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

oy

No. 99-1178

Court, U.S.

FILED

TET 0 |

IN THE

Supreme Court of the United Stat

CLERK

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 AMICI CURIAE

AMERICAN FARM BUREAU FEDERATION,

NATIONAL CATTLEMEN’S

BEEF ASSOCIATION,

AND NORTH DAKOTA FARM BUREAU

IN SUPPORT OF PETITIONER

WILLIAM G. MYERS III JOSEPH W. HALPERN

Counsel of Record STEPHEN G. MASCIOCCHI

HOLLAND & HART LLP ELIZABETH A. MITCHELL

Suite 1400 HOLLAND & HART LLP

U.S. Bank Plaza 555 - 17" Street, Suite 3200

Boise, Idaho 83702-7714 P. O. Box 8749

(208) 342-5000 Denver, CO 80201-8749

(303) 295-8000

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ................

TABLE OF AUTHORITIES ...........

INTEREST OF AMICI CURIAE .....

SUMMARY OF THE ARGUMENT

IEE scssicssescssccssosensesesees

TABLE OF AUTHORITIES

FEDERAL CASES

Appalachian Power Co. v. EPA, 208 F.3d 1015

home ee) 7

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

CL) 17

Schechter Poultry Corp. v. United States,

295 U.8. 495 (199S).......00s:0cecscessonsecnennnanannenn 7

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 191 F.3d 845

(Ted Cle. 1DDD) .......00+00cccessenenehennvninnnnnnnnnnnnE 17

Tabb Lakes v. United States, 715 F. Supp. 726,

aff'd, 885 F.2d 866 (4th Cir. 1989) ....000.000. 7

United States v. Lopez, 514 U.S. 549 (1995)............. 16

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 CEGBG).....000:200sccssccusnsnssnnnneneneeneenee 6

FEDERAL STATUTES AND REGULATIONS

$ U.B.C. © OBB occcccccoocsacvessscnesnsseunssaeennnennnnnn 7

33 U.B.C. © EDOOGAD .accscceseccecsescsssesesneueee 5

33 U.8.C. 6 EDQOUD .cccccicecovccsvccsssseeneee 10

33 U.B.C. © ISGBEVD ..c<ccscecescccssoceseseeneene 5

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33 C.FLR. § 323.4 (1999). oooooocccccccccccceceveeseseeveve 10

33 CFR. § 323.4(a)(1)(ii) (1999) oo ooooooocccoccccee, 10

33 C.F.R. § 328.3(a)(3) (1999) oo ooooccccccccecesevevereees 6

OTHER AUTHORITIES

Jonathan B. Adler, Wetlands, Waterfowl, and the

Menace of Mr. Wilson: Commerce Clause

Jurisprudence and the Limits of Federal

Wetland Regulation, 29 Northwestern Sch. L.

Lewis & Clark Coll. Envtl. L. 1 (1999).............. 8, 9

SE, EE, SN PUD CED E OD ccccccccccccsssccccescsecsscceses 14

i SE OD os coscccccesccscsesesssccsoseecess 14

Gh 12

123 Cong. Rec. 39,210 - 39,211 (1977)... 13

Economic Research Serv., U.S. Dep’t of Agric.,

Land Use, Value, and Management O & A's,

(visited July 24, 2000),

<http://www.ers.usda.gov/briefing/landuse/

i as cninannsennncococess Lebercieen 8

S. Rep. No. 95-370, 95th Cong., Ist Sess. 76

(1977), reprinted in 1977 U.S.C.C.A.N. 4326...... 13

Pe es BE, SEO CODOOD ccccccccecccsevcscscescceses 6, 10, "1

With the written consent of the parties,

reflected in letters on file with the Clerk, the

American Farm Bureau Federation, National

Cattlemen’s Beef Association and North Dakota

Farm Bureau respectfully submit this brief as amici

curiae.’

