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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

\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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0192%3A6. Public record. Not legal advice.