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

\0? 6) SEP 2 2 2008

No. 08-223 OFFICE OF THE CLERK

In the

Supreme Court of the Gnited States

—~

UNITED STATES OF AMERICA,

Petitioner,

Vv.

McWANE, INC., et al.,

Respondents.

+

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

+>

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

-~

NICHOLAS M. GIESELER M. REED HOPPER

Of Counsel DAMIEN M. SCHIFF

*STEVEN GEOFFREY GIESELER

*Counsel of Record

Pacific Legal Foundation

1002 SE Monterey Commons

Boulevard, Suite 102

Stuart, Florida 34996

Telephone: (772) 781-7787

Facsimile: (772) 781-7785

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTION PRESENTED

Whether the “significant nexus” standard

described by the opinion concurring in the judgment in

Rapanos v. United States, 547 U.S. 715, 767 (2006)

(Kennedy, J.), establishes the exclusive rule of law for

determining whether particular streams are “waters of

the United States” covered by the Clean Water Act

(CWA), 33 U.S.C. § 1362(7), even in cases where CWA

coverage has been established under the standards

adopted by the four-Justice plurality in Rapanos and

by the four Rapanos dissenters.

Pac.

i

TABLE OF CONTENTS

Page

elise yy 8) By. 4 yy ~ | rarer i

peo ye s.r lil

IDENTITY AND INTEREST OF

a 1

SUMMARY OF ARGUMENT .................. 2

REASONS FOR GRANTING THE WRIT ........ 4

I. CIRCUITS ARE SPLIT ON

HOW TO APPLY THIS COURT’S

Eee 4

A; Bree we Ties BNNs... 2 5 oc cee. 4

B. Courts Do Not Uniformly Apply Marks

and Its Narrowest Grounds Analysis .... 7

Ii. THIS COURT SHOULD GRANT

THE PETITION TO CLARIFY

ITS DECISION IN RAPANOS ........... 15

A. There Are Multiple Post-Rapanos

Conflicts in the Lower Courts ......... 15

B. Practical Concerns of Fairness and

Justice Warrant Granting the Petition .. 18

PN eos bk 80s ooo 3 oes 20

il

TABLE: OF AUTHORITIES

Page

Cases

Church of Scientology of Cal. v.

United States, 506 U.S. 9 (1992) ............. g

Commonwealth Edison Co. v. United States,

Bek Foe hoes Cree. Car. FOOL) .. ww cc cee 14

Eastern Enterprises v. Apfel,

cas a sd go bw ¥.0'0'e 0 Sie 13

Furman v. Georgia, 408 U.S. 238 (1972) ....... 4-5

Gregg v. Georgia, 428 U.S. 153 (1976) ......... 3-5

Grutter v. Bollinger, 539 U.S. 306 (2003) ..... 10-12

Hill v. Colorado, 530 U.S. 703 (2000) ........... 19

Hopwood v. Texas,

236 F.3d 266 (6th:Cir. 2000)................ 11

In re Michael Francis Cook,

De ee tecwwe 4

Johnson v. Board of Regents

of the University of Georgia,

263.F.34 1234 (lith Cir. 2001).............. ll

King v. Palmer, :

960 F.2a 771 (D.C. Cir. 1991) ......... 6, 12-13

Marks v. United States,

Ro 3-9, 11-17

Mary Helen Coal Corp. v. Hudson,

164 F.3d.624 (4th Cir. 1998) ............... 13

iv

TABLE OF AUTHORITIES—Continued

Page

Memoirs v. Attorney General of the

Commonwealth of Massachusetts,

ee ek bees ecues 5-6

N. California River Watch v.

City of Healdsburg,

457 F.3d 1023 (9th Cir. 2006) ............ 3,17

Nichols v. United States,

ok des nes cee se ensy es 11

Penn Central Transportation Co. v.

City of New York,

Ee 13

Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air,

De eee eeeeen 7-8

Planned Parenthood v. Casey,

OOF Fie Gee oe ee. BOGE) 4. ww ce ccc 12

Rapanos v. United States,

ek Re 1-3, 7, 14-20

Regents of the University

of California v. Bakke,

es oe te ees abeeee 9-11]

Smith v. University of

Washington Law School,

Sa oe Bee Cees Ge. BOO)... . ww we ee ce ee 11

Student Public Interest Research

Group of New Jersey, Inc. v.

