Amicus Curiae Brief — Rapanos v. United States

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In the a

Supreme Court of the

United States

JUNE CARABELL; KEITH CARABELL; HARVEY

GORDENKER;

FRANCES GORDENKER,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

For a Merits Brief

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE AS AMICUS CURIAE

AND BRIEF OF

DONALD L. HARKINS, CONCERNED MICHIGAN

PROPERTY OWNER

IN SUPPORT OF THE PETITIONERS

WILLIAM J. REISDORF (P28570)

189 E. Big Beaver Road, #205

Troy, MI48083

(248) 689-6996

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

Under Rule 37.2 of the rules of this Court, Donald L. Harkins

moves for leave to file the accompanying merits brief in support of

the petitioner. Due to the last minute filing of this brief, neither the

petitioner nor the respondent has consented to the filing of this brief

although both parties are receiving copies of this filing at the same

time as the Court.

The issue presented is whether or not the Army Corp of

Engineers have jurisdiction over Petitioners’ property under the

Clean Water Act. Harkins’ interest in this case is purely in the

interest of justice in that he believes that both the trial court and the

appellate courts have allowed the Army Corp of Engineers (herein

Corps) to redefine the term “waters of the United States” in an

unlawful matter which would expand the Corp’s jurisdiction under

the Clean Water Act to include almost all “public lands of the United

States”.

Under Rule 37.1 of the rules of this Court, This Honorable Court

should favor the filing of the accompanying brief since it brings to

the attention of the Court relevant matters not already brought to its

attention by the parties and may be of considerable help to the Court.

Harkins prays this Honorable Court will grant his Motion for

leave to file the accompanying brief in support of Petitioner so that

these relevant matters can be heard.

Respectfully Submitted,

On behalf of Donald L. Harkins by

WILLIAM J. REISDORF (P28570)

189 E. Big Beaver Road, #205

Troy, MI 48083

(248) 689-6996

TABLE OF CONTENTS

Page

Table of Contents i

Table of Authorities | ii-iii

Interest of Amicus Curiae l

FACTUAL SUMMARY 2-3

ARGUMENT 4

I. The Clean Water Act does not extend to wetlands

that are inydrologically isolated from any of

the “waters of the United States”. 4-18

II. The limits on Congress’ authority to regulate

Interstate commerce preclude an interpretation

of the Clean Water Act that would extend federal

authority to wetlands that are hydrologically

isolated from any of the “waters of the United

States”. 4-18

CONCLUSION 18-19

TABLE OF AUTHORITIES

Cases Page(s)

Carabell, et al, v. United States Army Corps of

Engineers, et al. No. 03-1700 (2004)............:ccccccceeees 6

Hughes v. State of Washington

Fe i Be ee ctctcassrnacincnrinctecniuitéciiiiitiliveaueatiiiiagiaii 14

Klais v. Danowski

373 Michigan Reports 262 (1967)........:cceeeeeeceerees 15, 16

Los Angeles v Venice Peninsula Properties

205 Cal. Rptr. 331 (1988)........cccsssserssesesscssesreseereseess 13

Oliphant v. Frazho

SEE Tie GD Ca cccesccccticsenstecicnncssiinietiiilindigctsinsiaiaas 14, 18

Ozark-Mahoning Co. v State

FF FENG, BO Ge Ce i ccccsvceressssstocsccsinpicciitcaaniinnianinigniees 9, 10

State of Alaska v. United States

ZS FS. Ce, BEDE Ga pe prccrceceseasessnrcssccnsesemesencsnensesnansiganesees 8

Summa Corporation v. California

GEG Ee, Te Ci ccennnssecccsencssictiscscssstistatinpstasnintaiinnian 12, 13,17

United States v. Oregon

BO eB Ci icttvtestncsassinstticencinsssataaiaaiaieianiinhieniduipalides 9

United States v. Riverside Bay View, Inc.

