Amicus Curiae Brief — Rapanos v. United States

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Nos. ie. 64-1384 ieee tee eee ee

—__—_—_——aN—aJwaJJ—————weeee————_-

IN THE

Supreme Court of the Anited States

JOHN A. RAPANOS, ef al,

Petitioners,

Vv.

UNITED STATES,

Respondents.

JUNE CARABELL, ef al.,

Petitioners,

Vv.

ARMY CORPS OF ENGINEERS, ef al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR AMICUS CURIAE NATIONAL

ASSOCIATION OF WATERFRONT EMPLOYERS

JIN SUPPORT OF PETITIONERS

FRANCIS EDWIN FROELICH *

CHARLES T. CARROLL, JR.

CARROLL & FROELICH, PLLC

919 18th Street, NW

Suite 901

Washington, DC 20006

* Counsel of Record (202) 587-4850

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WasowEres Pravtinc Co..inc. - (202)789-0086 - WasHiGcTon, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE.........2..2..00---++ i

SUMMARY OF THE ARGUMENT ...........0....ccccccesesees 3

ee EN

Il.

THE TERM “NAVIGABLE WATERS” AND

PHRASE “WATERS OF THE UNITED

STATES” MUST BE INTERPRETED IN

LIGHT OF THE ADMIRALTY CLAUSE OF

ee

ADMIRALTY CLAUSE BACKGROUND ..... 6

A. What is or is not navigable waters

determines the boundaries of what falls

B. Federal power over the use of the

navigable waters of the United States is

i iccietictteamtintiicincttninnitidlapaiieanantis 9

C. Federal power over the use of the

navigable waters of the United States is

Se cerrtitiaipnccticipeatnnecstsintiicicomnents 12

THE EXECUTIVE BRANCH IS WITHOUT

AUTHORITY TO INTERPRET A TERM

THAT THE COURTS HAVE ALREADY

CCCI cneiptennnesepenmnnsememnnpnen 14

A. No alternative executive branch inter-

pretation of a term is allowed when the

interpretation of the term is clear at the

time of enactment ........... sainiinencnamigieeinntntendady 14

(i)

il

TABLE OF CONTENTS—Continued

B. The Courts are the sole source of interpret-

ing what is and is not a navigable water........ 16

IV. THE FEDERAL COURTS AND CONGRESS

HAVE CONSISTENTLY USED THE

TERM “NAVIGABLE WATERS” AND

PHRASE “WATERS OF THE UNITED

STATES” IN THEIR) ADMIRALTY/

MARITIME CONTEXT ....ccrccccoccoccecesseccscceceses 18

A. Congress repeatedly used the term “navi-

gable waters” and the phrase “navigable

waters” of the United States ................00000++ 22

V. FEDERAL RESPONDENT'S POSITION ....... 25

ENE cecnccnsnsiccssccnssntetpcmneenipcasiinetanvcntiinentatenis 27

TABLE OF AUTHORITIES

CASES Page

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)... 15, 16

Crowell v. Benson, 285 U.S. 22 (1932) ......cccccce00e0 7

East River S. S. Corp. v. Transamerica Delaval

Brac... 476 US. BSE (19GG) ...cccoccsoccceserecesessesereees 8

Economy Light & Power Co. v. U.S., 256 U.S.

ET EA RARER 0 A er 20, 21

Executive Jet Aviation v. City of Cleveland, 409

I cp iliniaditcninnniphiaiitaibesciimmnnginnes 9

Foremost Ins. Co. v. Richardson, 457 U.S. 668

hee tt REE ENE BERS EA LEO 13

Gibbons v. Ogden, 22 U.S. 1 (1824) .....cccccerceseeres 18

Gilman v. Philadelphia, 70 U.S. 713 (1866)......... 17

Jerome B. Grubart, Inc: v. Great Lakes Dredge

& Dock Co., $13 U.S. 527 (1995) oe ccececceceeeee 3, 8,9

Kaiser Aetna v. United States, 44 U.S. 164

SEL RE eee OR 4

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

ek EES IE AES Sesame 2, 10, 12, 13

Madruga v. Superior Court of Cal., County of

San Diego, 346 U.S. $56 (19S4).......0ccccccccceceevee 12

Marbury v. Madison, 5 U.S. 137 (1803)............... 15

Presiey v. Etowah County Comm'n, 502 U.S. 491

OE EL a eee ee eee 16

Red Cross Line v. Atlantic Fruit Co., 264 U.S.

Se cdeeniecienithatiecnnsretidhtinidiniadimmnndidiatsets 12

Romero v. International Term Co., 358 U.S. 354

ee eatalaneihtaiithceenileinectabibidastitideipasentateceneaphiinnctth 7,11

Sisson v. Ruby, 497 U.S. 358 (1990) .00........cccceeeee 13

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531

Jf aa 25

iV

TABLE OF AUTHORITIES—Continued

Page

Southern Pacific Rail Co. v. Jensen, 244 U.S.

I CRE Pi ictenstiececivistetindeasinmestinstdinaneainalital 13

The Daniel Ball, 77 U.S. 557 (1870)........0:ccccccceeee passim

The Jefferson, 61 U.S. 393 (1857) ........cccccccceceeeeeee 8

The Lottawanna, 88 U.S. 558 (1874) ..........ccccc000 10

The Montello, 87 U.S. 430 (1874)... ccc ccccccceceeveee 3, 19, 20

The New Jersey Steam Navigation Company v.

The Merchants’ Bank of Boston, 47 U.S. 344

{| i a ENE Tee 10

The Plymouth, 70 U.S. 20 (1866) .0.......cccccccecseceeree 9

Thomas v. Lane, 23 F. Cas. 957 (No. 13,902)

OG Fy iba pccrsccnsseitcintlhinstitpiabiaisciidicaaaae 9

U.S. v. Appalachian Electric Power Co., 311

OLE Fee GEE ncsscsisgaisigiienithiticnininiiasediedall 21

United States v. Bass, 404 U.S. 336 (1971)...........

