Amicus Curiae Brief — Rapanos v. United States

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Suprame Court. US

FILED

5 MAY 16 2005

OFFICE OF THE CLERK

No. 04-1384

In the

Supreme Court of the United States

JUNE CARABELL, et al.,

Petitioners,

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICI CURIAE OF JOHN A. RAPANOS

AND PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITIONERS JUNE CARABELL, ET AL.

GREGORY T. BRODERICK M. REED HOPPER

Of Counsel Counsel of Record

Pacific Legal Foundation ROBIN L. RIVETT .

3900 Lennane Drive, Suite 200 Pacific Legal Foundation

Sacramento, California 95834 3900 Lennane Drive, Suite 200

Telephone: (916) 419-7111 Sacramento, California 95834

Facsimile: (916) 419-7747 Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amici Curiae John A. Rapanos

and Pacific Legal Foundation

ae et eine ae

- Pa te

QUESTIONS PRESENTED

1. Does the Clean Water Act extend to wetlands that are

hydrologically isolated from any of the “waters of the United

States?”

2. Do the limits on Congress’ authority to regulate

‘nterstate 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?”

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

REASONS FOR GRANTING THE PETITION

Il.

‘i

TABLE OF CONTENTS

THE CIRCUIT COURTS OF APPEALS ARE

SPLIT SHARPLY OVER THE MEANING OF

THIS COURT’S DECISION IN SWANCC

THIS CASE PRESENTS A NATIONAL

QUESTION OF VITAL IMPORTANCE

A. The Uncertainty and Overly Broad

Application of the CWA Harms

Industry, Agriculture, Local

Government, and Ordinary People

Inconsistent Application of the

Clean Water Act Poses Substantial

Problems for Companies and

Industries Operating Nationwide ......

Inconsistency and Overly Broad

Application of the Clean Water

Act Costs the Economy Billions

and Negatively Impacts Consumers

and Home Buyers ..............0555

Overly Broad Application of the

Clean Water Act Harms Farmers,

Ranchers, and Small Property Owners ....

ili

TABLE OF CONTENTS—Continued

Page

B. The Uncertainty and Overly Broad

Application of the Clean Water Act Harms

Local Governments and Invades Traditional

Local Power over Land Use Planning ........ 15

EEE Ee 18

TABLE OF AUTHORITIES

Page

Cases

Baccarat Fremont Developers, LLC v. United States Army

Corps of Engineers (9th Cir. Docket No. 03-16586) ... 5

Borden Ranch Partnerships v. United States Army Corps

of Engineers, 261 F.3d 810 (9th Cir. 2001), aff'd by an

equally divided Court, 537 U.S. 99 (2002) .......... 13

Carabell v. United States Army Corps of

Engineers, 391 F.3d 704 (6th Cir. 2004) ...... 5, 12,17

City of Healdsburg v. Northern California

River Watch (9th Cir. Docket No. 04-15442) ......... 5

Deaton v. United States, 332 F.3d 698 (4th Cir. 2003),

cert. denied, 541 U.S. 972 (2004) ..........02005: 2,5

In re Needham, 354 F.3d 340 (Sth Cir. 2003) ......... 3-5

Mills v. United States, 36 F.3d 1052 (11th Cir. 1994) .... 13

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .. 17

Newdunn Associates, LLP v. United States Army Corps

of Engineers, cert. denied, 541 U.S. 972 (2004) ....... 2

Rapanos v. United States, 533 U.S. 913 (2001)....... 1,14

Rapanos v. United States, cert. denied,

DED GD, GRD cccccececcnceSbccccccccccess 2

Rapanos v. United States, Docket No. 04-1034 ........ 2-3

San Francisco Baykeeper v. Cargill Salt Division

(9th Cir. Docket No. 05-15051) .........2520ee eee 5

Solid Waste Agency of Northern Cook County v.

United States Army Corps en

PR er eee 1, 2, 16

TABLE OF AUTHORITIES—Continued

Page

United States v. Booker, 125 S. Ct. 738 (2005) .......... 2

United States v. Deaton, 209 F.3d 331 (4th Cir. 2000) ... 13

United States v. Pozsgai,

757 F. Supp. 21 (E.D. Pa. 1991) ................. 13

United States v. Rapanos,

115 F.3d 367 (6th Cir. 1997) ...............00.0.. 14

United States v. Rapanos,

190 F. Supp. 2d 1011 (E.D. Mich. 2002) ......... 1,17

United States v. Rapanos,

339 F.3d 447 (6th Cir. 2003)................0... 1,3

United States v. Rapanos,

376 F.3d 629 (6th Cir. 2004) ................2055. 13

United States v. Riverside Bayview Homes, Inc.,

I a a a 2-3

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) ... 14

Statutes

PRE btcdkuh ced ceteidsnddaendeendéoned 12

I i ie a ee as 16

Fla. Stat. Ann. § 187.201(15)(b)(3) (West 2005)........ 16

Rules

8 ee ne ee l

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

58 Fed. Reg. 45,008 (Aug. 25, 1993). ..........--0055 13

68 Fed. Reg. 1991 (Jan. 15, 2003) ..... 2.2.2... 2 eee eee 7

Barron, David J., Reclaiming Home Rule,

116 Harv. L. Rev. 2255 (2003) ...........--55- 16-17

Bryn, Eric M., Through a BioDiversity Looking-

Glass: An Analysis of the Devils Lake

Basin Water Management Plan,

1 Great Plains Nat. Resources J. 65 (1996) .......... 16

Burling, James S., Private Property Rights —

and the Environment After Palazzolo,

30 B.C. Envtl. Aff. L. Rev. 1 (2002) ............... 17

Clean Water Act Penalty Appeals, available at

http://www.epa.gov/eab/eabcwp.htm

(last visited May 3, 2005) ...........cceeeeeecees 15

Clean Water Authority Restoration Act of 2003

S.473, 108th Cong. (Ist Sess. 2004) ................ 8

Clean Water Authority Restoration Act of 2005

S.912, 109th Cong. (Ist Sess. 2005) .............4-. 8

Creating Additional Federal Court Judgeships,

150 Cong. Rec. H8048, H8055, 2004 WL 2237300

(Statement of Rep. Simpson) (Oct. 5, 2004) .......... 6

Federal Wetlands Jurisdiction Act of 2004,

H.R. 4843, 108th Cong. (2d Sess. 2004)............. 8

Gardner, Royal C., Money for Nothing? The Rise of

Wetland Fee Mitigation, 19 Va. Envtl. L.J. 1 (2000) .. 18

Vii

TABLE OF AUTHORITIES—Continued

Page

Garnett, Nicole Stelle, On Castles and Commerce:

Zoning Law and the Home-Business Dilemma,

42 Wm. & Mary L. Rev. 1191 (2001).............. 16

Grad, Frank P., Opening Note,

25 Colum. J. Envtl. L. 213 (2000)................. 15

Guttery, Randall S., et al., Federal Wetlands

Regulation: Restrictions on the Nationwide

Permit Program and the Implications for Residential

Property Owners, 37 Am. Bus. L.J. 299 (2000) ...... 12

Harrell, Alvin C., Banking and Finance 1997:

An Overview of Chartering and

Regulatory Developments,

51 Consumer Fin. L.Q. Rep. 198 (1997) ............ 10

Holman, IV, J. Blanding, Affer United States v.

Lopez: Can the Clean Water Act and the

Endangered Species Act Survive Commerce

Clause Attack?, 15 Va. Envtl. L.J. 139 (1995) ....... 16

Lundin, Lauren A., Sentencing Trends in

Environmental Law: An “Informed” Public

Response, 5 Fordham Envtl. L.J. 43 (1993) ......... 15

Marshall, Bob, USFWS Contradicts Administration's

Plans, New Orleans Times-Picayune, Dec. 7, 2003,

at 16, available at 2003 WLNR 2076955 ............ 7

Marzulla, Roger, et al., Taking “Takings

Rights” Seriously: A Debate on Property

Rights Legislation Before the 104th Congress,

9 Admin. L.J. Am. U. 253 (1995) ..............4.. 13

viii

TABLE OF AUTHORITIES—Continued

Page

Michigan's Land, Michigan's Future, at

http://www.michiganlanduse.org/finalbysection.htm

(last visited May 3, 2003) ..........0 5c eee eee eee 16

Pub. L. No. 103-223, 108 Stat. 103 (1994) ............ 12

Schulte, Christopher J., Minnesota Wetland

Conse ‘tion Act of 1991: “Did Minnesota Miss

the Boat to Protect Artificially Created Wetlands?,”

15 Hamline L. Rev. 439 (1992)... 02... . 00 cece eeee 18

Shuster, Bud & Hayes, Jimmy, Big Lie on Clean

Water, Wash. Post, May 16, 1995, atAl17 ....... 13-14

Skrzycki, Cindy, Definition of ‘Ditch’ Is Muddy at

Best, The Washington Post, Mar. 29, 2005, at El,

available at 2005 WLNR 4921280 ..........-0-0055 7

Statement of M. Reed Hopper to the House Committee

on Government R:form, Subcommittee on Energy

Policy, Natural Resources and Regulatory Affairs:

