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

a |

FILED

\Y SEP 22 2008

No. (2) | OFFICE OF THE CLERK |

Iu the Supreme Court of the Anited States

UNITED STATES OF AMERICA, PETITIONER

Vv.

MCWANE, INC., ET AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF

PETITIONERS IN NO. 07-1512

IN SUPPORT OF PETITIONER

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH

Wittman LLC Winston & Strawn LLP

546 Carondelet Street 1700 K Street, NW

New Orleans, LA 70130 Washington, DC 20006

(504) 581-3200 (202) 282-5000

Counsel for Amici

{Additional counsel listed on inside cover]

STUART ALTSCHULER

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

W. F. HOLDER II

400 East Railroad St.

Long Beach, MS 39560

228-863-4999

TIM C. HOLLEMAN

Boyce Holleman & Assocs.

11240 Hwy 49 N.

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

QUESTION PRESENTED

Whether the “significant nexus” standard de-

scribed 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.

ts

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ..............c0cccsccscocccsscsceees iii

INTERESTS OF AMICI CURIAE.........0.....02.2..0000000+- 1

SEES SEE SD Se ae a 2

I. The Court should grant both petitions and

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II. If the Court nevertheless wishes to limit

itself to one case, it should grant the Lucas

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TABLE OF AUTHORITIES

Page(s)

CASES

Crawford v. Washington,

i ccndeecbavaiininnmadainl 4

Davis v. Washington,

i cudisducbauseiaeeelilal 4

Ewing v. California,

Ee Ty 4

Gonzales v. Carhart,

. spuadecuseemcelnlll 4

Gonzales v. Planned Parenthood,

es aiddiuisbuelpmmecenneenl 4

Gratz v. Bollinger,

a scdeetecuaunmnssemniala 3-5

Grutter v. Bollinger,

I i 3-5

Hammon vy. Indiana,

cs uadembecwnneneinans 4

Leo Sheep Co. v. United States,

EE ene tees 3

Lockyer v. Andrade,

A RT 4

McCreary County v. ACLU of Kentucky,

ERTS ie ae 4

1V

Meredith v. Jefferson County Bd. of Educ.,

I a a ls 4

Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1,

ET ARI EE I CORA BE. 4

Rapanos v. United States,

i intinsscoserisiesscoioseinsnetee passim

United States v. Navajo Nation,

aE: 3

United States v. Riverside Bayview Homes,

Inc.,

I 6

United States v. White Mountain Apache Tribe,

SEITE rca Oy a nomere ae See 3

Van Orden v. Perry,

TER SRA RE RR RPO a Ts He ee 4

OTHER AUTHORITIES

EPA, Wetlands: Status and Trends,

http://www.epa.gov/OWOW/wetlands/vital/s

tatus.html (last updated Feb. 22, 2006)................. 2

John Kusler, Association of State Wetland

Managers, The SWANCC Decision: State

Regulation of Wetlands to Fill the Gap

EE RES RUE LEASE SUNGF Pie eat REIT 3

INTERESTS OF AMICI CURIAE

Amici are the petitioners in the pending case of

United States v. Lucas, No. 07-1512.! As the United

States recognizes in its petition (at 30 n.10), amict’s

petition presents the same essential issue that the

United States presents here: specifically, which of

the alternative standards articulated in Rapanos v.

United States, 547 U.S. 715 (2006), governs the lower

courts in determining the extent of federal jurisdic-

tion under the Clean Water Act (CWA).

In addition to the Marks issue presented in both

petitions, however, amici have also presented a sepa-

rate question that would allow the Court to articulate

the proper interpretation of whichever of the Rapanos

standards the Court selects. And amici’s case in-

volves the scope of federal jurisdiction, not over per-

ennially flowing streams, as in this case, but over

wetlands—an area of far greater practical and legal

importance.

Unlike the respondents in this case, moreover, the

individual amici are currently serving prison terms

based upon the lower courts’ misinterpretation of the

Clean Water Act and each of the standards articu-

lated in Rapanos. As a direct result, one of the indi-

vidual amici—Robbie Wrigley—is now being deprived

of the opportunity to raise her young son to adoles-

cence. And the other two individual amici—Robert

Lucas and M.E. Thompson—are being deprived of the

See es a — a —

' The parties have consented to the filing of this brief. Under

Rule 37.6, amici state that no counsel for a party authored this

brief in whole or in part, and no counsel or party made a mone-

tary contribution intended to fund the preparation or submis-

sion of this brief. No person other than amici or its counsel

made 4 monetary contribution to preparation or submission of

this brief.

2

opportunity to spend their sunset years with family

and friends. Amici therefore have a powerful interest

in helping this Court provide needed guidance to

lower courts—including those that have previously

addressed the Lucas case—in determining the extent

of federal jurisdiction under the Clean Waiter Act,

particularly in the wetlands context.