United States v. Locke, 529 U.S. 89 (2000)........... 8

Yamaha Motor Corp., U.S.A. v. Calhoun, 516

SPER: SUP IUUUD cexsccadseuiiitndpinancencsasinheendslaiimiiiaal 8

STATUTES

TP TIER. U sciuscsosccccnscstitninleiitlapinniiesusibadiiimaiaiaia 22

BP alice TD ccarecnscetccsccimnatintectinemeieetentiaanaias 22

Fe es Cc ceccchsinssiintnenisiintiiguitiytictapmitianiibes 23

SE ee we 23

Be Os i tepseccninssneccnsatsttnnietnminineaialldial 23

Be Ua Ga Ci resrcetetsinterccanenstnnsigiiaeiilin 23

GD UG I OB recccocictscstnrctsintenenpichiniminnniss 23

Pte =

a Ga ittrarcctisccisinenadencstiontaniiistiimsailimiinil 23

a 24

46 U.S.C. GION()(L) -.. 00s wanegeamupaastnes 24

ee 24

RE Fe icitnteiin atest 24

V

TABLE OF AUTHORITIES—Continued

Page

Administrative Procedures Act, 5 U.S.C. 55l

I ciaticctirntehcstanemsenthnnesendiontgsincedtens 14,17

Admiralty, maritime and prize cases, 28 U.S.C.

I Ia itcieanl ladies cetaae tents tremanieecetnamiememcetinian 11,13

Carriage of Goods by the Sea Act, 46 U.S.C.

RARER 2

Federal Water Pollution Control Act Amend-

ments of 1972, 33 U.S.C. 1251 ef seg. .............. passim

Longshore and Harbor Workers’ Compensation

AGA, FS U.S.C. DOU 60 BOG. .000000000000000000000000 2, 13, 23, 26

The Judiciary Act of 1789: An Act to establis>

the Judicial Courts of the United States, | Stat.

73, Section 9 (September 24, 1789) .................. 11

The Shipping Act of 1998, 46 U.S.C. App. 801 et

i reieeetnecetcetditeetintaninsecesenccinensiscnestcnornctnsnccnnnesensenee 2

OTHER AUTHORITIES

Black’s Law Dictionary (Eighth Edition, 2004)..... 6

Presidential Proclamation No. 5928 (December

EE a 23

ENT 12

CONSTITUTIONAL PROVISIONS

Article |, Section 8, Clause 3 (Commerce Clause) ... 3, 7, 13

Article 1, Section 8, Clause 9 o.00.............ccccccesccees 7

Article Ill, Section 2, Clause | (Admiralty

SE cerenitiindnsapeemntnepntinancnguaetinsnasnnsneentunepensnanstiins passim

IN THE

Supreme Court of the United States

Nos. 04-1034 & 04-1384

JOHN A. RAPANOS, ef al.,

Petitioners,

Vv.

UNITED STATES,

Respondents.

JUNE CARABELL, el al.,

Petitioners,

Vv.

ARMY CORPS OF ENGINEERS, ef al,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR AMICUS CURIAE NATIONAL

ASSOCIATION OF WATERFRONT EMPLOYERS

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The National Association of Waterfront Employers (NAWE)

is a not for profit, trade association organized under section

501(c)(6) of the tax code.' NAWE represents the United

' Pursuant to S. Ct. Rule 37.6, counsel for amicus curiae state that they

authored this brnef in its entirety and that no party, other than the amicus

2

States private sector marine terminal operators (MTOs) and

stevedores. NAWE member companies load and unload

vessels at the vast majority of the general cargo and container

terminals along the Great Lakes, East Coast, Gulf Coast,

West Coast, Alaska, Hawaii, territories and commonwealths

of the United States. The ports of the United States handle

approximately 15 percent of the United States gross domestic

product and NAWE member companies handle the majority

of this cargo. The national and world economies are depend-

ent on the efficient flow of maritime commerce through our

facilities.

NAWE member companies are heavily regulated by the

federal government through the admiralty/maritime juris-

diction of the federal government. The industry’s workers’

compensation is federal under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. 901 et seg. (LHWCA).

The industry’s contracts for leasing land are federal contracts

regulated by the Federal Maritime Commission (FMC) under

The Shipping Act of 1998, 46 U.S.C. App. 801 et seq. (The

Shipping Act). The industry’s customer contracts for loading

and unloading vessels are federal contracts regulated by the

FMC under The Shipping Act. The industry’s tort liability for

handling cargo is federal under the Carriage of Goods by the

Sea Act, 46 U.S.C. 1300. The same federal admiralty/

maritime jurisdiction that gives the federal government au-

thority to regulate every aspect of the MTO/stevedoring

industry also protects the industry from conflicting and

inconsistent state laws. Knickerbocker Ice Co. v. Stewart,

253 U.S. 149 (1920).

The industry has a long standing interest in maintaining

clear and consistent boundaries between federal admiralty/

maritime jurisdiction and state jurisdiction. Amicus submits

curiae, its members and its counsel have made a financia! contribution to

the preparation and submission of this brief. Pursuant to Rule 37 2(a)

letters of consent have been filed with the Clerk.

3

this brief to assist the Court in understanding how an expan-

sive reading of the term “navigable waters” and phrase

“waters of the United States” could blur federal/state jurisdic-

tional lines leading to years of litigation in related areas of

federal law that have otherwise been settled for decades or

centuries.

SUMMARY OF THE ARGUMENT

The Clean Water Act (CWA) is a federal statute governing

the use of “navigable waters” that are part of the “waters of

the United States.” 33 U.S.C. 1362(7). The constitutional

authority for enacting the CWA comes from the Commerce

Clause, Article 1, Section 8, Clause 3 and the Admiralty

Clause, Article III, Section 2, Clause |. But once enacted, the

CWA became part of the admiralty/maritime laws of the

United States because it regulates the use of “navigable

waters” which are “waters of the United States.” Admiralty/

maritime law and jurisdiction go hand in glove together.

With one automatically comes the other. Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545

(1995).

For almost 200 years, both the federal courts and Congress

have used the term “navigable waters” and the phrase “waters

of the United States” to define the boundaries of federal

admiralty/maritime jurisdiction. The test for what constitutes

“navigable waters of the United States” was outlined by this

Court in The Daniel Ball:

Those rivers must be regarded as public navigable rivers

in law which are navigable in fact. And they are naviga-

ble in fact when they are used, or are susceptible of

being used, in their ordinary condition, as highways for

commerce, over which trade and travel are or may be

conducted in the customary modes of trade and travel on

water.