Federal Authority to Require Wetlands Dumping

Permits, 2002 WL 31123945 (Sept. 19, 2002) ...... 3,8

Statements on Introduced Bills and Joint Resolutions,

151 Cong. Rec. $4400 (Apr. 27, 2005) ...........-.- 8

Sunding, David & Zilberman, David, The

Economics of Environmental Regulation by

Licensing: An Assessment of Recent Changes

to the Wetland Permitting Process,

42 Nat. Resources J. 59 (2002) ...........5505: 11-12

TABLE OF AUTHORITIES—Continued

Page

Sunding, David L. & Zilberman, David, Non-Federal

and Non-Regulatory Approaches to Wetland

Conservation: A Post-SWANCC Exploration

of Conservation Alternatives (Jan. 2003), at

http://www.housingandenvironment.org/

Text%20Files/Wetlands Final.PDF ............ 10, 18

Sunding, David L., Wetlands Protection

Beyond Section 404: Economic Aspects,

SH088 A.L.L-A.B.A. 165 (2003) .............. 10-11

U.S. Department of Energy, United States

Country Analysis Brief, available at

http://www.eia.doe.gov/emew/cabs/usa.html#oil

(last visited May 3, 2005) ...............ce ee eeees 9

U.S. General Accounting Office, Waters and

Wetlands: Corps of Engineers Needs to Evaluate

Its District Office Practices in Determining

Jurisdiction (Feb. 2004), available at

www.gao.gov/new.items/d04297.pdf

(last visited May 2, 2005) ..............0ceeeeee 6-7

Webster's New International Dictionary

(William A. Nelson ed., 2d ed. 2000) .............. 12

Weiser, Philip J., Justice White and Judicial Review,

74 U. Colo. L. Rev. 1305 (2003)... ..........00 cee 6

White House Backs Off on Wetlands Issue,

Wall St. J., Dec. 17, 2003, at B6, available

at 2003 WLNR 3116291 ...... 0... cee cee eee 7-8

White, Byron R., The Work of the Supreme Court: A Nuts

and Bolts Description, 54 N.Y. St. B.J. 346 (1982) .... 8

INTEREST OF AMICI CURIAE'

Pursuant to Supreme Court Rule 37.2, John A. Rapanos

and Pacific Legal Foundation respectfully submit this brief

amici curiae in support of the Petition for Writ of Certiorari.

Written consent was granted by counsel for all parties and

lodged with the Clerk of this Court.

John A. Rapanos owns several parcels in Bay County,

Michigan. In an effort to develop his property for commercial

use, he cleared and graded some of the property. See United

States v. Rapanos, 190 F. Supp. 2d 1011, 1012 (E.D. Mich.

2002). Though his parcels lie approximately twenty miles from

the nearest navigable waterway, the United States asserted

jurisdiction over the property and Mr. Rapanos was prosecuted

for discharging fill into “waters of the United States” without

a permit. See id. Mr. Rapanos was tried and convicted, fined

$185,000, and sentenced to three years probation. See id. ai

1013. The conviction was upheld on appeal, but this Court

granted a writ of certiorari, vacated the conviction, and

remanded the case back to the Sixth Circuit for a determination

consistent with Solid Waste Agency of Northern Cook County

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

(SWANCC). See Rapanos v. United States, 533 U.S. 913

(2001).

On remand, the district court found that federal

jurisdiction was improper after SWANCC, see United States v.

Rapanos, 190 F. Supp. 2d at 1017, but the Sixth Circuit

reversed that determination and further directed the trial court

to increase the sentence to include a minimum of ten months

in prison. See United States v. Rapanos, 339 F.3d 447, 454

(6th Cir. 2003). This Court denied Mr. Rapanos’s subsequent

' Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for any

party authored this brief in whole or in part and that no person or

entity made a monetary contribution specifically for the preparation

or submission of this brief.

petition for a writ of certiorari, along with two similar cases.

See Rapanos v. United States, cert. denied, 541 U.S. 972

(2004); see also Newdunn Associates, LLP v. United States

Army Corps of Engineers, cert. denied, 541 U.S. 972 (2004);

Deaton v. United States, 332 F.3d 698 (4th Cir. 2003), cert.

denied, 541 U.S. 972 (2004). After Mr. Rapanos’s case was

remanded to the district court for sentencing, this Court issued

a decision invalidating the United States Sentencing Guidelines.

See United States v. Booker, 125 S. Ct. 738 (2005). The trial

court then reinstated Mr. Rapanos’s original fine and probation

and the United States appealed that decision, ushering in the

13th year of this litigation. In 1994, in addition to the criminal

penalties, the government filed civil charges against

Mr. Rapanos seeking as much as $13 million in fines and

mitigation. Mr. Rapanos again objected to the government’s

application of the Clean Water Act to the remote nonnavigable

wetlands on his property, but the Sixth Circuit affirmed his

liability on the same rationale that supported the criminal case.

Mr. Rapanos filed a pending petition for writ of certiorari

with this Court and thus has a significant stake in the

determination of this case. See Rapanos v. United States,

Docket No. 04-1034.

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit, public interest law foundation of its

kind. PLF litigates in support of the rights of individuals to

make reasonable use of their private property and advocates a

balanced approach to environmental issues. PLF supports the

concept of limited government, the appropriate balance between

federal and state power, and the principle that the environment

must be protected in a manner that is consistent with other

needs of society.

PLF has participated before this Court on several

occasions involving interpretations of the jurisdictional reach of

the Clean Water Act (CWA). For example, PLF participated as

amicus curiae in SWANCC, 531 U.S. 159, and United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). PLF

attorneys also represent John A. Rapanos on his petition before

this Court which raises issues that are nearly identical to those

in this case. See Rapanos v. United States, Docket No. 04-

1034. PLF attorneys have also offered nonpartisan testimony

before Congress on the scope of federal jurisdiction under the

Clean Water Act. See Statement of M. Reed Hopper to the

House Committee on Government Reform, Subcommittee on

Energy Policy, Natural Resources and Regulatory Affairs:

Federal Authority to Require Wetlands Dumping Permits, 2002

WL 31123945 (Sept. 19, 2002). PLF’s experience in this area

will provide an additional, valuable, and informed viewpoint on

the issues presented in this case

SUMMARY OF ARGUMENT

Since this Court’s decision in SWANCC affirmed clear

limits to the term “navigable waters” under the Clean Water Act

(CWA or Act), there has been sharp disagreement about the

permissible scope of federal jurisdiction over wetlands and

other nonnavigable waters. The federal courts are in open

disagreement, having split into two basic camps: One applying

the so-called “any hydrological connection” test, approves

application of the Act to any mudflat, stream, or pond that

might, through a series of other waters, share an attenuated

connection with a traditional navigable water. See United

States v. Rapanos, 339 F.3d at 452. Other courts limit the Act

to navigable waters and nonnavigable waters that are

immediately adjacent to and inseparably bound up with

navigable waters. See Jn re Needham, 354 F.3d 340, 345 (Sth

Cir. 2003) (designating Rapanos as “unsustainable under

SWANCC’”).

This dispute results in inconsistent applications of the

CWA, depending only on the circuit court in which one’s case

is heard. Worse, property owners in circuits that have not yet

picked sides in this dispute are trapped in the untenable position

of submitting to illegal government action or risking heavy

fines and prison time to discover which rule will be adopted.

Further, the widespread confusion, inconsistency, and over-

broad application of the CWA creates serious problems for

industries that must operate in multiple circuits and damages

other vital industries such as agriculture. Finally, the circuits

adopting the “any hydrologic connection” test permit profound

federal intrusion into the quintessentially local function of land

use planning.

Despite repeated attempts, the Congress, the

Administration, and the Executive Agencies charged with

implementing the statute have failed to create a uniform rule.

This Court remains the only institution capable of resolving the

conflict and putting an end to the disorder commonplace in this

area for the past four years. This Court should grant the petition

for certiorari to resolve the conflict among the federal courts

and to provide national coherence and uniformity in the

operation of the Clean Water Act.

REASONS FOR GRANTING THE PETITION

THE CIRCUIT COURTS OF APPEALS

ARE SPLIT SHARPLY OVER THE MEANING

OF THIS COURT’S DECISION IN SWANCC

In 2001, this Court issued its decision in SWANCC,

outlining the limits of the application of the CWA. And while

all courts agree that SWANCC articulated some limits to the

reach of the CWA, the federal courts of appeals disagree

sharply over just what those limits are. In the Fifth Circuit, for

example, a discharge of a pollutant into a nonnavigable water

is subject to regulation only if the pollutant reaches a water that

is both immediately adjacent to and inseparably bound up with

a navigable water. See In re Needham, 354 F.3d at 345.