AT & T Bell Labs.,

S42 F.3a 1496 (9a Cir. 1966) ......... 2000 7-8

Vv

TABLE OF AUTHORITIES—Continued

Page

Tyler v. Bethlehem Steel Corp..,

GGG F.e BETO Gee Cae. BOG nn. ww ce cc cces 12

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006)......... 1, 3, 15-17

United States v. Gradwell,

ie. os ee sé eee hee wenn 20

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ....... 2, 6, 11, 16-17

United States v. Lanier,

i cee cercecssctheben 20

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008)......... 2-3, 17-18

United States v. Robison,

605 F.3d 1208 (11th Cir. 2007) ............. 8-9

United States v. Williams,

435 F.3d 1148 (9th Cir. 2006) .............. 12

Unity Real Estate Co. v. Hudson,

iy Bee The | nen 13

Rules and Regulations

Er RS A PEE Me area a INGER eure” 19

Ue, obo + occoncedeadewee wane 1

nox ‘a-d wie'g Dek deh ens steel been eon 1

vl

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Berry, Melissa M., et al., Much Ado About

Pluralities: Pride and Precedent Amidst

the Cacophony of Concurrences, and

Re-Percolation After Rapanos,

15 Va. J. Soc. Pol'y & L. 299 (2008) .......... 14

Brown, Gordon M., Regulatory Takings

and Wetlands: Comments on Public

Benefits and Landowner Cost,

21 Ohio N.U. L. Rev. 527 (1994) ............ 19

Hochschild, Adam S., The Modern Problem of

Supreme Court Plurality Decision:

Interpretation in Historical Perspective,

4 Wash. U.J. L. & Pol’y 261 (2000) .......... 14

Kimura, Ken, A Legitimacy Model for the

Interpretation of Plurality Decisions,

77 Cornell L. Rev. 1593 (1992) ............. 6-7

Novak, Linda, The Precedential Value

of Supreme Court Plurality Decisions,

IEE 14

Thurmon. Mark Alan, When the Court Divides:

Reconsidering the Precedential Value of

Supreme Court Plurality Decisions,

re 14

Vil

TABLE OF AUTHORITIES—Continued

Page

U.S. General Accounting Office, Waters

and Wetlands: Corps of Engineers Needs To

Evaluate Its District Office Practices In

Determining Jurisdiction (Feb. 2004),

available at www.gao.gov/new.items/d04297.pdf

CEG WHGEROE TIOUE. BB, BOG) 65 oe ccc ccc ese 18

-

1

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief

amicus curiae in support of Petitioner United States of

America.’

PLF was founded thirty-five years ago and is

recognized as the largest and most experienced

nonprofit legal organization of its kind. PLF litigates

matters affecting the public interest at all levels of

state and federal courts and represents the views of

thousands of supporters nationwide, advocating

limited government, individual rights, and free

enterprise. PLF attorneys have litigated dozens of

cases nationwide on the scope and application of

federal environmental statutes, including the Clean

Water Act. PLF attorneys represented John Rapanos

before this Court in Rapanos v. United States, 547 U.S.

715 (2006), the interpretation of which is the subject of

the present Petition. PLF attorneys also have

participated in virtually every circuit court case

interpreting the Rapanos decision. See United States

v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006);

' Pursuant to this Court’s Rule 37.2, all parties with counsel! listed

on the docket have consented to the filing of this brief. Counsel of

record for all listed parties received notice at least 10 days prior

to the due date of the Amicus Curiae’s intention to file this brief.

Letters evidencing such consent have been filed with the Clerk of

the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any 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

Amicus Curiae, its members, or its counsel made a monetary

_contribution to its preparation or submission.

2

United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

PLF submits that this litigation experience on the

subject of the Petition will provide a useful additional

viewpoint to assist the Court in its consideration of this

case.”

SUMMARY OF ARGUMENT

In Rapanos, a five-Justice majority of this Court

held that federal jurisdiction did not extend to

wetlands under the CWA based solely on a hydrological

connection between those wetlands and a navigable-in-

fact waterway downstream. But this Court split on the

test for establishing such jurisdiction. A four-Justice

plurality interpreted the CWA narrowly to cover

traditional rivers, lakes, and streams connected to

navigable-in-fact waters, and those wetlands

indistinguishable from these waters. But Justice

Kennedy, concurring in the judgment, interpreted the

CWA broadly so as to reach any wetland with a

“significant nexus” to navigable-in-fact waters. 547

U.S. at 767.