The Daniel Ball, 77 U.S. 557, 563 (1870); see also The

Montello, 87 U.S. 430 (1874). This test applies whether the

4

term “navigable waters” or phrase “waters of the United

States” appears in statute or arises as part of a constitutional

question. The term and phrase have been used in scores of

federal statutes over the last 150 years. The legal test has

always been the same—7he Daniel Ball test—that flows from

the Admiralty Clause of tke Constitution.’

The answer to the question of whether a specific location is

part of the navigable waters of the United States can only be

YES or NO. A given location is either part of the navigable

waters of the United States or it is not.

The answer to this question is wholly independent of the

statute involved. The legal test for what constitutes navi-

gable waters of the United States is today what it has a.ways

been—waters which are navigable in fact. The facts con-

cerning what constitutes navigable waters of the United States

may change over time as changes occur to waterways and

ports. But the legal test—the constitutional test—of what

constitutes “navigable waters” and “waters of the United

States” should never change. That test is ingrained in our

Constitution and not subject to amendment or modification by

agency regulation.

Furthermore any expansion of what constitutes “navigable

waters” or “waters of the United States” could have profound

implications. The use of the navigable waters of the United

States is under exclusive federal control. Land and those

waters that are not “navigable waters” are subject to state

? In dicta, this Court once indicated that the concept of what is “naviga-

ble waters” might vary from statute to statute. Kaiser Aetna v. United

States, 44 U.S. 164, 170-1 (1979). However, even the Kaiser Aetna

Court went on to find that the waters in question were “navigable waters”

because they were navigable in fact. The better reading of the case law is:

the substantive rules that apply to the “navigable waters of the United

States” may vary from one statute to another, but the legal test of what

constitutes the “navigable waters of the United States” is a constitutional

test that cannot vary.

5

control. A holding that filling drainage ditches on Mr.

Rapanos’ land is placing fill into the navigable waters of the

United States could significantly alter the boundary between

federal and state jurisdiction. Such an overreaching of federal

power should be avoided. See United States v. Bass, 404 U.S.

336, 349 (1971) (“[U]}nless Congress conveys its purpose

clearly, it will not be deemed to have significantly changed

the federal-state balance.’’)

While the ends of achieving clean water may be just, the

means employed by the executive branch of simply ignoring

the plain and unequivocal language of the CWA can never be

justified in a nation that is governed by the rule of law.

ARGUMENT

I. THE TERM “NAVIGABLE WATERS” AND

PHRASE “WATERS OF THE UNITED STATES”

MUST BE INTERPRETED IN LIGHT OF THE

ADMIRALTY CLAUSE OF THE CONSTITU-

TION.

Other briefs in this case will undoubtedly explain in great

depth that this case turns on the meaning of two words—

navigable waters—and one phrase—waters of the United

States—used in the Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. 1251 et seg., (CWA). The

question presented in this case could easily have been “Does

the term ‘navigable waters’ in the CWA mean what it has

always meafit in every other legal context or can the Army

Corps of Engineers give it a new and creative meaning never

before contemplated?”

Amicus submits that these two words—navigable waters—

were not simply words picked at random by Congress.

Instead, Congress carefully selected two words that have a

long and well established meaning under the Admiralty

Clause of the United States Constitution. Article III, Section

6

2, Clause | (“The judicial Power shall extend . . . —to all

Cases of admiralty and maritime Jurisdiction”) Admiralty

Clause).’ Amicus submits that the term “navigable waters” is

an admiralty/maritime law term with a meaning long ago

established by the courts and well known to Congress at the

time the term was used in the CWA.

Not only did Congress use the traditional admiralty/

maritime term “navigable waters,” Congress went on to

define the term “navigable waters” using traditional admiralty/

maritime law language: “The term ‘navigable waters’ means

the waters of the United States, including the territorial seas.”

33 U.S.C. 1362(7). As will be outlined in some detail below,

the definitional phrase “waters of the United States” further

ties the CWA to traditional admiralty/maritime law.

Because the term “navigable waters” and phrase “waters of

the United States” have a well established meaning—a mean-

ing that flows from the Constitution—that term and phrase

cannot be altered by agency regulation and must be given

their normal and well established meaning under federal law.

Il. ADMIRALTY CLAUSE BACKGROUND

When Congress enacted the CWA, Congress relied on

the federal police powers* to control the use of “navigable

>The Constitution uses the words admiralty and mantime without

defining them. Although these two terms are closely related, the words

are not synonyms. In England, the word maritime referred tc cases arising

upon the high seas, whereas admiralty meant primarily cases of a local

nature involving police regulations of shipping, harbors, fishing, and the

like. For purposes of this brief, amicus will refer to the “Admiralty Clause”

to mean Article Ill, Section 2, Clause | of the Constitution and admiralty/

maritime law and admiralty/maritime jurisdiction to refer to the body of

federal law and federal jurisdiction that flows from the Admiralty Clause.

* The term “police powers” is used in this brief to mean the authority to

place restraints on personal freedoms and property rights for the protec-

tion of the public safety, health and morals or the promotion of the pub! ic

7

waters.” This Court has held that the constitutional source

of congressional power over the use of “navigable waters”

comes both from the Commerce Clause, Article I, Section 8,

Clause 3 (Commerce Clause) and the Admiralty Clause.

Gilman v. Philadelphia, 70 U.S. 713, 724-725 (1866) (“The

power to regulate commerce comprehends the control for that

purpose, and to the extent necessary, of all the navigable

waters of the United States ...”) The federal government has

jurisdiction over the “navigable waters” of the United States

independent of the Commerce Clause through the Admiralty

Clause which implicitly contains three grants of power to the

federal government:

(1) It empowered Congress to confer admiralty and

maritime jurisdiction on the “Tribunals inferior to the

Supreme Court” which were authorized by Art. I, 8, cl.

9. (2) It empowered the federal courts in their exercise

of the admiralty and maritime jurisdiction which had

been conferred on them, to draw on the substantive law

“inherent in the admiralty and maritime jurisdiction,”

and to continue the development of this law within

constitutional limits. (3) It empowered Congress to

revise and supplement the maritime law within the limits

of the Constitution.

Romero v. International Term Co., 358 U.S. 354, 361-2

(1959) citing Crowell v. Benson, 285 U.S. 22, 55 (1932).

