § 703, ef Seq .....cccccsee. 8, 13

xl

Migratory Waterfowl & Other Wildlife Refuge in Cal.

Act of May 18, 1948,

ch. 303, 62 Stat. 238, 16 U.S.C. § 695, ef 8€g. ....ccceeccccceees 9

Pub. L. 85-500, § 104,

$3 UBC. 6 CBD einesarnsssoricnessiumane

Rivers & Harbors Act of 1894 § 5,

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Rivers & Harbors Act of 1899 § 10,

53 B.C. 8 6B cccsccosssesinosesiemmaaeaiain

Rivers & Harbors Act of 1899 § 13,

33 UBC. © CBP isuniccscsninnssssssimssinasaame

Wetlands Act of Oct. 4, 1961,

Pub. L. 87-383, 75 Stat. 813, 165 U.S.C. § 7152k-3,

68 BBM. ....1..0.cccccnsseesnosessesesonsensasensmmnsnnasesianemanisunemaeamaianial 9

Wetlands Loan Extension Act of Feb. 17, 1976,

Pub. L. 94-215, 90 Stat. 189, 16 U.S.C. § 715 0...

Administrative Materials

40 Fed. Reg. 31320, et seq. (1975) .......cccsscsseesesseserererenees

$1 Fed. Reg, 41217 (8966) ..ccccccocossssossossessesssassvessennenssianans

Legislative Materials

“Development of New Regulations by the Corps of

Engineers, Implementing Section 404 of the Federal

Water Pollution Control Act Concerning Permits for

Disposal of Dredge or Fill Material: Hearings

Before the Subcomm. on Water Resources of the

House Comm. on Public Works and

Transportation,” 94th Cong., Ist Sess. 29 (1975)..........

“Oversight Hearings on Section 404 of the Clean

Water Act: Hearings Before the Subcommittee on

Environmental Pollution of the Senate Committee

on Environmental Public Works,” 99th Cong. Ist

Sens. 81GB (1DBS). ..ccrcccsssscsessesscccsnesesnensensenaaaaaaia

Xli

118 Cong. Rec. 33699 (1972) (statement of Sen.

En

118 Cong. Rec. 33756-33757 (1972) (statement of

re

xiii

No, 99-1178

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

On Petition for Writ of Certiorari to the

-United States Court of Appeals for the Seventh Circuit

BRIEF OF AMICUS CURIAE

CARGILL, INCORPORATED IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Cargill, Incorporated (“Cargill”) respectfully submits this

brief as amicus curiae supporting the granting of Solid Waste

Agency of Northern Cook County’s petition for writ of

certiorari to the United States Court of Appeals for the

Seventh Circuit.

INTEREST OF THE AMICUS

The interest of Cargill is set forth in the preceding motion.

iS

ARGUMENT

A. THE MIGRATORY BIRD RULE’S EXTENSION OF

REGULATORY JURISDICTION IS INCONSISTENT

WITH ANY REASONABLE CONSTRUCTION OF THE

CLEAN WATER ACT.

The Seventh Circuit below, relying upon the Ninth

Circuit’s Leslie / decision, concluded that CWA reaches “as

many waters as the Commerce Clause allows.” Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of

Engineers, 191 F.3d 845, 851 (7th Cir. 1999). The Seventh

Circuit opined that “if Congress possesses the power to

regulate a body of water under the Act, generally this court

will conclude that it has in fact done so.” /d. at 851. Based

upon this dubious proposition, the court held regulation of

waters based on the presence of migratory birds is authorized

by the CWA. /d. at 853. This conclusion, we submit, is

directly in conflict with the Fourth Circuit’s decision in

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). That

court invalidated the entirety of the regulation the “migratory

bird rule” is said to interpret on the ground it is unauthorized

by the CWA in that it purports to regulate wholly intrastate

non-navigable waters if the degradation of those waters could

affect interstate commerce. /d. at 257. Indeed, Fourth Circuit

expressed considerable doubt as to whether Congress itself

could expressly extend its reach over such areas under the

Commerce Clause, but did not reach that question because it

concluded that the CWA does not authorize such an

expansion. /d.

Wilson is the Fourth Circuit’s most recent rejection of the

“migratory bird rule.” In 1989, that court had found the rule

wanting as violative of the Administrative Procedure Act.

Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726 (E.D. Va.

1988), aff'd 885 F.2d 866 (4th Cir. 1989). To this day, the

Administrative Procedure Act shortcoming of the rule (i.e. the

failure to subject the rule to notice and comment) remains and

the rule is not applied within the geographic area of the Fourth

Circuit.’ In fact, the reason why the Corps, in Wilson, relied

upon the underlying regulation, 33 C.F.R. section 328.3(a)(3),

rather than the “migratory bird rule” itself is because the rule

is not enforced in the Fourth Circuit because of Tabb Lakes.’

