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

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No. 99-1178 ‘JUL 2 5 2006

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INTHE {SP RE

Supreme Court of the United States

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL..

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

BRIEF FOR THE WASHINGTON LEGAL

FOUNDATION AND ALLIED EDUCATIONAL

FOUNDATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

MARK A. PERRY

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

DANIEL J. POPEO

PAUL D. KAMENAR

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave, N.W.

Washington, D.C. 20036

(202) 588-0302

July 25, 2000 Counsel for Amici Curiae

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QUESTION PRESENTED

Whether the temporary presence of a migratory bird

on an isolated, intrastate wetland can support, under the

Commerce Clause, the assertion of federal jurisdiction

over private property.

(i)

TABLE OF CONTENTS

I cxrrcccneninsnicsnntinsenmnnniticnniniiibisiiabiiie i

ee Ce ctccrcennnenintsenniseenmmnsininiiniiia iv

INTEREST OF AMICI CURIA ................ccsccccssssssscessesees l

PTET cocnssrcsecnnnnininnenenunsenenantimiiiniiitinmmamand 2

SUMMARY OF ARGUMENT .....00........cccccccsesseseeeeeseenee 5

FURIE cennscssssnmasemnsenennimeninneniniammmneil 9

SP ccrcreemesnscanepenesmntnsnneiedeniiteininianiaaieminaitias 26

(ii)

iv

TABLE OF AUTHORITIES

Cases

Andrus v. Allard, 444 U.S. 51 (1979) .....cccccccceeceeeeeeeees 13

Baldwin v. Montana Fish & Game Commission,

ee Se rectternereniccenstnasnetnttininiinatieniiseins 23

Dolan v. City of Tigard, 512 U.S. 374 (1994).............. 21

Douglas v. Seacoast Products, Inc., 431 U.S. 265

Ee ee me re 10, 12, 22

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ..8, 22

Ex parte Boyer, 109 U.S. 629 (1884) ...........ccccccccceeeeees 11

Geer v. Connecticut, 161 U.S. 519 (1896)............... 8, 22

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).......... 10

Gibbs v. Babbitt, No. 99-1218, 2000 WL 726073

BS eee 2, 15

Hughes v. Oklahoma, 441 U.S. 322 (1979)............ 13, 23

Jones v. United States, 120 S. Ct. 1904

RETR Ele aS oo eee 7, 12, 18, 19

Kaiser Aetna v. United States, 444 U.S. 164

SE acsiiiiieteesieneeiaibcemndianidiemaatatenciiniainiaidadiatabaiiais 5-6, 10-11

Kleppe v. New Mexico, 426 U.S. 529 (1976)............... 24

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

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

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

Missouri v. Holland, 252 U.S. 416 (1920)............ passim

National Ass'n of Home Builders v. Babbitt, 130

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

Se iniiitintintichimrteatmemammaaceiiiiaiaiabieens 2,17

New York v. United States, 505 U.S. 144 (1992)......... 22

North Dakota v. United States, 460 U.S. 300

(UU enustincdescscncsnieidieiigualaaieannsnninpitinedieniimttadions 8, 23,24

Rueth v. EPA, 13 F.3d 227 (7th Cir. 1993) ..........0....... 19

South Carolina v. Georgia, 93 U.S. 4 (1876)............... 1]

Vv

Sporhase v. Nebraska ex rel. Douglas, 458 U.S.

et iiictisiidinesincgepeipieniabhidbiidieatibiinipinnacovebie 22

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) .......... 11

The Montello, 87 U.S. (20 Wall.) 430 (1874)............... 11

Train v. City of New York, 420 U.S. 35 (1975)............. 21

United States v. Appalachian Power Co., 311

EE eae 6, 11

United States v. Bass, 404 U.S. 336 (1971) .............00. 18

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

United States v. Morrison, 120 S. Ct. 1740

niet iataateaiataemeeeetelietidai cinch tiaaceereaiaiiiaaia passim

United States v. Riverside Bayview Homes, Inc.,

NC I innrirrntiintearininiatincmnieimnieuseiion 12

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

ee hidptinstiidtbitionscsiapimetieenmmminmees 12

Village of Belle Terre v. Boraas, 416 US. 1

TI iescectetsepibuiieeieanietiieapadaeaeiiihendinineesecane 21-22

Wickard v. Filburn, 317 U.S. 111 (1942).........0:00:00000 14

Statutes and Regulations

ig Tit I teniaeeanshidbineianiibantiniinnsabbinnbeoneeninnnneita 2,4

SEITE Itt TTT nsiccenttatinireceenennieiimesamdemmmmnnenntananiets 2,4

TU asic iceecnterianinnntciianiiaeaniiniamenmenneinttini 2,3

SP eet UIT ciara rennrniceanstanincepmspennmqnnneninemnenenntinte 3

51 Fed. Reg. 41,206 (Nov. 13, 1986) ............0.....0.02. 3,19

Other Authorities

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144

STI crnstnastrestentremsgsentncinisehdameimaminesiuneenscenenen 21

Tribe, American Constitutional Law (4th ed.

SITIES commseriarenmminianieneienineiadiabiaditentabiieaarcenetinnn 25

>

}

5

IN THE

Supreme Court of the United States

No. 99-1178

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF FOR THE WASHINGTON LEGAL

FOUNDATION AND ALLIED EDUCATIONAL

FOUNDATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE!