ARGUMENT

As noted, the Government here seeks certiorari to

determine how to interpret this Court’s fractured de-

cision in Rapanos, while the Lucas petitioners seek

certiorari on that question as well as the broader

question of how whichever standard the Court selects

should be understood and applied. For that and

other reasons discussed in Section I below, it makes

sense for the Court to grant both petitions and con-

sider them in tandem. Alternatively, as explained in

Section II (and in the attached reply filed in support

of amict’s petition), if the Court wishes to grant only

one of these petitions, it should grant the Lucas peti-

tion, which provides a superior vehicle with which to

resolve these difficult questions.

I. The Court should grant both petitions and

consider them in tandem.

Amici agree with the Government that the Marks

question presented in this case is the subject of an

acknowledged and mature circuit conflict and is, in

addition, an issue of profound practical importance—

not only to the Government, but to businesses and

other property owners throughout the nation. In-

deed, according to the Environmental Protection

Agency, as many as 300 million acres of wetlands

blanket the United States, a third of them in the

lower 48 states. EPA, Wetlands: Status and Trends,

3

http://www.epa.gov/OWOW/wetlands/vital/status. htm

| (last updated Feb. 22, 2006). Depending on how the

Government’s jurisdiction is defined, moreover, it

may exercise control over as little as 20 percent or as

much as 90 percent of those wetlands. See Jon

Kusler, Association of State Wetland Managers, The

SWANCC Decision: State Regulation of Wetlands to

Fill the Gap 6-8 (March 2004), at

http://www.aswm.org/fwp/swancc/aswm-int.pdf. The

extent of federal jurisdiction under the CWA is there-

fore a matter of critical importance in need of this

Court’s attention. See Leo Sheep Co. v. United States,

440 U.S. 668, 678 (1979) (“Because this holding af-

fects property rights in 150 million acres of land * * *,

we granted certiorari.”).

The very importance of that issue, however, espe-

cially in the wetlands context, demands rejection of

the Government's attempt to confine this Court’s con-

sideration to a single case arising in the quite differ-

ent context of discharges directly into a perennial

stream. The more sensible approach is to grant both

petitions and hear them in tandem.

That approach is in keeping with the Court's past

practice in analogous cases. Often during the past

several Terms, when the Court has received two

nearly simultaneous petitions raising similar or

closely related issues, the Court has granted both pe-

titions and considered the two cases in tandem. See,

e.g., Grutter v. Bollinger, 539 U.S. 306 (2003), and

Gratz v. Bollinger, 539 U.S. 244 (2003) (considering

in tandem two cases involving the constitutionality of

affirmative action programs); United States v. White

Mountain Apache Tribe, 537 U.S. 465, 477 (2003) and

United States v. Navajo Nation, 537 U.S. 488, 493

(2003) (considering in tandem suits over whether the

4d

Government violated fiduciary duties to two native

tribes); Lockyer v. Andrade, 538 U.S. 63 (2003) and

Ewing v. California, 538 U.S. 11 (2003) (deciding in

tandem two criminal cases involving California’s

“three-strikes” law); Van Orden v. Perry, 545 U.S. 677

(2005) and McCreary County v. ACLU of Kentucky,

545 U.S. 844 (2005) (hearing in tandem two cases on

the public display of the Ten Commandments);

Hammon v. Indiana, 547 U.S. 813 (2006) and Davis

v. Washington, 547 U.S. 813 (2006) (deciding in tan-

dem whether statements in a 911 call and to police

constituted testimonial] statements under Crawford v.

Washington, 541 U.S. 36 (2004)); Parents Involved in

Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct.

2738 (2007) and Meredith v. Jefferson County Bd. of

Educ., 127 S. Ct. 2738 (2007) (considering in tandem

whether school policies aimed at racial desegregation

were unconstitutional); Gonzales v. Carhart, 127 S.

Ct. 1610 (2007) and Gonzales v. Planned Parenthood,

127 S. Ct. 1610 (2007) (upholding the Partial-Birth

Abortion Ban Act of 2003 in tandem cases).

This procedure—hearing two closely related cases

in tandem—has allowed the Court to consider the

common issues more thoroughly and, ultimately, to

give more comprehensive guidance to lower courts as

to how to apply the legal standards the Court has

adopted. For example, in Grutter and Gratz, both

cases presented the broad issue of how to assess the

constitutionality of affirmative action programs in

higher education. Accordingly, the Court could sim-

ply have granted one of the cases and held the other

pending the outcome of the first. But the two cases

presented the affirmative action issue in two distinct

contexts—one in the context of a law school admis-

sions program that considered race subjectively, as

5

one of several factors; and the other in the context of

a more objective undergraduate admissions program

that automatically gave racial minorities a specific

- number of “points” based on the applicant’s minority

status. Given the differing factual settings in which

the common issue arose, and the opportunity that

both cases offered for providing guidance to the lower

courts, the Court sensibly granted both petitions and

heard the two cases in tandem.

Similar opportunities are offered by the two CWA

cases now before the Court—this case and Lucas.

Here again, the Court could simply grant one and

hold the other pending decision in the first. But, as

in Grutter and Gratz (and the other cases listed

above), considering both cases together offers distinct

advantages.