INTEREST OF AMICI CURIAE

The American Farm Bureau _ Federation

(“AFBF”) is a voluntary, general, farm organization

formed in 1919 and organized in 1920 under the

General Not-For-Profit Act of the State of Illinois.”

The AFBF was founded to protect, promote and

represent the business, economic, social and

educational interests of American farmers and

ranchers. The AFBF has member organizations in

50 states and in Puerto Rico, representing more

than 4.9 million member families. AFBF’s policies,

adopted by the voting delegates of the member state

Farm Bureaus to AFBF’s annual meeting, provide,

in relevant part, as follows: “Isolated wetlands

(vernal pools, etc.) not connected to navigable

' No counsel for a party authored this brief

in whole or in part and no person or entity other

than amici and their members have made a

monetary contribution to the preparation or

submission of the brief.

* The Cook County Farm Bureau, DuPage

County Farm Bureau and Kane County Farm

Bureau, which are affiliated with the Illinois Farm

Bureau, do not support AFBF’s participation in this

brief due to their opposition to the location of the

proposed landfill on the Solid Waste Agency of

Northern Cook County (““SWANCC’”) site.

waterways, should not be subject to regulation

under the Clean Water Act.”

Initiated in 1898, the National Cattlemen’s

Beef Association (“NCBA”) is the marketing

organization and trade association for America’s

one million cattle farmers and ranchers, all of whom

have a stake in maintaining a strong livestock

industry which is essential to the nation’s economic

stability, the viability of many rural communities

and the sustainability of a healthful and high-quality

food supply for the American public. With offices

in Denver and Washington, D.C., NCBA is a

consumer-focused, producer-directed organization

representing the largest segment of the nation’s

food and fiber industry.

The North Dakota Farm Bureau (“NDFB”) is

one of the 51 organizational members of the AFBF.

The NDFB is a voluntary, general farm organization

incorporated in North Dakota in 1942. The NDFB

is a non-profit organization which fosters the

mission of the AFBF on the local level. With

member organizations in 50 counties, the NDFB

serves 26,500 members.

American farmers and ranchers own or lease

hundreds of millions of acres of private and public

agricultural and ranch lands, producing food, fiber

and livestock for themselves, other Americans and

world-wide consumers. While American farmers

and ranchers have the highest production rates in

the world, multiple layers of restrictive regulations

at the local, state and national levels have impaired

their ability to farm and ranch efficiently in an

increasingly competitive global market. In some

instances, the regulatory burden has become too

much to bear, bankrupting farmers and ranchers

whose families have been in these industries for

generations and forcing sale of their real and

personal property.

The United States Army Corps of Engineers’

(“Corps”) expansive interpretation of its authority

places millions of acres of agricultural lands within

its regulatory stranglehold. The Corps’

questionable assertion of jurisdiction over isolated,

intrastate waters under the Clean Water Act

(“CWA”) and the Commerce Clause threatens to

place another extraordinary and unreasonable

burden on farmers and ranchers. Accordingly,

amici submit this brief detailing the deleterious

effects of the Corps’ misguided attempt to regulate

isolated, intrastate waters.

SUMMARY OF THE ARGUMENT

The issue before the Court is whether the

Corps’ assertion of jurisdiction over isolated,

intrastate waters which are, or would be, used by

migratory birds impermissibly expands its authority

under the CWA or the Commerce Clause.

The CWA authorizes the Corps to exercise

limited jurisdiction over navigable and connected

waters. However, under the migratory bird rule

rationale the Corps applied in the immediate case,

the Corps’ asserted jurisdiction is limitless. The

Corps’ assertion of jurisdiction under the migratory

bird rule places an undue burden on the private

property of farmers and _ ranchers’ without

Congressional authority. There are millions of

isolated, intrastate pools, ponds and depressions

filled with water on an intermittent basis located on

farm and ranch lands which could appeal to

3

migratory birds as habitat or resting places. As a

result, the Corps could assert its jurisdiction over

millions of acres of isolated, intrastate waters on

lands owned, leased and operated by farmers and

ranchers, but nowhere near any navigable waters.