The Washington Legal Foundation (WLF) is a non-

profit public interest law and policy center based in

Washington, D.C., with thousands of supporters nation-

wide. WLF engages in litigation and the administrative

1 Pursuant to this Court’s Rule 37.6, amici state that no coun-

sel for any party authored this brief in whole or in part, and no per-

son or entity other than amici, their members, or their counsel

made a monetary contribution to the preparation or submission of

the brief. Counsel of record for both petitioner and respondents

have consented to the filing of this brief in letters that have been

lodged with the Clerk.

2

process in a wide variety of areas, including cases in-

volving property rights and the scope of the federal gov-

ernment’s Commerce Clause powers. In particular,

WLE h»« argued as amicus curiae in several recent cases

that th. commerce power does not extend to federal

regulation of wild animals. See, e.g., Gibbs v. Babbitt,

No. 99-1218, 2000 WL 726073 (4th Cir. June 6, 2000);

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

1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937

(1998).

The Allied Educational Foundation (AEF) is a non-

profit charitable and educational foundation based in

New Jersey. Founded in 1964, AEF is dedicated to

promoting education in diverse areas of study, including

law and public policy. AEF has appeared as amicus cu-

riae in many cases in which WLF is also involved, in-

cluding Gibbs and National Ass'n of Home Builders.

STATEMENT

1. The Clean Water Act prohibits the discharge of

any “pollutant,” including fill materials, into “navigable

waters” without a permit from the United States Army

Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a),

1362(12). The “navigable waters” subject to the Corps’

jurisdiction are defined in the Act only as “the waters of

the United States, including the territorial seas.” 33

U.S.C. § 1362(7).

The Corps has promulgated regulations defining the

“waters of the United States” as, inter alia, “[a}ll waters

which are currently used, or were used in the past, or

may be susceptible to use in interstate or foreign com-

merce, including all waters which are subject to the ebb

and flow of the tide,” and “[a]ll other waters such as in-

3

trastate lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds,

the use, degradation, or destruction of which could af-

fect interstate or foreign commerce....” 33 C.F.R.

§ 328(a)(1), (3) (1995) (emphasis added).

In a 1986 preamble to its regulations, the Corps ob-

served that the Environmental Protection Agency had

indicated that the “waters of the United States ... also

include” intrastate waters “[w]hich are or would be used

as habitat by birds protected by Migratory Bird Trea-

ties,” or “[w]hich are or would be used as habitat by

other migratory birds which cross state lines....” 51

Fed. Reg. 41,206, 41,217 (Nov. 13, 1986). “For lack of

a better term, perhaps, this language in the preamble has

been described as the ‘migratory bird rule.’” Pet. App.

15a. The question in this case is whether the Corps’ in-

terpretation of the Clean Water Act is constitutionally

sufficient to support the exercise of federal jurisdiction.

2. Petitioner Solid Waste Agency of Northern Cook

County (SWANCC) purchased a 533-acre parcel of land

in Illinois to use as a landfill. Part of the tract had pre-

viously been used for strip mining, which left a “laby-

rinth of trenches and other depressions” on the land.

Pet. App. 2a. These man-made basins, some of which

fill with rainwater only seasonally, “range from less than

one-tenth of an acre to several acres in size, and from

several inches to several feet in depth.” Jbid. Because

petitioner’s operations would “require the filling of ap-

proximately 17.6 acres of semi-aquatic property” (Pet.

App. 3a), petitioner applied to the Corps for a fill permit

pursuant to Section 404 of the Clean Water Act, 33

U.S.C. § 1344(a).

4

Although the Corps initially determined that the

property did not encompass “waters of the United

States,” and thus did not fall within the Corps’ regula-

tory jurisdiction, the Corps changed position when it

was informed that migratory birds had been observed on

the site. “This new information made all the difference

to the Corps, because of the so-called migratory bird

rule.” Pet. App. 4a. The Corps determined that the

presence of migratory birds rendered the ponds and

puddles on petitioner’s property “waters of the United

States” subject to the Corps’ jurisdiction under the Clean

Water Act.

3. After concluding that it had the power to regulate

petitioner’s property, the Corps denied petitioner’s re-

quest for a Section 404 permit. This lawsuit, in which

petitioner challenged (inter alia) the constitutionality of

the migratory bird rule, then ensued.

a. The district court granted summary judgment for

the Corps. According to the court, “the cumulative deg-

radation of intrastate waters could have a substantial ef-

fect on interstate commercial interests relating to [migra-

tory] birds.” Pet. App. 20a. As a result, the court con-

cluded that “a federal agency may assert- jurisdiction

over intrastate waters even if the destruction of those

particular waters will not have a substantial effect on in-

terstate commerce and there is no evidence that migra-

tory birds support human commercial activity there.”

Ibid.

b. The court of appeals affirmed. The court said that

“the destruction of migratory bird habitat and the atten-

dant decrease in the populations of these birds ‘substan-

tially affects’ interstate commerce.” Pet. App. 7a. Even

though “[t]he effect may not be observable as each iso-

|

5

lated pond used by the birds for feeding, nesting and

breeding is filled,” the court concluded that “the aggre-

gate effect is clear, and that is all the Commerce Clause

requires.” /bid.

