Amicus Curiae Brief — United States v. McWane, Inc. (Nos. 08-223, 08-364)

oka. LOFFICE OF THE CLERK

In The

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

McWANE, INC., ET AL.,

Respondent.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The

Eleventh Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONER

Duane J. Desiderio*

Thomas J. Ward

Jeffrey B. Augello

National Association of

Home Builders

1201 15% Street, N.W.

Washington, D.C. 20005

(202) 866-8200

* Counsel of Record

September 22, 2008

———— eee OO

TABLE OF CONTENTS

Page (s)

INTEREST OF THE AMICUS CURIAE................... 1

EERE OL roe ee ee 2

I. THE COURT SHOULD GRANT CERTIORARI

IN THIS CASE FOR THE SAME REASONS

THAT IT SHOULD ACCEPT REVIEW IN

UNITED STATES V. LUCAS .............0000ccc0eeeeeeees 2

ll. THIS CASE AND LUCAS SHOULD BE

ID cksicc banukceeelitininsndewiniejebesitbervessvoses 7

ET ia cies nen degiivuninnbedninsiindeinninescimapiienan 8

FT

TABLE OF AUTHORITIES

Page (s)

Cases

Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d

i td 8

Crandon v. United States, 494 U.S. 152 (1990)......... 7

Johnson v. Manhattan Ry. Co., 289 U.S. 479

EE SIR ais Ae cae Ie Eee SERCO Pte ti et Re ae EERE 8

Liparota v. United States, 471 U.S. 419 (1985)......... 7

Marks v. United States, 430 U.S. 188 (1977)......... 3, 4

Moskal v. United States, 498 U.S. 103 (1990) ........... 7

Muscarello v. United States, 524 U.S. 125 (1998)..... 7

Rapanos v. United States, 376 F.3d 629 (6th Cir.

Sti chcsetehalibahlgldalatah aii a hl adalat eenles 8

Rapanos v. United States, 547 U.S. 715

a ac passim

The Daniel Ball, 77 U.S. 557 (1870) .......................... 5

United States v. Appalachian Elec. Power Co.,

I es icasuveale 5

United States v. Bass, 404 U.S. 336 (1971)................ 7

nn

TABLE OF AUTHORITIES (cont.)

Page (s)

United States v. Lucas, 516 F.3d 316

(5th Cir. 2008), pet. for cert. filed, (U.S.

June 2, 2008) (No. 07-1512).....000. 0 cece eee eee 2, 5

United States v. Robison, 505 F.3d 1208

EEE a ARN Re BL OO 3

Other

Br. of the Nat'l Ass'n of Home Builders, et al.,

as Amici Curiae Supporting Pet’rs, Lucas v.

United States, No. 07-1512 (S. Ct. filed July

EPSP UT Ses eee es sae A cl passim

Pet. of the United States for a Writ of Cert.,

United States v. McWane, Inc., et al., No. 08-223

(S. Ct. filed Aug. 21, 2008)........................00... passim

Judgment, United States v. Lucas, No. 04-cr-60,

a, a a acdabnsinaaib’ 6-7

INTEREST OF AMICUS CURIAE

The National Association of Home Builders

(“NAHB”) has received the parties’ written consent to

file this amicus curiae brief supporting the United

States as petitioner.! NAHB represents over 235,000

builder and associate members throughout the United

States, including individuals and firms that construct

and supply single-family homes, as well as

apartment, condominium, multi-family, commercial

and industrial builders, land developers and

remodelers. Its members are frequently subject to

regulation under the Clean Water Act (“CWA”). As a

result, NAHB’ has-7~ developed comprehensive

familiarity with the CWA’s permitting requirements,

provides compliance advice to its members, and has

witnessed numerous. situations where federal

regulators have exercised authority beyond the

CWA’s limits.

This case is important to amicus because it

involves: the scope of the jurisdiction of the federal

government over certain waterbodies under the CWA.

Assertions of Army Corps of Engineers (“Corps”) and

Environmental Protection Agency (“EPA”) permitting

control over private property has had a significant

impact on the development plans of NAHB’s members

throughout the nation. Many members have been

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of the amicus curiae’s intention to file this

brief. Letters of consent are on file with the Clerk. No counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

denied the economic benefits that result from

development, as a result of the CWA’s complicated

and arcane permitting processes.

NAHB frequently participates as a party litigant

and amicus curiae to safeguard the rights and

interests of its members. NAHB was a petitioner in a

CWA case, NAHB v. Defenders of Wildlife, 127 S. Ct.