GIO is CS Ca ccenecccsenctcnsnisncscsnvingtiinrhinnmsanieiiiiian 5,7, 12, 13,14

Statutes and Regulations: Pages

ELS Tel 4

NSE ES Ta 4

33 CAFR. 209. 120(d)(I)ecccccccocccvecsssssccesssesessesvees 5

EES TESTS SS 14

i 8

SESS Ee il

I TGC = ER 10

33 CLF.R. 328.3(a)(1986).....cccccscccccccccseeeeseessessee 5, 14, 17, 18

33 C.F.R. 328.3(a)(5)(1986)...cccccccesssescsssesecseeeeeee 7

Other

Act of Congress of the 24" of April 1820.............. 14, 18

Executive Order 11990 (1977)....ccccccccccswvsseeeeeeeeen 8,9

MDEQ Final Determination and Order (9-30-99)... 16

S. Conf. Rep. No. 92-1236 (1972)...........ccccccccccceeeeees 5

I

INTEREST OF AMICUS CURIAE ‘

Amicus curiae, Donald L. Harkins, is a resident of the Siate of

Michigan and a citizen of the United States. His interest in this case

is purely in the interest of justice in that he believe -hat both the trial

court and the appellate courts have allowed the Army Corp of

Engineers (herein“Corps’’) to redefine the term “waters of the United

States” in an unlawful matter which would expand the Corp’s

jurisdiction under the Clean Water Act to include almost all “public

lands of the United States”. Furthermore, Harkins seeks to eliminate

the unfair double layer of regulation by the State of Michigan and

then the Corp which for practical purposes are mirror images of each

other and require the land owner to meet similar burdens in order to

obtain permits. Amicus curiae (hereinafter “Harkins”) seeks a

ruling in this matter which would protect the titles and vested

property interests of millions of United States land owners.

* Pursuant to Rule 37.6 of the Rules of this Court, amicus curiae state that no

counsel for a party has written thas bnef in whole or in part and that no person or

entity, other than the amicus curiae, a private citizen, or his counsel, has made a

monetary contnbution to the preparation or submission of this bref.

FACTUAL SUMMARY

Petitioners, June Carabell, Keith Carabell, Harvey Gordenker and

Frances Gordenker (collectively, “Carabells”) own 19.61 acres of

property in Chesterfield Township, Macomb County, Michigan.

Since 1987, the Carabells have submitted various permit proposals

to the Michigan Department of Environmental Quality (herein

MDEQ) in order to construct a multi-family condominium

development of their property. Their original proposal was for 200

units. Pursuant to a MDEQ Final Determination and Order, in

November, 1998 a permit was issued to build a 112 unit alternative

condominium development and required Petitioners to replant and

restore 3.74 acres of wetland. The reduction in size of the project

from 200 units to | 12 units and reduction in fill of 15.87 acres down

to approximately 12 acres was required under Michigan’s Wetland

Protection Act (M.C.L. 324.101) in order to reduce the

environmental impact down to a level where there would be no

unacceptable impact on the natural resources of the State.

The Army Corp of Engineers (herein “Corps”) did not agree with

the MDEQ’s Final Determination and Order and notified the

3

Carabells that they also have jurisdiction over their property under

the Clean Water and Air Act (herein CWA) and that they would have

to apply for a permit to discharge fill into the “waters of the United

States”.

On August 23, 1999, the Corps received a permit application

from the Carabells. AR Vol 1, Doc. 2. The Carabells essentially

requested that the Corps approve the MDEQ permit. On October 5,

2000, the Corps sent the Carabells a letter denying the permit along

with summary findings. AR Vol. 1, Doc 76. Harkins suggests to the

Court that it is not necessary to elaborate on the reasons for the

Corps permit denial. This is because this appeal is limited to the

determination of whether or not there is jurisdiction under CWA not

whether Corps’ denial was arbitrary or capricious.

The Carabells then sought Administrative Appeal of the federal

permit denial before both the US District Court in Detroit and the

United States Court of Appeals for the Six Circuit. These appeals

both upheld the Corps’ denial. On October | 1, 2005, this Honorable

Court granted Certiorari to hear Petitioners’ appeal

ARGUMENT I

The Clean Water Act does not extend to wetlands

that are hydrologically isolated from any of

the “waters of the United States”.

ARGUMENT II

The limits on Congress’ authority to regulate Interstate

commerce preclude an interpretation of the Clean Water

Act that would extend federal authority to wetlands that are

hydrologically isolated from any of the “waters of the United

States”.

COMBINED LEGAL AND FACTUAL ANALYSIS

The question of jurisdiction in this matter presents a mixed

question of fact and law. Section 404(a) of the Clean Water Act

(“CWA”), 33 U.S.C. 1344(a) requires landowners to obtain permits

from the Corps before they discharge fill material into “navigable

waters”. Congress has defined “navigable waters” as “waters of the

United States”, including the territorial seas.” 33 U.S.C. 1362(7).

The Conference Report which accompanied the CWA included the

statement that the conferees “intend that the term ‘navigable waters’

5

be given the broadest constitutional interpretation.” S. Conf. Rep.

No. 92-1236, at 144 (1972). 1

In United States v. Riverside Bay View Homes, Inc. , 474 U.S.

