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

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## Record

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

## Text

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
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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 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), .
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A22. Public record. Not legal advice.