2518 (2007). Attached at Appendix A to this brief is a

list of cases in which NAHB has participated before

this Court as amicus curiae or “of counsel,” in a

number of matters involving landowners aggrieved by

over-zealous regulation under a wide array of statutes

and regulatory programs.

ARGUMENT

I. THE COURT SHOULD GRANT CERTIORARI

IN THIS CASE FOR THE SAME REASONS

THAT IT SHOULD ACCEPT REVIEW IN

UNITED STATES V. LUCAS.

On June 2, 2008, petitioners in United States v.

Lucas, 516 F.3d 316 (5th Cir. 2008), pet. for .cert.

filed, (June 2, 2008) (No. 07-1512), sought review of

the Fifth Circuit’s decision uphvulding their multi-year

criminal convictions for, among other things,

violations of sections 402 and 404 of the CWA. On

July 7, 2008, NAHB and the Chamber of Commerce of

the United States of America filed an amici curiae

brief in support of the Lucas petitioners, advocating

for a grant of certiorari. Br. of the National

Association of Home Builders, et al., as Amici Curiae

Supporting Pet’rs, Lucas v. United States, No. 07-

1512 (S. Ct. filed July 7, 2008) (“NAHB Lucas Amici

Br.”).

At their core, the petitions in both Lucas and the

case at bench seek clarification of Rapanos v. United

States, 547 U.S. 715 (2006), a 4-1-4 decision where a

majority of this Court could not agree on an

overarching test for jurisdiction of statutory

“navigable waters” under the CWA. For the reasons

that NAHB believes certiorari should be granted in

Lucas, the Court should also accept McWane for

review.

The very same split among the circuits, with an

analysis of the very same universe of appellate

decisions, discussed by NAHB in Lucas is again urged

here by the United States as necessitating this

Court’s intervention. Compare NAHB Lucas Amici

Br. at 4-10 with Cert. Pet. of the United States,

United States v. McWane, No. 08-223 (S. Ct. filed Aug.

21, 2008) (“McWane Cert. Pet.”), at 16-19. Indeed, in

Lucas NAHB identified the court of appeals decision

in this case as one of the main progenitors for the

judicial disarray on the extent of the CWA’s scope.

NAHB Lucas Amici Br. at 7-8 (discussing United

States v. Robison, 505 F.3d 1208 (11% Cir. 2007)).

Both cases call for direction from this Court on the

same issue.

Furthermore, questions about whether Marks v.

United States, 430 U.S. 188 (1977), can be used to

discern a holding from the fragmented Rapanos

opinions,” is equally raised by both NAHB in Lucas

. In Rapanos, the Justices who concurred in the judgment

announced two tests for determining CWA jurisdiction. The

four-Justice plurality established the “relatively permanent

and the United State here as justification for a

certiorari grant. Compare NAHB Lucas Amici Br. at

4-8 with McWane Cert. Pet. at 19-24. NAHB’s

submission in Lucas isolated the “narrowest grounds

of concurrence” (Marks, 430 U.S. at 193)) that can be

identified in the varying Rapanos opinions to discern

a holding. See NAHB Lucas Amici Br. at 11-17

(identifying areas of consensus among Justices

Scalia’s and Kennedy’s Rapanos opinions). If

articulated in a single opinion, these areas of common

ground would provide the regulated community and

agency officials with proper and predictable CWA

jurisdictional determinations in the field. Such a

unified voice from the Justices is critical to resolution

of the questions presented in both Lucas and

McWane.

As NAHB offered in Lucas, the genesis of many

problems with the CWA’s implementation stem from

a misunderstanding of the basic terminology used to

define its jurisdictional scope. NAHB Lucas Amici

Br. at 17-18. Confusion over the extent of “navigable

waters,” “the waters of the United States,” “navigable

waters of the United States,” “traditional navigable

waters,” “navigable-in-fact waters” — all related

terms, but each with distinct meanings and separate

geographic reaches — has predictably yielded conflict

in. the courts and ‘imprecision in agency

determinations. Lucas, just like McWane, provides an

appropriate vehicle for the Court to finally issue an

opinion that moves all stakeholders closer to a shared

understanding of these critical phrases. Unless all

waterbody” test (547 U.S. at 742), while Justice Kennedy created

the “significant nexus” test. Id. at 779-780.

interested parties are on the same page as to the

meaning of these fundamental terms, clarity on the

CWA’s scope will only linger as a remote aspiration.

