Amicus Curiae Brief — U.S. Army Corp of Eng'rs v. Hawkes Co., 136 S. Ct. 615 (2015) (No. 15-290)

Supreme Cou, US

FILED

oe MAR 2- 2016

OFFICE OF THE CLERK

Iu the Supreme Court of the Anited States

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner,

v.

HAWKES Co., INC., et al.

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR

CALIFORNIA FARM BUREAU FEDERATION,

CALIFORNIA CATTLEMEN'S ASSOCIATION,

CALIFORNIA BUILDING INDUSTRY ASSOCIATION,

BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION, &

CALIFORNIA BUSINESS PROPERTIES ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

PETER PROWS

Counsel of Record

BRISCOE IVESTER & BAZEI. LLP

155 Sansome Strect

Seventh Floor

San Francisco, CA 94104

(415) 402-2700

pprows@briscoelaw.net

March 2016

TABLE OF CONTENTS

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INTRODUCTION AND

SUMMARY OF ARGUMENT .....0... occ cceeseeeeeeeeeteeees 4

PEEVE cecceseeresiecesnmnseneenessennstaneaeinainiananian 5

TO MITIGATE THE POTENTIAL UNCONSTITUTIONAL

VAGUENESS OF THE CLEAN WATER ACT AND ITS

REGULATIONS, ‘FINAL AGENCY ACTION’ UNDER THE

APA SHOULD BE CONSTRUED TO INCLUDE

APPROVED JURISDICTIONAL DETERMINATIONS. ......... 5

Ce Pe enccecocssseesssneovensssonsinitnastonmmandninianeaaiias 15

TABLE OF AUTHORITIES

Cases

B&B Hardware, Inc. v. Hargis Industrial,

ch eee soncremtnretetennnconnscscns 14

Bennett v. Spear,

cic 7

Clark v. Suarez Martinez,

a 14

Fairbanks N. Star Borough v. U.S. Army

Corps of Eng'rs,

543 F.3d 586 (9th Cir. 2008) ...............c:ccccccceeeeeeeeees 3

Kolenderv. Lawson, 461 U.S. 352 (1983) .............. 4,8

Nat'l Ass'n of Home Builders v. U.S. Army

Corps of Eng’rs,

2007 U.S.Dist.LEXIS 6366 (D.D.C. 2007)............ 13

Nat’ Mining Ass'n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399 (D.C. Cir. 1998) ..............:c0000e. 11, 13

N. Carolina Wildlife Fed. v. Tulloch,

Civil No. C90-713-CIV-5-BO (E.D.N.C. 1992) ..... 13

Sackett v. EPA,

a esseiinunsoeueie 5,8

Skilling v. United States,

TE 4,8

Solid Waste Agency v. U.S. Army Corps of Eng’rs,

TT 10-11

Tull v. United States,

ee esssnsuonsbiionssnsosninn ~

Docketed Cases

Duarte Nursery, Inc. v. U.S. Army Corps of Eng’rs,

case no. 2:13-cv-2095 (E.D Cal)................. 10, 11, 12

Statutes

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Regulations

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Other Authorities

51 Fed. Reg. 41,206 (Nov. 13, 1986) .............cccccccceeeee. 6

73 Fed. Reg. 79,641 (Dec. 30, 2008) .............cccccccc0ee 13

iv

U.S. Army Corps of Engineers & U.S. EPA, Clean

Water Act Jurisdiction Following the U.S.

Supreme Court’s Decision in Rapanos v. United

States & Carabell v. United States (2008),

available at http://www.usace.army.mil/Portals/

U.S. Army Corps of Engineers, Aegiona/

Supplement to the Corps of Engineers Wetland

Delineation Manual: Arid West Region (2008),

available at 2 rene enero

U.S. Army Corps of Engineers, Wetlands

Delineation Manual (1987), available at hite’/

U.S. pose Cume of Sates, Regional

Supplements to Corps Delineation Manual,

available at bitp://werw.ueace. army.mil

U.S. Natural Resource Conservation Service, Lists

of H — pone available at http://

Mm) ~ 1g Avy nrcs Rin 30 L s/u

U.S. Army Corps of Engineers, National Wetland

Plant List, available at http://

rsgisias.crrel.u . mi | TE i)

INTEREST OF THE AMICI!