SUMMARY OF ARGUMENT

The Corps of Engineers’ “migratory bird rule” ex-

ceeds the authority conferred on the federal government

by the Commerce Clause, and the Corps’ assertion of

regulatory jurisdiction over petitioner’s property should,

therefore, be invalidated as unconstitutional.2

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

and United States v. Morrison, 120 S. Ct. 1740 (2000),

this Court made clear that the Commerce Clause in-

cludes judicially enforceable outer limits. Within those

limits, the Court’s cases have recognized three broad

categories of activity that Congress can regulate: (a) the

channels of interstate commerce, (b) the instrumentali-

ties of interstate commerce, and (c) activities that sub-

stantially affect interstate commerce.

a. The migratory bird rule cannot be sustained as a

regulation of the channels of interstate commerce. Al-

though certain navigable waters may constitute such

channels, the isolated ponds and ditches on petitioner’s

property do not constitute navigable waters under even

the most lenient of this Court’s Commerce Clause

precedents. See, e.g., Kaiser Aetna v. United States, 444

2 The constitutionality of the migratory bird rule need be re-

solved only if this Court makes the antecedent determination that

the Corps’ construction of the Clean Water Act is a permissible

interpretation of the statute. See note 3, infra.

6

— US. 164, 171-74 (1979) (citing, inter alia, United States

v. Appalachian Power Co., 311 U.S. 377 (1940)).

b. Nor can the migratory bird rule be sustained as a

regulation of things in interstate commerce. Although

interstate commercial transactions involving animals,

once captured, may be subject to regulation under the

commerce power, animals in their feral state are the

property of no one and, therefore, do not constitute arti-

cles or instrumentalities of commerce.

c. As the court of appeals recognized, the migratory

bird rule can be sustained only if it regulates activity that

has a substantial effect on interstate commerce. Pet.

App. 6a. In making that determination, the Court must

consider (i) whether the regulation reaches economic

activity, (ii) whether the link between the regulated ac-

tivity and interstate commerce is direct or attenuated,

(iii) whether the regulation includes an express jurisdic-

tional element, and (iv) whether Congress has made

findings regarding the regulated activity’s effect on

commerce. Morrison, 120 S. Ct. at 1749-51. As in Lo-

pez and Morrison, each of those factors indicates that

the migratory bird rule exceeds the commerce power.

i. The actual or potential presence of migratory birds

on petitioner’s property does not involve commercial

transactions or economic activity. As a result, the court

of appeals erred in “aggregating” the cumulative and

speculative effects on commerce of the destruction of

migratory bird habitats nationwide. Rather, the Corps

must establish that the activity on the land to be regu-

lated would have a substantial effect on commerce,

which it has not done (and cannot do).

7

ii. The connection between the activity the Corps

seeks to regulate and interstate commerce is exceedingly

attenuated. The court impermissibly “pile[d] inference

upon inference” in concluding that, because some peo-

ple cross state lines to hunt or observe migratory birds,

the filling of 17.6 acres on petitioner’s property could

have a substantial effect on interstate commerce. See

Lopez, 514 U.S. at 567. The court of appeals’ reasoning

has no logical stopping point. If accepted, the federal

government could regulate all of the Nation’s lands and

waters, as well as every bird, beast and fish, under the

guise of the commerce power.

iii. The migratory bird rule contains no jurisdictional

element to ensure that the requisite nexus with interstate

commerce is present. Although migratory birds might

(or might not) cross state lines, the self-propelled flight

of birds cannot provide the necessary nexus because the

birds themselves are not in interstate commerce.. A con-

trary conclusion would mean that the federal govern-

ment could regulate every pond and puddle that might

be visited by migratory birds. Cf Jones v. United

States, 120 S. Ct. 1904, 1911 (2000).

iv. Congress has made no findings regarding the im-

pact, if any, that the extension of Clean Water Act juris-

diction to intrastate waters that may temporarily be vis-

ited by migratory birds would have on interstate com-

merce. Indeed, because the migratory bird rule is an

administrative interpretation rather than a statute, the

deference this Court ordinarily gives Congress regarding

the scope of the commerce power is not warranted in

this case. The constitutionality of the Corps’ interpreta-

tion of its own jurisdiction under the Act is a question

8

for this Court, not the political branches. Morrison, 120

S. Ct. at 1753 & n.7.

2. The migratory bird rule offends basic notions of

federalism. See Morrison, 120 S.Ct. at 1754 (“The

Constitution requires a distinction between what is truly

national and what is truly local”). The activity that the

Corps seeks to regulate has historically been the prov-

ince of the States.

a. The regulation of land use activities has tradition-

ally been,entrusted to the States and their political sub-

divisions. See, e.g., Euclid v. Ambler Realty Co., 272

U.S. 365 (1926). The Corps’ migratory bird rule would

usurp the police power over such activities.

b. Moreover, the regulation of wild animals is a tra-

ditional area of state concern. Geer v. Connecticut, 161

U.S. 519 (1896). Although this Court has said that there

is also a national interest in protecting migratory bird

habitats, it has not done so in the context of the Com-

merce Clause. Rather, the Court has said that this inter-

est may support the acquisition and regulation of land by

the federal government pursuant to the property power

(North Dakota v. United States, 460 U.S. 300 (1983)),

and the enactment, pursuant to the treaty power, of fed-

eral statutes to enforce international treaties to protect

migratory bird populations (Missouri v. Holland, 252

U.S. 416 (1920)). Those cases, which construed other

powers conferred on the government under the Constitu-

tion, did not hold that the commerce power encompasses

wild animal regulation. On the contrary, the migratory

bird rule exceeds the enumerated powers of the federal

government.