In particular, NAHB urged for clarification of the

key phrase “traditional navigable waters.” NAHB

Lucas Amici Br. at 18-23. In Rapanos, both the

plurality and concurrence acknowledged that a

finding of CWA jurisdiction is inextricably linked to

traditionally navigable waters (“TNWs’”).? However,

in Lucas, the district court’s jury instruction equated

“navigable-in-fact” waterbodies with TNWs. Lucas,

516 F.3d at 323-24. The two are not interchangeable.

Reading The Daniel Ball, 77 U.S. 557 (1870), and

United States v. Appalachian Elec. Power Co., 311

U.S. 377 (1940) together, the Court stated that a

“navigable-in-fact” waterbody only qualifies as a TNW

where it further forms, in its ordinary condition by

itself or by uniting with other waters, a continued

highway over which commerce is or may be carried on

with other states or foreign countries. NAHB Lucas

Amici Br. at 20-23. With the understanding that a

TNW determination serves as the foundation of any

CWA analysis — but also with the recognition that all

Justices believe the CWA reaches more than TNWs

3 Justice Kennedy stated that that “the Corps’ jurisdiction over

wetlands depends upon the existence of a significant nexus

between the wetlands in question and navigable waters in the

traditional sense.” Rapanos, 547 U.S. 715 at 779 (Kennedy, J.,

concurring) (emphasis added). Justice Scalia wrote that one

“finding” necessary to determine if a wetland is covered by the

CWA is if the “adjacent channel contains a ‘wate[r] of the

United States,’ (2.e., a relatively permanent body of water

connected to a traditional interstate navigable waters)....” Id. at

742. (emphasis added).

(NAHB Lucas Amici Br. at 12) — NAHB again

presses the Court to clarify the important distinction

between TNWs, navigable-in-fact waters, and waters

subject to federal agency authority under the CWA.

In its petition here, the United States references

NAHB’s Lucas Amici Brief and highlights the

importance of issues regarding the CWA’s scope to

members of the regulated community. See McWane

Cert. Pet. at 30-31, n. 10. However, after

acknowledging that the Lucas petition likewise

questioned the appropriate standard for determining

the Act’s scope under the fractured Rapanos decision,

the United States reached the specious conclusion

that McWane “provides a more suitable vehicle for

determining CWA coverage.” Jd. at 31 n.10. While

McWane may provide aé_é superior vehicle for

overturning a case lost by the United States at the

Eleventh Circuit, it is no more appropriate than

Lucas for resolving the fundamental issue of the

“correct test” for determining the CWA’s jurisdictional

reach.

People are in jail in Lucas.4 Surely from their

perspective, their petition provides the better vehicle

for this Court’s review. The Lucas petition calls into

4 Defendant Robert J. Lucas was sentenced to serve 108 months

in jail, 36 months of supervised release and ordered to pay

$19,100 in penalties. Judgment, United States v. Lucas, No. 04-

cr-60, (S.D. Miss. Dec. 21, 2005) (docket no. 223). Lucas’s co-

defendants were each sentenced to serve 87 months in jail, 36

months of supervised release and ordered to pay $15,000 and

$3,300 in penalties, respectively. Jd. (docket no. 219, 221).

Lucas s two companies were sentenced to 60 months probation

and ordered to pay a total of $5.3 millon in fines and

assessments. Jd. (docket no. 215, 217). Defendants together

play the issue of whether the rule of lenity should be

applied to construe the obvious ambiguities of the

phrase “navigable waters” against federal inclinations

toward criminal enforcement and imprisonment. See

NAHB Lucas Amici Br. at 24-26.5 Because

uncertainty remains over whether Congress intended

to extend the CWA’s scope to the wetlands on the

Lucas petitioners’ property, amici asked this Court to

resolve any question of the Act’s coverage in Lucas’s

favor.

In sum, NAHB respectfully submits that the Court

should grant certiorari in this matter as it should in

Lucas.

Il. THIS CASE AND LUCAS SHOULD BE

CONSOLIDATED.

NAHB suggests that the Court consolidate Lucas

and McWane. Case consolidation “is permitted as a

were sentenced to pay an additional $1,407,400 in restitution,

which is for 454 mitigation credits from the Old Fort Bayou

Mitigation Bank located in Jackson, MS or any other

appropriate mitigation bank near Jackson County, MS. ld.

(docket no. 215, 217, 219, 221, 223).