First, simultaneous consideration will allow the

Court to more readily consider the scope of federal

jurisdiction under the Clean Water Act in both of the

contexts in which that issue arises most frequently—

discharges into perennially flowing streams (as in

this case) and the much more important context of

discharges into wetlands—the context in Lucas. As

another group of amici here have explained, “it is im-

portant to review CWA jurisdiction as it applies to all

types of water bodies.” Brief of Amicus Curiae

American Farm Bureau Federation et al. (hereinafter

“AFBF Brief’), No. 08-223, at 8 n.5.

Consideration of the jurisdictional question in the

context of flowing streams alone—as the Government

seeks here—would risk the adoption of a legal analy-

sis that is both incomplete and less well suited to the

wetlands context. For example, a decision in this

case as to whether a perennially flowing stream con-

6

stitutes “waters of the United States” would not re-

solve the vexing and recurring issue of what it means

for a wetland to be “adjacent” to navigable waters or

their tributaries, and hence to constitute a “water of

the United States” in its own right. See Rapanos, 547

U.S. at 728 (Scalia, J. plurality); id. at 760 (Kennedy,

J. concurring); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 123 (1985). Nor would this

case give the Court an opportunity to resolve a key

issue presented by the Rapanos plurality and concur-

rence, namely, how close and continuous a connection

there must be between a wetland and a “relatively

permanent” body of water. See AFBF Brief at 16-19;

Brief of Amicus Curiae National Ass’n of Homebuild-

ers and Chamber of Commerce of the United States,

No. 07-1512, at 13-16.

For all these reasons, simultaneous consideration

of both cases offers the best chance of ensuring that

the Court fully appreciates both contexts and crafts

its analysis in a way that is well suited to both.

Second, simultaneous consideration of both cases

will allow the Court to more readily consider the

views of two different courts of appeals as to the

proper legal standard. As explained in the Lucas re-

ply brief (Appendix A at 8a-9a), the courts of appeals

in these two cases adopted very different interpreta-

tions of the Rapanos plurality. And, as shown in the

Lucas reply (App. A at 1la-12a), the lower courts are

in disarray as to the proper understanding of the con-

currence’s “substantial nexus” standard. Further-

more, especially in the wetlands context, the Gov-

ernment has construed the scope of this test ex-

tremely broadly, well beyond any reasonable con-

struction of the Rapanos concurrence. See AFBR

Brief at 7-8. Simultaneous consideration of both

7

cases will thus make it easier for the Court, in re-

sponding to these divergent views, to articulate ex-

actly what its chosen standard means, and how that

standard (or those standards) is to be applied.”

Third, as explained in the Lucas reply brief (App.

A at 15a-16a), simultaneous consideration of both

cases will ensure that at least one party before the

Court is defending each of the three positions offered

by the various Rapanos opinions. In this case, the

Government will no doubt continue to urge adoption

of the Rapanos dissent—i.e., that federal jurisdiction

exists when the standard adopted by either the plu-

rality or the concurrence is satisfied. Similarly, be-

cause of the Eleventh Circuit's observation that the

Government had satisfied the Rapanos plurality, but

not the concurrence, the respondents here will have a

powerful incentive to urge the adoption of the concur-

rence alone. Thus, if the Court were to grant review

in this case but hold Lucas, none of the parties before

the Court would likely defend the Rapanos plurality.

By contrast, the Lucas petitioners intend to argue—

based in part on the rule of lenity—that, at least in

the criminal context, the Rapanos plurality should

control.

In all of these respects, moreover, this case differs

markedly from Rapanos, in which the Court consoli-

* Indeed. even if the Government were correct that Lucas is not

the most “appropriate” vehicle for resolving the Marks question

presented in both petitions—because the Fifth Circuit did not

choose a single legal standard—that alleged deficiency would be

eliminated by granting both petitions, considering them in tan-

dem, and then using Lucas (at a minimum) as a vehicle for de-

termining the proper understanding of whichever standard the

Court chooses. But in any event, the Government's premise is

wrong: As explained in the Lucas reply (at 3-4), Lucas is a per-

fectly appropriate for resolving the Marks issue as well.

8

dated the two underlying cases rather than consider

them in tandem. Unlike these cases, both of the

cases at issue in Rapanos arose in the wetlands con-

text. See 547 U.S. at 729-730. Unlike these cases,

moreover, both of the underlying cases in Rapanos

had been decided by a single circuit—the Sixth—

under the same legal standard. And unlike these

cases, the landowners there did not have divergent

legal interests, and were not pressing for materially

different standards. ,

For all these reasons, the Court should grant both

this petition and the Lucas petition, and hear both

cases in tandem.

II. If the Court nevertheless wishes to limit it-

self to one case, it should grant the Lucas pe-

tition.

If the Court decides to grant only one petition,

however, it should grant the Lucas petition. As ex-

plained in greater detail in the Lucas reply (App. A),

Lucas is a superior vehicle for resolving the difficult

questions of the Government's jurisdiction in Clean

Water Act cases.

First, unlike this case, Lucas (as noted) involves

discharges into what the Government claims are ju-

risdictional wetlands, which this Court has recog-

nized as raising significant constitutional questions.