The migratory bird rule threatens normal farming

and ranching activities by reducing farmers’ and

ranchers’ ability to produce food, fiber and

livestock efficiently, without undue _ regulatory

interference.

The Commerce Clause does not support the

Corps’ assertion of jurisdiction over isolated,

intrastate waters on the basis that they are or have

the potential to be migratory bird habitat. The

discharge of dredged or fill material into isolated,

intrastate waters has absolutely no effect on or

connection with interstate commerce. The Corps’

reliance on the interstate flight habits, habitat and

human exploitation of migratory birds does not

provide the necessary nexus for federal regulation

of isolated, intrastate waters.

If the Corps’ attenuated Commerce Clause

argument is accepted, land use planning, an area of

regulation traditionally within state and local

jurisdiction, will be usurped. Federal land use

regulation of isolated, intrastate waters, without

consideration of local exigencies, can only impair

farmers’ and ranchers’ productivity.

The Corps’ extension of its jurisdiction to

isolated, intrastate waters under its migratory bird

rule is an umreasonable and _ over-zealous

interpretation of its authority under the CWA and

the Constitution’s Commerce Clause. Such an

interpretation significantly threatens farmers’ and

ranchers’ productivity. Congress did not intend the

Corps’ authority under the CWA to extend to any

and all waters of the United States deemed suitable,

or potentially suitable, as habitat by migratory

birds, particularly if such waters were located on

productive farm and ranch lands.

ARGUMENT

I. THE CWA DOES NOT AUTHORIZE

THE CORPS’ JURISDICTION OVER

MIGRATORY BIRDS’ HABITAT IN

ISOLATED, INTRASTATE WATERS.

The migratory bird rule merely represents the

latest chapter in the Corps’ usurpation of

Congressional authority to amend the CWA. The

Corps has expanded its CWA authority to cover al/

waters rather than only those which are navigable

or connected or adjacent to such waters. As

discussed below, the Corps’ assertion of such

overly broad jurisdiction contravenes the intent of

Congress as expressed in the CWA and subjects

farmers and ranchers to unprecedented and

unwarranted federal regulatory intrusion.

The CWA grants the Corps broad but not

unlimited regulatory jurisdiction. Section 404 of

the CWA requires a permit for “the discharge of

dredged or fill material into the navigable waters at

specified disposal sites.” 33 USC. § 1344(a).

Navigable waters are defined as “waters of the

United States, including territorial seas.” 33 U.S.C.

§ 1362(7). While the plain language of the CWA

grants the Corps jurisdiction over waters that are

navigable, this Court has determined that CWA

jurisdictional waters include navigable waters and

those connected or adjacent to such waters. United

5

States v. Riverside Bayview Homes, Inc., 474 U.S.

121 (1985).

The Corps has defined “waters of the United

States” generously to include:

[a]ll other waters such as intrastate

lakes, rivers, streams (including

intermittent streams), mud flats,

sand flats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes,

or natural ponds, the use,

degradation or destruction of which

could affect interstate or foreign

commerce... .

33 CFR. § 328.3(a)(3) (1999).

In the preamble to the Corps’ regulations

published in 1986, the Corps expanded the

definition of “other waters” to include waters

a. [w]hich are or would be used as habitat by

birds protected by Migratory Bird Treaties,

or

b. [w]hich are or would be used as

habitat by other migratory birds

which cross state lines... .

51 Fed. Reg. 41,206, 41,217 (1986).

The Corps thus asserted jurisdiction over

isolated, intrastate waters by virtue of

administrative fiat. Indeed, the Corps did not even

promulgate the migratory bird rule in accordance

with the Administrative Procedure Act. 5 U.S.C.