9

ARGUMENT

While Congress’s powers under the Commerce

Clause are indisputably expansive, even defenders of the

Corps of Engineers’ so-called migratory bird rule ac-

knowledge that the assertion of federal jurisdiction over

every puddle or birdbath on which migratory waterfowl

may temporarily alight “tests the limits of Congress’s

commerce powers and, some would argue, the bounds of

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

1396 (9th Cir.), cert. denied sub nom. Cargill, Inc. v.

United States, 516 U.S. 955 (1995). Amici submit that

the migratory bird rule clearly exceeds the federal au-

thority to regulate interstate commerce conferred by the

Constitution. As a result, the Corps’ assertion, in sole

reliance on that rule, of regulatory jurisdiction over peti-

tioner’s property should be invalidated as unconstitu-

tional.

1. It is undisputed that the Commerce Clause issue

in this case must be resolved under the framework ar-

ticulated by this Court in United States v. Lopez, 514

U.S. 549 (1995), and reiterated last Term in United

States v. Morrison, 120 S. Ct. 1740 (2000). As those

cases make clear, the congressional power to regulate

interstate commerce necessarily includes “judicially en-

forceable outer limits.” Lopez, 514 U.S. at 566; see also

Morrison, 120 S. Ct. at 1748 (“even under [this Court’s]

modern, expansive interpretation of the Commerce

Clause, Congress’ regulatory authority is not without

effective bounds”). Enforcement of those limits is nec-

essary to ensure that our federal government acts only

within the sphere of enumerated powers conferred on it

by the Constitution.

10

The Court explained in Lopez that precedent estab-

lishes “three broad categories of activity that Congress

may regulate under its commerce power.” 514 U.S. at

558.

First, Congress may regulate the use of the

channels of interstate commerce. Second, Con-

gress is empowered to regulate and protect the

instrumentalities of interstate commerce, or per-

sons or things in interstate commerce, even

though the threat may come only from intrastate

activities. Finally, Congress’ commerce author-

ity includes the power to regulate those activi-

ties having a substantial relation to interstate

commerce, i.e., those activities that substantially

affect interstate commerce.

Id. at 558-59 (citations omitted); see also Morrison, 120

S. Ct. at 1749. The migratory bird rule at issue in this

case is not a permissible exercise of federal authority

under any of those categories.

a. The migratory bird rule does not regulate the

“channels of interstate commerce.” To be sure, some

navigable waters of the United States are, literally,

channels of commerce among the States, and are there-

fore subject to federal regulation. See, e.g., Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1 (1824). And Congress may

regulate commercial activity relating to some animals

(fish, for example) that occupy such waters. Cf Doug-

las v. Seacoast Products, Inc., 431 U.S. 265 (1977).

The Corps’ migratory bird rule, however, cannot be sus-

tained on this rationale.

In a series of decisions, this Court has “define[d] the

scope of Congress’ regulatory authority under the Inter-

state Commerce Clause” over navigable waters. Kaiser

Aetna v. United States, 444 U.S. 164, 171 (1979) (citing

United States v. Appalachian Power Co., 311 U.S. 377

(1940); South Carolina v. Georgia, 93 U.S. 4 (1876);

The Montello, 87 U.S. (20 Wall.) 430 (1874); and The

Daniel Ball, 77 U.S. (10 Wall.) 557 (1871)). Under

even the most lenient of those definitions, however, the

isolated ponds and ditches on petitioner’s property can-

not constitute “navigable waters” within this Court’s

Commerce Clause jurisprudence. See Appalachian

Power, 311 U.S. at 426-27. They certainly do not com-

prise part of the “highway for commerce between ports

and places in different States” (Ex parte Boyer, 109 U.S.

629, 632 (1884)) that justifies the exercise of federal

power. See Gov’t C.A. Br. 23 n.13 (“Paragraph (a)(3)

waters ... are, by definition, neither part of a tributary

system to navigable or interstate waters nor ‘adjacent’ to

such waters or their tributaries”’).

The Court made clear in Kaiser Aetna that, if a regu-

lation does not affect “navigable waters” as defined by

the Court’s precedents, then “traditional Commerce

Clause analysis” should be employed in evaluating

whether a particular regulation is within the commerce

power. See 444 U.S. at 173-74. In particular, in cases

such as this one that do not involve navigable waters, the

inquiry becomes whether the regulated activity substan-

tially affects commerce (i.e., the third mode of analysis

identified in Lopez). Ibid.4

3 The Court need not reach the “substantial effects” test in this

case. Under the plain language of the Ciean Water Act, the Corps’

jurisdiction is limited to “navigable waters,” defined only as “the

waters of the United States.” In construing the scope of this statu-

[Footnote continued on next page]

12

b. The migratory bird rule is not a regulation of the

“instrumentalities of commerce.” That is because ferae

naturae, such as free-ranging migratory birds, are the

property of no one. See Seacoast Products, 431 U.S. at

284 (“{I}t is pure fantasy to talk of ‘owning’ wild fish,

birds, or animals. Neither the States nor the Federal

Government, any more than a hopeful fisherman or

hunter, has title to these creatures until they are reduced

to possession by skillful capture.”). As a result, at least

as long as the birds continue to migrate freely, they do

not amount to articles of commerce and cannot be the

subject of commercial transactions.

[Footnote continued from previous page}

tory jurisdiction, this Court has previously declined to “address the

question of the authority of the Corps to regulate discharges of fill

material into wetlands that are not adjacent to bodies of open wa-

ter.” United States v. Riverside Bayview Homes, Inc., 474 U.S.