The conflict between the Seventh and Ninth Circuits, on

the one hand, and the Fourth Circuit, on the other, as to this

important question should be resolved by this Court.

1, The Statutory Text

Neither the Corps nor EPA—nor, for that matter, any

court—has ever maintained that the text of the CWA justifies

the “migratory bird rule.” The reason is that the words of the

statute are restrictive, not open-ended, and do not support such

a claim. The CWA expressly regulates the discharge of

pollutants into “navigable waters” alone. 33 U.S.C. §§ 1311,

1342, 1344. Although that expression is later defined to mean

“the waters of the United States” (33 U.S.C. § 1362(7)), and

the Supreme Court has commented that this “makes it clear

that the term ‘navigable’ as used in the Act is of limited

import” (United States v. Riverside Bayview Homes, Inc., 474 —

US. 121, 133 (1985)), as that Court impliedly recognized, this

is far from altogether discarding the notion of navigability as

the anchor for the legislation.

. Indeed, the expression “waters of the United States,” or a

like term, had been used in legislation for more than a century

to denote waters which, if not themselves navigable, were at

least immediately connected to waterways useful for interstate

or foreign commercial navigation.'* Moreover, less than a

a ;

See Corps/EPA memo entitled “Clean Water Act Section 404

Jurisdiction Over Isolated Waters in Light of Tabb Lakes v. United States”

(Jan. 29, — A copy of that memorandum is attached hereto as

9

Although the and EPA in their January 24, 1990 memorandum

promised to publish the “migratory bird rule” in accordance with the

egy eet mrp ap

, €.g., Rivers & Harbors Act of 1894 § 5, 33 U.S.C. § 499; Act of

Feb. 19, 1895 § 2, 33 U.S.C. § 151; Rivers & Harbors Act of 1898 $ 10,

decade before the 1972 enactment of the CWA, this Court

observed that it is self-evident that the statutory expression

“streams ‘over which Congress has jurisdiction under its

authority to regulate commerce’” reaches no further than

“tributaries of river systems necessitating supervisory power

to preserve or improve downstream navigability or water

commerce generally.” Federal Power Comm'n v. Union

Electric Co., 381 U.S. 90, 97 (1965).

The CWA definition of navigable waters reflects a

congressional intent to push back the boundaries of covered

navigable waterways to include their non-navigable portions,

their non-navigable tributaries, and their adjacent non-

navigable wetlands. However, it does not allow the Corps or

EPA, in their administration of the CWA, to ignore that the

definition is of navigable waters, a term which simply cannot

be stretched to embrace waters and wetlands that are

themselves not navigable and have no connection to any

navigable waterway.

If Congress had meant to throw overboard the concept of

navigability as the constitutional premise for the legislation, it

knew the formula. As long ago as the Federal Power Act of

1920, statutes had been written to reach activities “affecting”

interstate or foreign commerce. See Federal Power Act

§ 23(b), 16 U.S.C. § 817, construed in Federal Power

Comm'n v. Union Electric Co., 381 U.S. at 93-99. Here,

instead of asserting jurisdiction over all waters whose

degradation would “affect” interstate commerce—a very

broad category—Congress chose to limit itself to regulating

discharges “in” “navigable waters.” This is a critical

distinction. Cf. Polish National Alliance v. NLRB, 322 U.S.

643, 647 (1944); United States v. Lexington Mill & Elevator

Co., 232 U.S. 399, 410 (1914).

A

33 USC. § 701 (a).

Discharges “in” or “into” navigable waters is confined

geographically to what have been considered “federal” waters:

a category of waters that have a distinct and well understood

meaning. This is to be contrasted with the non-geographic

and open ended concept of all waters that could “affect”

interstate commerce.

There is good reason to construe the CWA as embracing

only “federal” waters and their adjuncts. Federal legislation

concerns itself with interstate navigable waterways, leaving

local waters to state regulation. The fact that Congress relied

upon specific Supreme Court precedents in defining the limits

of the CWA (see n.12, infra) and the emphasis on navigable

waters, leads to the conclusion that Congress believed it was

exercising the federal power over water commerce—and

nothing more. This is the power the legislators presumably

wanted to take to its constitutional limit. There is not the

remotest indication that they thought the “navigation” power

would reach isolated non-navigable intrastate waters.

The fact is that the CWA on its face deals only with the

waters whose pollution is federal business because they are

closely related to interstate commerce. As in earlier

legislation," adjacent waters, including non-navigable

tributaries and abutting wetlands, are included. But there is

no ground for reading “waters of the United States” to

encompass non-navigable waters or wetlands wholly isolated

from interstate waterbodies and unconnected to the federal

water system.