Even if Congress had never enacted a single substantive law

affecting the navigable waters of the United States, the use

of those navigable waters of the United States would still be

governed by federal law through the Admiralty Clause. If

there were no federal statutes, the Constitution still left power

convenience and general prosperity. Paraphrasing Black's Law Diction-

ary (Eighth Edition, 2004). Inherent in police powers is the right to prior

restraint and the right to punish for conduct where no harm to a third party

has yet occurred. Police powers are distinct from the right to provide a

remedy to a private party after that private party has been injured.

8

to the federal courts to develop the substantive admiralty/

maritime law.’ Romero, 358 at 361-2.

Once Congress enacts a law governing the use of the

navigable waters of the United States, that law becomes

part of the substantive admiralty/maritime laws of the United

States. This Court has often said: “With admiralty jurisdic-

tion comes the application of substantive admiralty law.”

Great Lakes Dredge & Dock, 527 at 545; Yamaha Motor

Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996); East

River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858,

864 (1986). The converse must also be true: With the appli-

cation of substantive admiralty law comes admiralty jurisdic-

tion. When the question of law is whether a location is part

of the “navigable waters of the United States” that question is

an admiralty/maritime law question and that question has a

constitutional answer.

A. What is or is not “navigable waters” deter-

mines the boundaries of what falls within the

scope of admiralty/maritime jurisdiction.

The question of what constitutes the “navigable waters of

the United States” has always been intertwined with the scope

of admiralty/maritime jurisdiction. For most of the history of

this nation the jurisdictional test for admiralty/maritime torts

was the simple bright line situs test outlined in The Daniel

Ball.® As this Court often said “The traditional test for admi-

“While not relevant to this case, a significant amount of the federal

admiralty/maritime law is developed through international treaty. United

States v. Locke, 529 U.S. 89 (2000).

© The admiralty/maritime jurisdiction applies to both torts and con-

tracts. The jurisdictional test for contracts has traditionally been a nexus

test. The Jefferson, 61 U.S. 393, 401 (1857) (“The admiralty jurisdiction,

in cases of contract, depends primarily upon the nature of the contract, and

is limited to contracts, claims, and services, purely maritime, and touching

rights and duties appertaining to commerce and navigation.”)

9

ralty tort jurisdiction asked only whether the tort occurred on

navigable waters. If it did, admiralty jurisdiction followed; if

it did not, admiralty jurisdiction did not exist.” Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 531-2 (1995). See also Executive Jet Aviation v. City of

Cleveland, 409 US. 249, 253 (1972) (“If the wrong occurred

on navigable waters, the action is within admiralty juris-

diction.” )(citing Thomas v. Lane, 23 F. Cas. 957, 960 (No.

13,902) (CC Me. 1813) (Story, J., on Circuit). See also The

Plymouth, 70 U.S. 20, 36 (1866) (“Every species of tort, how-

ever occurring, and whether on board a vessel or not, if upon

the high seas or navigable waters, is of admiralty cogni-

zance”). See generally Great Lakes Dredge & Dock, 513

U.S. 527 (1995) for a discussion of the evolution of admiralty/

maritime tort jurisdiction.

Some members of this Court wouk' return to this bright

line rule for admiralty/maritime jurisdiction. See Great Lakes

Dredge & Dock, 513 U.S. at 549 (Justices Thomas and Scalia

concurring in judgment). What is relevant to this case is that

the starting point for determining federal admiralty/maritime

jurisdiction under any test ever used by the Court is whether

the location is “navigable waters of the United States.”

Therefore, any shift in what constitutes the “navigable waters

of the United States” potentially could shift the admiralty/

maritime jurisdictional of the United States.

B. Federal power over the use of the navigable

waters of the United States is exclusive.

Siates have extremely limited police powers over the use of

navigable waters. The police powers over the use of the

navigable waters of the United States is vested exclusively in

the federal government through the Admiralty Clause:

By ihe Constitution, the entire admiralty power of the

couniry is lodged in the federal judiciary, and Congress

10

intended by the ninth section to invest the District Courts

with this power, as courts of original jurisdiction.

The New Jersey Steam Navigation Company, v. The Mer-

chants’ Bank or Boston, 47 U.S. 344, 390 (1848).

Since the beginning federal courts have recognized and

applied the rules and principles of maritime law as

something distinct from laws of the several states-not

derived from or dependent on their will. The foundation

of the right to do this, the purpose for which it was

granted, and the nature of the system so administered,

were distinctly pointed out long ago: “That we have a

maritime law of our own, operative throughout the

United States, cannot be doubted. . . . One thing, how-

ever, is unquestionable; the Constitution must have

referred to a system of law coextensive with, and oper-

ating uniformly in, the whole country. It certainly could

not have been the intention to place the rules and limits

of maritime law under the disposal and regulation of the

several states, as that would have defeated the uniform-

ity and consistency at which the Constitution aimed on

all subjects of a commercial character affecting the

intercourse of the states with each other or with foreign

states.”

Knickerbocker at 160-161, quoting from The Lottawanna, 88

U.S. 558, 574-5 (1874).

The constitutional principle that federal admiralty/maritime

jurisdiction over the use of the navigable waters of the United

States is exclusive is also reflected in statute. One of the first

actions of the first Congress was to create the lower federal

courts in The Judiciary Act of 1789:

And be it further enacted, That the district courts... .

shall also have exclusive original cognizance of all civil

causes of admiralty and maritime jurisdiction, including

all seizures under laws of impost, navigation or trade

of the United States, where the seizures are made, on

waters which are navigable from the sea by vessels of

I}

ten or more tons burthen, within their respective districts

as well as upon the high seas; saving to suitors, in all

cases, the right of a common law remedy, where the

common law is competent to give it; and shall also have

exclusive original cognizance of all seizures on land, or

other waters than as aforesaid, made, and of all suits for

penalties and forfeitures incurred, under the laws of the

United States.

The Judiciary Act of 1789: An Act to establish the Judicial

Courts of the United States, | Stat. 73, Section 9 (September

24, 1789) (The Judiciary Act). The admiralty/maritime com-

ponents of The Judiciary Act are now codified in Title 28 of

the United States Code:

The district courts shall have original jurisdiction, exclu-

sive of the courts of the States, of: (1) Any civil case of

admiralty or maritime jurisdiction, saving to suitors in

all cases all other remedies to which they are otherwise

entitled. (2) Any prize brought into the United States

and all proceedings for the condemnation of property

taken as prize.