121 (1985) The Court held that “the language, policies and history of

the Clean Water Act compel a finding that the Corps has acted

reasonably in interpreting the Act to require permits for the discharge

of material into wetlands adjacent to other “waters of the United

States.” pp. 131-139. As a result of this ruling, the EPA and the

Corps have redefined “water of the United States” 33 C.F.R. 328.3(a

11-13-86 to include:

(1) All waters which are currently used, or were used in the

past, or may be susceptible to use in interstate or foreign

commerce, including all waters which are subject to the ebb

and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams

(including intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation or

In the Corps’ 1974 regulations, Section 404(a) defined “navigable

waters” to mean “those waters of the United States which are subject

to the ebb and flow of the tide, and/or are presently, or have been in

the past, or may be in the future susceptible for use for purposes of

interstate or foreign commerce.” 33 C.F.R. 209.120(d) 1).

6

(4) All impoundments of water otherwise defined as waters

of the United States under the definition;

(5) Tributaries of waters identified in paragraphs (a)(1)-(4)

of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs (a)(1)-(6) of

this section.

Armed with this new definition of “waters of the United States”,

the Corps has determined that Carabells’ State Permitted Activity of

filling approximately |2 acres of wetlands requires a federal permit

since the activity discharges fill material into “ navigable waters” or

onto “land beneath navigable waters”.

In making the determination that Carabells’ property is included

within the definition of “waters of the United States” the Corps

apparently relied upon the following facts. (reading from the Sixth

Circuit Court of Appeals’ opinion page 1):

“In prehistoric times, this property was submerged under Lake St.

Clair. As the lake receded over time, some areas of the Carabells’

property remained covered by wetlands. Today, the property—located

one mile northwest of Lake St. Clair....”.

5

Carabells’ property is no longer adjacent to or contiguous to Lake

St. Clair as demonstrated by the fact that it is separated from the lake

by one mile of numerous residential subdivision developments. (Pg

2. Carabells’ C of A Brief). In order to gain jurisdiction over

Carabells’ property, the Corps has determined under 33 C.F.R.

328.3(a)(S), that Carabells’ property is some how (however

remotely) hydrologically connected to “navigable waters” because

rain water runoff from his property might drain into Lake St. Clair.

In summary, the Corps’ position in that because Carabells’ property

may have been submerged land, perhaps in prehistoric times or more

recently, and that his property was at some point in time “land

beneath navigable water” of Lake St. Clair or one of its tributaries,

it therefore is still part of “waters of the United States”.

Amicus curiae ( hereinafter “Harkins”’) brings to the attention of

this Honorable Court that both the Supreme Court’s decision in

Riverside Bay View Homes, Inc, supra, as well as the EPA and Corps

subsequent redefinition of “water of the United States” are

inconsistent with definitions in other acts of Congress, the United

States Code as well as case decisions of this Honorable Court, and

state appellate courts..

It is Harkins’ position that the definition of “water of the United

States’ should be consistent under the CWA and the Submerged

Land Act 43 U.S.C. 1301 (herein SLA). The SLA under 43 U.S.C.

1301(f) states;

“ the term “lands beneath navigable waters” does not

include the beds of streams in lands now or heretofore

constituting a part of the public lands of the United States if

such streams were not meandered in connection with the

public survey of such lands under the laws of the United

States and if the title to the beds of such streams was

lawfully patented or conveyed by the United States or

any State to any person;”

This notion that only unpatented bottom land is within the

jurisdiction of the United States is not a new concept. This

Honorable Court on June 6, 2005 in State of Alaska v. United States

125 S. Ct. 2137, 162 L. Ed. 2d 57 (2005) decided a dispute as to

whether title under certain submerged land was conveyed by the

United States to the State of Alaska thereby using the definition of

9

“waters of the United States” under the SLA. Furthermore,

Executive Order 11990 entitled Protection of Wetlands signed by

President Jimmy Carter, May 24, 1977 states; “This Order does not

apply to the issuance by Federal agencies of permits, licenses, or

allocations to private parties for activities involving wetlands on

non-Federal property. It is undisputed that title to Carabells’

property was conveyed either by State or Federal patent. It makes no

difference whether the Federal Government gave title directly to

Carabells’ predecessors in title or gave it the State of Michigan who

in turn gave title to Carabells’ predecessors. The Carabells were able

to obtain title to such land.

“Upon the admission of a state to the Union, the title of

the United States to lands underlying navigable waters

within the state passes to it, as incident to the transfer to the

state of local sovereignty, and is subject only to the

paramount power of the United States to control such waters

for purposes of navigation in interstate and foreign

commerce.” Ozark-Mahoning Co. v State, pg 490 37 N. W.

2d 488 citing United States v. Oregon, 295 U.S. 1, 55 S.Ct.