2. Legislative History

The oft-cited equation between the reach of the CWA and

constitutional limits derives from a misreading of the Act's

wewek: , Act of June 29, 1888 § 1, 33 U.S.C. § 441 (“tributary waters” of

N ork Harbor); Rivers & Harbors Act of 1899 § 13, 33 U.S.C. § 407

ay aby of ny savin wate ); Pub. L. 85-500, § 104, 33 U.S.C.

vi waters, tributary streams, connecting channels, and

other allied waters”). See also United States v. Rio Grande Dam &

Irrigation Co., 174 U.S. 690, 707-710 (1899).

legislative history. in truth, Congress never suggested that the

CWA would go to the constitutional limit. What in fact was

said was something very different: that the phrase “navigable

waters” was to be given “the broadest possible constitutional

interpretation.” S. Conf. Rep. 1236, 32nd Cong. 2d Sess. 144

(1972); 118 Cong. Rec. 33699 (1972) (statement of Sen.

Muskie); see also Leslie Salt Co. v. Froehlke, 578 F.2d at 755.

No doubt, Congress meant to embrace all waters that

could be reached »:nder its Commerce Clause power to

regulate water commerce, i.e. navigable waters, actual and

potential, together with their “adjuncts.” But there is not the

slightest hint that Congress meant to invoke other Commerce

Clause powers—unrelated to water commerce—to regulate

isolated non-navigable waters. It is significant that, in United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985),

the Court eschewed the easy path to its result—that Congress

meant to go to the constitutional limit—and, instead, parsed at

some length the legislative history of both the 1972 statute

and the 1977 amendments in arriving at the expressly limited

conclusion that wetlands immediately adjacent to, and

inundated by, a fully navigable waterway were within the

ambit of the CWA. See id. at 124, 130-132, 135, 136-138.

The legislative history of the CWA fully confirms that

navigability was the touchstone of coverage. It is true that

Congress intended to define the covered waters “broadly,”

going beyond the “classical” or “traditional” tests followed

under earlier water pollution control legislation. £.g., 118

Cong. Rec. 33757 (1972). But this only meant including the

non-navigable “portions” and “tributaries” of actually or

potentially navigable watercourses—as the repeated

invocation of cases so holding indicates. E.g., 118 Cong. Rec.

33756-33757 (1972) (statement of Rep. Dingell); 118 Cong.

Rec. 33699 (1972) (statement of Senator Muskie)."’ Never

" The decisions of the Supreme Court referred to in the legislative

history which were intended to reflect the limits of the CWA are Economy

Light & Power Co. v. United States, 256 U.S. 113, 121-123 (1921); United

States v. Appalachian Electric Power Co., 311 U.S. 377, 404-410, 426-427

6

was there any expression of intent to regulate waters that are

not physically a part of or connected to navigable waters.

From first to last, the preoccupation was with navigability,

and the ultimate refusal to meaningfully define the term

exhibits no more than a fear that any words used might be

read too narrowly. It is quite unreal to suggest that, without

saying so, those who struggled so long over the way to define

navigability meant to cast aside the concept and “«.ch any

waters which could be linked with commerce in a holly

different way.

It is obvious that the drafters of the CWA never

contemplated that it could be stretched to include isolated

waters on the basis of the presence of migratory birds. In the

many thousands of pages of legislative history leading to the

enactment of the law in 1972 (and its revision in 1977), no

one ever suggested such a ground for coverage. As we shall

discuss, the idea was not thought of until Congressional

oversight hearings in 1985.

Given the practical consequences of the many millions of

acres of lands throughout the United States becoming subject

to federal regulation under this rule, as well as the novelty of

the migratory bird theory itself, it would be remarkable if this

expansive theory of jurisdiction would have been accepted by

all members of Congress without mention. In sum, the

legislative history of the CWA undercuts the claim that

isolated, non-navigable waters were ever intended to fall

within the reach of the CWA, much less on the theory that

their only connection with interstate commerce is the flight of

migratory birds.

3. Administrative Construction

Cargill submits there is no room for reading into the CWA

a license to regulate non-navigable isolated waters frequented

by migratory birds. Such a radical extension of coverage is

(1940); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,

523-525 (1941).

well beyond any reasonable construction of the Act, and,

accordingly, cannot be vindicated by invoking deference to

_ the administrators’ interpretation of the statute." This view is

confirmed by the failure of the implementing agencies (the

Corps and the EPA) to “discover” the new basis for

jurisdiction until more than thirteen years after the CWA was

enacted. Under such circumstances, it is especially difficult to

indulge any presumption in favor of administrative

construction," and strongly suggests, not legitimate

interpretation, but creative law-making by an agency with no

such delegated authority.

We are not dealing with a relatively inconsequential

detail: predicating CWA jurisdiction over isolated waters on

the presence of migratory birds brings tens of millions of

acres under regulation for the first time, at least potentially

banning all residential, agricultural, commercial or industnal

use of the sites. This is not a matter that could have escaped

the attention of the legislators and administrators for so long.