121, 131 n.8 (1985). Answering that question in the negative

would mean that the Corps’ migratory bird rule, at least as applied

in this case, is not authorized by the statute. See United States v.

Wilson, 133 F.3d 251, 257 (4th Cir. 1997) (“as a matter of statu-

tory construction, one would expect that the phrase ‘waters of the

United States’ when used to define the phrase ‘navigable waters’

refers to waters which, if not navigable in fact, are at least ...

closely related to navigable or interstate waters”). Such a

construction would not only comport with common sense, but also

would render consideration of the Commerce Clause issue unnec-

essary. Cf Jones v. United States, 120 S.Ct. 1904, 1911-12

(2000) (construing federal arson statute narrowly to avoid Com-

merce Clause difficulties posed by broader interpretation urged by

the government). Amici address the constitutional issue in the

event the Court disagrees with petitioner's submission that the

statutory reach of the Clean Water Act does not extend to isolated

ponds unconnected to any navigable or interstate waterways.

13

Once reduced to possession through seizure or cap-

ture, wild animals could well be “things in interstate

commerce” the sale or transportation of which may be

subject to regulation under the commerce power. See,

e.g., Hughes v. Oklahoma, 441 U.S. 322 (1979). This

rationale explains, for example, the Court’s observation

(quoted, out of context, by the Solicitor General) that the

“assumption that the national commerce power does not

reach migratory wildlife is clearly flawed.” Opp. to

Pet. for Cert. 18 (quoting Andrus v. Allard, 444 U.S. 51,

63 n.19 (1979)). In the quoted case, the Court was con-

sidering the Secretary of the Interior’s authority, pursu-

ant to the Bald Eagle Protection Act, “to bar commercial

transactions in covered bird parts.” Allard, 444 U.S. at

63 (emphasis added). But that rationale has no applica-

bility to the Corps’ efforts to regulate private property

simply because it may be visited by migratory birds, be-

cause no commercial transactions are involved.

c. Thus, as the Solicitor General appears to ac-

knowledge (see Opp. to Pet. for Cert. 17), the migratory

bird rule can be upheld, if at all, only upon a finding that

it constitutes a regulation of activities that, although

wholly intrastate, have a substantial effect on interstate

commerce. See Pet. App. 6a (“the migratory bird rule”

can “only [be] sustained as an exercise of the third vari-

ety of regulatory power”). But the Corps’ attempt to ex-

tend its jurisdiction to petitioner’s property cannot be

upheld on this ground either.

As the Court explained last Term, Lopez “provides

the proper framework” for analyzing whether a federal

law properly regulates activity that substantially affects

interstate commerce. Morrison, 120 S.Ct. at 1749.

That framework sets forth four separate areas of inquiry:

14

(i) whether the regulation by its terms reaches commer-

cial or economic activity; (ii) whether the link between

the regulated activity and interstate commerce is direct

or attenuated; (iii) whether the regulation includes an

express jurisdictional element; and (iv) whether Con-

gress has made findings regarding the regulated activ-

ity’s effect on interstate commerce. See id. at 1749-51.

As in Lopez and Morrison, each of those factors indi-

cates that the migratory bird rule at issue in this case ex-

ceeds the authority granted to the federal government

under the Commerce Clause.

i. As discussed above, the migratory bird rule is not

aimed at commercial or economic activity. As a result,

the linchpin of the court of appeals’ Commerce Clause

analysis cannot bear the weight the court sought to put

on it. The court below said that “Lopez expressly recog-

nized, and in no way disapproved, the cumulative im-

pact doctrine, under which a single activity that itself

has no discernible effect on interstate commerce may

still be regulated if the aggregate effect of that class of

activity has a substantial impact on interstate com-

merce.” Pet. App. 6a (citing, inter alia, Wickard v. Fil-

burn, 317 U.S. 111 (1942)). The court thus implicitly

recognized that the Corps’ application of the migratory

bird rule in this particular case could not be justified as

substantially affecting commerce, but had to be “aggre-

gated” with other such regulation in order to satisfy the

substantial effects test.

The court of appeals failed to acknowledge, how-

ever, that “in every case where [this Court has] sustained

federal regulation under Wickard’s aggregation princi-

ple, the regulated activity was of an apparent commer-

cial character.” Morrison, 120 S. Ct. at 1750 n.4 (em-

15

phasis added); see Lopez, 514 U.S. at 559-60 (prerequi-

site to applying aggregation analysis is determination

that federal law regulates “intrastate economic activity’)

(emphasis added). Indeed, the Court recently stressed

that “thus far in our Nation’s history [the Court’s] cases

have upheld Commerce Clause regulation of intrastate

activity only where that activity is economic in nature.”

Morrison, 120 S. Ct. at 1751 (emphasis added).

Thus, in Lopez, the Court found that since federal

regulation of gun possession is not “an essential part of a

larger regulation of economic activity,” the law at issue

could not be sustained under precedents, such as

Wickard, “upholding regulation of [intrastate] activities

that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substan-

tially affects interstate commerce.” 514 U.S. at 561

(emphases added). Similarly, in Morrison, the aggrega-

tion principle was inapplicable because “[g]ender-

motivated crimes of violence are not, in any sense of the

gy economic activity.” 120 S. Ct. at 1751. So, too,

The court of appeals did not even undertake to in-

quire, much less make a determination, whether the

Corps’ migratory bird rule is either directed at economic

activity or part of a larger scheme of economic regula-

tion. And plainly it is not. Like the gun possession stat-

ute at issue in Lopez and civil remedy provision of the

Violence Against Women Act invalidated in Morrison,

the focus of the Corps’ regulation—the actual or potential

presence, however fleeting, of uncaptured migratory

birds on private property—is not economic or commercial

activity. See Gibbs, 2000 WL 726073, at *24-25 (Lut-

tig, J., dissenting). Neither the presence of the wild

16

animals, nor regulation of aquatic property on which

they might land, can be considered “in any sense of the

phrase, economic activity.” Morrison, 120 S.Ct. at

1751.