The California Farm Bureau Federation (CFBF) is

a non-governmental, non-profit, voluntary member-

ship California corporation whose purpose is to

protect and promote agricultural interests through-

out the state of California and to find solutions to the

problems of the farm, the farm home, and the rural

community. CFBF is California’s largest farm

organization, comprised of 53 county Farm Bureaus

currently representing more than 53,000 agri-

cultural, associate, and collegiate members in 56

counties. CFBF strives to protect and improve the

ability of farmers and ranchers engaged in

production agriculture to provide a reliable supply of

food and fiber through responsible stewardship of

California’s resources. Many of CFBF’s members

farm on lands that contain areas which the U.S.

Army Corps of Engineers (Corps) maintains are

jurisdictional under the Act, and rely on the

exemptions and exclusions for farming in the Act and

its implementing regulations.

The California Cattlemen’s Association (CCA) is a

mutual benefit nonprofit corporation organized in

1917 as an “agricultural and horticultural, nonprofit,

cooperative association” to promote the interests of

the beef cattle industry. Beef cattle producers

operate on over 38 million of California’s 100 million

1 No counsel for any party authored this brief in whole or

in part, or made any monetary contribution intended to

fund the preparation or submission of this brief. No

person (other than the amici curiae, its members, or its

counsel) made any such monetary contribution. Blanket

consents from counsel for al) parties to the filing of briefs

amicus curiae are on file with the Clerk.

2

acres. They frequently will graze cattle on lands that

are also used for crop production. Beef cattle

producers also operate on lands that contain areas

which the Corps maintains are jurisdictional under

the Act, and rely on the exemptions and exclusions

for farming in the Act and its implementing

regulations.

The California Building Industry Association

(CBIA) is a statewide, non-profit trade association

representing over 3,000 businesses and employing

more than 100,000 people involved in all aspects of

residential and commercial construction. Its

members include homebuilders, architects,

engineers, sales agents, title and escrow companies,

general and specialty contractors, lenders, attorneys,

land planners, material suppliers, insurers and land

developers. Collectively, CBIA’s members are

responsible for producing approximately 80% of all

new homes built in California annually.

The Building Industry Legal Defense Foundation

(BILD) was formed in 1987 as a California mutual

benefit nonprofit corporation whose purposes are to

monitor legal developments and to participate in

litigation designed to improve the business climate

for the building industry. BILD is a wholly owned

subsidiary of the Building Industry Association of

Southern California, Inc. Together, they represent

more than 1,100 member companies.

California Business Properties Association (CBPA)

is the designated legislative advocate for the

International Council of Shopping Centers (ICSC),

the Commercial Real Estate Developers Association

(NAIOP), NAIOP of California, the Building Owners

and Managers Association of California, the Retail

Industry Leaders Association, the Institute of Real

Estate Management, the Association of Commercial

3

Real Estate — Northern and Southern California, the

National Association of Real Estate Investment

Trusts and the California Association for Local

Economic Development. CBPA currently represents

over 10,000 members, making it the largest

consortium of commercial real estate professionals in

California.

The members of CBIA, BILD, and CPBA routinely

engage with the Corps on Clean Water Act issues,

including jurisdictional determinations.

All of the amici are concerned about the vagueness

of the Clean Water Act, and with the difficulty in

structuring their activities so as to comply. In the

Ninth Circuit, that uncertainty is compounded by the

fact that approved jurisdictional determinations are

not reviewable in court because they are not

considered final agency action. (Fairbanks North

Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d

586, 589 (9th Cir. 2008).)

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Clean Water Act is a penal statute, imposing

potentially ruinous criminal sanctions and civil

penalties on landowners accused of violating it. Due

process requires that penal statutes “define the

criminal offense with sufficient definite-ness that

ordinary people can understand what conduct is

prohibited and in a manner that does not encourage

arbitrary and discriminatory enforce-ment.” (Skilling

v. United States, 561 U.S. 358, 402-03 (2010)

(quoting Kolender v. Lawson, 461 U.S. 352, 357

(1983)), internal brackets, numbers, and quotation

marks omitted.) But ordinary people have

practically no way of understanding in advance

whether their activities would violate the Act, or lead

to arbitrary or discriminatory enforcement by the

Government or other private parties.