The existence of such isolated wet areas—especially prairie

potholes and other isolated freshwater wetlands—and their

importance to migratory birds, was well-known, and had been

the focus of special protective legislation, typically providing

for the purchase of relevant sites or appropriate easements."

'. See Dole vy. United Steelworkers, 494 U.S. 26, 35 (1990); Sullivan v.

Zebley, 493 U.S. $21, 527 (1990); Bowen v. Georgetown University Hosp.,

488 U.S. 204, 207, 212-213 (1988); ETS/ Pipeline Project v. Missouri, 484

U.S. 495, 516-517 (1988); Martin v. Refrigeration School, 968 F.2d 3, 7-8

(9th Cir. 1992); Arizona Electric Power Co-Op, Inc. v. United States, 816

F.2d 1366, 1375-1376 (9th Cir. 1987). See Chevron USA v. NRDC, 467

U.S. 837, 842-844 (1984).

'* See Bowen v. Georgetown University Hosp., 488 U.S. at 211-213. See

also Bowen vy. American Hosp. Ass'n, 476 U.S. 610, 646 n.34 (1986); INS

v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987); Wart v. Alaska, 451

U.S. 259, 273 (1981); United States v. Leslie Salt Co., 350 U.S. 383, 396

(1956).

'S Statutes enacted to this end include: Migratory Bird Treaty Act of

July 3, 1918, ch. 128, 40 Stat. 755, 16 U.S.C. § 703, et seg.; Bear River

Migratory Bird Refuge Act of Apr. 23, 1928, ch. 413, 45 Stat. 448, 16

U.S.C. § 690, et seg.; Migratory Bird Conservation Act of Feb. 18, 1929,

ch. 3657, 45 Stat. 1222, 16 U.S.C. § 715, et seqg.; Cheyenne Bottoms

Migratory Bird Refuge Act of June 12, 1930, ch. 469, 46 Stat. 579, 16

In this setting, then, it is not possible to reasonably construe

the 1985 decision to reach these areas under the CWA as

merely the belated revelation of a previously unrecognized

truth.

Also instructive is how the decision came to be made.

The Corps had initially read the CWA as embracing no more

than those navigable waters and their adjuncts that were

subject to the federal navigational servitude."* Only under

compulsion of a court decree in NRDC v. Callaway, 392 F.

Supp. 685 (D.D.C. 1975), did the Corps rewrite its regulations

to reach any isolated waters. See 1975 Corps Regulations, 40

Fed. Reg. 31320, et seq. (1975) The new regulations barely

survived Congressional scrutiny. See Riverside, 474 U.S. at

135-137. More to the point, there was as yet no suggestion

that bird use alone would trigger “isolated waters”

jurisdiction.

It was only in 1985, during hearings before a Senate

Subcommittee, where the EPA, followed by the Corps, first

suggested the “migratory bird mile.” See “Oversight Hearings

on Section 404 of the Clean Water Act: Hearings Before the

Subcomm. on Environmental Pollution of the Senate Comm.

on Environment and Public Works,” 99th Cong., Ist Sess.

168, 169-170, 189-190, 212 (1985). And then, the Corps

U.S.C. § 691, et seg.; Migratory Bird Hunting Stamp Act of Mar. 16,

1934, ch. 71, 48 Stat. 451, 16 U.S.C. § 718. et seq.; Migratory Waterfow!

& Other Wildlife Refuge in Cal. Act of May 18, 1948, ch. 303, 62 Stat.

238, 16 U.S.C. § 695, et seg.; Migratory Bird Hunting Stamp Act

Amendments of Aug. 1, 1958, Pub. L. 85-585, 72 Stat. 486, 16 U.S.C. §

718(b) & (c); Wetlands Act of Oct. 4, 1961, Pub. L. 87-383, 75 Stat. 813,

165 U.S.C. § 7152k-3, et seq.; Endan Species Act of Dec. 28, 1973,

Pub. L. 93-205, 87 Stat. 884, 16 U.S.C. § 1531, et seg.; Wetlands Loan

Extension Act of Feb. 17, 1976, Pub. L. 94-215, 90 Stat. 189, 16 U.S.C. §

715; Emergency Wetlands Resources Act of Nov. 10, 1986, Pub. L. 99-

645, 100 Stat. 3582, 16 U.S.C. § 3901, et seg.

"* See “Development of New Regulations by the Corps of Engineers,

Implementing Section 404 of the Federal Water Pollution Control Act

Concerning Permuts for Disposal of Dredge or Fill Material: Hearings

Before the Subcomm. on Water Resources of the House Comm. on Public

ty rey Transportation,” 94th Cong., Ist Sess. 29 (1975). See also id.

at 5, 6, 34.

adopted the “migratory bird rule” by a procedure that

precluded public scrutiny, depriving the agency of the benefit

of public comments. Tabb Lakes, Lid. v. United States, 715 F.