In the absence of commercial transactions or eco-

nomic activity, the “aggregation” analysis exemplified

by Wickard is simply inapplicable. Rather, in circum-

stances such as these, “[t]he point of Lopez was to ex-

plain that the activity on the land to be regulated must

substantially affect interstate commerce before »ongress

can regulate it pursuant to its Commerce Clause power.”

Cargill, 516 U.S. at 955 (Thomas, J., dissenting from

denial of certiorari). Because there is absolutely no in-

dication that the effect on migratory bird populations of

petitioner’s proposed use of its land would itself affect

interstate commerce, the Corps’ attempt to regulate that

activity exceeds the scope of the federal commerce

power.

ii. The court of appeals’ contrary conclusion, that

the filling of isolated ponds could have a substantial ef-

fect on commerce, gives new meaning to the term

“attenuated.” From the premise that many Americans

spend money engaging in bird-related activities such as

hunting and birdwatching, and that some of them cross

state lines to do so, the court below deduced that the fill-

ing of man-made depressions on a few acres of peti-

tioner’s property could have an effect on interstate

commerce. Pet. App. 7a. This is precisely the type of

reasoning condemned by the Court in Lopez: “To up-

hold the Government’s contentions here, we would have

to pile inference upon inference in a manner that would

bid fair to convert congressional authority under the

17

Commerce Clause to a general police power of the sort

retained by the States.” 514 U.S. at 567.

As in Lopez and Morrison, the Corps’ attenuated

chain of reasoning to reach an impact on interstate

commerce would leave nothing that the federal govern-

ment could not regulate. For example, tourists travel to

New England each fall to view the turning leaves; under

the Corps’ theory, the federal government could there-

fore regulate every tree. Similarly, people regularly

travel to shoot, fish, trap, observe and photograph game

throughout the Nation; under the Corps’ theory, the fed-

eral government could regulate not only the animals

themselves, but also whatever natural (or unnatural) en-

vironments, irrespective of private ownership, the crea-

tures great and small call home.

Under the Corps’ view of the commerce power,

therefore, each parcel of land, every ditch and puddle,

the blades of grass and the soughing wind—verily, all as-

pects of nature that might draw the interest of some part

of the citizenry—would be svbject to control by the fed-

eral government. As Judge Sentelle has rightly ob-

served, theories such as those put forth by the Corps in

this case have “no logical stopping point.” National

Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1065

(D.C. Cir. 1997) (dissenting opinion), cert. denied, 524

U.S. 937 (1998). The federal government would be able

to exert a police power over the Nation’s lands and wa-

ters, and the birds, beasts and fishes that inhabit them,

no less sweeping than the generalized power to combat

crime asserted in Lopez and Morrison. But, as the Court

said in rebuffing the government’s insistence in those

cases that the commerce power has virtually no limits,

“[w]e always have rejected readings of the Commerce

18

Clause and the scope of federal power that would permit

Congress to exercise a police power.” Morrison, 120

S. Ct. at 1754 (quoting Lopez, 514 U.S. at 584-85 (Tho-

mas, J., concurring)). The Court should do so here as

well.

iii. The migratory bird rule contains no “jurisdic-

tional element” to ensure that the requisite nexus with

interstate commerce is present. See Lopez, 514 U.S. at

561-62. Although the Corps concluded that the aquatic

areas of petitioner’s property “‘are or could be used as

habitat by migratory birds which cross state lines’” (Pet.

App. 4a), the nexus requirement can be met only by the

interstate transportation of the instrumentalities or things

of commerce. See, e.g., United States v. Bass, 404 U.S.

336, 347-49 (1971).

Since wild animals are not themselves in interstate

commerce, their crossing of state boundaries (even if

established) cannot provide the nexus to commerce that

the Court’s cases require. See Cargill, 516 U.S. at 955

(Thomas, J., dissenting from denial of certiorari) (“the

self-propelled flight of birds across state lines” does not

create “a sufficient interstate nexus to justify the Corps’

assertion of jurisdiction over any standing water that

could serve as a habitat for migratory birds”). It is a tru-

ism that birds fly. But the mere fact that their path of

flight may cross a state line, without constituting or im-

pacting commercial activity, does not trigger the com-

merce power.

A contrary conclusion would mean that the federal

government could regulate literally every body of stand-

ing water, both permanent and transitory, that might be

visited, however fleetingly, by migratory birds. Cf

Jones, 120 S. Ct. at 1911 (“Were we to adopt the Gov-

“ad ———

19

ernment’s expansive interpretation of [the arson statute],

hardly a building in the land would fall outside the fed-

eral statute’s domain”); Lopez, 514 U.S. at 564 (“if we

were to accept the Government’s arguments, we are hard

pressed to posit any activity by an individual that Con-

gress is without power to regulate”). Acceptance of the

Corps’ expansive view of its own jurisdiction would

eviscerate the very doctrine of enumerated powers by

authorizing the federal government to regulate all man-

ner of wholly intrastate property. Congress could

thereby subject landowners to one-size-fits-all federal

rules, rather than the varied state schemes that have tra-

ditionally governed the use of real property. Cf Lopez,

514 U.S. at 580-83 (Kennedy, J., concurring).

The court of appeals attempted to avoid this obvious

conclusion by asserting that the Corps “must first make

a factual determination that a particular body of water

provides a habitat for migratory birds.” Pet. App. 8a.