See Rapanos, 547 U.S. at 738 (Scalia, J., plurality);

id. at 782 (Kennedy, J., concurring); see also App. A

at 7a-8a. As Rapanos attests, moreover, interpreting

the CWA in the wetlands context is in general more

challenging—not just for the courts, but for govern-

mental and private actors alike. And, as noted, the

wetlands context is far more important as a practical

matter than the flowing streams context—given that

9

the former context potentially comprises hundreds of

millions of acres of land. Accordingly, if the Court

were to choose only one CWA case to hear and decide

on the merits, it would make far more sense to choose

a wetlands case than a flowing streams case.

Second, the Eleventh Circuit here only applied the

Rapanos plurality, whereas the Fifth Circuit in Lucas

purported to apply both the Rapanos plurality and

concurrence. Lucas, therefore, offers this Court an

opportunity to provide lower courts with guidance on

the proper application of either of those standards. It

also gives this Court the opportunity to address the

proper standards to apply to residential septic sys-

tems—also an issue of enormous practical impor-

tance. See App. A at 8a-9a.

Finally, because the Lucas petitioners were sen-

tenced to long prison terms based solely on the Gov-

ernment’s expansive interpretation of the CWA, that

case brings into sharper focus the substantial liberty

and due process interests implicated by a decision on

the scope of the federal government’s jurisdiction.

See Appendix A at 14a-15a. Those interests are more

readily apparent in the Lucas case, in which, as

noted, the Fifth Circuit's misinterpretation of the

CWA means that a young child must now grow up to

adolescence without his mother’s care, and two

grandfathers may spend most if not all of their re-

maining twilight years in prison, without the com-

pany of family and friends.

CONCLUSION

For all these reasons, the Court should grant the

petition and hear this case in tandem with United

States v. Lucas, No. 07-1512. Alternatively, the

10

Court should hold this petition pending a decision on

the merits in Lucas.

Respectfully submitted,

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH

Wittman LLC Winston & Strawn LLP

546 Carondelet Street 1700 K Street, NW

New Orleans, LA 70130 Washington, DC 20006

(504) 581-3200 (202) 282-5000

STUART ALTSCHULER

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

TIM C. HOLLEMAN W. F. HOLDER II

Boyce Holleman & 400 East Railroad St.

Associates Long Beach, MS 39560

11240 Hwy 49 N., 228-863-4999

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

Counsel for Amici

SEPTEMBER 2008

APPENDIX

“=

la

APPENDIX A

No. 07-1512

In the Supreme Court of the United States

ROBERT J. LUCAS, JR., ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY BRIEF IN SUPPORT OF PETITION

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH |.

Wittman LLC Winston & Strawn LLP

546 Carondelet Street 1700 K Street, NW

New Orleans, LA 70130 Washington, DC 20006

(504) 581-3200 (202) 282-5000

STUART ALTSCHULER

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

Counsel for Petitioners

[Additional counsel listed on inside cover]

Tim C. HOLLEMAN

Boyce Holleman &

Associates

11240 Hwy 49 N.,

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

2a

W. F. HOLDER II

400 East Railroad St.

Long Beach, MS 39560

228-863-4999

3a

TABLE OF CONTENTS

Page

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ETE ae eR NEE memento 2

TABLE OF AUTHORITIES

CASES

Bell v. United States,

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Gratz v. Bollinger,

ID. oc scnnpascssssseencnsessncseseess

Grutter v. Bollinger,

Is ccscnscresececscosnensesesesseoss

Leo Sheep Co. v. United States,

i TD iccscccccsccsccrcescccesessseserss

Quanta v. LG Electronics,

128 S. Ct. 2109 (2008)............... ee ceeeseeseeee

Rapanos v. United States,

cc vnsateccsnesevnsssccessssnee

Simsbury-Avon Preservation Soc., LLC v.

Metacon Gun Club, Inc.,

472 F. Supp. 2d 219 (D. Conn. 2007) .......

Smith v. Wade,

EE

Solid Waste Agency v. U.S. Army Corps of

Engineers,

EE Dos scnsecenncssevicessssseccessesses

United States v. Bass,

EE ED svcccanssonseconessissesesnesooeee

PAGE(S)

5a

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) (Torruella, J.

I emeendiion 7

United States v. Lanier,

ER ee a eee ee aa 10

United States v. McWane, Inc. (No. 08-223)

ci aceetunpenie’ passim

United States v. Robison,

eee a cae eee Oe Fete Ct, BOOT)...........cccccccccecscccccceses 8

United States v. Santos,

i i, rT, SUED... ...cccscccccssesscesecsecsese 10

Virginia v. Black,

LEE cea eee Ome ere ee, Mes Pt 3

OTHER AUTHORITIES

American Heritage Dictionary of the English

I I I on sss secswsinnensicuenpensecccees 7

Congr. Res. Service, Report for Congress, The

Wetlands Coverage of the Clean Water Act Is

Revisited by the Supreme Court: Rapanos v.