The federal Circuit Courts of Appeals are split on

how to apply this Court’s Rapanos decision. The First

Circuit expressly rejected the “significant nexus” test

as solely controlling and held that Clean Water Act

jurisdiction could be extended to inland waters based

on either Justice Kennedy’s concurrence or the

Rapanos plurality’s test. United States v. Johnson, 467

F.3d 56. In United States v. Lucas, the Fifth Circuit

* While Amicus supports the Petition for purposes of clarifying

both Marks and Rapanos, see below, Amicus does not support

Petitioner’s effort to have this Court overturn the lower court's

decision that Petitioner did not establish federal CWA jurisdiction

over the properties in question.

3

declined to adopt any controlling opinion in Rapanos,

instead holding that “the government has jurisdiction

over waters that neighbor tributaries of navigable

waters.” 516 F.3d 316, 326 (5th Cir. 2008). The

Seventh Circuit, in Gerke, and the Ninth Circuit, in N.

California River Watch v. City of Healdsburg, 457 F.3d

1023 (9th Cir. 2006), have decided like the Eleventh

Circuit in this case that the “significant nexus” test is

controlling.

These circuit rulings conflict with this Court’s

analysis in Marks v. United States, 430 U.S. 188, 193

(1977). In Marks, this Court declared that in

fragmented decisions “the holding of the Court may be

viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.”

(citing Gregg vu. Georgia, 428 U.S. 153, 169 n.15 (1976))

(emphasis added). Under a literal reading of Marks,

the “narrowest grounds” in Rapanos consists of the

plurality position, because it is a logical subset of the

“significant nexus” test. But, as is the case with

applying Rapanos, there is general disagreement

among the circuit courts over how (and when) to apply

Marks. Therefore, review by this Court is necessary

not only to resolve the conflict among the circuits as to

enforcement of the Clean Water Act, but also to clarify

this Court’s interpretive rules for all split decisions.

4

REASONS FOR GRANTING THE WRIT

if

CIRCUITS ARE SPLIT ON HOW

TO APPLY THIS COURT'S

DIVIDED OPINIONS

A. Marks v. United States

In Marks, this Court was clear: “When a

fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five

Justices, ‘the holding of the Court may be viewed as

that position taken by those Members who concurred

in the judgments on the narrowest grounds.” 430 U.S.

at 193 (quoting Gregg, 428 U.S. at 169n.15). Although

this rule has been difficult to apply, see below, this

Court has established Marks as the only sanctioned

approach for interpreting its split decisions. See /n re

Michael Francis Cook, 322 B.R. 336, 341 (2005) (“The

only approach approved by the Supreme Court is the

‘narrowest grounds’ approach.”).

The language of Marks was not unique to that

case. It was derived from this Court’s decision in

Gregg, 428 U.S. 153. Gregg examined Furman uv.

Georgia, 408 U.S. 238 (1972), a case presenting a

constitutional challenge to a Georgia death penalty

statute. In Furman, five Justices joined in the

judgment of the Court and concluded that the death

penalty as administered in Georgia was

unconstitutional. This Court, however, split on the

legal rule to support its conclusion. Two Justices who

concurred in the judgment contended that capital

punishment is unconstitutional in all cases, whereas

the remaining Justices in the majority concluded only

5

that the particular death penalty law at issue was

unconstitutional, leaving open the possibility that

other death penalty laws may pass constitutional

muster.

In Gregg, this Court anticipated the Marks rule

through its reading of Furman:

Since five Justices wrote separately in

support of the judgments in Furman, the

holding of the Court may be viewed as that

position taken by those Members who

concurred in the judgments on the narrowest

grounds....

Gregg, 428 U.S. at 169 n.15. Since the narrowest of

the Furman majority opinions concluded that only the

death penalty law at issue was unconstitutional, this

Court in Gregg held that the split Furman opinions

should not be interpreted to hold that the death

penalty always violates the Constitution. Jd. at 169.

In Marks itself, this Court was presented with the

question of whether certain materials, determined by

the lower courts to be obscene, enjoyed First

Amendment protection. This Court concluded that the

pertinent legal rule was to be found in its split decision

in Memoirs vu. Attorney General of the Commonwealth

of Massachusetts, 383 U.S. 413 (1966), in which six

Justices reversed a lower court’s judgment that a novel

deemed obscene was not protected under the First

Amendment. Three Justices in the Memoirs majority

agreed with the lower court that obscene materials are

not constitutionally protected, but rejected as too lax

the lower court’s standard for constitutionally

unprotected obscenity. See id. at 418-19 (opinion of

Brennan, J., joined by Warren, C.J., and Fortas, J.).