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

1989)."’ This is not the hallmark of a change of position that

merits deference because it results from the “well-considered”

judgment of an expert agency, carefully rethinking the import

of the statute during “a detailed and comprehensive process,”

and altering its view based on its expertise and in light of its

experience in administering the contested provision.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

355-356 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358

(1979).

B. THE MIGRATORY BIRD RULE EXCEEDS THE POWER

OF CONGRESS UNDER THE COMMERCE CLAUSE

It is settled that a court should avoid reaching any

constitutional question if at all possible. Unless it is

unambiguously clear that Congress has directed, or

authorized, an agency to cross over into terntory where

serious doubts arise, the statute should be construed so as to

make unnecessary a resolution of the constitutional issue.

See, e.g., United States v. Security Industrial Bank, 459 U.S.

70, 74, 78, 82 (1982); Lorillard v. Pons, 434 U.S. 575, 577

(1978).

It seems quite plain that the CWA reasonably could be

read not to authorize the “migratory bird rule.” This is the

conclusion of the Fourth Circuit in United States v. Wilson,

133 F.3d 251 (4th Cir. 1997), which invalidated the very

regulation (33 C.F.R. § 328.3(a)(3)) the migratory bird rule is

said to “interpret.”

To interpret the CWA as supporting the “migratory bird

rule” is subject to two constitutional infirmities. The first,

'” It has never been incorporated into a regulation—appearing only in

the published preface to the Corps’ 1986 regulations. See 51 Fed. Reg.

41217 (1986).

10

which we discuss now, is that the rule oversteps the

boundaries of the Commerce Clause. The second, to be

discussed in Section C, below, is the constitutional

impropriety of a congressional delegation of power so wide

and unconfined that it purports to authorize the agencies

administering the law to extend the coverage of the statute

well beyond anything contemplated by Congress.

Because the migratory birds covered by the rule expressly

include species not covered by treaties (see 51 Fed. Reg.

41217 (1986), category (b)), the Commerce Clause is

necessarily the constitutional power relevant here. Although

some may argue that there are no limits to the reach of the

Commerce Clause, provided only some “effect” on interstate

or foreign commerce can be found——no matter how trivial or

indirect—that is not the law. This was made clear by this

Court in United States v. Lopez, 514 U.S. 549 (1995). The

true rule is that a “relatively trivial impact on commerce” will

not serve as “‘an excuse for broad general regulation of state or

private activities.” Maryland y. Wirtz, 392 U.S. 183, 196 n.27

(1968); Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 305 (Burger, C.J., concurring), 310-312

(Rehnquist, J., concurring) (1981). Accordingly, the first

question here is whether the “migratory bird rule” regulates

any activity that would have a “substantial” effect on

interstate commerce. See Maryland v. Wirtz, 392 U.S. at 189.

As written and as applied, the rule requires no showing

whatsoever that the presence of migratory birds on a site has

attracted out-of-state human visitors-—whether bird watchers

or duck hunters. And, indeed, in the case of small “ponds” of

no scenic value, used by very common varieties of birds, it is

unlikely that the occasional presence of wildfow!] will have

any measurable effect on human travel interstate. For

example, in Cargill’s case now pending in the Ninth Circuit,

the site in question is inaccessible to the public, including the

Plaintiffs. Nor does the rule require that the migratory birds

on which jurisdiction is predicated are species which are ever

1]

bought and sold, whether for food or as pets or otherwise. See

Lopez, 514 U.S. at 561 (observing statute contained “no

jurisdictional element which would ensure, through case-by-

case inquiry, that the [activity sought to be regulated] affects

interstate commerce’”’)."* Thus, the claim for a link with

interstate commerce depends entirely on the movement of the

birds themselves. We doubt that this can ever qualify as a

“substantial” effect on interstate commerce.

The ultimate question is whether the self-determined flight

of birds is “commerce” in the constitutional sense. If not, an

activity that indirectly bears on the migration of birds does

not, on that account, “affect interstate commerce” and cannot

be regulated under the Commerce Clause. Certainly, common

usage does not encompass an animal migration, independent

of human forces—and, therefore, divorced from any

“commercial” motive—as an aspect of “commerce.”

It has been held that pursuant to its Commerce Clause

power, Congress can ban the interstate transportation of

protected bird parts (Andrus v. Allard, 444 U.S. 51 (1979)),

and that state impediments to the interstate shipment of

minnows are within the ambit of the clause. Hughes v.

Oklahoma, 441 U.S. 322 (1979); Maine v. Taylor, 477 U.S.

