# 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

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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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0192%3A7. Public record. Not legal advice.