6

Two other Justices in the Memoirs majority joined in

the judgment on the grounds that, because the First

Amendment protects obscenity however defined, the

novel in question was constitutionally protected.

Memoirs, 383 U.S. at 421 (Black, J., concurring); id. at

433 (Douglas, J., concurring). A sixth Justice also

concurred, writing that all forms of obscenity save

hardcore pornography are protected under the First

Amendment. Jd. at 421 (Stewart, J., concurring).

The Marks Court concluded that the Memoirs

three-Justice rule, imposing a heightened standard for

regulation of obscenity, was the decision’s narrowest

grounds because the opinions giving a First

Amendment shield to all forms of obscenity provided a

much broader protection. Marks, 430 U.S. at 193.

Marks thus gave birth to the “logical subset” analysis.

See Johnson, 467 F.3d at 63-64 (citing King v. Palmer,

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). That is,

a given rationale for a split opinion is a decision’s

narrowest grounds, and thus controls, if it is a “logical

subset” of the other rationales for the decision:

The Justices supporting the broader legal

rule must necessarily recognize the validity

of the narrower legal rule. That is, if a

statute is found to be constitutionally

permissible pursuant to a strict scrutiny

standard of review, then it is necessarily

permissible pursuant to a rational basis

standard of review. From the text of the

alternative concurring opinions, it is possible

to determine that if all of the Justices apply

the narrower rule, the outcome would have

been the same.

7

Ken Kimura, A Legitimacy Model for the Interpretation

of Plurality Decisions, 77 Cornell L. Rev. 1593, 1603-04

(1992). Thus, every statute that passes strict scrutiny

also survives rational basis review, but the converse is

not true. Therefore, the opinion applying strict

scrutiny would comprise this example’s narrowest

grounds under Marks.®

B. Courts Do Not Uniformly

Apply Marks and Its

Narrowest Grounds Analysis

In several substantive contexts, both lower courts

and this Court have demonstrated difficulty (or

reluctance) in applying Marks to fractured decisions.

The result, as Chief Justice Roberts wrote in Rapanos,

is that “[l]ower courts and regulated entities [ ] have to

feel their way on a case-by-case basis.” 547 U.S. at

758. Such an approach is the antithesis of the uniform

administration of justice this Court’s decisions should

engender.

In Student Public Interest Research Group of New

Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436 (3d

Cir. 1988), the Third Circuit interpreted this Court's

split decision in Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air. In that case, this Court

held that enhancements to the lodestar for attorneys’

fees under the Clean Air Act, for assuming the risk of

nonpayment, were improper. 483 U.S. 711 (1987). A

plurality of four Justices contended that such

* As Petitioner correctly points out in its Petition for Writ of

Certiorari at 23 n.8, “the Marks test is designed to identify a legal

principle,” and not to “gauge narrowness based on empirical

predictions about the overall frequency with which various

standards will produce an overall result.”

8

enhancements always are improper, id. at 729-30,

whereas Justice O’Connor, concurring separately,

argued that such enhancements are not always

improper, but that they were in the specific case under

review, id. at 731 (O’Connor, J., concurring in part and

concurring in the judgment). The Third Circuit,

applying Delaware Valley, concluded that because the

dissent in that case would have approved of

enhancements generally—and because Justice

O’Connor approved of enhancements under certain

circumstances—a majority of this Court in Delaware

Valley would hold that enhancements are proper if

Justice O’Connor’s standards were met. Student

Public Interest Research Group, 842 F.3d at 1451.

In so deciding, the Third Circuit never discussed

Marks. Under Marks, the “narrowest grounds” of

Delaware Valley would be Justice O’Connor'’s opinion,

but only for the proposition that, under the

circumstances present in that case, enhancements are

improper. Importantly, Marks would not authorize a

rule from the other side of the Delaware Valley coin;

that is, a rule that would affirmatively approve of

enhancements where Justice O’Connor’s conditions are

met. That conclusion is a function of Marks’s mandate

that a court interpreting this Court’s split decision

must look only to the opinions of the Justices

concurring in the opinion, Marks, 430 U.S. at 193, and

therefore must ignore any dissents. As the Eleventh

Circuit held in this case, looking to dissenting Justices

is “inconsistent with Marks” because under that case,

the opinion of dissenting Justices “is of no moment.”