131 (1986). But no Supreme Court decision goes so far as to

suggest that fish swimming under their own power across a

'* While “Congress normally is not required to make formal findings as

to the substantial burdens that an activity has on interstate commerce,” this

Court has said that as part of its “independent evaluation of

constitutionality under the Commerce Clause [it] of course consider(s)

legislative findings, and indeed even ny committee

regarding effect on interstate commerce.” Lopez, 514 U.S. at 562-563.

was the case in Lopez, such findings are lacking here. Neither the text 7

the CWA (see Section A.1, supra), nor its relevant legislative history (see

Section A.2, supra), contains any mention of the purported effects on

interstate commerce claimed by the Corps to support the “migratory bird

rule.” Compare National Ass'n of Home Builders v. Babbitt, 130 F.3d

1041, 1050-1051, 1056-1057 (D.C. Cir. 1997), cert. denied 524 U.S. 937

(1998) (citing legislative and congressional committee findings of effects

on interstate commerce in upholding against Lopez Commerce Clause

challenge application of ESA to fly species with habitat located entirely

within an 8-mule radius in California).

12

state boundary, or birds in free flight crossing an interstate

line, are engaged in “commerce between the States.” Plainly,

neither Andrus v. Allard nor Hughes v. Oklahoma, involving

the human-initiated transportation of captive species, speaks

to this question.” Nor does Missouri v. Holland, 252 U.S.

416 (1920), which relied entirely on the Treaty Clause to

vindicate the Migratory Bird Treaty Act of 1918. See id. at

432-435. The total absence of any Supreme Court precedent

is attested by remarks from the Court during the oral argument

of the Riverside case.”

"* The United States, in the Leslie Salt cases, has invoked a passa

Allard, treating as “clearly flawed” the “assumption that the nationa

commerce power does not reach migrating wildlife.” Allard, 444 U.S. at

63 n.19. But that was said in reference to the sale of such birds—

obviously not the case here.

It is worth noting that in Douglas v. Seacoast Products, Inc., 431 U.S.

265 (1977), the Supreme Court did not speak of fish migrating across state

lines as an aspect of “interstate commerce,” but stressed, instead, the

“movement of vessels from one State to another in search of fish, and back

to processing plants” as an “activity which Congress could conclude

acc interstate commerce.” /d. at 282.

was as follows (Transcript of Oral Argument in

sean Court No. 84-701):

QUESTIO — Justice bat pe But it would be your view that an

isolated wet t provided for birds would be enough for

Corps of Engineers jpriediction?

»NSWER = Ms. Oberly, Government Counsel]: If they were

mugratory

Q: aT

A: Yes.

(General laughter.)

Q: Is the movement of birds interstate commerce?

A: It can — Yes.

Q: What case do you rely on?

A: Missouri versus Holland would be an example.

Q: That was a treaty power case.

A: It is a treaty power case, but | think it demonstrates the

importance—

Q: Well, it demonstrates the treaty power.

A: North Dakota—United States versus North Dakota. I may have

it backwards. I think it is North Dakota versus United States, which

dealt with prairie potholes in North Dakota as important breeding

13

Justice Thomas, in his dissent to the denial of Cargill's

petition to this Court following the Les/ie // decision, aptly

opined that “the basis asserted [the “migratory bird rule’) to

create federal jurisdiction over Petitioners’ land in this case

seems to me to be more far-fetched than that offered, and

rejected, in Lopez.” Cargill, Inc. v. United States, 516 U.S.

955, 957-958 (1995).

Cc. THE MIGRATORY BIRD RULE IS

UNCONSTITUTIONAL AS RESULTING FROM AN

EXCESSIVE DELEGATION OF LEGISLATIVE POWER

Neither the Government nor the courts have ever

straightforwardly asserted that the Congress that enacted the

CWA in 1972 intended to reach isolated waters and wetlands

used by migratory birds. In light of the statutory text and the

legislative history, that would be a most difficult proposition

to maintain. Instead, the argument seems to be that Congress

wholly abdicated its defining function, eschewing any

decision as to what effects on interstate commerce would

justify federal regulation of local-waters, and left the

administering agencies entirely free to search out, from time

to time, the constitutional limits of geographic junsdiction,

relying on the judiciary, if and when called upon, to curb any

overstepping of the Commerce Clause. To say the least, there

grounds for migratory waterfowl. a

case. But | think the Court has recognized in quite a few cases that—

Q: That the migration of birds is interstate commerce?

(General laughter.) .

A: That it can be. If—

Q: Well, what—ain what cases—

A: Duck hunters.

Q: In what cases have we recognized that?

A. I may be unable to give you a case, Your Honor, but | would

suggest that duck hunters, interstate travelers who go to wildlife

re to view ducks, migratory ducks who come from out of state,

all of that combines to make not just the birds alone but the

viewing of the birds and —

Q: It has an effect.

A: It has an effect sufficient to constitute a connechon with

interstate commerce.