The Fourth Circuit, however, finds a violation of the CWA

if there is any discharge into a water, without a permit, that is

hydrologically connected to a truly navigable water; that is, a

person is guilty of a CWA violation for filling a wetland

adjacent to a ditch that takes a “winding, thirty-two-mile path”

through several nonnavigable, man-made watercourses even

though the fill material never leaves the original site. Deaton

v. United States, 332 F.3d at 702. The Ninth Circuit has

addressed the issue, but its rule is unclear and presently the

subject of three appeals. See Baccarat Fremont Developers,

LLC v. United States Army Corps of Engineers (9th Cir. Docket

No. 03-16586); San Francisco Baykeeper v. Cargill Salt

Division (9th Cir. Docket No. 05-15051); City of Healdsburg

v. Northern California River Watch (9th Cir. Docket

No. 04-15442). In the decision below, the Sixth Circuit staked

out the broadest position on CWA jurisdiction thus far: a

person who discharges into a hydrologically isolated wetland is

subject to the severe civil and criminal penalties of the Clean

Water Act if that wetland, though isolated, is in the general

vicinity of another water that shares an eventual hydrologic

connection to a navigable water. See Carabell v. United States

Army Corps of Engineers, 391 F.3d 704, 708 (6th Cir. 2004).

Only this Court can resolve the conflict and confusion over the

scope of the CWA. The circuits openly acknowledge, but show

no sign of resolving, their sharp disagreement. The Fifth

Circuit derided the decisions in the Fourth and Sixth Circuits as

“unsustainable under SWANCC.” Needham, 354 F.3d at 345.

The court below in this case also expressly recognized the

conflict, explaining the differences between the “minority of

courts,” which apply SWANCC broadly, and the “majority of

courts,” which limit SWANCC to its facts. See Carabell, 391

F.3d at 709.

Lower courts in other regions must choose from among

these conflicting opinions. Property owners and other potential

defendants have no way to assess the legality of their conduct,

and practicing attorneys are unable to give trustworthy advice

to their clients. See Philip J. Weiser, Justice White and Judicial

Review, 74 U. Colo. L. Rev. 1305, 1311 (2003) (explaining that

Circuit conflicts and unclear law “confuse[] lower courts and

practicing attorneys”). The bottom line is that the same federal

law means dramatically different things depending on where

one’s property is located. Filling wetlands without a permit 20

miles from a navigable water is perfectly legal in Mississippi

but results in jail time in Michigan; conduct that is free from

federal regulation in New York requires a permit in North

Carolina. But at least citizens residing in the twelve states

making up the Fourth, Fifth, and Sixth Circuits can be

reasonably sure what the rule is; whereas the 56 million

residents in the nine states and two territories of the Ninth

Circuit know only that their conduct might land them in jail.

See Creating Additional Federal Court Judgeships, 150 Cong.

Rec. H8048, H8055, 2004 WL 2237300 (Statement of Rep.

Simpson) (Oct. 5, 2004).

Litigants, regulators, and property owners in the eight

other federal circuits simply have no practical means of telling

which test will be applied to them. Risking jail time and

serious civil penalties is the only way to determine whether the

CWA will apply to one’s conduct. A property owner in

Northwest Alabama can look a few miles West to Mississippi

and the Fifth Circuit’s narrow rule or a few miles North to

Tennessee and the Sixth Circuit’s broad rule, but one must wait

for a case to make its way to the Eleventh Circuit, rely on

bureaucratic assurances, or proceed without a permit, risking

considerable fines and prison.

A recent GAO report confirms the confusion, explaining

that the Army Corps’ local districts “differ in how they interpret

and apply the federal regulations when determining what

wetlands and other waters fall within the [Clean Water Act’s]

jurisdiction.” U.S. General Accounting Office, Waters and

Wetlands: Corps of Engineers Needs to Evaluate Its District

Office Practices in Determining Jurisdiction 3 (Feb. 2004),

available at www.gao.gov/new.items/d04297.pdf (last visited

May 2, 2005) (hereinafter GAO Report). Worse than the inter-

district disagreements are the intradistrict inconsistencies: the

GAO report concludes that even Army Corps staff working in

the same office cannot agree on the scope of the CWA,

explaining that “three different district staff’ would likely make

“three different assessments” as to whether a particular water

feature was subject to the Clean Water Act. GAO Report at 22.

Observers have concluded that there is “confusion” and “no

guidance,” such that “[nJo one knows what is protected and

what isn’t.” Cindy Skrzycki, Definition of ‘Ditch’ Is Muddy at

Best, The Washington Post, Mar. 29, 2005, at El, available at

2005 WLNR 4921280. Or as one expert put it,“ ‘[tJhere is just

pandemonium out there.’” /d. (quoting Julie Sibbing, senior

program manager for wetlands policy for the National Wildlife

Federation). The property owners and others subject to the

CWA, are left to the whim of whatever government agent

reviews their project.

Even the Executive Branch recognizes that it is applying

the CWA inconsistently, but has nevertheless failed to

resolve the problem. The Army Corps and the Environmental

Protection Agency issued an “Advance Notice of Proposed

Rulemaking” to clarify the scope of federal jurisdiction under

the Act and asked for public comment on the meaning of the

SWANCC decision. 68 Fed. Reg. 1991 (Jan. 15, 2003). But

when a copy of the draft language for the future regulation was

“leaked” in November, 2003, see Bob Marshall, USFWS

Contradicts Administration's Plans, New Orleans

Times-Picayune, Dec. 7, 2003, at 16, available at 2003 WLNR

2076955, the administration withdrew the proposed rulemaking

altogether. See White House Backs Off on Wetlands Issue, Wall

St. J., Dec. 17, 2003, at B6, available at 2003 WLNR 3116291

(“Bowing to criticism from Congress and the public, the Bush

administration is backing away from a proposal that would have

weakened federal jurisdiction over some U.S. wetlands.”).

Congress held hearings on the impact of the SWANCC

decision but has never reached any conclusion or solution. See,

e.g., Statement of M. Reed Hopper, supra. Some Members of

Congress introduced several bills attempting to resolve the post-

SWANCC conflict over the scope of the Clean Water Act but

none of these has made it out of Committee. See Clean Water

Authority Restoration Act of 2005 $.912, 109th Cong. (Ist

Sess. 2005) (referred to Committee); Clean Water Authority

Restoration Act of 2003 S.473, 108th Cong. (1st Sess. 2004)

(referred to Committee); Federal Wetlands Jurisdiction Act of

2004, H.R. 4843, 108th Cong. (2d Sess. 2004) (referred to

Committee). The members introducing these bills consistently

explain that “confusion over the interpretation of the SWANCC

decision has grown,” caused in part by the “wide variety of

interpretations by EPA and Corps officials.” Statements on

Introduced Bills and Joint Resolutions, 151 Cong. Rec. $4400

(Apr. 27, 2005) (Statement of Sen. Feingold).

agencies charged with administering this statute have failed to

clarify CWA jurisdiction. The lower federal courts cannot

agree, thus leaving this Court as the only body capable of

settling the conflict and ending the confusion. See Byron R.

White, The Work of the Supreme Court: A Nuts and Bolts

Description, 54 N.Y. St. B.J. 346, 349 (1982) (explaining that

the “principal task of the [Supreme] Court is to provide some

degree of coherence and uniformity in federal law throughout

the land”).

THIS CASE PRESENTS A NATIONAL

QUESTION OF VITAL IMPORTANCE

A. The Uncertainty and Overly

Broad Application of the CWA

Harms Industry, Agriculture, Local

Government, and Ordinary People

1. Inconsistent Application of the

Clean Water Act Poses Substantial

Problems for Companies and

Industries Operating Nationwide

National industries like home building and oil production

suffer from increased regulatory costs and uncertainty in that

they are forced to conform to different readings of the same

federal law for each operation, depending on where it is located.

The oil industry, for example, produces over 7 million barrels

of oil per day from over 500,000 wells nationwide, with the

largest concentration of wells in Alaska, California, Texas,

Louisiana, Oklahoma, and Wyoming. See U.S. Department of

Energy, United States Country Analysis Brief, available at

http://www.eia.doe.gov/emeu/cabs/usa.html#oil (last visited

May 3, 2005). A company operating in each of these

jurisdictions has to apply the divergent rules for the Ninth and

Fifth Circuits, while somehow divining what the rule might be

in the Tenth Circuit.

Nationwide home builders are also forced into the difficult

position of complying with varying interpretations of the CWA

as they operate from circuit to circuit. Forcing home builders

to protect themselves by applying for permits that they may not

need drives up costs, decreases production, and delays

construction. Not surprisingly, consumers and home buyers are

the ultimate victims of this patchwork scheme. A recent study

indicates that it costs an average of more than $271,000 to

prepare an individual fill permit, while a nationwide permit

application costs nearly $30,000 to prepare. See David L.