9

United States v. Robison, 505 F.3d 1208, 1221 (11th

Cir. 2007).*

Exclusive attention to the opinions of Justices

joining in the judgment is a necessary practice in any

split decision analysis, because the views of dissenting

Justices play no legitimate interpretive role. This is

true as a matter of fidelity to Marks and as a necessary

tribute to the foundations of Article III jurisprudence.

Reliance upon dissenting Justices’ views is unfounded

because federal courts may only expound the law to the

extent that their opinions are tied to a judgment; that

is to the extent that the courts resolve an actual “Case

or Controversy.” See Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12 (1992) (Federal courts

have no authority “to give opinions upon moot

questions or abstract propositions, or to declare

principles or rules of law which cannot affect the

matter in issue in the case before it.”) (citation

omitted). Given that the views of dissenting Justices

have no effect, by definition, on the Court’s disposition

of an actual case or controversy, it follows that their

views as to the controlling rule of law are without

binding power. See Robison, 505 F.3d at 1221 (“We are

controlled by the decisions of the Supreme Court.

Dissenters, by definition, have not joined the Court's

decision.”).

Among the most conspicuous examples of a split

decision applied differently by various circuits is this

Court’s decision in Regents of the University of

California v. Bakke, 438 U.S. 265 (1978). In Bakke,

* Amicus is cognizant of Petitioner’s support for incorporating

dissents into analyses of this Court’s plurality decisions, see

Petition for Writ of Certiorari at 24-25, and disagrees with

Petitioner's argument in this regard.

10

this Court examined the constitutionality of a medical

school admissions program that set aside admissions

slots for members of racial minorities. As this Court

wrote twenty-five years later in a decision to clarify

Bakke’s fractured decision:

The decision produced six separate opinions,

none of which commanded a majority of the

Court. Four Justices would have upheld the

program against all attack on the ground

that the government can use race to “remedy

disadvantages cast on minorities by past

racial prejudice.” Id., at 325, 98 S.Ct. 2733

(joint opinion of Brennan, White, Marshall,

and Blackmun, JJ., concurring in judgment

in part and dissenting in part). Four other

Justices avoided the constitutional question

altogether and struck down the program on

statutory grounds. Id., at 408, 98 S.Ct. 2733

(opinion of Stevens, J., joined by Burger, C.

J., and Stewart and Rehnquist, JJ.,

concurring in judgment in part and

dissenting in part). Justice Powell provided

a fifth vote not only for invalidating the

set-aside program, but also for reversing the

state court’s injunction against any use of

race whatsoever.

Grutter v. Bollinger, 539 U.S. 306, 322 (2003).

In the midst of Bakrke’s splintered opinions,

Justice Powell’s concurrence that race-conscious

admissions programs, if designed to mold a racially

diverse student body—-an opinion joined by no other

Justice—became “the touchstone for constitutional

analysis of race-conscious admissions policies.” Id. at

323 (citing Bakke, 438 U.S. at 311). Yet it was not

iil

universally applied as such in the circuit courts. In the

Eleventh Circuit, for example, the court held, over two

decades after Bakke, that Justice Powell's diversity

concurrence was not the holding of this Court, and thus

did not control. Johnson v. Board of Regents of the

University of Georgia, 263 F.3d 1234 (11th Cir. 2001).

As this Court noted in Grutter, the Fifth Circuit

similarly disregarded Justice Powell’s concurrence as

controlling, Hopwood v. Texas, 236 F.3d 256, 274-75

(5th Cir. 2000), while courts such as the Ninth Circuit

held the diversity rationale to be governing law, Smith

v. University of Washington Law School, 233 F.3d

1188, 1199 (9th Cir. 2000). See Grutter, 539 U.S. at

325.

The judicial, political, and social consequences of

this divided application of a fractured decision resulted

in one of the most contentious issues in daily American

life, and necessitated this Court’s revisiting of the

matter in Grutter. Even then, though, this Court did

not decide the issue pursuant to Marks, writing that

the Court “doles] not find it necess#ry to decide

whether Justice Powell’s opinion is binding under

Marks,” because it was not “useful to pursue the Marks

inquiry to the ut.aost logical possibility when it has so

obviously baffled and divided the lower courts that

have considered it.” Grutter, 539 U.S. at 325 (quoting

Nichols v. United States, 511 U.S. 738, 746 (1994)).

With admissions such as this one from even this

Court, it is not surprising that lower courts sometimes

are reluctant to apply Marks at all. Several circuits

have reacted to their queasiness over Marks by

ignoring its rule and adopting an ad-hoc approach to

interpreting this Court’s fragmented decisions. ‘This

approach involves divining which grounds might, in

12

theory, find favor with five Justices. In T'yler uv.

Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir.

1992), for example, the court concluded: “In essence,

what we must do is find common ground shared by five

or more justices.” So too the Ninth Circuit: “We need

not find a legal opinion which a majority joined, but

merely a ‘legal standard which, when applied, will

necessarily produce results with which a majority of

the Court from that case would agree.””). United States

v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (citing

Planned Parenthood v. Casey, 947 F.2d 682, 693 (3d

Cir. 1991)).

Some courts attribute their failure to strictly

adhere to Marks to that case’s lack of function in

certain factual settings. This Court, in Grutter, wrote

that there are instances where application of Marks is

“more easily stated than applied to the various

opinions supporting the result,” 539 U.S. at 325. As

the D.C. Circuit in King v. Palmer explained, Marks is

most easily applied where one opinion can “represent

a common denominator of the Court’s reasoning” and

“embodf{ies] a position implicitly approved by at least

five Justices who support the judgment.” 950 F.2d at

781. But, when

one opinion supporting the judgment does

not fit entirely within a broader circle drawn

by the others, Marks is problematic. If

applied in situations where the various

opinions supporting the judgment are

mutually exclusive, Marks will turn a single

opinion that lacks majority support into

national law. When eight of nine Justices do

not subscribe to a given approach to a legal

question, it surely cannot be proper to endow

13

that approach with controlling force, no

matter how persuasive it may be.

Id. at 782.

An illustration of Marks’s aptness in some

settings, as opposed to others, stems from this Court’s

decision in Eastern Enterprises v. Apfel, 524 U.S. 498

(1998). In Eastern Enterprises, this Court held that the

retroactive application of the Coal Industry Retiree

Health Benefit Act to Eastern Enterprises was

unconstitutional. A plurality of Justices, in an opinion

authored by Justice O’Connor, held that the Act

effected a taking, and reached that conclusion by

applying the multi-factor regulatory takings test set

forth in Penn Central Transportation Co. v. City of New

York, 438 U.S. 104 (1978). See Eastern Enterprises,

524 U.S. at 529. Justice Kennedy, concurring

separately, agreed that the Act was unconstitutional as

applied, but contended that the result flowed from a

due process analysis, and not from a takings

framework. 524 U.S. at 539 (Kennedy, J., concurring

in the judgment and dissenting in part).

Lower courts were faced with the questionable

applicability of Marks, because neither the plurality’s

takings test, nor Justice Kennedy’s substantive due

process test, is a logical subset of the other. At least

two circuits resolved this dilemma by applying Eastern

Enterprises only in situations where plaintiffs “standin

a substantially identical position to Eastern

Enterprises with respect to both the plurality and

Justice Kennedy’s concurrence,” in practice limiting

this Court’s decision to its facts. Unity Real Estate Co.

v. Hudson, 178 F.3d 649, 659 (3d Cir. 1999); see also

Mary Helen Coal Corp. v. Hudson, 164 F.8d 624 (4th

14

Cir. 1998) Gudgment for appellant because case was

“materially indistinguishable from Eastern”). Other

lower courts disposed of cases based on hypothesizing

which holding might potentially find the support of five

of this Court’s Justices. See Commonwealth Edison Co.

v. United States, 271 F.3d 1327, 1339 (Fed. Cir. 2001)

{citing various authorities for the proposition that

“regulatory actions requiring the payment of money

are not takings”). Insum, courts’ difficulty in applying

Marks to a split decision not amenable to a Venn

Diagram compelled the courts to disregard the Marks

test altogether.

This uneasiness may well be valid, and numerous

commentators have written to that effect and offered

either glosses on Marks or wholesale substitutes for

this Court’s rule. See Melissa M. Berry, et al., Much

Ado About Pluralities: Pride and Precedent Amidst the

Cacophony of Concurrences, and Re-Percolation After

Rapanos, 15 Va. J. Soc. Poly & L. 299, 333-40 (2008);

Adam 8S. Hochschild, The Modern Problem of Supreme

Court Plurality Decision: Interpretation in Historical

Perspective, 4 Wash. U.J. L. & Pol’y 261, 280-86 (2000);

Mark Alan Thurmon, When the Court Divides:

Reconsidering the Precedential Value of Supreme Court

Plurality Decisions, 42 Duke L.J. 419, 447-57 (1992);