* This Court has stated that two rationales support lenity as a

canon of statutory construction. The first is that individuals are

entitled fair warning that particular activities will subject them

to criminal penalties. See, e.g., Crandon v. United States, 494

U.S. 152, 158 (1990); Liparota v. United States, 471 U.S. 419

U.S., 427 (1985), United States v. Bass, 404 U.S. 336, 346 (1971).

The second is that legislatures, rather than courts, should be

responsible for defining precisely which actions are crimes. See,

e.g., Crandon, 494 U.S. at 158 (1990); Moskal v. United States,

498 U.S. 103, 131 (1990); Muscarelio v. United States, 524 US.

125, 150 (1998); Bass, 404 U.S. at 348 (1971).

matter of convenience and economy in

administration.” Johnson v. Manhattan Ry. Co., 289

U.S. 479, 496-97 (1933). This Court consolidated

Rapanos v. United States, 376 F.3d 629 (6th Cir.

2004) and Carabell v. U.S. Army Corps of Eng’rs, 391

F:3d 704 (6th Cir. 2004) to achieve those purposes.

Both cases dealt with the same issue of law —

interpreting “navigable waters” under the CWA —

and this Court consolidated them and filed one

decision addressing both.

Pursuant to Rule 27.3, this Court should similarly

order the consolidation of McWane and Lucas.

Parties in both cases were criminally prosecuted for

the unpermitted discharge of pollutants into statutory

“navigable waters.” They appealed their convictions

in the lower courts, arguing that their alleged

discharges were beyond regulatory control because

they impacted nonnavigable tributaries that were

neither themselves navigable nor connected to

navigable waters. The outcome of both cases

ultimately turned on whether the jury instructions

embodied the appropriate Rapanos jurisdictional

waters test. Because the facts and questions of law

are substantially identical and a clear resolution of

the issues would promote judicial economy by

alleviating confusion regarding CWA _ coverage,

consolidation of Lucas and McWane is appropriate.

CONCLUSION

The United States’ petition is the ninth request

that this Court has received since it decided Rapanos,

asking for additional instruction on the scope of

“navigable waters.” See NAHB Lucas Amici Br. at

10, n. 6. That chorus will only grow louder from

government officials and the regulated community

until the Court issues guidance.

For all the foregoing reasons, certiorari should be

granted in both McWane and Lucas and the cases

should be consolidated.

September 22, 2008

Respectfully submitted.

Duane J. Desiderio*

Thomas J. Ward

Jeffrey B. Augello

National Association of

Home Builders

1201 15** Street, N.W.

Washington, D.C. 20005

(202) 866-8200

* Counsel of Record

App. la

APPENDIX A

Cases in which NAHB has appeared as an amicus

curiae or “of counsel!” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Regl Planning

Comm’n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340 (1986); First English Evangelical Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm ’n, 483 U.S. 825 (1987);

Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.

City of Escondido, 503 U.S. 519 (1992); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Ore., 515 U.S. 687

(1995); Suitum v. Tahoe Reg'l Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes

at Monterey, Lid., 526 U.S. 687 (1999); Solid Waste

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

Engrs, 531 U.S. 159 (2001); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Franconia Assocs. v.

United States, 536 U.S. 129 (2002); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Regl Planning Agency, 535

U.S. 302 (2002); Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs, 5327 U.S. 99 (2002); City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188

(2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004); San Remo Hotel, L.P.

v. City and County of San Francisco, 545 U.S. 323

(2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005); Kelo v. City of New London, 545 U.S. 469

(2005); S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547

App. 2a

U.S. 370 (2006); Rapanos v. United States, 547 U.S.

715 (2006); John R. Sand and Gravel Co. v. United

States, 128 S. Ct. 750 (2008); Summers v. Earth

Island Inst., 490 F.3d 687 (9th Cir. 2007), cert.

granted, 128 S. Ct. 1118 (2008) (No. 07-463); Entergy

Corp. v. Envtl. Prot. Agency, 475 F.3d 83 (2d Cir.

2007), cert. granted, 128 S. Ct. 1867 (2008) (consol.

with Nos. 07-589 and 07-597); Winter v. Nat. Res. Def.

Council, 518 F.3d 658 (9th Cir. 2008), cert. granted,

128 S. Ct. 2964 (2008) (No. 07-1239); and Coeur

Alaska, Inc. v. S.E. Alaska Cons. Council, 486 F.3d

638 (9th Cir. 2007), cert. granted, 128 S. Ct. 2995

(2008) (No. 07-984, consol. with 07-990).