Sunding & David Zilberman, Non-Federal and Non-Regulatory

Approaches to Wetland Conservation: A Post-SWANCC

Exploration of Conservation Alternatives at 7 (Jan. 2003), at

http://www.housingandenvironment.org/Text%20Files/Wetla

nds Final.PDF (hereinafter The Sunding Permitting Study).

These costs cover only labor costs and fees; they ignore the

more significant and inevitable costs associated with project

delay and reduction. See id. The study also reveals that it takes

an average of 788 days—two years and two months—to get an

individual 404(a) permit. Jd. at 8. These alarming delays and

extraordinary costs not only exclude all but the largest

developers from the market, but also impose millions in costs

on builders and individual home buyers. See Alvin C. Harrell,

Banking and Finance 1997: An Overview of Chartering and

Regulatory Developments, 51 Consumer Fin. L.Q. Rep. 198,

. 230 n.8 (1997) (explaining that “historic trends in business

concentration suggest that this is a normal pattern: Increased

federal regulation and enhanced regulatory enforcement

mechanisms seem inevitably to drive smaller firms out of

business and lead to increased concentration in the industry”).

2. Inconsistency and Overly Broad

Application of the Clean Water Act Costs

the Economy Billions and Negatively

Impacts Consumers and Home Buyers

The following simple and realistic example illustrates the

costs of wetland permitting. See David L. Sunding, Wetlands

Protection Beyond Section 404: Economic Aspects, SHO88

A.L.L-A.B.A. 165 (2003). Consider a 1,000-unit housing

project to be built on 200 acres, 40 of which are jurisdictional

wetlands, and assume that the pre-regulation marginal cost of

homes in the project is a constant $200,000. See id. at 167.

Suppose also that the pre-regulation price of the homes in the

project is $250,000 and that the elasticity of demand is -1.67.

See id. Suppose that the wetlands regulation results in an

out-of-pocket cost to the developer of $2,000 per home (or

$2 million in total, including mitigation), reduces the project

size by 100 units by placing 20 acres off-limits to development,

and delays completion of the project by 2 years. See id. Homes

in the project are now more expensive to construct and, worse,

there are fewer of them, so their market price will increase. See

id. at 168. Based on the assumptions above, the price of ahome

in the project will increase from $250,000 to $265,000. See id.

But the harm from the overregulation is no simple $15,000.

Consumers are harmed in that some cannot purchase homes at

all due to the reduction in the size of the project, some may

purchase homes but must pay a higher price, and the entire

project is delayed by regulation. See id. The impact of this

situation on developers and landowners is more complex:

producers might “gain” from the increase in home prices, but

they lose from the increase in costs and from the delay in

completing the project and receiving their return on investment.

See id. The total economic losses from wetland permitting is

thus in the millions per year.

As this example illustrates, consumers bear the brunt of

losses from wetland permitting. They are unambiguously

harmed by increases in price and reductions in the number of

homes available for purchase. Developers and landowners tare

better because they can pass on some costs to consumers, but

there can be no doubt that they suffer as well. Worse,

traditional measures of the cost of regulation—namely the

out-of-pocket cost of obtaining a permit and performing

mitigation—are far off the mark, dramatically understating the

true impacts. These hidden costs of regulation, including the

costs of project delay, can be worse than the costs that show up

on the balance sheet.

These burdensome costs are particularly important given

the $760 billion that construction and development activity

contribute to the economy on an annual basis. See David

Sunding & David Zilberman, The Economics of Environmental

Regulation by Licensing: An Assessment of Recent Changes to

the Wetland Permitting Process, 42 Nat. Resources J. 59, 81

(2002). The sale price of property with federally regulated

wetlands is devalued by over 10% due solely to the burdens of

dealing with the federal regulatory process. See Randall S.

Guttery, et al., Federal Wetlands Regulation: Restrictions on

the Nationwide Permit Program and the Implications for

Residential Property Owners, 37 Am. Bus. L.J. 299, 329

(2000). Significantly, this devaluation of land is also present

when a property is even /ikely to be delineated as a federally

protected wetland. See id. at 316.

3. Overly Broad Application of the Clean

Water Act Harms Farmers, Ranchers,

and Small Property Owners

As Congress has recognized, “efficient production and

marketing of agricultural products by farmers and ranchers is of

vital concern to their welfare and to the general economy of the

Nation.” 7 U.S.C. § 2301. Or as Senate Joint Resolution 163

declaring “National Agriculture Day” put it, “agriculture is the

Nation’s largest and most basic industry,” provides “more jobs

than any other single industry,” and “is vital to maintaining the

strength of our national economy.” Pub. L. No. 103-223, 108

Stat. 103 (1994).

The interpretation of the CWA adopted below wreaks

havoc on farmers and ranchers. There is little difference

between the “unnamed ditch” the court below designated a

“water of the United States,” Carabell, 391 F.3d at 705, and

the furrows and ditches common on farms and ranches across

this nation. See Webster's New International Dictionary

(William A. Nelson ed., 2d ed. 2000) (defining “furrow”).

Indeed, nonnavigable, man-made drainage ditches and drains

make up part of the hydrologic connection which the Sixth

Circuit used to justify Amicus John Rapanos’s criminal

conviction and civil liability. See United States v. Rapanos,

376 F.3d 629, 643 (6th Cir. 2004).

Under the interpretation presently adopted by the Fourth,

Sixth, and Ninth Circuits, nearly every farm and ranch is

operating in violation of the CWA and requires a costly permit.

This is no mere theoretical problem. The Army Corps requires

permits for certain agricultural plowing and for so-called

“sidecasting,” a process which involves placing excavated

materials from a ditch along the side of the ditch. See,

respectively, Borden Ranch Partnerships v. United States Army

Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), aff'd by an

equally divided Court, 537 U.S. 99 (2002) (per curiam), and

United States v. Deaton, 209 F.3d 331, 335 (4th Cir. 2000).

The Army Corps even claims jurisdiction over “{a]ctivities such

as walking, bicycling or driving a vehicle through a wetland.”

Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008,

45,020 (Aug. 25, 1993). According to the government, then,

some farmers and ranchers may not even walk across parts of

their land and ditching without a permit from the Army Corps,

risking fines and prison time if they do so.

The Corps has a track record of taking the hardest possible

line against property owners. Elderly Florida resident Ocie

Mills and his son were “sent to prison for depositing sand on

his privately-owned wetlands that the public had decided it

wanted but was unwilling to purchase.” Roger Marzulla, et al.,

Taking “Takings Rights” Seriously: A Debate on Property

Rights Legislation Before the 104th Congress, 9 Admin. L.J.

Am. U. 253, 260 (1995). They each received 21 months in jail,

one year of supervised release, and were fined. See Mills v.

United States, 36 F.3d 1052, 1055 (11th Cir. 1994). John

Pozsgai was sentenced to three years imprisonment, five years

probation, and fined $200,000 for placing clean fill in wetlands

in Eastern Pennsylvania. See United States v. Pozsgai, 757 F.

Supp. 21, 22 (E.D. Pa. 1991). Members of Congress described

the Corps’ behavior toward Mr. Pozsgai as “dictatorial” and

“Gestapo-like.” Bud Shuster & Jimmy Hayes, Big Lie on Clean

Water, Wash. Post, May 16, 1995, at Al7. There are others.

See, e.g., United States v. Wilson, 133 F 3d 251, 254 (4th Cir.

1997) (noting that James Wilson was sentenced to 21 months

in prison and $1 million in fines for filling wetlands tnat

drained to ditches, intermittent streams, and creeks).

Amicus John Rapanos is still defending himself against

the government’s unwarranted CWA charges in a criminal suit

filed in 1993 and the government's civil suit filed in 1994. This

has resulted in dozens of appeals and at least one successful

petition for certiorari. See Rapanos v. United States, 533 U.S.

913, granting, vacating, and remanding case for reconsideration

in light of SWANCC. At trial, Mr. Rapanos was “likened to the

devil and [had] his treeless property compared to the Warsaw

ghetto without Jews” while the evidence of his “guilt was far

from overwhelming.” United States v. Rapanos, 115 F.3d 367,

378 (6th Cir. 1997) (Nelson, J., dissenting). In the opinion of

the trial judge in his criminal case, the government has

obstinately pursued Mr. Rapanos because he is “easy to dislike”

and had “the temerity to insist upon his constitutional rights.”

See Sentencing Hearing, United States v. Rapanos, No. 93-

20023 (Mar. 15, 2005) at 8.2 Judge Zatkoff declared that

Mr. Rapanos is “exactly the person who should be protected by

the Constitution,” id. at 9. But the government presses on, even

claiming that Rapanos’s small discharge of sand 20 miles

distant from the nearest navigable water was worse than the

Exxon-Valdez spill, which dumped 11 million gallons of oil into

Prince William Sound. /d. at 11.

2 A true and correct copy of this document is attached hereto and

Amici respectfully requests that this Court take judicial notice of the

comments therein.