Linda Novak, The Precedential Value of Supreme Court

Plurality Decisions, 80 Colum. L. Rev. 756, 769-74

(1980). But whatever the merits of these criticisms of

Marks, the fact remains that Marks is this Court’s

controlling decision for interpreting the Court’s split

decisions. Like this Court’s other controlling opinions,

Marks does not permit lower courts to disregard its

holding where those courts think another interpretive

tool would be more appropriate. This Court should

15

grant the Petition in this case either to reaffirm and

clarify its commitment to Marks with regard to any of

its split decisions, or to fashion a new interpretive rule

for dealing with such opinions.

il

THIS COURT SHOULD GRANT THE

PETITION TO CLARIFY ITS

DECISION IN RAPANOS

A. There Are Multiple Post-Rapanos

Conflicts in the Lower Courts

Post-Rapanos CWA cases are the most recent

example of confusion over how to apply this Court’s

split decisions. The result is that whether a person

may make productive use of his land, and whether he

faces criminal penalties including prison time for CWA

violations, depends on the federal circuit in which he

resides.

In Gerke, which also involved a jurisdictional

challenge to federal regulation of inland wetlands, the

Seventh Circuit putatively relied on Marks to interpret

Rapanos, but it changed the wording of the Marks rule

and thus misapplied this Court’s test. In Gerke, the

court cited Marks for the proposition that

[w]hen a majority of the Supreme Court

agrees only on the outcome of a case and not

on the ground for that outcome, lower-court

judges are to follow the narrowest ground to

which a majority of the Justices would have

assented if forced to choose. In Rapanos,

that is Justice Kennedy's ground.

16

464 F:3d at 724 (citations omitted). In the Seventh

Circuit, as in the Eleventh Circuit opinion in this case,

the “significant nexus” standard controls.

The Seventh Circuit’s adulterated version of the

Marks rule allowed the court to aggregate the four

dissenters in Rapanos with Justice Kennedy to find the

five Justices that would support Justice Kennedy’s

“significant nexus” standard for establishing federal

jurisdiction over wetlands under the CWA. However,

the court ignored the more persuasive argument that

when the plurality standard is applied to find federal

jurisdiction, it would have the support of all nine

Justices. Nevertheless, under Marks, finding the

support of five Justices is not the controlling standard.

The First Circuit, in United States v. Johnson,

found it curious that the Gerke court equated

“narrowest ground” with the opinion “least restrictive

of federal authority.” 467 F.3d at 61. Although the

cases on which Marks relied involved situations in

which the “narrowest grounds” was the least restrictive

of federal jurisdiction, the First Circuit observed that

this was mere coincidence, and that it “does not

necessarily mean that the Supreme Court in Marks

equated the ‘narrowest grounds’... to the grounds

least restrictive of the assertion of federal authority.”

Id. at 63. “Such an equation,” the First Circuit stated,

“leaves unanswered the question of how one would

determine which opinion is controlling in a case where

the government is not a party.” Jd. Given the

constitutional issue raised, the court found it “just as

plausible to conclude that the narrowest ground of

decision in Rapanos is the ground most restrictive of

government authority (the position of the plurality).”

Id. This, according to the court, is because “that

17

ground avoids the constitutional issue of how far

Congress can go in asserting jurisdiction under the

Commerce Clause.” Id.

In conclusion, and in contrast with the Seventh

Circuit’s reading of Marks in Gerke, the First Circuit in

Johnson opined that the “narrowest grounds” might

sensibly be interpreted to mean the “less far-reaching-

common ground,” or the opinion “most clearly tailored

to the specific fact situation before the Court and thus

applicable to the fewest cases.” Jd. The court held that

the “significant nexus” standard in Rapanos is not a

“logical subset” of the plurality standard for federal

jurisdiction over wetlands: “The cases in which Justice

Kennedy would limit federal jurisdiction are not a

subset of the cases in which the plurality would limit

jurisdiction.” Jd. at 64. However, the First Circuit

failed to consider the obvious possibility that the

plurality standard is a “logical subset” of Justice

Kennedy’s standard. The First Circuit rejected Gerke’s

conclusion that under Marks Justice Kennedy’s lone

concurrence is controlling in Rapanos. Instead, the

First Circuit ultimately brushed aside Marks, writing

that it “does not translate easily to the present

situation, id. at 64, and held that “[t!he federal

government can establish jurisdiction over the target

sites if it can meet either the plurality’s or Justice

Kennedy’s standard as laid out in Rapanos.” Id. at 60.