That construction is inconsistent with the plain terms of

the migratory bird rule, which purports to give the Corps

“carte blanche authority to regulate every property that

migratory birds use or could use as habitat.” Cargill,

516 U.S. at 955 (Thomas, J., dissenting from denial of

certiorari); see 51 Fed. Reg. at 41,217 (asserting federal

jurisdiction over waters that “are or would be used as

habitat by birds”) (emphasis added). In any event, the

definition of “habitat” is so broad as to add no limitation

whatsoever to the assertion of federal jurisdiction over

waters that may be used, even temporarily, by any of the

billions of migratory birds that make use of the Nation’s

flyways. See, e.g., Rueth v. EPA, 13 F.3d 227, 231 (7th

Cir. 1993) (“nearly all wetlands fall within the jurisdic-

tion of the CWA since one test for whether the wetland

20

affects interstate commerce is whether migratory birds

use the wetland”) (emphasis added). The “use” of an

isolated body of water by a migratory bird is simply an

insufficient nexus to interstate commerce to support the

exercise of federal authority.

iv. As in Lopez, “to the extent that congressional

findings would enable [the Court] to evaluate the

legislative judgment that the activity in question

substantially affected interstate commerce, even though

no such substantial effect was visible to the naked eye,

they are lacking here.” 514 U.S. at 563. In particular,

Congress has never sought to explain how the extension

of the Corps’ Section 404 permitting authority over

isolated waters that are or could be used by migratory

birds substantially affects interstate commerce.

Indeed, because the “migratory bird rule” is an ad-

ministrative interpretation of the Clean Water Act, there

has been no “legislative judgment” regarding the effect

on commerce, if any, of the activity in question. Unlike

the statutes at issue in Lopez and Morrison, the decision

to extend federal authority to intrastate activities was not

made by the People’s elected representatives, but rather

by bureaucrats. Thus, while “[d]ue respect for the deci-

sions of a coordinate branch of Government demands

that [this Court] invalidate a congressional enactment

only upon a plain showing that Congress has exceeded

its constitutional bounds” (Morrison, 120 S.Ct. at

1748), this Court need not declare any act of Congress

invalid if it determines that the Corps has adopted an

overly aggressive interpretation of its jurisdiction under

the Clean Water Act. Rather, the Court need only de-

cide that the Corps, in the preamble to its interpretive

ae

ii eee —t

21

regulations, went too far in defining the scope of its own

regulatory jurisdiction. ;

The Solicitor General puts much weight on the Con-

ference Committee’s statement that “‘[t]he conferees

fully intend that the term ‘navigable waters’ [in the

CWA] be given the broadest possible constitutional in-

terpretation ....’”” Opp. to Pet. for Cert. 15 (quoting S.

Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972)).

But aside from the obvious fact that “legislative inten-

tion, without more, is not legislation” (Train v. City of

New York, 420 U.S. 35, 45 (1975)), the conferees’ ob-

servation begs the question of whether the Corps’ inter-

pretation of the term in the migratory bird rule is consti-

tutional. That is ultimately a question for this Court, not

a congressional committee or an administrative agency,

to decide. See, e.g., Morrison, 120 S. Ct. at 1753 n.7

(“No doubt the political branches have a role in inter-

preting and applying the Constitution, but ever since

Marbury this Court has remained the ultimate expositor

of the constitutional text”).

2. In addition to failing the Commerce Clause analy-

sis articulated in Lopez and Morrison, the Corps’ migra-

tory bird ruc offends basic notions of federalism. As

the Court explained last Term, “[{t]he Constitution re-

quires a distinction between what is truly national and

what is truly local.” Morrison, 120 S. Ct. at 1754; see

also Lopez, 514 U.S. at 566, 568. The activities that the

Corps seeks to regulate—land use and wildlife—have tra-

ditionally been matters of state concern.

a. The regulation of local land use activities has long

been the province of the States and their political subdi-

visions. See, e.g., Doia v. City of Tigard, 512 U.S.

374, 384 (1994); Village of Belle Terre v. Boraas, 416

22

U.S. 1, 13 (1974); Euclid v. Ambler Realty Co., 272 U.S.

365 (1926). In fact, the Court has specifically recog-

nized that “a State’s power to regulate the use of water

... for the purpose of protecting the health of its citizens

... is at the core of its police power.” Sporhase v. Ne-

braska ex rel. Douglas, 458 U.S. 941, 956 (1982). The

Corps is attempting to usurp that “police power” through

the implementation of its migratory bird rule.

The court of appeals attempted to dismiss the con-

cern that the Corps was intruding on matters of state

sovereignty, but its reasoning was entirely circular:

“{B]ecause the regulation of migratory bird habitat is a

permissible exercise of Congress’ authority, the Su-

premacy Clause ... squarely supports the legitimacy of

giving precedence to federal law in this area.” Pet. App.