Admiralty, maritime and prize cases, 28 U.S.C. § 1333. The

second phrase of clause (1 )—“saving to suitors in all cases all

other remedies to which they are otherwise entitled”—is

referred to as the “saving to suitors” clause and has lead to

some confusion over what jurisdiction states retain. The

modern view is that states are left with two authorities:

First, states are authorized to have their courts accept juris-

diction over admiralty/maritime cases. See Romero. Concur-

rent federal/state court jurisdiction allows state courts to hear

admiralty/maritime claims just as they hear most other federal

questions. But state court must apply federal admiralty/

maritime law, not state law, when sitting as admiralty courts.

Second, states are authorized to provide remedies to suit-

ors. Originally, this authority was limited to rights that were

available at common law at the time the Constitution was

12

adopted. In more recent years, this right has been amended

by Congress to include remedies that individuals “are other-

wise entitled” where no federal admiralty/maritime remedies

are otherwise available. A state may provide remedies “so

long as it does not attempt to make changes in the ‘sub-

stantive maritime law.”” Madruga v. Superior Court of Cal.,

County of San Diego, 346 U.S. 556, 561 (1954) quoting Red

Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124 (1924).

As a bottom line, once admiralty/maritime jurisdiction at-

taches, the Constitution and laws of the United States se-

verely limit state powers. United States v. Locke, 529 U.S. 89

(2000) (“The authority of Congress to regulate interstate navi-

gation, without embarrassment from intervention of the sepa-

rate States and resulting difficulties with foreign nations, was

cited in the Federalist Papers as one of the reasons for

adopting the Constitution.”) citing The Federalist Nos. 44,

12, 64.

Declaring a location to be part of the navigable waters of

the United States has the corollary effect of removing state

police powers over the use of that location. If the navigable

waters of the United States are expanded in scope, the

admiralty/maritime jurisdiction also expands to the exclusion

of the states.

C. Federal power over the use of the navigable

waters of the United States is nondelegable.

Expanding the definition of what constitutes the “navigable

waters of the United States” has far more implications that

would an expansive reading of other statutory language. Not

only is federal power over the use of the “navigable waters of

the United States” exclusive as outlined above in section B,

once federal admiralty/maritime power attaches, it cannot be

delegated to the states. Knickerbocker Ice Co. v. Stewart, 253

U.S. 149, 160 (1920) (“Congress cannot transfer its legisla-

13

tive power [over admiralty/maritime matters] to the states-by

nature this [admiralty/maritime power] is non-delegable.’’)

As background to this proposition, when workers’ com-

pensation statutes were first enacted, states attempted to apply

their workers’ compensation laws to work place injuries that

would otherwise have been maritime torts. This Court struck

down this aspect of state workers’ compensation laws in

Southern Pacific Rail Co. v. Jensen, 244 U.S. 205, 217

(1917), rejecting an argument that such laws could be applied

under the saving to suitors clause discussed above. After

Jensen, Congress amended the saving to suitors clause to

expressly authorize states to apply their workers’ compensa-

tion laws to maritime workplace torts. In Knickerbocker, this

Court again ruled against applying state workers’ compen-

sation laws in the admiralty/maritime context holding that

power under the Admiralty Clause is “non-delegable.” Knick-

erbocker, 253 at 160. Ultimately, Congress decided to cover

maritime injuries under a federal workers’ compensation

statute. LHWCA, 33 U.S.C. 901 et seg. To this day,

admiralty/maritime injuries are covered by federal law.

While this Court has not since revisited the question of

delegation under the Admiralty Clause, the Court has repeat-

edly supported the principle that was the underpinning of the

holding in Knickerbocker:

The fundamental interest giving rise to maritime juris-

dictions is “the protection of maritime commerce,” and

we have said that that interest cannot be fully vindicated

unless “all operators of vessels on navigable waters are

subject to uniform rules of conduct.”

Sisson v. Ruby, 497 U.S. 358, 367 (1990), quoting Foremost

Ins. Co. v. Richardson, 457 U.S. 668, 674-75 (1982).

The holding that Commerce Clause powers are delegable,

while Admiralty Clause powers are non-delegable is consis-

tent with the structure of the Constitution. As a general rule,

14

Congress can delegate powers that the Constitution otherwise

gives to Congress. The power to regulate commerce is found

in Article | of the Constitution and as such, is a power of

Congress. Congress cannot delegate powers that the Consti-

tution assigns to the other two branches of the federal govern-

ment. Since the Admiralty Clause is a federal power given

first and foremost to the federal courts in Article III, Congress

is without authority to place any of admiralty/maritime power

in the states—i.e., it is non-delegable.

Ill. THE EXECUTIVE BRANCH IS WITHOUT

AUTHORITY TO INTERPRET A TERM THAT

THE COURTS HAVE ALREADY INTER-

PRETED.

Amicus submits that any Executive Branch interpretations

of the term “navigable waters” should be irrelevant to the

Court’s inquiry. Executive branch regulation on this point

should not even be considered by the Court. Amicus ad-

vances two grounds for this position: First, no executive

branch interpretation of the term “navigable waters” is per-

missible because the meaning of the term was clear and well

established at the time of enactment of the CWA. Second,

because the term “navigable waters” and phrase “waters of

the United States” have constitutional importance, it is the

courts and not the executive branch that have the sole author-

ity to establish the appropriate legal test.

A. Ne aiternative executive branch interpretation

of a term is allowed when the interpretation of

the term is clear at the time of enactment.

The question of when executive branch regulations are

relevant to a judicial enquiry is governed by the Administra-

tive Procedures Act, 5 U.S.C. 551 et seg. (APA):

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

15

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall— .. . (2) hold

unlawful and set aside agency action, findings, and

conclusions found to be—{A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law; (B) contrary to constitutional right, power, privi-

lege, or immunity; (C) in excess of statutory —e,

authority, or limitations, or short of statutory right . .

APA, 5 U.S.C. § 706(2). Under the APA, it is the responsibil-

ity of the courts to decide questions of law and interpret

constitutional and statutory provisions. See also Marbury v.

Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the

province and duty of the judicial department to say what the

law is.”) The Court addressed this issue in Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-3 (1984):

When a court reviews an agency’s construction of the

statute which it administers, it is confronted with two

questions. First, always, is the question whether Con-

gress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of *he

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Con-

gress. If, however, the court determines Congress has

not directly addressed the precise question at issue, the

court does not simply impose its own construction on the

Statute, as would be necessary in the absence of an

administrative interpretation. Rather, if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is

based.on a permissible construction of the statute. (in-

ternal citations omitted).