In N. California River Watch, the Ninth Circuit

adopted the approach of the Seventh Circuit, and

anticipated the Eleventh Circuit's opinion in the

present case, by holding that Justice Kennedy’s

“significant nexus” standard is controlling in Rapanos.

And in the most confused of all post-Rapanos circuit

court cases, the Fifth Circuit in Lucas applied the

18

jurisdictional tests of the Rapanos plurality, the

concurrence, and the dissent as if they were all of

equal validity without so much as a mention of the

Marks rule. It then declared that “the government has

jurisdiction over waters that neighbor tributaries of

navigable waters.” 516 F.3d at 326. This

“neighboring” test is not found anywhere in the

Rapanos decision. The Fifth Circuit introduced its own

standard and conjured an additional conflict among the

circuits. This conflict creates a substantial disparity

among the circuits in the enforcement of the Clean

Water Act, one that requires reconciliation by this

Court.

B. Practical Concerns of

Fairness and Justice Warrant

Granting the Petition

Since the promulgation of the Clean Water Act,

the Army Corps of Engineers and the Environmental

Protection Agency have failed to follow a consistent

jurisdictional test for regulated wetlands. A report

from the General Accounting Office confirms that the

Corps’ local districts “differ in how they interpret and

apply the federal regulations when determining what

wetlands and other waters fall within the [Act’s]

jurisdiction.” U.S. General Accounting Office, Waters

and Wetlands: Corps-of Engineers Needs To Evaluate

Its District Office Practices In Determining Jurisdiction

3 (Feb. 2004) (GAO Report).”

In addition to interdistrict inconsistencies, the

GAO Report concluded that even corps staff working in

* Available at www.gao.gov/new.items/d04297.pdf (last visited

Sept. 13, 2008)

19

the same office cannot agree on the scope of the Clean

Water Act and that “three different district staff’

would likely make “three different assessments’ as to

whether a particular water feature is subject to the

Clean Water Act. GAO Report at 22. This is more

than a theoretical concern. This degree of uncertainty

permeates the enforcement decisions of the Corps. As

Rapanos and its progeny demonstrate, those decisions

become the basis for multimillion dollar fines and

criminal prosecution.

A basic element of the rule of law is that a person

must be able to know beforehand, with some

reasonable degree of certainty, what acts the law

proscribes. Ifa law “fails to provide people of ordinary

intelligence a reasonable opportunity to understand

what conduct it prohibits,” Hill v. Colorado, 530 U.S.

703, 732 (2000), the law violates the certainty

requirement inherent in Due Process of Law. As such,

the right of the people to know when they have

violated the law is deserving of greater safeguard than

the convenience of the enforcing agency. But the Clean

Water Act program is beyond the comprehension of

ordinary people. The very definition of “wetlands”

defies common sense. Federal regulations define

“wetlands”as those areas “inundated or saturated by

surface or ground water at a frequency and duration

sufficient to support, and that under normal

circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.”

33 C.F.R. § 328.3(b). Under this definition, an area

need be wet only “for one to two weeks per year.”

Gordon M. Brown, Regulatory Takings and Wetlands:

Comments on Public Benefits and Landowner Cost, 21

Ohio N.U. L. Rev. 527, 529 (1994). In other words, a

“wetland” may be mostly dry land that no reasonable

20

person would conclude is_ subject to federal

jurisdictional control as a wetland.

This Court long has held that “before a man can

be punished as a criminal under the Federal law his

case must be ‘plainly and unmistakably’ within the

provisions of some statute.” United States v. Gradwell,

243 U.S. 476, 485 (1917). See also United States v.

Lanier, 520 U.S. 259, 267 (1997). But the confusion

among the circuits in post-Rapanos cases, and the

inherent chaos of the Clean Water Act enforcement

regime, provide no such clarity. This Court should

grant the Petition and resolve this conflict, engendered

by this Court’s split decision in Rapanos, by cabining

federal power in a manner appropriately respectful of

the individual’s fundamental constitutional rights.

~—

CONCLUSION

For the reasons stated above, the Petition for Writ

of Certiorari should be granted.

DATED: September, 2008.

Respectfully submitted,

NICHOLAS M. GIESELER M. REED HOPPER

Of Counsel DAMIEN M. SCHIFF

*STEVEN GEOFFREY GIESELER

*Counsel of Record

Pacific Lega] Foundation

1002 SE Monterey Commons

Boulevard, Suite 102

Stuart, Florida 34996

Telephone: (772) 781-7787

Facsimile: (772) 781-7785

Counsel for Amicus Curtae

Pacific Legal Foundation