# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 932

## Text

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,
We

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.

5

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

i
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
I.

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
1.

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 ....

12

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

iV

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

vi

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

ix

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

®

l

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.

2

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.

3

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

4

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
I

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.

5

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,

6

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

7

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”).

9

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

10

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.

1]

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

12

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

13

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

14

“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.

15

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).

16

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

17

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

18

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.

19

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

v.

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

CURRY & TAYLOR @ WASH ©.C. @ (202) 223-3160 ¢ USSCINF O.COM

PETITION FOR WRIT FILED APRIL 11, 2005
CERTIORARI GRANTED OCTOBER 11, 2005

i

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

la

US. District Court
Eastern District of Michigan (Detroit)
CIVIL DOCKET FOR CASE #: 2:01-cv-72797-PDB-

WC
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
V.

Defendant

United States Army Corps of Engineers

represented by

5a

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

6

6a
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

04/11/2002

04/11/2002

10

11

7a
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

04/11/2002

04/12/2002

04/16/2002

05/31/2002

07/09/2002

12

13

8a

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

9a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A06. Public record. Not legal advice.