As has been demonstrated above, the intent of Congress

when it used the term “navigable waters” and the phrase

“waters of the United States” could not have been clearer. It

would be hard to find other words that have been more

16

thoroughly defined over our nation’s history. In the language

of Chevron, once Congress used the term “navigable waters”

and the phrase “waters of the United States,” “that is the end

of the matter; for the court, as well as the agency must give

effect to the unambiguously expressed intent of Congress.”

Chevron, 467 at 842.

While the so-called Chevron doctnne encompasses a gen-

eral principle of deference to agency decisions, an agency is

not automatically entitled to deference:

But the principle [of deference] has its limits. Deference

does not mean acquiescence. As in other contexts in

which we defer to an administrative interpretation of a

statute, we do so only if Congress has not expressed its

intent with respect to the question and then only if the

administrative interpretation is reasonable.

Presley v. Etowah County Comm'n, 502 U.S. 491, 508-509

(1992) (emphasis added) citing Chevron, 837 at 842-844. In

the case at hand, Congress has clearly expressed its intent by

using a term that has a long established meaning. Any other

interpretation that is inconsistent with that long established

meaning is simply not reasonable.

B. The Courts are the sole source of interpreting

what is and is not a navigable water.

Furthermore, the Constitution has delegated to the Courts

the authority to define the legal test for what is and is not

“navigable waters” and what are and are not the “waters of

the United States.” Congress is without authority to take that

power away from the courts and delegate that power instead

to the Executive Branch or usurp that power for itself. The

Steamer St. Lawrence, 66 U.S. 522, 527 (1862):

This difficulty was increased by the complex character

of our Government, where separate and distinct specified

powers of sovereignty are exercised by the United States

and a State independently of each other within the same

if

17

territorial limits. And the reports of the decisions of this

court will show that the subject has often been before it,

and carefully considered, without being able to fix with

precision its definite boundaries; but certainly no State

law can enlarge it, nor can an act of Congress or rule of

court make it broader than the judicial power may

determine to be its true limits. And this boundary is to be

ascertained by a reasonable and just construction of the

words used in the Constitution, taken in connection with

the whole instrument, and the purposes for which admi-

ralty and maritime jurisdiction was granted to the Fed-

eral Government.

(emphasis added.)

In further support of this proposition consider this hypo-

thetical—Congress gives the Executive Branch statutory

authority to conduct “reasonable searches and seizures” along

with authority to issue regulations. Could it seriously be

argued that the Executive Branch would be free to issue

regulations defining what is an unreasonable search and

seizure in a way that violated the meaning given to that term

by the courts? Would such regulation be entitled to defer-

ence? The answer is of course not. Likewise, no Act of

Congress can give a federal agency the right to “overrule”

this Court’s legal test for what constitutes the “waters of the

United States.”

To the extent an administrative agency conducts a fact

based idjudication and determines that certain waters are or

are not navigable, such a determination may be entitled to

deference under the APA. But only the federal courts have to

power to define what legal test will be used to establish what

waters are the “waters of the United States.” The Constitution

delegated that power to the federal courts and Congress is

without constitutional authority to give that power to the

Executive Branch.

Thus, for the reasons outlined above, administrative regula-

tions on what constitutes “navigable waters” and “waters of

the United States” are irrelevant to this inquiry. The Court

should instead look to its own decisions when deciding this

case and the controlling authority is The Daniel Ball and it

progeny.

IV.THE FEDERAL COURTS AND CONGRESS

HAVE CONSISTENTLY USED THE TERM

“NAVIGABLE WATERS” AND PHRASE

“WATERS OF THE UNITED STATES” IN

THEIR ADMIRALTY/MARITIME CONTEXT.

For most of the history of this nation, the federal courts and

Congress have used the term “navigable waters” and the

phrase “waters of the United States” to delineate the bound-

ary between federal admiralty/maritime jurisdiction and state

non-admiralty jurisdiction. The question repeatedly con- -

fronted by the Court is whether a given location in our nation

is part of the “navigable waters of the United States.” In the

early case of Gibbons v. Ogden, 22 U.S. | (1824), this Court

discussed what constitutes “waters of the United States:”

It is not unreasonable to say, that what are called the

waters of New-York, are, to purposes of navigation and

commercial regulation, the waters of the United States.

There is no cession, indeed, of the waters themselves,

but their use, for those purposes, seemed to be entrusted

to the exclusive power of Congress.

Gibbons at 21. The Court went on to conclude what consti-

tutes “waters of the United States” is a function of whether or

not those waters are navigable:

It is a common principle, that arms of the sea, including

navigable rivers, belong to the sovereign, so far as navi-

gation is concerned. Their use is navigation. The

United States possess the general power over navigation,

and, of course, ought to control, in general, the use of

navigable waters.

Gibbons at 22. That principle that “navigable waters” are the

“waters of the United States” has been a bedrock principle of

19

federal law ever since. The Court outlined the test for what

are and are not “navigable waters” of the United States in The

Daniel Ball, 77 U.S. $57 (1870) and The Montello, 87 U.S.

430 (1874). Of significance to this case is that The Daniel

Ball involved the interpretation of a statute that used the

phrase “navigable waters of the United States:”

The act of July 7th, 1838, provides, in its second section,

that it shall not be lawful for the owner, master, or

captain of any vessel, propelled in whole or in part by

steam, to transport any merchandise or passengers upon

the bays, lakes, rivers, or other navigable waters of the

United States... .

The Daniel Bail at 558. The Court went on to address the

issue of what constitutes “navigable waters of the United

States:”

Those rivers must be regarded as public navigable rivers

in law which are navigable in fact. And they are naviga-

ble in fact when they are used, or are susceptible of

being used, in their ordinary condiiion, as highways for

commerce, over which trade and travel are or may be

conducted in the customary modes of trade and travel

on water. And they constitute navigable waters of the

United States within the meaning of the acts of

Congress, in contradistinction from the navigable waters

of the States, when they form in their ordinary condition

by themselves, or by uniting with other waters, a

continued highway over which commerce is or may be

carried on with other States or foreign countries in the

customary modes in which such commerce is conducted

by water.