The Corps’ litigation position would make this

constitutional problem even worse. The Corps’

regulations prescribe that approved jurisdictional

determinations (JDs) are “final agency action”, and

the Corps has explained that the public can “rely on”

them. But here, the Corps argues that approved JDs

are not final agency action, and they should not be

relied on. It even takes the position that landowners

who rely on an approved JD, and are careful to avoid

any property identified as jurisdictional, can still be

subject to penal enforcement action if the Corps or

any member of the public later asserts that

additional jurisdictional areas exist on the property.

This only adds to the uncertainty that the Act

imposes on landowners.

To help mitigate the constitutional problem that

this uncertainty would present, this Court should

interpret “final agency action” to include approved

JDs.

ARGUMENT

TO MITIGATE THE POTENTIAL UNCONSTITUTIONAL

VAGUENESS OF THE CLEAN WATER ACT AND ITS

REGULATIONS, “FINAL AGENCY ACTION’ UNDER THE APA

SHOULD BE CONSTRUED TO INCLUDE APPROVED

JURISDICTIONAL DETERMINATIONS.

1. The Administrative Procedure Act (APA) “cre-

ates a presumption favoring judicial review of

administrative action” (Sackett v. EPA, 132 S.Ct.

1367, 1373 (2012), internal citation and quotation

marks omitted.) The APA defines “agency action” to

include “relief? (5 U.S.C. 551(13)), and defines

“relief”, in turn, to include an agency’s “grant of ...

assistance” (id. para. 11(A)).

Is an approved jurisdictional determination (JD) a

grant of assistance or other form of agency action?

Nine times in its merits brief the Corps characterizes

approved JDs as being to “assist” landowners. (Pet.

Br. at III, 3, 20, 21 (twice), 32, 34, 43, & 44.) This

assistance is not general or informal, as agency

brochures or reports might be; rather, it is the result

of a formal, individual, site-specific, adjudicatory

procedure, based upon an administrative record.?

2 The regulations governing jurisdictional determinations

(only some of which are acknowledged in the Corps’ brief)

are instructive. They generally authorize Corps district

engineers “to determine the area defined by the terms

‘navigable waters of the United States’ and ‘waters of the

United States” (33 C.F.R. 325.9, emphasis added), and

“the applicability of general permits or statutory

exemptions to proposed activities” (33 C.F.R. 320.1(a)(6)).

These are to be “forma/ determinations” that “constitute a

6

This assistance extends beyond just adjudicating

jurisdiction under the Clean Water Act. It also

includes adjudicating “the applicability of general

permits or statutory exemptions to proposed

activities” (33 C.FR. 320.1(a)(6).) The Corps

expects the public to “rely on” approved JDs. (51

Fed.Reg. 41,206, 41,207 (Nov. 13, 1986).) This

assistance—intended as it is to be relied on by all as

a formal adjudication of a landowners’ rights and

responsibilities under the Clean Water Act—is

agency action presumptively subject to judicial

review.?

It is also “final agency action” for which the APA

provides a right to judicial review. (See 5 U.S.C.

704.) The Corps’ own regulations prescribe that an

approved JD is “a Corps final agency action.” (33

Corps final agency action” (Id., emphasis added.) They

are subject to a formal appeal procedure intended to be

“independent, objective, fair, prompt, and efficient.” (33

C.F.R. 331.1(a).) Landowners are to be notified of their

right to appeal, and of their “right to obtain a copy of the

administrative record.” (33 C.F.R. 331.4.) Appeals are to

be reviewed by an officer who had no involvement in the

“action being appealed.” (33 C.F.R. 331.3(b).) The

reviewing officer may call a meeting with the parties “to

review and discuss issues directly related to the appeal”

(33 C.F.R. 331.7(d).) Decisions on the merits of an appeal

must be “in writing” (33 C.F.R. 331.9(b).) Meritorious

appeals result in a remand. (33 C.F.R. 331.10(b).)