These stories are chilling but all too common. Equally

significant, the very real threat of imprisonment deters

landowners from making full use of their property and coerces

them to accept federal intrusions. See Lauren A. Lundin,

Sentencing Trends in Environmental Law: An “Informed”

Public Response, 5 Fordham Envtl. L.J. 43, 64 (1993)

(describing the well-known deterrent effect of jail time for

environmental “crimes” on otherwise law-abiding citizens).

Few individuals are willing to risk bankruptcy and prison while

spending millions of dollars on legal fees and being demonized

by federal prosecutors. Property owners, having observed the

fate of defendants like John Rapanos, Ocie Mills, and John

Pozsgai, make the rational but rueful choice to submit to illegal

demands from administrative agencies.

B. The Uncertainty and Overly Broad

Application of the Clean Water Act Harms

Local Governments and Invades Traditional

Local Power over Land Use Planning

Home buyers, energy producers, and agricultural interests

are not alone in suffering harm from the oppressive yoke of the

CWA. Local governments, are also subject to the CWA’s

severe penalties. See Clean Water Act Penalty Appeals,

available at http://www.epa.gov/eab/eabcwp.htm (last visited

May 3, 2005) (showing local government as frequent

defendants in CWA enforcement actions). The further the

CWA is extended, regulatory burdens, costs, and delays will

be added to important public works projects. EPA’s heavy

handed activities have “created problems of federal/state/local

relationships because state and local governments have not

always taken kindly to federal directions.” Frank P. Grad,

Opening Note, 25 Colum. J. Envtl. L. 213, 216 (2000).

This kind of federal control over local land use decisions

marks a serious intrusion into a traditional area of state concern.

See SWANCC, 531 U.S. at 174 (recognizing the “States’

traditional and primary power over land and water use”); see

also 33 U.S.C. § 1251(b) (“It is the policy of the Congress to

recognize, preserve, and protect the primary responsibilities and

rights of States . . . to plan the development and use . . . of land

and water... .”); J. Blanding Holman, IV, After United States

v. Lopez: Can the Clean Water Act and the Endangered

Species Act Survive Commerce Clause Attack?, 15 Va. Envtl.

L.J. 139, 140 (1995) (noting that the CWA involves “land use

regulation, an area traditionally of local concern”). Indeed,

land use is widely recognized as “perhaps the quintessential

local responsibility.” Nicole Stelle Garnett, On Castles and

Commerce: Zoning Law and the Home-Business Dilemma, 42

Wm. & Mary L. Rev. 1191, 1205 (2001).

State and local planners must balance a wide variety of

objectives when evaluating land use decisions in order to fulfill

their general goal of “enhanc[ing] the livability and character of

urban areas through the encouragement of an attractive and

functional mix of living, working, shopping, and recreational

activities.” Fla. Stat. Ann. § 187.201(15)(b)(3) (West 2005).

The state must account for myriad “social, political and legal

obstacles confronting the intent of private landowners, state

governments, and federal regulatory agencies” in the land-use

process. Eric M. Bryn, Through a BioDiversity Looking-Glass:

An Analysis of the Devils Lake Basin Water Management Plan,

1 Great Plains Nat. Resources J. 65, 81 (1996). Amicus

John Rapanos’s State of Michigan has identified more than

twenty objectives for land use planning. See Michigan's

Land, Michigan's Future, at http://www.michiganlanduse.org/

finalbysection.htm (last visited May 3, 2003). Through local

control, communities may develop “broad goals at the state

level,” which “shaped locally, can result in a workable legal

regime” balancing societal needs with sustainable development.

a en

David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev.

2255, 2366 n.457 (2003).

Displacing state authority with a burdensome federal

regulatory scheme under the Clean Water Act distorts this

process. It removes the state’s ability to balance these complex

goals and replaces it with a powerful, single-minded federal

statute, backed up by the force of severe penalties. Amicus

John Rapanos is facing 10-16 months in a federal penitentiary

for filling wetlands on his private property with sand, a practice

which was, for many years, encouraged as good public policy.

See James S. Burling, Private Property Rights and the

Environment After Palazzolo, 30 B.C. Envtl. Aff. L. Rev. 1, 37

(2002). Further, Mr. Rapanos was tried solely for depositing

sand in the wetlands without a federal permit, not from any

resulting environmental damage or impairment of navigable

waters. See United States v. Rapanos, 190 F. Supp. 2d at 1012.

Indeed, Mr. Rapanos’s wetlands are some 20 miles from the

nearest navigable waterway and the only basis for federal

jurisdiction is a remote surface hydrologic connection. See id.

at 1014. But the wetlands on the Carabell property are not even

hydrologically connected to navigable waters; they are merely

in the general vicinity of a ditch that is connected to a distant

navigable water by a series of intermittent ditches, culverts, and

streams, the majority of which are man-made. Carabell, 391

F.3d at 708-09 (describing the connection between a nearby

ditch and, eventually, a navigable water, but finding no

connection between the Carabells’ wetland and the ditch). This

is untenable in a federal system in which the state governments

are meant to be equal. See, e.g., M’Culloch v. Maryland, 17

U.S. (4 Wheat.) 316, 350-51 (1819).

The intensity of the interference with traditional local

powers is matched only by its breadth. Interpreting the phrase

“waters of the United States” in the Clean Water Act to include

any water in the general area of a ditch with an eventual

hydrologic connection to a navigable water greatly expands

federal jurisdiction and displaces state authority in one of its

primary areas of responsibility. While it is unclear just how

many millions of acres of wetlands exist in the United States,

the number is enormous. By some estimates, there are as many

as three hundred million acres of wetlands over which the

Corps exercises jurisdiction. See Christopher J. Schulte,

Minnesota Wetland Conservation Act of 1991: “Did Minnesota

Miss the Boat to Protect Artificially Created Wetlands?,” 15

Hamline L. Rev. 439, 444 (1992) (explaining that, under the

Federal Wetlands Manual operational before SWANCC, “the

jurisdictional reach of the federal government has been

estimated to have increased from the previous 105 million acres

to between 200 and 300 million acres”). In Minnesota, 20% of

the state is made up of wetlands. The Sunding Permitting Study

at 11. Alaska has an estimated 170 million acres of wetlands

while Florida, Louisiana, Texas, North Carolina, Michigan,

Wisconsin, and Maine contain over 5 million acres of wetlands

each. See Royal C. Gardner, Money for Nothing? The Rise of

Wetland Fee Mitigation, 19 Va. Envtl. L.J. 1, 19 n.99 (2000).

CONCLUSION

This case raises questions of vital importance to all sectors

of society: industry, agriculture, environmentalists, property

owners, and consumers. The confusion and uncertainty

surrounding the permissible reach of the Clean Water Act is bad

for everyone, but neither Congress, the Administration, nor

the agencies charged with executing this statute can resolve

the problem. Because the circuit courts are locked in an

irreconcilable conflict, only this Court is capable of putting an

end to the disorder. There are currently two petitions for writ

of certiorari pending before this Court that address the limits of

federal jurisdiction under the Clean Water Act: This case, and

Rapanos v. United States (Docket No. 04-1034). And while

there are several cases raising the same issue in the lower

courts, further distillation of the issues will not aid this Court in

resolving these conflicts but will only create more problems.

These cases raise an important question of law which only this

Court can resolve, and it should resolve it now.

DATED: May, 2005.

Respectfully submitted,

GREGORY T. BRODERICK M. REED HOPPER

Of Counsel Counsel of Record

Pacific Legal Foundation ROBW L. RIVETT

3900 Lennane Drive, Suite 200 Pacific Legal Foundation

Sacramento, California 95834 3900 Lennane Drive, Suite 200

Telephone: (916) 419-7111 Sacramento, California 95834

Facsimile: (916) 419-7747 Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amici Curiae John A. Rapanos

and Pacific Legal Foundation

I I A le

Attachment - 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, HONORABLE

LAWRENCE P.

v. ZATKOFF

JOHN RAPANOS, No. 93-20023

Defendant.

SENTENCING HEARING

Tuesday, March 15, 2005

Peregord, Jennifer Thomas Wilhelm

U.S. Attorney’s Office 2636 Dixie Highway

211 W. Fort Street, Suite 2300 Waterford, MI 48328

Detroit, Michigan 48226 (248)618-7280

(313) 226-9100

Attorney for Plaintiff Attorney for Defendant

LAWRENCE R. PRZYBYSZ, RMR, MA

Official Court Reporter

Theodore Levin United States Courthouse

231 West Lafayette Boulevard, Room 731

Detroit, Michigan 48226

(313) 414-4460

Proceedings recorded by mechanical stenography.

Transcript produced by computer-aided transcription.

Sentencing Hearing

Attachment - 3

Detroit, Michigan

Tuesday, March 15, 2005

2:00 p.m.

THE COURT CLERK: Calling case number

93-20023, United States versus John Rapanos.

THE COURT: Somebody want to put their

appearances on the record?