The Daniel Ball at 563. A few years later in The Montello, 87

U.S. 430 (1874), this Court went on to further define what is

and is not part of the “navigable waters of the United States:”

It would be a narrow rule to hold that in this country,

unless a river was capable of being navigated by steam

or sail vessels, it could not be treated as a public high-

= eee —-*

20

way. The capability of use by the public for purposes of

transportation and commerce affords the true criterion of

the navigability of a river, rather than the extent and

manner of that use. If it be capable in its natural state of

being used for purposes of commerce, no matter in what

mode the commerce may be conducted, it is navigable

in fact, and becomes in law a public river or highway.

Vessels of any kind that can float upon the water,

whether propelled by animal power, by the wind, or by

the agency of steam, are, or may become, the mode by

which a vast commerce can be conducted, and it would

be a mischievous rule that would exclude either in deter-

mining the navigability of a river. It is not, however, as

Chief Justice Shaw said, “every small creek in which a

fishing skiff or gunning canoe can be made to float at

high water which is deemed navigable, but, in order to

give it the character of a navigable stream, it must be

generally and commonly useful to some purpose of trade

or agriculture.”

The Montello at 441-2.

Since The Daniel Ball, the same test has been used by the

federal courts to evaluate what constitutes “navigable waters,”

whether evaluating statutes or constitutional questions. In

Economy Light & Power Co. v. U.S., 256 U.S. 113 (1921),

this Court interpreted a statute using the term “navigable

waters” and the phrase “navigable waters of the United

States.” This Court as always looked to The Daniel Ball:

The Circuit Court of Appeals, in passing upon the ques-

tion of navigability, correctly applied the test laid down

by this court in The Daniel Ball and The Montello, that

is, the test whether the river, in its natural state, is used,

or capable of being used as a highway for commerce,

over which trade and travel is or may be conducted in

the customary modes of trade and travel on water.

Navigability, in the sense of the law, is not destroyed

because the water course is interrupted by occasional

natural obstructions or portages; nor need the navigation

21

be open at all seasons of the year, or at all stages of the

water.

Economy Light at 121-2. See also U.S. v. Appalachian

Electric Power Co., 311 U.S. 377 (1940):

It was held early in our history that the power to regulate

commerce necessarily included power over navigation.

To make its control effective the Congress may keep the

navigable waters of the United States open and free and

provide by sanctions against any interference with the

country's water assets. It may legislate to forbid or

license dams in the waters; its power over improvements

for navigation in rivers is “absolute.”

The states nossess control of the waters within their

borders, “subject to the acknowledged jurisdiction of the

United States under the constitution in regard to com-

merce and the navigation of the waters of rivers.” It is

this subordinate local control that, even as to navigable

rivers, creates between the respective governments a

contrariety of interests relating to the regulation and

protection of waters through licenses, the operation of

structures and the acquisition of projects at the end of the

license term. But there is no doubt that the United States

possesses the power to control the erection of structures

in navigable waters.

The navigability of the New River is, of course, a factual

question but to call it a fact cannot obscure the diverse

elements that enter into the application of the legal tests

as to navigability. We are dealing here with the sover-

eign powers of the Union, the Nation’s right that its

waterways be utilized for the interests of the commerce

of the whole country. It is obvious that the uses to

which the streams may be put vary from the carriage of

ocean liners to the floating out of logs; that the density

of traffic varies equally widely from the busy harbors

of the seacoast to the sparsely settled regions of the

22

Western mountains. The tests as to navigability must

take these variations into consideration.

Appalachian Electric at 404-6.

At the time Congress used the term “navigable waters” in

the CWA and defined that term to be the “waters of the

United States,” Congress knew what that term meant. Con-

gress has used that term for over 100 years in statute after

statute. This Court has interpreted that term in statute after

statute and in numerous constitutional cases so there was no

question of the meaning.

One definition of insanity is doing the same thing over and

over again and expecting a different result. It would be

insanity for Congress to have used a term that this Court had

interpreted the same way over and over again and expect the

Court to reach a different conclusion. If Congress had in-

tended a different jurisdictional reach for the CWA, Congress

undoubtedly would have used a different term to define that

jurisdictional reach.

A. Congress repeatedly used the term “navigable

waters” and the phrase “navigable waters of

the United States.”

Not only has the term “navigable waters” and the phrase

“waters of the United States” been used for over 100 years in

statutes, the term and phrase are still found in numerous other

federal statutes today. See Title 33 of the United States Code

generally covering Navigation and Navigable Waters, in-

cluding 33 U.S.C. 1 (“It shall be the duty of the Secretary of

the Army to prescribe such regulations for the use, admini-

stration, and navigation of the navigable waters of the United

States .. .”); 33 U.S.C. 10 (“All the navigable rivers and

waters in the former Territories of Orleans and Louisiana

shall be and forever remain public highways.”); 33 U.S.C.

59b (“Bayou Terrebonne west of Barrow Street and Bayou

LeCarpe west of the Intracoastal Waterway in the city of

23

Houma, State of Louisiana, are declared to be not navigable

waters of the United States within the meaning of the Con-

stitution and laws of the United States.”’”); 33 U.S.C. 401 (“It

shall not be lawful to construct or commence the construction

of any bridge, causeway, dam, or dike over or in any port,

roadstead, haven, harbor, canal, navigable river, or other

navigable water of the United States .. .”); 33 U.S.C. 414(a)

(“Whenever the navigation of any river, lake, harbor, sound,

bay, canal, or other navigable waters of the United States

shall be obstructed or endangered . . .”); 33 U.S.C. 902(4)

(“The term ‘employer’ means an employer any of whose

employees are employed in maritime employment, in whole

or in part, upon the navigable waters of the United States

.. .”); 33 U.S.C. 1222(5) (“* ‘Navigable waters of the United

States’ includes all waters of the territorial sea of the United

States as described in Presidential Proclamation No. 5928 of

December 27, 1988."’).’

See also Title 46 of the United States Code generally

covering Shipping including 46 U.S.C. 2101(17a) (“ ‘naviga-

ble waters of the United States’ includes all waters of the

territorial sea of the United States as described in Presidential

Proclamation No. 5928 of December 27, 1988.”); 46 U.S.C.

4301(c) (“Until there is a final judicial decision that they are

navigable waters of the United States, the following waters

lying entirely in New Hampshire are declared not to be waters

subject to the jurisdiction of the United States within the

’ The conclusion that the term “navigable waters” must be evaluated in

light of traditional admiralty/maritime law principles is also supported by

the CWA's placement in the United States Code. Many of the other

federal environmental statutes are found in Title 42 of the United States

Code governing The Public Health and Welfare. Sve solid waste statutes

in 42 U.S.C. Chapter 82 and clean air statutes in 42 U.S.C. Chapter 85.