14

are substantial problems with this scenario. In fact, in its

appellate briefs in the Tabb Lakes case, the United States was

at pains to assert—correctly, in our view—that the CWA

grants no quasi-legislative power to the Corps, which would

permit the agency, through “substantive” regulations, to

expand the statutory coverage. See Brief of the United States

Appellant at 21-23, and Reply Brief for the United States at 2,

8-10, Tabb Lakes, Lid. v. United States, 885 F.2d 866.

Even assuming Congress itself might have directly

enacted the “migratory bird rule,” there must be a serious

question whether it could accomplish the same result by a

sweeping delegation of legislative power “not canalized

within banks that keep it from overflowing,” but “unconfined

and vagrant.” See Schechter v. United States, 295 U.S. 495,

551 (1935) (Cordozo, J., concurring). There are surely some

limits on the practice of resolving legislative differences, or

drafting difficulties, by leaving it to the administrators to

make all the hard choices. At least, it seems excessive to

authorize an agency to do anything that will withstand

constitutional scrutiny--without even remotely suggesting

what those boundaries might be. See L. Tribe, American

Constitutional Law, 362-368, 1677-1682 (2d ed. 1988). Here,

we do not have an expression by Congress in the statute itself

that invests the implementing agencies with the authonty to

expand their jurisdiction to the constitutional limit. Nor do we —

have the benefit of any criteria or standards that would guide

the agencies in that endeavor. Such a total absence of

Congressional delegation and guidance surely raises sennous

and, Cargill submits, fatal constitutional infirmities.

The CWA contains even less legislative guidance to the

implementing agencies with respect to defining the reach of

“waters of the United States” than the Clean Air Act

provisions found to constitute an impermissible delegation in

American Trucking Association, Inc. v. EPA, 175 F.3d 1027

(D.C. Cir. 1999), order on reh'g 195 F.3d 4 (D.C. Cir. 1999).

It is worthy of note that the Government, in its Petition to this

15

Court for review of American Trucking (see Petition for Wnt

of Certiorari to the United States Court of Appeals for the

District of Columbia Circuit in Browner v. American Trucking

Association, Inc., No. 99-1257 (Jan. 2000) at 14), relies upon

the availability of the Administrative Procedure Act

rulemaking process to save portions of the Clean Air Act from

being struck down as an impermissible delegation to EPA.

However, here, the “migratory bird rule’-—despite its

moniker—is not the product of the notice-and-comment

rulemaking prescribed by the Administrative Procedure Act

(see 5 U.S.C. § 553) or by rulemaking procedures specified by

the CWA. Consequently, even this theory cannot save the

“migratory bird rule.”

There is another concern. If the Commerce Clause

properly can be invoked to reach isolated waters frequented

by migratory birds, it must be by taking the commerce power

to its outer limit. That might be justified in deference to the

judgment of Congress, whose findings with respect to effect

on interstate commerce are entitled to respect. £.g.,

Katzenbach v. McClung, 379 U.S. 294, 303-305 (1964);

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. at 276-277; Metro Broadcasting v. FCC, 497 U.S. 547,

563-566 & nn.11-13 (1990). The Constitution entrusts the

legislative branch with the task of assessing the need for

national regulations of “commerce . . . among the several

States.” U.S. Const. art. 1, § 8, ch. 3. But it does not follow

that an administrative agency, acting without an explicit

Congressional mandate, is equally free to exercise

constitutional power to the same boundary.

Whatever deference is due Congress’ constitutional

determination, based on full legislative consideration, no such

deference operates in favor of implementing agencies whose

“expertise” and practical experience may, under some

circumstances, justify deference to their reading of statutes,

but not the Constitution. See Hampton v. Mow Sun Wong,

426 U.S. 88, 103-104, 114-116 (1976); Greene v. McElroy,

16

tte

360 U.S. 474, 507 (1959). Cf Flores v. Meese, 942 F.2d

1352, 1362 (9th Cir. 1991); Ayala-Chavez v. INS, 945 F.2d

288, 294 (9th Cir. 1991). Without the benefit of such a

presumption, we submit the “migratory bird rule” cannot pass

the constitutional test.

CONCLUSION

The decision of the Court of Appeals should be reversed.

DATED: March 2000 Respectfully submitted,

EDGAR B. WASHBURN

Counsel of Record

CHRISTOPHER J. CARR

WASHBURN, BRISCOE & MCCARTHY

A Professional Corporation

55 Francisco Street, Suite 600

San Francisco, California 94133

Telephone: (415) 421-3200

Facsimile: (415) 421-5044

Attorneys for Amicus Curiae

Cargill, Incorporated

17

OEPARTMENT OF THE ARMY

U.& Asmy Corps of Engineers

WASHING TON. 0.C. 20314-1000

84 JAN 165

AFTexT0n 0°.