§ 553.°

In the event the Corps’ interpretation of its

jurisdiction over isolated, intrastate waters under

the migratory bird rule is accepted, the ability of

farmers and ranchers to produce crops and livestock

> As a result, the Fourth Circuit Court of

Appeals struck down the migratory bird rule in

1989. Tabb Lakes v. United States, 715 F. Supp.

726, aff'd, 885 F.2d 866 (4th Cir. 1989). The

Fourth Circuit affirmed the district court’s

conclusion that the contents of the migratory bird

rule required prior notice and opportunity to

comment.

The Court of Appeals for the District of

Columbia recently rejected a similar attempt at

regulatory “ukase” in Appalachian Power Co. v.

EPA, 208 F.3d 1015 (D.C. Cir. 2000). The court

rejected attempts by the Environmental Protection

Agency to enforce agency guidelines without going

through statutory notice and comment

requirements. The court held, “It is well-

established that an agency may not escape the

notice and comment requirements . . . by labeling a

major substantive legal addition to a rule a mere

interpretation.” /d. at 1024. In the case at bar, the

Corps seeks to escape statutory requirements by

promulgating a regulation as a preamble. The CWA

does not give the Corps a “roving commission” to

regulate all isolated, intrastate waters, and then to

inquire into evils and upon discovery, correct them.

See Schechter Poultry Corp. v. United States, 295

U.S. 495, 551 (1935)(Cardozo, J., concurring);

Appalachian Power Co., 208 F.3d at 1026.

in the United States will be impaired. The

productivity of farm and ranch land in the United

States has increased significantly during the past

two decades. With the increase in productivity, the

demand for new farm and ranch land has decreased,

thereby decreasing the demand by farmers and

ranchers to convert wetlands. The primary concern

of farmers and ranchers today is preserving the

productivity of their agricultural and ranch lands so

that they can earn a livelihood and_ survive

financially in a competitive global market.

American farmers and ranchers currently have

over 300 million acres in active production.“

Economic Research Serv., U.S. Dep’t of Agric.,

Land Use, Value, and Management Q&A's,

(visited July 24, 2000), <http://www.ers.

usda. gov/briefing/landuse/ruseqa6.htm>.

Jurisdictional wetlands exist on approximately 99

million acres of those in active production. AFBF

Mot. For Leave to File Br. Amicus Curiae and Br.

Amicus Curiae in Supp. of the Pet. at 7.

Approximately nine million isolated, intrastate

waters are located in the United States, a significant

number of which are located on farm and ranch

lands in active production.” Jonathan B. Adler,

* This does not include millions of acres of

federal land under permit or lease to ranchers, upon

which they have developed innumerable stock ponds

and watering sites.

> Due to abnormally heavy rains during the

past decade in the upper midwest region of the

United States, numerous additional temporary

isolated, intrastate waters have been created, and

existing isolated, intrastate pools of water have

8

Wetlands, Waterfowl, and the Menace of Mr.

Wilson: Commerce Clause Jurisprudence and the

Limits of Federal Wetland Regulation, 29

Northwestern Sch. L. Lewis & Clark Coll. Envtl.

L. 1, 40 (1999). The isolated, intrastate waters

located on agricultural lands may be created

artificially or naturally, vary in size and depth and

exist on a short-term or long-term basis. Some of

them serve or could serve as resting, mating and

living areas for migratory birds. However, like the

water-filled trenches and depressions at the

SWANCC site, they have absolutely no connection

with navigable, interstate waters.