The Clean Water Act on the other hand is found in Title 33 of the United

States Code regulating Navigation and Navigable Waters. Title 33 con-

tains a significant amount of the admiralty/maritime laws of the United

States.

24

meaning of this section . . .”); 46 U.S.C. 4701(3) (“ ‘navigable

waters of the United States’ means waters of the United

States, including the territorial sea.”); 46 U.S.C. 6101(d)(1)

(“This part applies to a foreign vessel when involved in

a marine casualty on the navigable waters of the United

States.”); 46 U.S.C. 8304(g) (“A foreign vessel to which the

convention described in subsection (b) of this section applies,

on the navigable waters of the United States, is subject to

detention under subsection (f) of this section, and to an ex-

amination that may be necessary to decide if there is compli-

ance with the convention.”); 46 U.S.C. 11108(2) (“This

subsection applies to an individual . . . (B) who performs

regularly-assigned duties while engaged as a master, officer,

or crewman on a vessel operating on the navigable waters of

more than one State.”’)

These examples are by no means an exhaustive list of

federal statutes that use the term “navigable waters” and/or

phrase “waters of the United States.” Instead, they simply

represent a sampling.

Over and over again, Congress has used the term “naviga-

ble waters” and/or the phrase “waters of the United States” to

define the jurisdictional scope of federal statutes. Congress

has repeatedly used its constitutional authority to regulation

“navigable waters” to enact such legislation. Congress has

used the term “navigable waters” and the phrase “waters of

the United States” consistently and repeatedly in the tradi-

tional The Daniel Ball sense: Waters must be regarded as

navigable in law which are navigable in fact and they are

navigable in fact when they are used, or are susceptible of

being used, in their ordinary condition, as highways for com-

merce, over which trade and travel are or may be conducted

in the customary modes of trade and travel on water.

25

Even the Army Corps of Engineers initially used a tradi-

tional definition of “navigable waters” in the early regulations

for the CWA:

indeed, the Corps’ original interpretation of the CWA,

promulgated two years after its enactment, is incon-

sistent with that which it espouses here. Its 1974

regulations defined §404(a)’s 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 CFR §209.120(d)(1). The Corps emphasized that

“(i]t is the water body’s capability of use by the public

for purposes of transportation or commerce which is the

determinative factor.” §209.260(e)(1). Respondents put

forward no persuasive evidence that the Corps mistook

Congress’ intent in 1974.

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159, 168 (2001).

There is simply no evidence that Congress intended “naviga-

ble waters” in the CWA to mean anything other than its

traditional and ordinary meaning. Therefore, the term must

be given its traditional and ordinary meaning.

V. FEDERAL RESPONDENT’S POSITION

It is against this long judicial and statutory history under

the Admiralty Clause that the federal respondent’s position

must be evaluated. The federal respondent asks this Court to

ignore the almost 200 year of this Court’s holdings and

instead create a new category of “navigable waters.” The

federal respondent calls the “navigable waters” that are navi-

gable in fact “traditional navigable waters.” Brief for the

United States in Opposition to Certiorari in Rapanos v.

United States, No. 04-1034, 2-3, footnote 1. The government

then asks the Court to recognize a new category of “navigable

waters” under the CWA—navigable waters that are not

26

navigable in fact. Thus, if the government prevails there will

be two categories of “navigable waters” under federal law:

“navigable navigable waters” and “non-navigahle navigable

waters.” The country will be confronted with “wafer waters

of the United States” and “waterless waters of the United

States.”

In reviewing the federal respondent's position in this case,

amicus is reminded of something that former Senator Daniel

Patrick Moynahan often said: In a democracy, we each are

free to have our own opinions, but we are not free to make up

our own facts. In this case, the federal respondent wants to

make up its own facts about what is in fact navigable. If the

federal respondent prevails, it will require something like the

Ministry of Truth from George Orwell’s “1984” to explain to

the public how dry land is in fact part of the “navigable

waters of the United States.”” Maybe they can paraphrase the

pigs in Orwell’s “Animal Farm” and explain that: All land in

the United States is navigable by maritime vessels, but some

land is more navigable than other.*

The federal respondent’s position in this case begs the

question of whether the term “navigable waters” either

(1) should be redefined under federal admiralty/maritime

laws to include “non-navigable navigable waters;” or in the

alternative (2) could be redefined under other federal admi-

ralty/maritime laws to include “non-navigable navigable

waters.” Could a worker who got injured filling in the “non-

navigable navigable waters” on Mr. Rapanos’ land seek

compensation under the federal LHWCA because the worker

was “employed in maritime employment, in whole or in part,

upon the navigable waters of the United States?” 33 U.S.C.

902(4). Or maybe Mr. Rapanos could seek federal harbor

maintenance funds to maintain his land since his land would

* The actual quote is “All animals are equal but some animals are more

equal than others.”

27

be part of the “navigable waters of the United States.” When

the state wants to exercise its police powers over Mr. Rapanos’

land, can he raise the affirmative defense that the state no

longer has jurisdiction over his land use because his land is

part of the “navigable waters of the United States.” The pos-

sibilities of new applications of old federal laws are endless if

the Court recognizes the existence of “non-navigable naviga-

ble waters.”

There is absolutely no evidence that Congress intended

such an absurd result under any federal statute including the

CWA. Absent some clean, unequivocal expression by Con-

gress to the contrary, the Court should conclude that Congress

intended “navigable waters” to mean the same thing the term

has meant in every other context it has been uses since the

adoption of the Constitution. What is navigable in law is

what is navigable in fact.

CONCLUSION

For the reasons stated above, amicus urges the Court to

declare that what constitutes the “navigable waters of the

United States” is a question of fact, defined by the Constitu-

tion under the Admiralty Clause. The test outlined in The

Daniel Ball is the test that should be used whenever Congress

defined the jurisdiction scope of a statute to be “navigable

waters” and/or “waters of the United States.”

Respectfully submitted,

FRANCIS EDWIN FROELICH *

CHARLES T. CARROLL, JR.

CARROLL & FROELICH, PLLC

919 18th Street, NW

Suite 901

Washington, DC 20006

* Counsel of Record (202) 587-4850