United States (Jam. 3. 2007). .....................0..00.0.- 3,7

6a

INTRODUCTION

The Government acknowledges that the issue of

“the standard or standards to be used in determining”

the coverage of the Clean Water Act (CWA) “under

the fractured decision in Rapanos”—the fundamental

question presented in this case—is the subject of “an

acknowledged circuit conflict” and otherwise “a mat-

ter of exceptional importance.” No. 08-223, United

States v. McWane, Inc. (filed August 21, 2008), at 14-

15 & 30n.7; accord Opp. 14. The Government also

does not dispute that this case offers the Court a fair

opportunity to resolve that issue and bring needed

clarification to the scope of federal jurisdiction under

the CWA. The Government, however, argues that

McWane is “a more suitable vehicle” solely because

the Fifth Circuit in this case held the evidence suffi-

cient to satisfy the legal standards articulated by

both the Rapanos plurality and the concurrence,

whereas the Eleventh Circuit in McWane stated that

there the difference between the plurality and con-

currence in Rapanos “may be _ outcome-

determinative.” Jd. at 31 n. 7 (emphases added).

This Court, of course, need not choose between

these two “suitable vehicles”: It can simply grant

both petitions, as it did in Rapanos. In so doing, the

Court can ensure that one of the cases before it (this

one) arises in the context of wetlands regulation,

which—as Rapanos, SWANCC, and Riverside Bay-

view Homes confirm—is both more recurring and of

greater concern from a constitutional and policy

standpoint than the regulation of direct discharges

into flowing “open water.” By granting both peti-

tions, moreover, the Court can ensure that one of the

Government's opponents-—petitioners here—will vig

Ta

2

orously urge adoption of the Rapanos plurality. But

even if the Court felt compelled to choose between the

two cases, this case, not McWane, would provide a

more suitable vehicle to resolve the question pre-

sented in both petitions, while at the same time al-

lowing the Court to decide two additional questions

that are likewise of exceptional importance to prop-

erty owners nationwide.

ARGUMENT

If the Court is going to expend the resources to de-

termine which of the Rapanos opinions provides the

controlling standard—as it well should—the Court

will undoubtedly want to provide additional guidance

on the proper application of whichever standard the

Court chooses. Such additional guidance may even

prove helpful (and perhaps crucial) to the Court’s

ability to reach a majority position. Yet in these re-

spects, McWane is less “suitable” than this case.

1. First and foremost, McWane involved dis-

charges into an open, flowing body of water—

Avondale Creek—rather than, as here, a normally

dry “wetland” that the EPA nevertheless considers a

“water of the United States.” Accordingly, any addi-

tional guidance provided in McWane about the mean-

ing of the chosen legal standard is less likely to help

lower courts determine the scope of federal jurisdic-

tion over wetlands—the very context in which the

constitutional and federalism concerns about the

CWA are most acute. See, e.g., Rapanos, 547 U.S. at

721-22 (Scalia, J., plurality opinion); 1d. at 776 (Ken-

nedy, J., concurrence); SWANCC, 531 U.S. at 174 (not-

ing “significant constitutional questions” in the regu-

lation of wetlands).

8a

3

Federal jurisdiction over wetlands, moreover, im-

plicates far more property, and property owners, than

federal jurisdiction over flowing streams. Indeed, the

nation has an estimated 100 million acres of wet-

lands, and approximately 75% of the wetlands in the

lower 48 states are on private property. Congr. Res.

Service, Report for Congress, The Wetlands Coverage

of the Clean Water Act Is Revisited by the Supreme

Court: Rapanos v. United States 6, 10 (Jan. 3. 2007).

As a result, unlike flowing streams, there are an

enormous number of disputes, in a variety of con-

texts, involving the federal government’s jurisdiction

over wetlands. Jd.; see also Leo Sheep Co. v. United

States, 440 U.S. 668, 678 (1979) (“Because this hold-

ing affects property rights in 150 million acres of land

*** we granted certiorari.”).

2. Ironically, the only fact that the Government

cites in arguing that this case is less “suitable” for re-

solving the scope of federal CWA jurisdiction—the

fact that the Fifth Circwit purported to apply both the

Rapanos plurality and the concurrence without decid-

ing which standard controls—is one of the very things

that makes this case a superior vehicle.!' Although

the Eleventh Circuit in McWane did opine on the

meaning of the Rapanos plurality (and in a way that

conflicts with the Fifth Circuit's decision in this case,

see, infra, at 8-9), it did not opine on the meaning of

the concurrence’s “substantial nexus” standard. In-

deed, the jury instruction in McWane did not attempt

| Nor is there anything unusual in this Court's granting certio-

rari to resolve one vexing issue in circumstances that require

the Court to also resolve another issue. See, e.g., Quanta v. LG

Electronics, 128 S. Ct. 2109 (2008); Virginia v. Black, 538 U.S.

343, 363, 367 (2003).

9a

4

to articulate the “substantial nexus” standard, and

the Government’s witnesses did not attempt to estab-

lish such a nexus. Thus, the Eleventh Circuit simply

had no occasion to apply that standard to the facts

there.”

Here, by contrast, the court of appeals purported

to apply both the Rapanos plurality’s standard and

the “substantial nexus” requirement. See Pet. App.

lla-12a. For that reason, this case gives the Court a

clearer opportunity, once it has selected the govern-

ing standard, to provide needed guidance on the

meaning and proper application of that standard.