Section 404(f) of the CWA provides farmers

and ranchers an exemption from the Section 404

permit requirements relating to the following

discharges of dredged or fill material into those

areas associated with navigable waters:

(A) from normal farming,

silviculture, and ranching activities

such as plowing, seeding,

cultivating, minor drainage,

harvesting for the production of

food, fiber, and forest products, or

upland soil and water conservation

practices;

(B) for the purpose of

maintenance, including emergency

reconstruction of recently damaged

parts, of currently serviceable

(cont’d.)..

expanded beyond their normal boundaries, reducing

the number of acres in production.

structures such as dikes, dams,

levees, groins, riprap, breakwaters,

causeways, and bridge abutments or

approaches, and __ transportation

structures;

(C) for the purpose of

construction or maintenance of farm

or stock ponds or irrigation ditches,

or the maintenance of drainage

ditches; ...

(E) for the purpose of

construction or maintenance of farm

roads or forest roads,... to assure

that flow and circulation patterns

and chemical and biological

characteristics of the navigable

waters are not impaired, that the

reach of the navigable waters is not

reduced, and that any adverse effect

on the aquatic environment will be

otherwise minimized... .

33 U.S.C. § 1344(f); 33 C.F.R. § 323.4 (1999).°

If the Corps’ assertion of jurisdiction under

the migratory bird rule is accepted by this Court,

this exemption is illusory for farmers and ranchers.

Even though the Section 404(f) statutory exemption

existed in 1986, as did the related regulations,’ the

* The application of this exemption is limited

to on-going, established farming, silviculture and

ranching activities. 33 C.F.R. § 323.4(a)(1)(ii)

(1999).

751 Fed. Reg. 41,206, 41,233 (1986).

10

Corps, in the same preamble setting forth the

migratory bird rule, reserved its right “on a case-by-

case basis” to include in the definition of “waters of

the United States”:

(a) Non-tidal drainage and

irrigation ditches excavated

on dry land.

(b) Artificially irrigated areas

which would revert to upland

if the irrigation ceases.

(c) Artificial lakes or ponds

created by excavating and/or

diking dry land to collect and

retain water and which are

used exclusively for such

purposes as stock watering,

irrigation, settling basins, or

rice growing.

51 Fed. Reg. 41,206, 41,217 (1986).

If the Corps’ assertion of jurisdiction over the

isolated, intrastate waters on the SWANCC site is

upheld, then the Corps’ reservation of rights over

such waters located on agricultural lands may be

exercised under the migratory bird rule.

The Corps’ self-delegation of authority to

apply the migratory bird rule to drainage and

irrigation ditches, artificially irrigated areas and

stock ponds is an outright violation of the 1977

amendments to the CWA. Congress expressed itself

plainly in Section 404(f) when it exempted normal

farming and ranching activities, as well as

construction or maintenance of farm or stock ponds

1]

or irrigation ditches or the maintenance of drainage

ditches, from the permitting requirements of

Section 404. The legislative history behind Section

404(f) is replete with support for Congress’s plainly

expressed intent.

Section 404(f) was added to the CWA by

Public Law 95-217. The House of Representatives’

debate on the conference report accompanying the

House bill, H.R. 3199, pointed out that “[njew

subsection (f) of section 404 provides that Federal

permits will not be required for narrowly defined

activities specifically identified in paragraphs A-F

that cause little or no adverse effects either

individually or cumulatively.” 123 Cong. Rec.

38,997 (1977)(statement of Rep. Harsha).

The Corps decided to undertake a

“case-by-case” determination as to whether farm

and ranch waters are waters of the United States.

The legislative history refutes the Corps’

interpretation: “A case-by-case permit review

would not be required for narrowly defined

activities that cause little or no adverse effects

either individually or cumulatively, including those

activities narrowly defined in 404(f)(1)(A-F).” Id.

(emphasis added).

Similarly, the Senate debate on the conference

report states that:

The conferees agreed to adopt the

Senate amendment on _ particular

exclusions from permit

requirements. This legislatively

clarifies the exclusion of certain

activities that do not involve point

source discharge and that will be

12

adequately controlled by

management practices. The

amendment clarifies that normal

farming, ranching, and silvicultural

activities such as plowing, seeding,

cultivating, and harvesting as well as

minor drainage and soil and water

conservation practices performed on

uplands, were not intended to

require 404 permits. The

amendment also excludes from

permit requirements, discharges of

dredged oor (fill material in

conjunction with the [construction

or maintenance of farm and stock

ponds or irrigation ditches].