9a. As discussed above, the regulation of isolated, intra-

state waters solely because they might be visited by mi-

gratory birds is not a “permissible exercise” of federal

authority. At the very least, the question is, indisputa-

bly, a close one. See Leslie Salt, 55 F.3d at 1396. In

these circumstances, deference to traditional state auton-

omy is appropriate. Cf New York v. United States, 505

U.S. 144, 156-57 (1992).

b. States have also long asserted authority over the

wild birds, animals and fishes within their borders. As

the Court has explained, this is an incidence of sover-

eignty that has been exercised since at least Roman

times. Geer v. Connecticut, 161 U.S. 519, 522-28

(1896); see also Seacoast Products, 431 U.S. at 287-88

(Rehnquist, J., concurring in part and dissenting in part)

(it is “clear that the States have a substantial proprietary

interest ... in the fish and game within their bounda-

ries”). This authority is exercised in a variety of ways,

23

including the establishment of hunting seasons, the vari-

ous schemes of fishing and other licenses required, limi-

tations on the size and number of animals that can be

caught, and the like. See, e.g., Baldwin v. Montana Fish

& Game Commission, 436 U.S. 371 (1978).

Although the Court has held that the States cannot

enforce regulation that discriminates against interstate

commerce in game after it has been reduced to posses-

sion, and therefore becomes an article of commerce

(Hughes, 441 U.S. 322), the Court has never cast doubt

on the traditional authority of the States to regulate the

activities of people in relation to animals in the wild.

Nor has the Court ever suggested that the federal gov-

ernment has the authority to (for example) limit the

deer-hunting season in Virginia or require permits for

fishing in Alaska’s intrastate waters.

The court of appeals said that the contention that

federal regulation of migratory birds intrudes on an area

of traditional state sovereignty “is refuted by the numer-

ous international treaties and conventions designed to

protect migratory birds [citations], as well as the case

law recognizing the ‘national interest of very nearly the

first magnitude’ in protecting such birds, North Dakota

v. United States, 460 U.S. 300, 309 (1983); see also

Missouri v. Holland, 252 U.S. 416 (1920).” Pet. App.

8a. The court missed the point.

In commenting on the national interest in migratory

birds, the Court in North Dakota v. United States was

construing a statute that authorized the federal govern-

ment to acquire, by purchase, land that might be used as

bird habitats. See 460 U.S. at 309-10. The power of

eminent domain is undoubtedly an attribute of national

sovereignty, and the federal government, if it so

24

chooses, may exercise that power for any lawful pur-

pose, including migratory bird preservation. See id. at

310 (“the United States unquestionably has the power to

acquire wetlands for waterfowl production areas, by

purchase or condemnation, without state consent’).

And, of course, once the government has acquired prop-

erty it may thereafter exercise its plenary jurisdiction

over it. See Kleppe v. New Mexico, 426 U.S. 529

(1976).

But the federal government’s regulation, pursuant to

the property power, of wild animals on its own lands

says nothing about whether the federal government can

regulate, pursuant to the commerce power, man-made

ponds on private property based only on the actual or

potential presence of migratory birds. Certainly, neither

North Dakota v. United States nor any other decision of

this Court has concluded, under the “substantial effects”

test, that the Commerce Clause authorizes such federal

regulation.

The Court’s decision in Missouri v. Holland, which

sustained the constitutionality of the Migratory Bird

Treaty Act, likewise did not suggest, much less hold,

that the Commerce Clause authorizes the federal gov-

ernment to regulate wild animals. In fact, the Solicitor

General had argued in that case that “[a] migratory bird

law of this kind is sustained, apart from treaty, ... by

the power to regulate commerce between the States.”

252 U.S. at 423 (summarizing argument for the United

States). The Court implicitly rejected that argument,

holding instead that the statute could be sustained, if at

all, only as an exercise of the treaty power. Id. at 433-

34. That power is not implicated in this case.

25

The Court’s decision in Missouri v. Holland makes

clear that the regulation of migratory birds is not within

Congress’ enumerated powers, including the commerce

power. See id. at 433 (“there may be matters . . . that an

act of Congress could not deal with but that a treaty fol-

lowed by such an act could”). In other words, Missouri

v. Holland “thus views the treaty power as a delegation

of authority to federal treaty-makers independent of the

delegations embodied in the Constitution’s enumeration

of powers entrusted to Congress.” Tribe, American

Constitutional Law 646 (4th ed. 2000). It is a necessary

corollary of the Court’s holding that the subject of the

treaty and its implementing statute (i.e., migratory birds)

is “exclusively within the ambit of the states with re-

spect to domestic legislation, but not with respect to in-

ternational agreements—and laws enacted by Co

pursuant thereto.” /bid. iueaerens

Thus, neither Missouri v. Holland, nor the several

treaties cited by the court of appeals, lends support to the

Corps’ argument that the regulation of migratory birds is

within the commerce power. On the contrary, the rea-

soning of Missouri v. Holland dictates the conclusion

that where, as here, such a treaty has not been enacted

the regulation of wild animals remains a matter of state

concern that is outside the enumerated powers conferred

on Congress. And because “[e]very law enacted by

Congress must be based on one or more of its powers

enumerated in the Constitution” (Morrison, 120 S. Ct. at

a ren meme rp the migratory bird rule cannot

ustained as a valid exercise of fede

Lopez, 514 U.S. at 567-68. ee

26

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted.

July 25, 2000

MARK A. PERRY

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washi D.C. 20036

(202) 955-8500

DANIEL J. POPEO

PAUL D. — pm

Washi I lati

2009 Massachusetts Ave., N.W.

Washi D.C. 20036

(202) 588-0302

Counsel for Amici Curiae