MS. PEREGORD: Jennifer Pereford on behalf of the

United States.

MR. WILHELM: Thomas Wilhelm appearing on

behalf of and with Mr. Rapanos.

THE COURT: Who else do we have at counsel table?

It looks like we have all of the big guns here.

MR. BERG: Terrance Berg, your Honor, on behalf of

the United States.

MS. PARKER: Janet Parker also on behalf of the

United States, your Honor.

THE COURT: Okay. How do you wish to proceed in

this matter?

MS. PEREGORD: Well, I guess I’m willing to go

first, your Honor. I just have a couple brief remarks to make.

I am assuming that the Court received our post-Booker

Resentencing Memorandum last Friday. We also faxed a copy

of that to defense counsel and he has confirmed that he has

received that.

THE COURT: I received it and reviewed it.

MS. PEREGORD: Okay. As the Court is aware, and

I am just going to be briefly recapping what we said in our three

Attachment - 4

resentencing pleadings that we have filed since remand, it’s the

government's position that the defendant must be sentenced to

a sentence within the ten to sixteen month range.

The Court of Appeals has twice affirmed the propriety

of a sentence within that range. And the only two enhancements

that were applied to the base offense level in this case were the

lack of a permit, and as the Court knows, that was subsumed

within the jury’s verdict in this case, and also the fact that the

wetlands filling was ongoing, an ongoing and repetitive

discharge and the defendant has admitted to having done that.

THE COURT: Where did he admit that?

MS. PEREGORD: At the defendant’s sentencing,

initial sentencing in 1998, this is at page five of my

Resentencing Memorandum which was the first pleading we

filed on August 13th, at the initial sentencing of 1998 your

Honor ordered a fine $185,000 stating, I'm basing that on

$5,000 a day based on what was originally agreed on, agreed

upon and represented to the Court by the defense that there

were 37 days of filling of the actual wetlands. And that is at the

sentencing transcript of December 2, 1998 at page 30.

THE COURT: Okay.

MS. PEREGORD: So based on the fact that there are

no guidelines factors in this case that were not either found by

the jury beyond a reasonable doubt or admitted by the

defendant, we submit that even under the advisory system

which is in place now post-Booker that a ten to sixteen month

sentence would definitely be the reasonable sentence to impose

in this case.

Thank you, your Honor.

THE COURT: Okay. Mr. Wilhelm?

MR. WILHELM: Your Honor, I disagree that the

sentence of ten to sixteen months would be reasonable in this

Attachment - 5

matter. I do not believe that the Court at this time post-Booker

is bound by—to follow the remand order of the Sixth Circuit

Court of Appeals.

And I say that because at that point in time when they

did issue the mandate or remand to this court, the guidelines

were at that point thought to be mandatory and even that Court

thought that they had to follow the guidelines.

Now the guidelines are only advisory, as Ms. Peregord

pointed out, and they are no longer bound by the guidelines but

must consider the guidelines with other special factors which I

believe the Court, number one, is well aware of, and, number

two, has already at some point in time considered them.

The prosecutor, in her memorandum, most recent

memorandum, says that a sentence within the guideline range

is not unreasonable. It is unreasonable and I believe that is what

the Supreme Court, the conclusion of Supreme Court also came

to when it decided Booker. It’s unreasonable because it does

not consider the other factors that the Court should consider in

its sentencing the defendant. And those factors amount to the

history and characteristics of the defendant himself.

And I believe, your Honor, that this is the time to put

this case behind the Court, behind Mr. Rapanos, and sentence

him to, actually, to time served or, and/or some other sentence

that recognizes those characteristics of Mr. Rapanos.

Does the Court wish me to continue talking about the

sentence that the Court should impose or what I believe the

Court should impose?

THE COURT: Not really. I will give you an

opportunity to address the Court later.

MR. WILHELM: Thank you, your Honor.

THE COURT: Mr. Rapanos, you have a right to speak

in your own behalf. Is there anything you want to say?

Attachment - 6

THE DEFENDANT: Your Honor, | don’t believe

there were any wetlands on that property back then or even

today. And in the courtroom today is Mr. Russ Harding who is

the DEQ Director for the State of Michigan for over eight years

and I wish you would hear from him, your Honor.

THE COURT: Mr. Wilhelm, what is that all about?

MR. WILHELM: Well, Mr. Harding has done a study,

another study of the wetlands or purported wetlands on

Mr. Rapanos’s property and he has concluded based upon his

expertise that there were no wetlands on that property.

THE COURT: Weare not going to retry the facts.

WILHELM: That’s what I thought. I understand that,

your Honor.

THE COURT: Let me just make a statement and tell

you where the Court is coming from in this case and I will give

both parties an opportunity to again address the Court.

This is the oldest case in my chambers. It’s the most

voluminous, and we are anxious to close this case.

This case is referred to within my chambers by

everybody as the “Sand Man Case” Everybody that talks about

the sandman knows that we are talking about Mr. Rapanos

because what he did was to move sand from one end of his

property to the other end of his property. This all occurred on

property he owned. Nothing was brought in to fill this land

except sand that was already on that land.

Counsel for the government has pointed out in both her

memo and just now in court that this Court has been reversed

twice on this sentence, and that is true. And it seems to imply

that I am a very light or lenient person in sentencing in criminal

matters.

Attachment - 7

Well, rumor has it when I first got on this bench after

the first two years that I held the record for high sentences in

the Eastern District of Michigan, and that was probably true.

And last week I just refused to accept a Plea Bargain

Agreement entered into between the government and a

defendant because, in my opinion, the sentence was too lenient.

So I’m not sure the US Attorney’s Office can make that case.

In this case, I granted a motion for a new trial. I have

been a Judge for 27 years. And I granted a motion for a new

trial approximately five times. And I can’t remember ever

granting one in a criminal case. So this case was very, very rare

to me.

Based on the totality of all of the circumstances | did not

believe that a fair trial was had in this case. I could have

granted a mistrial several times during the case but I was loathe

to do that as any trial Judge is because of all of the money and

the preparation that goes into something like this, you want to

wait and see how the case turns out and if it turns out that this

was harmless error then there is no need to retry the case.

In this case, out of one out of five or maybe even less,

I did believe that a mistrial and a new trial should be granted in

this case. And, of course, that went up to the Court of Appeals

and I was reversed again.

So you have to ask the question, what is going on in this

case? Why is the government insisting that this particular

defendant go to prison? I’m not really sure but I will give you

my opinion on it.

First of all, my relationship with the US Attorney’s

Office in the Eastern District of Michigan has been excellent.

You could consider me to be a cheerleader for the US

Attorney’s Office in the Eastern District of Michigan. I was the

Chief Judge for five and a half years and I was the contact point

Attachment - 8

between the US Attorney’s Office and this bench. And I’ve

also enjoyed a very good relationship.

Being a member of the Judicial Conference of the

United States and attending Chief Judges meetings around the

United States I always spoken very highly of the US Attorney’s

Office in the Eastern District of Michigan.

As a matter of fact, as the Chief Judge, I instituted a

program of publicly swearing in new assistant United States

Attorneys so as to make that experience a big deal for them and

their families which I believe it is. And I am hoping that the

new Chief Judge will continue to do that.

As a general rule I found this Office to be reasonable,

responsible, open and cooperative. There are exceptions to

every rule and I am finding that this case is an exception.

So, what is going on in this case? And this is just my

opinion. I’m asking myself and people are asking me, why is

the government so determined to send this defendant to prison

for moving his sand?

Number one—I think it’s a two-prong thing—number

one, this defendant is a very disagreeable person. He is rude.

He is arrogant. He is obscene on occasion. He wants

everything his way. He has been successful in his life and he

wants everybody to know it. So he is a man who is easy to

dislike.

Number two, this person who is easy to dislike had the

audacity and the temerity to insist upon his constitutional rights.

This all started for this individual, this legal business all started

on or about August 30th, 1989, when the defendant insisted

upon a search warrant before he would let anybody on his

property. Prior to that date, he had been meeting with the DNR

on several occasions and they were trying to work out an

inspection of the property. My understanding is on that date, on

August 30th, there was a meeting at his property and he had his

Attachment - 9

attorney present. And there was a confrontation between he and

the DNR people. The DNR people had one view of what they

wanted to do. He had another view of what he wanted te do.

He turned to his lawyer and asked whether or not he had to

permit the DNR to go on his property. And the lawyer said you

don’t have to permit them unless they have a search warrant and

then he said, I’m not going to permit you unless you have a

search warrant. That’s when all of this started. Turned it over

to the federal government, the state government.

Incidentally, the state government had prior trespasses

on the defendant’s property once and at least twice.

So here we have, and this is my view of what is going

on, we have a very disagreeable person who insists on his

constitutional rights. And this is the kind of person that the

Constitution was passed to protect. He is exactly the person

who should be protected by the Constitution.