10

610, 615, 79 L.Ed. 1267 April 1, 1935

“The question of whether waters within a state are navigable at the

time of the state’s admission to the Union is a Federal Question. If

such waters in a state are not navigable in fact at time of its

admission to the Union, the title of the United States to lands

underlying such waters remain unaffected.” Id.

The record is clear that the Carabells own the 19.61 acres upon

which they seek to develop. The determination of whether the

Carabells are heirs and assigns of the original purchaser of a state

patent (assumes land under navigable water at statehood) or a federal

land (assumes land was under non-navigable water at statehood) is

not important. It is only important to note that it came from either a

state sovereign or a federal sovereign.

In either event the United States gave up its rights to the land

for which title passes. Under Ozark-Mahoning, “the rights of the

grantee under patents issued by the United States government are

fixed and vested as of the dates of the patents.” In cases where the

lands were transferred to the State, 43 U.S.C. 1314 limits the rights

and powers retained by the United States to that of purchase of the

11

natural resources if they can or condemnation of lands if they must.

Specifically under SLA 43 U.S.C. 1311 (2) “the rights and power to

manage, administer, lease, develop, and use the said lands and

natural resources all in accordance with applicable State law be, and

they are, subject to the provisions hereof, recognized, confirmed,

established and vested in and assigned to the respective States.....”

It is the Corps’ position that the lands Carabells now own were

once under Lake St. Clair. Under SLA, these lands would be

exclusive jurisdiction of the State. Harkins suggests an example of

this law is action is where a natural resource such as oil or gold is

discovered under lands upon which the federal government has

transferred title to the State, under 43 U.S.C. 1311 (2) the Federal

government has no interest in the natural resource. (Except buy or

condemnation) The fact the property was conveyed to Carabells or

other private parties would have no effect. Now assume that waters

recede under the Corps’ theory and another Natural Resource

Wetlands are created, the Corps newly created definitions of “waters

of the United States” now would allow them to come in and regulate.

This new definition may also allow them to come forward and claim

12

the oil and gold in our example.(note, prior to the enactment of 33

C.F.R. 328.3(a), the Corps had no jurisdiction over Carabells’

property) Such a result would be repugnant to the SLA and divest

the States and Carabells of vested rights through the application of

an ex post facto definition of “waters of the United States”. The>

Corps is using this new definition as weli as the decision in Riverside

Bay View Homes, Inc., supra, to change long standing principles of

property law.

In the Riverside Bay View Homes, Inc, supra, this Court allowed

a decision to stand which allows the Corps to regulate wetlands that

are adjacent to “water of the United States”. A year earlier in 1984,

In Summa Corporation v. California, 466 U.S. 198, 80 1 Ed 2d 237,

however, the Supreme Court ruled that a lagoon whose title was

confirmed by federal patent to original grantees was held not subject

to public trust easement. Summa Corporation demonstrates clearly

that patented land under water are not “waters of the United States.”

Furthermore, the State of California was prevented from placing a

“Public Trust Easement” against the private landowners. Now

twenty-one years later, the Corps is being granted jurisdiction over

13

property which they conveyed either directly or indirectly (through

the State) by means of a retro-active change in the definition of

“waters of the United States”. The net result is that the Corps is

being allowed by the lower court decisions to place a “Public Trust

Easement” which was not confirmed in the patent process against the

Carabells’ property. This “public trust'easement” requires the

Carabells’ to leave their property in its natural state and eliminates

vested property development rights previously granted by the State

of Michigan. Under the “equal footing doctrine”, if the State of

California can’t enact a new law creating a “public trust easement”

against private property, neither can the United States Congress or its

agencies such as the “Corps.” As stated on remand from the

Supreme Court, Summa and Los Angeles v Venice Peninsula -

Properties, 205 Cal. App.3d 1522, 253 Cal.Rptr. 331 pg 335, states;

“the patent of the government is evidence of title and is conclusive

against the government and all persons claiming under it. The patent

is a deed of the United States and operates as a quit claim of any

interest of the United States ...””

In Riverside Bay View Homes, Inc., supra, the record is unclear

14

as to whether the wetlands adjacent to “navigable waters” of Lake :

St. Clair were unpatented bottom lands or lands previously conveyed

directly or indirectly by the United States. This may account for the

very “unusual” ruling in Riverside Bay View Homes, ae supra. It

is Harkins’ position that if the land was in fact conveyed under

federal patent, then the principles of Summa and Los Angeles v

Venice Peninsula Properties, supra would apply which would have

prevented any Corps jurisdiction. This is because the United States

already transferred all rights and interest in the subject property.