3 Approved jurisdictional determinations also qualify as

the type of “relief’ that is agency action because they

constitute the Corps’ “recognition of a ... right, immunity,

... lor] exemption” (5 U.S.C. 551(11)(B)), and the “taking

of other action on the application or petition of, and

beneficial to, a person” (5 U.S.C. 551(11)(C)).

C.F.R. 320.1(a)(6).) Rightly so. It marks the

consummation of the Corps’ formal process for

determining jurisdiction under the Act, and it

determines landowners’ rights or obligations under

the Act, including “the applicability of general

permits or statutory exemptions to proposed

activities” (id.). (See Bennett v. Spear, 520 U.S. 154,

177-78 (1997).) Approved JDs should be subject to

judicial review under the APA.

2. Although its regulations prescribe that approved

JDs are “final agency action” which, it has explained,

“the public can rely on”, the Corps’ core litigation

position here is that its regulations are wrong. (See

Pet. Br. at 34 n.8.) The Corps argues that approved

JDs are not final agency action, largely because they

should not be relied upon. As the Corps puts it:

If a particular site in fact contains waters

of the United States, but the Corps

incorrectly concludes that it does not,

unpermitted pollutant discharges into

those waters remain unlawful (assuming

that no exception to the _ statutory

prohibition applies), even if the Corps’ view

is reflected in an approved jurisdictional

determination. ... [A] negative juris-

dictional determination does not cause

otherwise-unlawful discharges to be lawful,

and it does not insulate the landowner from

potential liability ...

(Pet. Br. at 40-41.) In other words, even if a

landowner entirely limits his or her operations to the

dry land (i.e., non-waters) identified in an approved

JD, that landowner could still face an enforcement

action by the Government or another private party,

on the ground that the approved JD was wrong and

additional waters are actually present.

3. The Corps’ litigation position, if accepted, would

make a serious constitutional problem with the

Clean Water Act and its regulations even worse. The

Act imposes potential criminal liability on violators

(33 U.S.C. 1319(c)), as well as potentially massive

civil penalties (id, para. (d)) that are “criminal in

nature” (7ul/ v. United States, 481 U.S. 412, 418-21

(1987)). “To satisfy due process, a penal statute must

define the criminal offense with sufficient definite-

ness that ordinary people can understand what

conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforce-

ment.” (Skilling v. United States, 561 U.S. 358, 402-

03 (2010) (quoting Kolender v. Lawson, 461 U.S. 352,

357 (1983)), internal brackets, numbers, and

quotation marks omitted.) But ordinary people have

practically no way of understanding in advance

whether their activities would violate the Act, or

could lead to arbitrary or discriminatory enforcement

by the Government or other private parties.

a. This uncertainty is partly because “[t]he reach

of the Clean Water Act is notoriously unclear. Any

piece of land that is wet at least part of the year is in

danger of being classified by EPA employees as

wetlands covered by the Act” (Sackett v. EPA, 132

S.Ct. at 1375 (Alito, J., concurring).) Ordinary land-

owners typically cannot determine for themselves

whether their properties contain features the Corps

may assert jurisdiction over. Judge Kelley, in her

concurrence below, was quite correct to note that the

Act is “unique” in that “most laws do not require the

hiring of expert consultants to determine if they even

apply to you or your property.” (Pet. App. at 20a.)

Any penal statute that requires ordinary people to

hire expert consultants to understand it is

constitutionally suspect.