People ask, well, what did this person dump to pollute

the waters of the United States? Did he dump oil, radioactive

substances, sewage, garbage, herbicides, pesticides,

insecticides, fungicides, fertilizer, detergent, lead, iron, copper,

mercury, benzene, dioxin, PCB’s, PCP’s, bacteria, DDT,

chlordane, nitrates or cyanide? No. He didn’t dump that. He

polluted the waters of the United States by moving sand from

one area of his property to the other.

So then they ask, well, did he dump it into the Great

Lakes? No. Did he dump it into any lake? No. Did he dump

it into a river? No. Did he dump it into a stream? No. Did he

dump it into a pond? No. Did he dump it into waters adjacent

to any of the inhabitable waters of the United States? And the

answer to that is, no.

I am finding that the average US citizen is incredu! ous

that it can be a crime for which the government demands pr'son

for a person to move dirt or sand from one end of their property

Attachment - 10

to the other end of their property and not impact the public in

any way whatsoever.

I read the goverm.ient’s recent Memo under date of

3-11-05. The memo, when it states that the elements of the

enhancement were proved beyond a reasonable doubt to the jury

or were admitted by the defendant, I do not find to be true. I

don’t find that to be credible. I know we have a difference of

opinion on that benefit of the record in front of me. I might be

wrong, but I don’t think I am.

The memo speaks to increased uniformity. I agree with

that. It talks about unwarranted disparities. And I agree with

that. It talks about the seriousness of the offense and just

punishment for that offense.

The government does not talk about the substance that

was dumped, that is, sand versus toxic waste, doesn’t talk about

harm to the public, doesn’t talk about disruption of public

utilities, doesn’t talk about evacuation a community, or doesn’t

talk about public money for clean up.

And, in my opinion, the government has failed to

address similar conduct in sentencing consequences.

We have done some research about what happens to

people who are accused and convicted of environmental crimes.

In Michigan, environmental defendants have rarely been

sentenced to prison for their environmental crimes. Aldo

Quadrini and Gaspere Vitale were sentenced to one year

probation and ordered to pay $5,000 in fines and to fully restore

wetlands. The two Macomb County developers were

prosecuted by the Michigan Department of Environmental

Quality after they clear-cut, plowed and destroyed eight acres of

forested wetlands in New Baltimore, Michigan. The violations

occurred between 1995 and 1999. And despite repeated

warnings the defendants continued cutting and chipping trees,

Attachment - 11

removing stumps and bulldozing the site. So they received one

year probation and a $5,000 fine.

In another interesting case involving corporate

environmental pollution, the Department of Justice prosecuted

BP Oil Company for discharging pollutants into the Delaware

River in violation of the Clean Water Act. Over a six year

period, BP discharged a variety of pollutants, includiug oil and

grease. These pollutants depleted the oxygen supply in the

water, making it impossible for fish to survive and reproduce.

In addition, hydrocarbons present in the pollution have the

potential to become concentrated in the fish. BP’s violations

represented a major contribution to the pollution of the river.

In addition, they were committed knowingly over a period of

years. Nonetheless, the Department of Justice only prosecuted

BP Oil civilly. There were no criminal charges brought against

them at all. Ultimately, BP Oil was fined and merely told to

clean up their facility.

Perhaps the most notorious American environmental

disaster of 20th Century was the Exxon Valdez oil spill of 1989

which is the same year that the defendant moved his sand.

When the Exxon Valdez struck Bligh Reef in Alaska’s Prince

William Sound, it dumped 10.8 million gallons of crude oil in

the water and created a huge oil slick killing tens of thousand of

animals. That oil slick reached 1,300 miles of coastland and

killed approximately 250,000 birds, 2,800 sea otters, 300 seals,

and 250 bald eagles. In addition, the disaster crippled the local

fishing industry.

Joseph Hazelwood was the captain of the Exxon

Valdez. It was later determined that Captain Hazelwood was

drunk on the night of the spill and that his negligence caused

the accident. Captain Hazelwood was prosecuted and convicted

of negligence in this matter. He was sentenced to serve 1,000

hours of community service over five years with no prison time

or no fine.

Attachment - 12

So, do either counsel -- in addition to that, I have

prepared a written Opinion that covers much of what I have

stated. But I will give an opportunity at this time for either

counsel to address the Court if they wish.

MS. PEREGORD: Just very briefly, your Honor. It is

the government's position that the likeability or lack thereof of

the defendant had absolutely nothing to do with this

prosecution. Moreover, sand is more toxic and destructive to

wetlands than any of the substances the Court mentioned.

THE COURT: Even the 10.8 million gallons of crude

oil dumped in the waters off Alaska?

MS. PEREGORD: That is because sand totally

destroys wetlands, and once wetlands are destroyed their

ability to filter pollutants from reaching the water and their

ability to prevent and control flooding is totally obliterated.

Mr. Rapanos—

THE COURT: So let me just ask you this question.

MS. PEREGORD: Sure.

THE COURT: Where are my notes? Would it be

better for him to have filled these lands with copper or lead or

mercury or benzine?

MS. PEREGORD: Frankly, if the wetlands had been

in existence they would have had a pretty high ability,

especially at the rate of approximately 60 acres that he had on

his property, to filter such toxic substances from ever reaching

the water. The lack of the wetlands totally prevents such a

thing.

THE COURT: I appreciate your comments. Go ahead.

MS. PEREGORD: Thank you. Mr. Rapanos was

prosecuted because he refused repeatedly to apply for a permit.

That is all he was asked to do. He was told by employees from

Attachment - 13

the MDNR that it was likely that he could still build the

commercial shopping project that he intended to build if he

would submit a permit and work around some likely fairly

minor restrictions with regard to driveways and access to the

property and where the commercial structure was located.

He initially agreed to apply for a permit and then after

his consultant came back with a figure of 50 to 60 acres, he

threatened to ruin and otherwise destroy his consultant if he did

not get rid of every one of his records showing he had done

work on the Salzburg Road property.

Mr. Rapanos lied to the EPA in writing when he said

that no agency had ever found that there were wetlands on that

property when he well knew that at that point the DNR had

been out there, they had executed the search warrant, they had

found a minimum of 29 acres and they had continued to attempt

to get his compliance with ceasing to fill the wetlands and

simply applying for a permit.

He was prosecuted because he refused to obey the law,

your Honor. Plain and simple. Thank you.

THE COURT: Does the defense wish to place

anything on the record?

MR. WILHELM: Your Honor, | will be very brief.

The Court is aware at the initial sentencing in 1998, the Court

sentenced Mr. Rapanos to a three year period of probation,

fined him $185,000 and required that he do 200 hours of

community service work.

Mr. Rapanos successfully completed his probationary

sentence, and completed his—paid his fine and did his

community service work a number of years ago. That all

became resolved.

We would ask the Court to take in the factors the Court

can consider now. We ask the Court to sentence him to time

Attachment - 14

served. And I think that would be a just resolution of this

matter, your Honor.

THE COURT: Okay. As I indicated earlier, we have

prepared a written Opinion. I have not signed it yet because I

wanted to hear what counsel had to say. There may be a few

minor adjustments. I anticipate that we will have that written

Opinion and Order within a half hour or so.

But the sentence of this Court is going to be that the

defendant be placed on probation for a period of three years.

He is to perform 200 hours of community service, a fine of

$185,000, special assessment of $100, all of which I understand

has been satisfied. As far as I am concerned, this case is closed.

If counsel wish to wait around for the Opinion, as |

indicated, it will be ready probably in thirty minutes.

Is there anything further either counsel wish to place on

the record in this matter?

MS. PEREGORD: No, your Honor.

MR. WILHELM: No, your Honor.

THE COURT: Thank you.

——"

Attachment - 15

CERTIFICATION

1, Lawrence R. Przybysz, official court reporter for the

United States District Court, Eastern District of Michigan,

Southern Division, appointed pursuant to the provisions of

Title 28, United States Code, Section 753, do hereby certify

that the foregoing is a correct transcript of the proceedings in

the above-entitled cause on the date hereinbefore set forth.

I do furthe> certify that the foregoing transcript has been

prepared by me or under my direction.