There was no need for a redefinition of “waters of the United States”

because the definition under 43 U.S.C. 1301 is part of a long

standing regulatory system under the Act of Congress of the 24” of

April, 1820, entitled “An Act making further provision for the sale

of the Public Lands.”

Under Michigan law, In the Michigan Supreme Court decision

Oliphant v. Frazho, 381 Mich 630, the State of Michigan was

estopped from preventing a private land owner (claiming title from

a U § patent) from filling land under Lake St. Clair which was

conveyed to him by the patent.

15

The application of the newly defined term “waters of the United

States” under 33 C.F.R. 328.3 to the Carabells’ property represents

a sudden change in the bundle of rights granted Michigan property

owners under Michigan Law. In Hughes v. State of Washington 88

S. Ct. 438 (1967) pg. 296 the Supreme Court notes:

“to the extent that it constitutes a sudden change in state law,

unpredictable in terms of the relevant precedents, no such

deference would be appropriate. For a State cannot be

permitted to defeat the constitutional prohibition against

taking property without due process of law by the simple

asserting retroactively that the property it has taken never

existed at all.”

It is Harkins’ position that the words “State” and “Corps” are

interchangeable and the Corps’ application of definitions in 33

C.F.R. 283.3 to Carabells’ property retroactively asserts that the

vested property rights which it denies never existed at all.

Under Michigan law, In Klais v. Danowski 373 Michigan

Reports 262, (1967) pg 272, the Michigan Supreme Court noted:

“It is settled law in this country that lands underlying

16

navigable waters within a State belong to the State in its

sovereign capacity and may be used and disposed of as it

may elect, subject to paramount power of congress to control

such waters for the purposes of navigation.”

Under Michigan law it would not have been unlawful for the State

of Michigan to have sold Carabells’ property to his predecessors in

title. This is based upon the fact that the property serves no

navigational benefit to interstate commerce because it is located one

mile from the nearest body of navigable water and without any

navigable connection. Furthermore, Klais, supra, pg 276 it states:

“the question is raised whether the patentees and those

claiming under them have lost from the then dry lands

originally patented to them title to so much of the private

claims as, subsequent to the date of the patent, may have

become inundated by rising lake levels or through the

processes of avulsion or erosion. That the answer should be

held to be in the negative............ The Michigan State

legislature seems to have recognized a distinction between

patented and unpatented lands...”

17

The Carabells have a vested right to restore their property back

to dry land and never lose title should it become submerged due to

erosion or rising lake levels. Even though the Carabells had a right

to restore their property back to dry land, this right under Michigan

Law is subject only to the State’s police power to regulate public

health, safety and welfare. Carabells’ vested rights were perfected

during the State of Michigan’s permit process. The MDEQ’s Final

Determination and Order, 9-30-99 is a validation of his vested

development rights.

This order mandated that the Carabells downsize their proposed

development and be granted a permit allowing them to develop the

property according to the MDEQ’s alternative plan which minimized

any unacceptable environmental harm to the eco-system.

In Summa, supra, at pg336, the Court states on the issue of

allowing a public trust easement to be placed upon Summa’s

property:

“It is difficult for us to see how the patent can be described as

settling in the grantee a full and complete title, while at the same

time holding that it was burdened by a servitude of the magnitude of

18

that asserted by the State in this action.” The result of allowing the

Corps to use its newly created definition of “waters of the United

States” under 33 C.F.R. 328.3 to gain jurisdiction over Carabells’

property also unreasonably places burdens on Carabells’ property

which were not part of the patent process and title. Once the federal

government gave up title, the Corps was estopped from interfering

just as the State of Michigan was in Oliphant, supra..

CONCLUSION

For reasons stated above, the Corps’ new definition of “waters of

the United States” under 33 C.F.R. 328.3 is illogical and conflicts

with other definitions under Title 43 of the Public Lands and the Act

of Congress of 1820, An Act making further provision for sale of the

Public Lands. These definitions under 33 C.F.R. 328.3 are repugnant

to Congress’ regulatory scheme for sale of federal land and aversely

affect the property titles of millions of U.S. property owners. This

Honorable Court should find that these definitions exceed

Constitutional limits and are therefore unenforceable. Amicus

Curiae, Harkins, would ask this Honorable Court to substitute the

long standing definition of “waters of the United States” and

19

recognize that such definition does not include land which the United

States has already conveyed to the general public. Furthermore,

Harkins would ask this Honorable Court to find the Corps has no

Jurisdiction under CWA over Carabells’ property.

Respectfully submitted,

|

WU Jams) aw

WILLIAM J. REISDORF (P28570)

189 E. Big Beaver Road, #205

Troy, Michigan 48083

(248) 689-6996