Id. at 39,210-39,211 (statement of Sen. Wallop).

The Senate amendment was adopted prior to

Senate passage of the underlying legislation, S.

1952. The report of the Senate Committee on

Environment and Public Works discussed the

rationale for the amendment. The Committee was

persuaded by testimony that no Section 404 permit

should be required for “gray area” practices

involving agriculture, mining and _ construction

activities. The Committee specifically exempted

construction or maintenance of farm or stock

ponds, as well as the construction and maintenance

of agricultural irrigation ditches and _ the

maintenance of drainage ditches, from the permit

requirements. S. Rep. No. 95-370, 95th Cong., Ist

Sess. 76 (1977), reprinted in 1977 US.CCAN.

4326, 4401. This was the source of the amendment

which was eventually adopted by the conferees,

13

passed by the House and Senate, and enacted into

law as Section 404(f) of the CWA.

In defending the amendment, Senator Muskie

(floor manager for the bill) responded to a

substitute amendment offered by Senator Bentsen

by noting that “these normal activities which have

aroused normal Americans against the threat of

over-regulation by the Corps of Engineers have

been exempted from that threat... .” 123 Cong.

Rec. at 26,721. Senator Tower of Texas expressed

similar concerns:

If we do not act affirmatively and

clean up the language in [the Clean

Water Act], it will result in

unwarranted and despotic intrusion

by the Federal Government over

every brook, creek, cattle tank, mud

puddle, slough or damp spot in

every landowner’s backyard across

this Nation.

Id. at 26,722.

The Corps’ interpretation of its authority under the

CWA, as stated in its preamble to its 1986

regulations, raises the very real specter of Senator

Tower’s prediction coming true, even after

Congress took his advice and amended the CWA so

as to prohibit expressly such an interpretation.

While the legislative history, statute and

regulations evidence an intent to exempt certain

farming and ranching activities from the Section

404 program, the application of such an exemption

to current farming and ranching activities has

become more challenging. Farmers and ranchers

14

today use advanced technologies and heavier and

more cumbersome equipment in order to maintain a

high level of productivity for their agricultural

lands. Such technologies and equipment change

rapidly. Farmers’ and ranchers’ use of new

technologies and equipment threatens to increase

conflicts with the Corps’ interpretation of what

constitutes “normal” farming and _ ranching

activities under Section 404(f), thus increasing the

potential for the Corps’ assertion of jurisdiction

over isolated, intrastate waters located on

agricultural and ranch lands. In addition, the

Corps’ assertion of jurisdiction under the migratory

bird rule threatens to overpower any rational

analysis of whether certain activities constitute

“normal” farming and ranching activities.

For example, in certain parts of California,

deep plowing (five feet deep) is normal plowing

practice, while such a practice is not necessary in

the fertile midwest. Nevertheless, the Corps’

assertion of jurisdiction under the migratory bird

rule threatens to regulate isolated, intrastate waters,

namely cropland depressions filled with water

intermittently and temporarily, affected by such

deep plowing practices. Similarly, current methods

used for the manipulation of water levels for the

production of rice have come under increasing

scrutiny by the Corps, as rice fields make select

habitat for migratory birds.

Farmers and ranchers will not be able to

maintain current levels of productivity if their

activities are deemed outside the scope of the

Section 404(f) exemption and if the Corps is

authorized to exercise jurisdiction over isolated,

intrastate waters based solely on the catch-all

15

migratory bird rule. The Corps’ expansive

interpretation of its jurisdiction, if upheld, would

adversely affect farmers and ranchers by decreasing

their productive acreage, which would grossly

increase the costs of producing food, fiber and

livestock. And if the Corps’ interpretation is

upheld, farmers and ranchers would be forced to

divert their energies to negotiating a regulatory

morass which is time-consuming, expensive and

often futile, hampering them from using their land

in the most productive manner possible.