In the arid West, the Corps asserts jurisdiction

over vast swaths of land that are bone dry for many

months at a time. (During drought years such as

these, such dryness can go on for years.) To even

begin to understand whether their normally dry

properties contain “wetlands” that might be

regulated, landowners must hire experts to study the

soils, hydrology, and vegetation.© Experts must then

assess the physical, chemical, and biological

relationships those wetlands may have to other lands

in the region and to any traditionally navigable

4 Eg, US. Army Corps of Engineers, Regional

Supplement to the Corps of Engineers Wetland

Delineation Manual: Arid West Region, at 10 (2008)

(“Nevada, for example, considered one of the drier states

in the country, contains approximately 1.7 million acres of

wetlands”), ovement at rene agen

5 To delineate wetlands, the Corps uses a 143-page

national wetlands delineation manual. (U.S. Army Corps

of Engineers, Wetlands Delineation Manual (1987),

avallable at http-//el.erdc.usace.army.miVelpubs/pdf/

wiman87.pdf.) That national manual must be read in

conjunction with ten regional manuals (U.S. Army Corps

of Engineers, Regional Supplements to Corps Delineation

a avaiiaive at httn:/fwww.usace army.mil Missions!

), and couraniien lists of — —- (U. S. "Natural

Resource Conservation Service, Lists of Hydric Soils,

available at http://www.nrcs.usda.gov/wps/portal/nrcs/

main/soils/use/hydric/) and wetland plants (U.S. Army

Corps of Engineers, National Wetland Plant List,

available at http://rsgisias.crrel.usace.army.mil/NWPL/).

None of this has undergone notice-and-comment

rulemaking.

10

waters downstream.® Only then can the experts

hazard any guess as to whether the wetlands on a

property are jurisdictional under the Act. And if the

experts guess wrong, or if other experts disagree, or

if the Corps approves the JD but later changes its

mind, the Act (as the Corps interprets it) invites

anyone to bring a penal enforcement action.

The process can often get even messier. The Corps’

local districts frequently apply different standards

for determining jurisdiction under the Act. (Resp. Br.

at 3, citing General Accounting Office report.) They

also frequently apply standards that conflict with

authority from this Court, as Hawkes alleges

happened here. (Resp. Br. at 38.) Likewise, across

much of northern California, the Corps still asserts

jurisdiction over waters isolated from traditional

navigable waters where “there is a_ potential

connection to interstate commerce”.’? But in Solid

Waste Agency v. U.S. Army Corps of Eng’rs, this

6 The Corps’ current guidance on evaluating the physical,

chemical, and biological relationships between properties

and waters, for purposes of jurisdiction under the Act, is

provided in a memorandum jointly published with EPA:

Clean Water Act Jurisdiction Following the U.S. Supreme

Court's Decision in Rapanos v. United States & Carabell v.

United States (2008), available at http://

www i ivilwork /

rs ide/ juris 2dec08. pdf.

7 This quote is taken from deposition testimony of

Matthew Kelley, the sole Corps staff person for five large

California counties (Tehama, Plumas, Lassen, Shasta, and

Modoc counties). It is accessible via PACER at page 38,

lines 2-25, of document 115, in Duarte Nursery, Inc. v.

U.S. Army Corps of Eng’rs, case 2:13-cv-2095 (E.D. Cal.)

(Kelley Deposition).

1]

Court rejected the Corps’ argument that isolated

waters could be regulated by the Act, even if those

isolated waters are used for commerce that may have

interstate effects. (531 U.S. 159, 173 (2001).)

So landowners trying to comply must contend not

only with the vagaries of the reach of the Act, but

with Corps staff who inconsistently apply, do not

understand, or perhaps simply disagree with how

this Court has interpreted the law.

b. The activities the Act regulates, even in

unambiguously jurisdictional waters, can also be

impossible for ordinary people to predict. The Act

generally prohibits the “discharge of any pollutant”

without a permit (33 U.S.C. 1311(a)), and authorizes

the Corps to issue permits “for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites” (33 U.S.C. 1344(a))—except

that no Corps permits are needed for certain

exempted discharges (id. para. (f)).

The following real-world examples may give some

sense of just how confused and unpredictable the

Corps’ implementation of these provisions can be:

- Bicycling. The Corps has taken the position that

it “could require a permit to ride a bicycle across a

wetland” (Nat Mining Ass’n v. U.S. Army Corps

of Eng’rs, 145 F.3d 1399, 1404 n.4 (D.C. Cir.

1998).)