(s/Lawrence R. Przybysz 3-18-05

Lawrence R. Przybysz Date

Official Court Reporter

IN THE

Supreme Court of the United States

JUNE CARABELL; KEITH CARABELL;

HARVEY GORDENKER; FRANCES GORDENKER,

PETITIONERS

UNITED STATES ARMY CORPS OF ENGINEERS;

UNITED STATES ENVIRONMENTAL AGENCY

ON A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

JOINT APPENDIX

PAUL D. CLEMENT TIMOTHY A. STOEPKER

Counsel of Record Counsel of Record

KELLY A. JOHNSON DENNIS W. ARCHER

GREER 8S. GOLDMAN PAUL R. BERNARD

TODD S. KIM DICKINSON WRIGHT PLLC

Department of Justice 500 Woodward Avenue

950 Pennsylvania Ave N.W. Suite 4000

Washington, D.C. 20530 Detroit, MI 48226-3425

(202) 514-2217 Telephone: (313) 223-3500

Attorneys for Petitioners

PETITION FOR WRIT FILED APRIL 11, 2005

CERTIORARI GRANTED OCTOBER 11, 2005

TABLE OF CONTENTS

Page(s)

District Court Docket Entries .............ccccccccccccccsssscoscccsccosees la

Circuit Court Docket Emtries..............ccccccccccecsesscsseseeseseees 13a

Michigan Department of Environmental Quality

Sr 23a

Michigan Department of Environmental Quality

Final Determination and O7der ..............:cc0ccceceeeeeceesenees 50a

Comments of the Lake St. Clair Advisory

III ts vistecaciinathsshasiiciccnasciatinihedesinhi ct ctdlininat diaibeipsaicngihudatantedlh 60a

Comments of the U.S. Environmental Protection

FE cacntdcnciiiatsininaiscntialinicaamintiatiabiteiaintdiltad te) ccd ninditsiintmatiininm 62a

Comments of the U.S. Fish and Wildlife Service.............. 65a

Comments of the Macomb County Persecutor’s

Office, Water Quality Unpit............ccccereerecerrecsserseeneenees 78a

I i iccnittininentepisinieiitaninitnpssnanabiiiceks a... la

United States Army Corps of Engineers, Permit

I iciittsentsidien tie Lnnbinieciacanichbucrickdnendbbicematinmesnidagaos 84a

Letter announcing permit denial .............0....00cecceseveeeeeee 127a

Notification of administrative appeal options

and process and request for appedl...................0cceeceeeeceee 130a

Army Corps of Engineers memorandum for

a itcictititincliisiadscrisshinindidiplaint aaah ti cla ii elisa 13la

Page(s)

Baines WOO a saiasnnccitiattcennssienipianinentanntnovinncccnvarenabiats 198a

Memorandum for administrative appeal

CIO IID oacicsienivisansinenitiicncinnbbaisitipintiinianibninnticennenstaneietiae 202a

United States Army Corps of Engineers,

Administrative Appeal Decision. ............ccccsseseeeeeseseeeees 210a

US. District Court

Eastern District of Michigan (Detroit)

CIVIL DOCKET FOR CASE #: 2:01-cv-72797-PDB-

Carabell, et al v. U S Army Date Filed:

Corps Eng, et al 07/26/2001

Assigned to: Judge Paul D Jury Demand:

Borman Plaintiff

Referred to: Honorable Wallace Nature of Suit: 893

Capel Environmental

Demand: $0 Matters

Jurisdiction: U.S.

Government

Defendant

Plaintiff

June Carabell

represented by

Jennifer P. Fitzgibbons

Dickinson Wright

500 Woodward Avenue

Suite 4000

Detroit, MI 48226-3425

313-223-3500

Fax: 313-223-3500

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Paul R. Bernard

Dickinson Wright

500 Woodward Avenue

Suite 4000

Detroit, MI 48226-3425

313-223-3500

Fax: 313-223-3117

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Peter H. Webster

Dickinson Wright

500 Woodward Avenue

Suite 4000

Detroit, MI 48226-3425

313-223-3500

Email: pwebster@dickinsonwright.com

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Timothy A. Stoepker

Dickinson Wright

500 Woodward Avenue

Suite 4000

Detroit, MI 48226-3425

313-223-3500

Fax: 313-223-3500

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Plaintiff

Keith Carabell

represented by

Jennifer P. Fitzgibbons

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Paul R. Bernard

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Peter H. Webster

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Timothy A. Stoepker

(See above for address)

LEAD ATTOKNEY

ATTORNEY TO BE NOTICED

Plaintiff

Harvey Gordenker

represented by

Jennifer P. Fitzgibbons

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Paul R. Bernard

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Peter H. Webster

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Timothy A. Stoepker

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Plaintiff

Frances Gordenker

represented by

Jennifer P. Fitzgibbons

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Paul R. Bernard

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

. Peter H. Webster

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Timothy A. Stoepker

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Defendant

United States Army Corps of Engineers

represented by

Geneva S. Halliday

U.S. Attorney's Office (Detroit)

211 W. Fort Street

Suite 2001

Detroit, MI 48226

313-226-9100

Fax: 313-226-9778

Email: geneva.halliday@usdoj.gov

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Laurel A. Bedig

U.S. Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, DC 20026-3986

202-514-4198

Fax: 202-514-4198

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Defendant

Environmental Protection Agency

represented by

Geneva S. Halliday

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Laurel A. Bedig

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Date Filed 8

07/26/2001

07/31/2001

08/17/2001

10/01/2001

10/11/2001

11/15/2001

Docket Text

COMPLAINT with attachment 1

jury demand - Receipt # 32551 -

Date Fee Received: 07/26/01 (dh)

(Entered: 07/27/2001)

ORDER reassigning case from

Judge George C. Steeh to Judge

Paul D. Borman - Reason:

disqualification of Judge (RH)

(Entered: 08/01/2001)

PROOF of mailing of complaint

(ew) (Entered: 08/20/2001)

ANSWER by Environ

Protection, U S Army Corps

Eng to complaint [1-1] with proof

of mailing (ew) (Entered:

10/03/2001)

ORDER by Judge Paul D.

Borman, setting deadline for

witness list for 2/11/02 , setting

deadline for discovery for 3/11/02

, setting deadline for filing

dispositive motions for 4/11/02 ,

setting deadline for mediation

referral (if the parties stipulate)

for 3/11/02 ; with proof of mailing

[EOD Date 10/12/01] (kb)

(Entered: 10/12/2001)

PROOF of mailing of summons

and complaint (ew) (Entered:

12/28/2001

04/01/2002

04/11/2002

11/16/2001)

ORDER by Judge Paul D.

Borman with stipulation of

partial dismissal of count II,

count IV, count VI, count VIII

and count IX of plaintiff's

complaint [EOD Date: 1/2/02) (Ih)

(Entered: 01/02/2002)

ORDER by Judge Paul D.

Borman with stipulation

recinding scheduling order and

establishing summary judgment

briefing schedule: deadline for

plaintiff's summary judgment

motion for 4/12/02 , deadline for

cross motion for 5/28/02 , setting

deadline for response to

summary judgment motion

6/18/02; defendants' reply due

7/9/02 [EOD Date: 4/2/02] (RH)

(Entered: 04/02/2002)

ADMINISTRATIVE record -

Volume 1, Documents 1-33 (lh)

(Entered: 04/11/2002)

ADMINISTRATIVE record -

Volume I, Documents 34-68 (Ih)

(Entered: 04/11/2002)

ADMINISTRATIVE record -

Volume I, Documents 69-990 (Ih)

(Entered: 04/11/2002)

04/11/2002

04/12/2002

04/16/2002

05/31/2002

07/09/2002

ADMINISTRATIVE record -

Volume 2, Documents 1-24 (Ih)

(Entered: 04/11/2002)

ADMINISTRATIVE record -

Volume 3, Documents 1-21 (Ih)

(Entered: 04/11/2002)

MOTION by plaintiff for

summary judgment with brief,

notice of hearing, and proof of

mailing. (PP) (Entered:

04/15/2002)

ORDER by Judge Paul D.

Borman, referring all pretrial

proceedings to Magistrate Judge

Wallace Capel Jr. [EOD Date

4/18/02] (ew) (Entered:

04/18/2002)

MOTION by defendants US

Army Corps Eng and Environ

Protection for summary

judgment with brief and proof of

service (lh) (Entered: 06/03/2002)

REPLY by plaintiffs to response

to motion for-summary judgment

by June Carabell, Keith

Carabell, Harvey Gordenker,

Frances Gordenker [14-1] with

proof of service (kb) (Entered:

06/24/2002)

ORDER by Judge Paul D.

07/26/2002

09/19/2002

Borman with stipulation, extend

time to 7/25/02 for defendants’

reply brief |EOD Date: 7/12/02]

(RH) (Entered: 07/12/2002)

REPLY memorandum by

Enviror Protection, U S Army

Corps Eng to response to motion

for summary judgment by

Environ Protection, U S Army

Corps Eng [16-1] with proof of

service (dh) (Entered:

07/29/2002)

NOTICE of setting hearing on

motion for summary judgment

by US Army Corps Eng,

Environ Protection [16-1] and

motion for summary judgment

by Frances Gordenker, Harvey

Gordenker, Keith Carabell, June

Carabell [14-1] for 10:00 9/19/02

(cm) (Entered: 09/03/2002) ,

MOTION hearing held on motion

for summary judgment by US

Army Corps Eng, Environ

Protection | 16-1], motion for

summary judgment by Frances

Gordenker, Harvey Gordenker,

Keith Carabell, June Carabell

[14-1] - disposition: UNDER

ADVISEMENT - Magistrate

Judge Wallace Capel Jr. - Court

Reporter: cv tapes 02-29,30,31

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.