3. The Government is also incorrect in contending

(at 18) that, aside from the first question presented,

this petition raises only “factbound challenges” that

“implicate no issue of continuing importance.” In

fact, unlike McWane, this case not only gives this

Court an opportunity to address the critical issue of

whether residential homeowners and developers .

must obtain federal permits to install and operate or

2 It is, of course, entirely possible that the Court could provide

additional guidance as to the proper application of the “substan-

tial nexus” standard if it granted the McWane petition and ulti-

mately adopted that standard. And it is likely that the Court

would provide additional guidance if it decided in MeWane to

adopt the standard of the Rapanos plurality. Accordingly, if the

Court were to grant review in McWane, it should, at a minimum,

hold this case pending decision in Mc Wane.

On the other hand, if the Court elects to grant both petitions

and consider both cases together, it should not consolidate the

cases because the interests of the two sets of defendants are not

sufficiently aligned to warrant joint briefing and oral argument.

See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v.

Bollinger, 539 U.S. 244 (2003). The Court should instead simply

consider the cases in tandem.

10a

5

dinary residential septic systems (Pet. Question 3 &

26-33),° it also gives the Court an opportunity to ad-

dress critical legal issues in the proper applications of

both the Rapanos plurality and the concurrence—the

subject of the second question presented.

As explained in the petition (at 20-21), the critical

legal error in the Fifth Circuit’s application of the

“substantial nexus” standard is its utter failure to re-

quire that the connection between the wetland at is-

sue and a traditionally navigable body be “signifi-

cant” or “substantial”’—as the Rapanos concurrence

expressly requires. See 547 U.S. at 780. But the

Government simply ignores this problem: It points to

nothing in the Fifth Circuit’s opinion requiring (or

holding) that the alleged, generic effect of these wet-

lands in “controlling flooding” and “preventing pollu-

tion” (Cpp. at 16) was “significant” or “substantial.”

It points to no evidence from which the Fifth Circuit

could have made such a finding. And it completely

ignores the district court’s express findings indicating

* The Government attempts to minimize the significance of the

Fifth Circuit's holding on this point primarily by arguing that

septic systems are point sources only in “rare circumstance[s]”

because they “do not generally discharge pollutants directly into

‘waters of the United States.” Opp. 19. But that argument as-

sumes that the sweeping interpretation of “waters of the United

States” that the Government advanced in this case, and in Ra-

panos, is wrong: As the Rapanos plurality pointed out, under

the Government's interpretation (as under the decision below),

virtually “the entire land area of the United States” would con-

stitute “waters of the United States” subject to federal jurisdic-

tion. 547 U.S. at 722. And that of course would mean that vast

numbers of residential septic systems do, in fact, “discharge pol-

lutants directly into ‘waters of the United States.” Opp. 19.

lla

6

that no such evidence was ever presented.‘ See Pet.

20-21.

Accordingly, if the Court decides to adopt the

Rapanos concurrence, this case, unlike McWane, pre-

sents a clear opportunity to address a clean legal

question about the proper application of the concur-

rence in this and all future cases: Does the CWA re-

quire the Government to demonstrate a “significant”

or “substantial” effect on a downstream traditionally

navigable water, and if so, what does that mean in

the wetlands context?

Contrary to the Government’s bald assertion (at

15), this is obviously a question of “continuing impor-

tance.” Indeed, it has bedeviled not only the lower

courts, but also the very federal agencies that the

Government represents here. See Pet 16n.2 (collect

“The Government's assertion (at 5) that, in addition to engaging

in discharges in violation of the CWA, petitioners “defrauded

hundreds of individuals who purchased house lots ... in reliance

on petitioners’ false representations that the sites were habit-

able” is dead wrong. In fact, petitioners’ mail fraud convictions

were based upon sales of 18 specific home lots (not hundreds),

which the Government claimed were wetlands subject to the

EPA's jurisdiction, and, largely for that reason, were “uninhab-

itable.” And that is no doubt why the district court repeatedly

recognized that all of the claims against petitioners, including

the mail fraud claims, were premised upon federal jurisdiction

under the Clean Water Act. See Pet App. 118a.

The Government, moreover, presented no evidence that anv

of these lots was “uninhabitable’ in fact. To the contrary, as

shown in Appendix A, to the extent there was evidence on the

habitability of these 18 lots, it showed that they not only were

habitable, but most were in fact inhabited at the time of trial.

And those that were vacant at trial had been inhabited for sub-

stantial periods and were vacated for reasons unrelated to their

habitability. See App. A

12a

7

ing cases); United States v. Johnson, 467 F.3d 56, 66

(1st Cir. 2006) (Torruella, J. dissenting) (criticizing

the “significant nexus” test as “opaque”); Congr. Res.

Service, supra, at Summary (“[T]he outer geographic

limit of CWA jurisdiction * * * has challenged regula-

tors, landowners and developers, and policymakers

for more than 30 years.”).