CECW-OR

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated

Waters in Light o¢ Tabb Lakes v. Onited States

1. As @ result of the Fourth Circuit Court decision in Tabb Lakes

v. United States, the enclosed Corps of Engineers/Environszental

Protection ggeney memorandums vas developed to provide guidance on

the regulation isolated waters pending completion of rulemaking

on this subject.

2. Questions or comments concerning this guidance should be

directed to Dr. John Hall (202) 272-0201 or Mr. Lance Wood (202)

272-0035.

FOR THE DIRECTOR OF CIVIL WORKS:

f, Operations, Construction and

Readiness Division

Directorate of Civil Works

A-l

Pied stp,

~ } United States Environmental Protection Agency

AS a United States Department of the Army

SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of

Tabb Lakes v. United States

1. On September 22, 1989, in an unpublished opinion, the Unised States Court of EES 9

Appeals for the Fourth Circuit held that the Corps of Engineers may not rely upon

Ken anda issued on November 8, 1985, and February 11, 1986, by Brigadier General ‘. The United States believes that the Fourth Circuit's Tabb Lakes decision was

Kelly, then Deputy Director of Civil Works, to assert jurisdiction over isolated waters incorrect and we reserve the right to re-ltigate the legal questions decided in the Tabb

under section 404 of the Clean Water Act. Tabb Lakes v. United States, (No. 89-2905, Lakes case in other circuits. Because this decision is not binding on courts outside of

4th Cir.) This memorandum provides direction on the continued assertion of ourth Circuit not implement the decision outside the area constituting the

jurisdiction over isolated waters, as required by 33 CFR 328.3(a\3), in the wake of the } be Circuit oe the sta nia

tes of South Carolina, North Carolina, Virginia, West

2. Tabb Lakes focused on an EPA and Corps interpretation of the definition of “waters 4. Within the Fourth Circuit, we will follow the holding of Tabb Lakes, which was

of the United States" including isolated waters, described at 33 CFR 328.3(a)(3), as limited to the procedural notice-and-comment issue discussed above. Tus, within the

follows: : Fourth Circuit, we will not rely upon or cite the above-referenced memoranda in

making jurisdictiona] determinations. However, we will continue to assert jurisdiction,

All other waters such as intrastate lakes, rivers, streams (includin as required by the “waters of the United States" reguiatory definition, over all waters,

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie the use, degradation or destruction of which could affect interstate or foreign

potholes, wet meadows, playa lakes, or natural ponds, the use, degradation commerce, as is required by our existing regulations adopted through the Administrative

Or destruction of which could affect interstate or foreign commerce, Procedure Act rulemaking process. Corps FOAs and EPA Regions will apply this

including any such waters: regulatory definition to each site.on a case-by-case basis, and will evaluate all available

information in a manner consistent with the language of the regulations and the

(i) Which are or could be used by interstate or foreign travelers for expressed Congressional! intention that Clean Water Act jurisdiction be exercised over

recreational or other purposes; or all waters to the fullest extent legally permissible under the Commerce Clause of the

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

interstate or foreign commerce; or

(iif) Which sre used or could be used for induswrial purpose by industries : Circuit, The definition of ‘waters of the Uniied States" at 39 CFR 3283(a\(3) wa

in interstate commerce . . . , promulgated through the APA rulemaking process and remains in full force and effect

notwithstanding the Tabb Lakes decision This definition “isolated” waters,

The EPA General Counsel issued guidance on September 12, 1985, interpreting this including isolated wetlands, since it cites as of jurisdictional waters

regulation to include isolated waters which are or could be used as habitat by birds “prairie potholes, wet meadows, [and] playa lakes..", all of which are

a etease ee atCry Bird Treaties, migratory birds which crom state lines, and by "isolated." We fully intend to implement the Tabb Lakes decision within the Fourth

endangered species. Brigadier General Kelly adopted this interpretive guidance in the Circuit; however, we interpret that decision as allowing the Corps and EPA to continue

Corps guidance cited above which were the subject of the Tabb Lakes to assert CWA jurisdiction over isolated waters. Accordingly, we expect Corps FOAs

litigation. In Tabb Lakes, the Court held that the Corps may not rely on this and EPA Regional offices within the Fourth Circuit 10 continue to regulate isolated

a2 A-3

BEST AVAILABLE COPY

with regards to Corps Divisions should

(202) 272-0035) or the Chief, Regulatory Branch

1785). EPA Regions should contact Mr. Steve Neugeboren

(202) 382-7703) or Ms. Suzanne Schwartz (Office of

questions

Wood (

272-

Counsel,

(202)

For the Environmental Protection Agency:

For the Chief of Engineers:

j-79-7e

Date

/

VID G. DAVIS

Director

,

Office of Wetlands Protection

A-t