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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 159

## Text

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,

99 UB.C. 0 GDB .nnccnincnnenssinisinaaasamiaa

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A08. Public record. Not legal advice.