On the other hand, if the Court adopts the stan-

dard embraced by the Rapanos plurality, this case

presents a clean legal issue about the meaning of that

standard as well. As explained in the petition (at 21-

25), the critical error in the Fifth Circuit’s application

of that standard was its assumption that a “continu-

ous” surface connection can be established based on

evidence of a connection that, although “continuous”

in the spatial sense, is not “continuous” in the tempo-

ral sense. That is a flat misinterpretation of the “con-

tinuous surface connection” standard, which requires

temporal as well as spatial continuity. See 547 U.S.

at 742; American Heritage Dictionary of the English

Language (4th Ed. 2006) (defining “continuous” as

including not just physical continuity, but the quality

of being “uninterrupted in time”).

Here again, the Government’s brief largely ignores

this problem. Although the Government claims (at

17n.9) that its evidence established “persistent or

perennial flows” between the wetlands and a rela-

tively permanent body of water, the Fifth Circuit

never articulated such a requirement, let alone made

such a finding. See Pet. App. l1la-12a. And nothing

in the Government’s description of its own evidence

establishes a temporally continuous surface connec-

tion between a relatively permanent body of water

and these wetlands: The closest the Government

l3a

8

comes is a statement by one of its experts, based upon

four visits to the property, that “the tributaries” run-

ning near the wetlands were “persistent or peren-

nial.” Opp. at 17n.9.

Here again, therefore, if the Court decides to

adopt the Rapanos plurality’s standard, this case will

provide a clear opportunity to address a clean legal

question about the meaning of that standard: Does

the CWA require the Government to demonstrate a

surface connection between the wetland and a rela-

tively permanent body of water that is “continuous”

both spatially and temporally? Or, as the Fifth Cir-

cuit assumed, is an intermittent but spatially con-

tinuous connection enough?

This too is a question of “continuing importance.”

Compare Opp. 15. Indeed, the same issue arose in

McWane as a result of the district court’s holding that

the jury could find that the discharges were made

into a “navigable water” even if the body of water into

which they were made—Avondale Creek—flowed

“only intermittently.” United States v. Robison, 505

F.3d 1208, 1215 (11th Cir. 2007). Contrary to the

Fifth Circuit’s approach here, the Eleventh Circuit

opined that this approach was inconsistent with the

Rapanos plurality’s standard—precisely because that

standard requires temporal as well as spatial conti-

nuity. Jd. at 1223-1224; see also, e.g., Simsbury-Avon

Preservation Soc., LLC v. Metacon Gun Club, Inc.,

472 F. Supp. 2d 219, 229 (D. Conn. 2007) (“While

plaintiffs have offered evidence showing that a sur-

face water connection does at times exist, they offer

no evidence demonstrating a continuous connection.”)

(emphasis added).

l4a

9

In short, the Fifth Circuit’s opinion eviscerates the

“substantial” component of the “substantial nexus”

requirement of the Rapanos concurrence, and the

court’s assumption that a “continuous surface connec-

tion” does not require temporal continuity makes a

mockery of the Rapanos plurality. It is therefore

hardly surprising that the Government wishes to

avoid having to defend the Fifth Circuit’s analysis,

which is squarely challenged in petitioner’s version of

the second question presented. Compare Pet. i with

Opp. I.

4. Asa vehicle for resolving the issues presented,

this case is also superior to McWane because it brings

into sharper focus the substantial liberty interests

and due process concerns implicated by the Govern-

ment’s expansive interpretation of the CWA. Unlike

the individual defendants in McWane, who were

placed on probation, the individual petitioners here

received—and are now serving—substantial prison

terms, ranging from seven to nine years. Indeed,

unless this Court vacates her conviction, one of the

petitioners (Robbie Wrigley) will lose forever the op-

portunity to raise her son during the first seven years

of his life—all because of an expansive interpretation

of a law that all concede is ambiguous at best.

This case thus differs from Rapanos, which, as it

came to this Court, involved only civil remedies, not

criminal sanctions. The Court thus had no occasion

to consider expressly the due process/fair notice is-

sues presented by criminal prosecutions under a

highly ambiguous statute, or the resulting require-

ment under the rule of lenity that, at least in that

context, ambiguities be resolved, not in favor of the

Government, but “in favor of the defendant.” United

15a

10

States v. Bass, 404 U.S. 336, 348 (1971); see also See

Smith v. Wade, 461 U.S. 30, 41n.8 (1983) (“[I]n crimi-

nal law * * * terms [ajre generally more strictly con-

strued than in civil law.”); United States v. Lanier,

520 U.S. 259, 266-67 (1997); United States v. Santos,

128 S. Ct. 2020, 2025 (U.S. 2008).

That is also why, although we believe petitioners

would likely be vindicated under a proper application

of the Rapanos concurrence—which the McWane de-

fendants will necessarily endorse—we intend to ar-

gue on the merits that the Rapanos plurality should

govern, at least in criminal cases, under the rule of

lenity. See, e.g., Santos, 128 S. Ct. at 2025 (“The rule

of lenity requires ambiguous criminal laws to be in-

terpreted in favor of the defendants subjected to

them.”). Certainly the fact that four Justices of this

Court concluded that the CWA mandates the “con-

tinuous surface connection” requirement means that

that interpretation is, at a minimum, a reasonable

construction of the statute. See, e.g., Bell v. United

States, 349 U.S. 81, 83 (1955) (applying rule of lenity

when the Court could “not unreasonably reach either

of the conflicting constructions”). And certainly it is

far easier for a landowner to determine in advance

whether a wetland on her property has a (temporally

and spatially) “continuous surface connection” to a

relatively permanent body of -water, than to deter-

mine whether her wetland bears a “substantial

nexus’ to a traditionally navigable body of water

miles away.