The Corps’ interpretation of its jurisdiction at

the SWANCC site far exceeds the authority

Congress granted to the Corps under the CWA.

Farmers and ranchers in the United States need a

functional definition of “waters of the United

States,” not one which prevents the productive use

of their farms and ranches by virtue of the presence

or potential presence of migratory birds on isolated,

intrastate waters within farm and ranch boundaries.

II. THE COMMERCE CLAUSE DOES NOT

AUTHORIZE THE CORPS’ JURISDICTION

OVER ISOLATED, INTRASTATE WATERS

WHICH MIGRATORY BIRDS MAY OR DO

SELECT AS HABITAT.

There is no constitutional basis for the Corps’

assertion of jurisdiction over isolated, intrastate

waters under the Commerce Clause. Congress’s

Commerce Clause power is limited. Under the

Commerce Clause, Congress may exert power to

regulate activities that substantially affect

commerce. United States v. Lopez, 514 U.S. 549,

559 (1995).

16

The dredging and filling of isolated, intrastate

waters, particularly those located on remote

agricultural lands, does not fall within the definition

of activities affecting commerce. The addition of

flocks of migratory birds to the remote landscape

does not change this conclusion. As Justice

Thomas stated, “The basis asserted to create federal

jurisdiction over petitioner’s land” is “even more

farfetched than that offered, and rejected, in

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

955, 957-58 (1995) (Thomas, J., dissenting from

denial of certiorari). Here, the Seventh Circuit

relied on statistics relating to monetary earnings

generated as a result of hunting, trapping and other

commercial exploitation of migratory birds to

connect migratory birds’ selection of habitat with

interstate commerce. Solid Waste Agency of

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

Engineers, 191 F.3d 845, 850 (7th Cir. 1999). By

citing human exploitation of migratory birds as

support for the Corps’ assertion of jurisdiction over

isolated, intrastate waters for wildlife “protection,”

the court not only contradicted itself, but showed

just how farfetched the migratory bird rule is.

If this tenuous connection to interstate

commerce is found to be sufficient under the

Commerce Clause, there is no doubt that farmers

and ranchers will be affected detrimentally, as they

are forced to proceed through the Section 404

permit process or ultimately are denied dredge and

fill permits at the end of the process. Migratory

birds inhabit millions of acres of agricultural lands

annually, resting on or making habitat in temporary,

isolated water pockets in agricultural fields. The

Seventh Circuit’s conclusion that a_ habitat

suitability criterion would limit the number of

17

isolated, intrastate waters affected by the Corps’

assertion of jurisdiction is misguided. As any

farmer, rancher or layperson knows, migratory birds

are not discerning shoppers for habitat and will

make homes of even the most shallow field puddle,

stock pond or water-filled cattle track. The

unpredictable behavior —~ migratory birds with

respect to waters with nu connection to navigable

waters or commerce cannot withstand constitutional

scrutiny as a legitimate basis on which to extend the

Corps’ jurisdiction over millions of acres of waters

located on farms and ranches. Such an extension

would amount to unauthorized federal regulation of

land use, an area traditionally regulated by state and

local governments.

18

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

WILLIAM G. MYERS III

Counsel of Record

HOLLAND & HART utp

SUITE 1400

U.S. BANK PLAZA

101 SOUTH CAPITAL BLVD.

BOISE, IDAHO 83702-7714

(208) 342-5000

JOSEPH W. HALPERN

STEPHEN G. MASCIOCCHI

ELIZABETH A. MITCHELL

HOLLAND & HART itp

555 - 17TH STREET, SUITE 3200

P.O. Box 8749

DENVER, COLORADO 80201-8749

(303) 295-8000

July 27, 2000

19