Of course, a decision from this Court that both en-

forces and clarifies the “substantial nexus” require-

ment could ameliorate the ambiguity and uncertainty

that currently exists under that standard. But at

iii.

l6a

1]

this point, only the standard of the Rapanos plurality

is sufficiently concrete and precise to pass muster

under the due process principles and canons of con-

struction applicable in the criminal context. And only

the petitioners in this case (unlike the respondents in

McWane) have any meaningful incentive to advocate

that standard as controlling.

CONCLUSION

The Government's prosecution of the petitioners—

and the Fifth Circuit’s decision upholding several

novel theories of liability—is unprecedented and, as

the Government now admits (at 14), raises issues of

“great practical importance.” Unlike McWane, this

case will permit the Court not only to resolve the

Marks issue on which the courts of appeals are im @x-

press conflict, but also to articulate the proper under-

standing of whichever of the Rapanos standards the

Court chooses, and to prevent the Government from

subjecting virtually all who install or use residential

septic systems to potential criminal liability for the

resulting discharges.

The petition should be granted, and this case

should either be briefed and argued along with

McWane, or decided on its own.

Respectfully submitted,

l7a

12

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH

Wittman LLC Winston & Strawn LLP

546 Carondelet Street 1700 K Street, NW

New Orleans, LA 70130 Washington, DC 20006

(504) 581-3200 (202) 282-5000

STUART ALTSCHULER

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

Tim C. HOLLEMAN W.F. HOLDER II

Boyce Hollieman & 400 East Railroad St.

Associates Long Beach, MS 39560

11240 Hwy 49 N., 228-863-4999

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

Counsel for Petitioners

SEPTEMBER 2008

la

APPENDIX A

HABITABILITY OF LOTS SUBJECT TO MAIL FRAUD CLAIMS

Karen Reynolds 429, 434-36,

449

AG-11 Jacqueline 1999 Yes 579-80, 595-96

Re Hie 3 LEASE BEATS EON

KK-5 Nancy Watford 1998 No, but owner lived there 617-18, 645;

until 2002. and no evidence 653

tied the vacancy to

habitability issues. Watford

reaffirmed her lot debt in

bankruptcy.

ee a ee | Sedadiciniapeclaheantiniaeiiaes

E-13 Patrick Brossett, 1997 Yes 2631-33; 2641

ae SES te NRE RC ae | patnntatithysiinhe

H-3 & Joseph Grayson 1997 Yes, and owner purchased a | 1088-89; 1163-

l1-2 | second lot. 64; 1178-79

G-2B Norris Jones 1998 | Yes 1357, 1363-66

FUE BAL Yosh

AA-17 | Richard Wenniger 1998 | Yes 1508, 1510, |

1526, 1546, |

3 | | ; a tena 1566-67

U-15 Philhp Johnson | 1998 Yes 2756-58

4 + ee

U-15 | Becky Anderson | 2004 Yes 2892

bene —s — ej =

4M-6 | DawnMcNiece | 2000 Yes Sent. TR 115 |

M-6 | Ruth Hayes | 1997 Yes 1582

| v6 Christa Spence 1997 Yes 1745; 1753

0-1 Gwynn Spiers 1997 Yes. Current resident 1773-74; 1781- -

testified she had no problems 82. 4105-06

with the lot or septic system.

-—---+ -- —~--— - —— oo - —

NN-9 Dee Micele 1998 Yes 1916. 1922.

wet 1949

e61

20a

2a

“YY-15

Allen Patterson

1998

Yes

2461; 2487

| GG-4

Patricia Griswold

AF-18

Eleanor Johnson

1999

1999

No. Owner lived there until

2004, and no evidence tied

the vacancy to habitability

, Griswold also reaffirmed her

lot debt in bankruptcy.

2502-03; 2549

| No. Owner's trailer was

repossessed in 2003. No

evidence tied the vacancy to

| habitabilaty.

Steve Martin

YY-1&

YY-2

~—AG-5

—EE =

2000

,

| No. Owner was transferred

_ by the Navy in 2003, and he

rented out the property until

August 2004. The lot was on

sale at the time of trial. No

evidence tied the vacancy to

habitability issues

Henry Johnson

>

Dawn Sullivan

1999

2000

No. Onginal owner moved

in 2003, and renter lived

there until owner evicted

, him before trial for failure to

pay rent. No evidence tied

. the vacancy to habitability.

a

3729- 3305-06

area rt a Rin:

3476; 3487;

4311-4312

3729; 3305-06

~_

JJ-6

Connie Taylor

2000

3597-98; 617-18 |

_

| 3725-26; 3772- |

73