- Driving. Corps staff have testified that “lilt

would be pure speculation to know in advance

whether you discharge something” as the result of

“driving through a wetland” ®

- Plowing. Corps regulations provide that

8 Kelley Deposition, supra, at page 167, lines 14-23.

12

“plowing” (defined as “breaking up, cutting,

turning over, or stirring of soil to prepare it for the

planting of crops”) “will never involve a discharge

of dredged or fill material.” (33 C.F.R. 323.4

(a)(1)Gii)(D).) But the Department of Justice is

taking the position, in an enforcement action, that

plowing is not “plowing” under this regulation, and

thus does involve a discharge, if it creates “furrows

and ridges” ® How one could ever plow without

creating furrows and ridges the Department of

Justice has not ventured to explain.

* “Normal” Farming Activities. The Act generally

exempts discharges associated with “normal

farming, silviculture, and ranching activities” from

the permit requirement. (33 U.S.C. 1344(f)(1)(A).)

But Corps staff have testified that they “don’t have

a standard” for what’s considered “normal!” for

purposes of this exemption. !°

- Incidental Fallback. The Corps generally ex-

cludes “incidental fallback” from regulgtion under

the Act. (33 C.F.R. 323.2(d)(2)(ii).) ree times

the courts have invalidated the Corps’ various

attempts to define incidental fallback. (N.

® United States’ Memorandum In Opposition To Duarte’s

Motion For Summary Judgment On The Counterclaim, at

page 13 line 14, Duarte Nursery, Inc. v. U.S. Army Corps

of Eng’rs, No. 2:13-cv-2095 (E.D. Cal. Nov. 6, 2015), ECF

No. 152.

10 This quote is taken from deposition testimony of James

Robb, a senior project manager with the enforcement unit

of the Corps’ Sacramento District. It is accessible (with its

surrounding testimony for appropriate context) via

PACER at page 62, line 23, through page 75, line 11, of

document 113, in Duarte Nursery, Inc. v. U.S. Army Corps

of Eng’'rs, case no. 2:13-cv-2095 (E.D. Cal.).

13

Carolina Wildlife Fed. v. Tullech, Civil No. C90-

713-CIV-5-BO (E.D.N.C. 1992) Gnvalidating 1986

regulations); Nat’? Mining Ass’n, 145 F.3d at 1410

(invalidating 1993 regulations); Nat7 Ass'n of

Home Builders v. U.S. Army Corps of Eng’rs, No.

01-0274 (JR), 2007 U.S.Dist.LEXIS 6366, *11-*12

(D.D.C. Jan. 30, 2007) (invalidating 2001 reg-

ulations).) Rather than develop a new definition

that might pass muster with the courts, the Corps,

for more than seven years, has left the term

completely undefined. (73 Fed.Reg. 79,641, 79,643

(Dec. 30, 2008).)

Landowners should not be left to guess whether

their everyday activities violate the Act. The

judgment of the Court of Appeals should be affirmed

in order to improve landowners’ ability to understand

their obligations under the Act.

c. The Corps’ litigation position here could also

undermine the Act’s ‘permit shield’ (33 U.S.C.

1344(p))—which deems compliance with a permit as

compliance with the Act. This is because if, after a

JD is approved, anyone can still assert that there are

additional jurisdictional waters on a property, then

they may also try to assert that any permitted

project carried out on that property in the meantime

thereby violated the permit and removed the permit

shield. (See 33 C.F.R. part 325, App. A (Corps may

“reevaluatie]” a permit, and use “enforcement

procedures”, if “[slignificant new information sur-

faces which this office did not consider” when issuing

the permit; permit must also contain “a description of

the types and quantities of dredged or fill materials

to be discharged in jurisdictional waters”).)

4. “[W]hen deciding which of two plausible

statutory constructions to adopt, a court must

consider the necessary consequences of its choice. If

14

one of them would raise a multitude of constitutional

problems, the other should prevail” (Clark v. Suarez

Martinez, 543 U.S. 371, 380-81 (2005).) Here,

interpreting the statutory phrase “final agency

action” to include approved JDs would mitigate at

least some of the concerns about the potentially

unconstitutional vagueness of the Clean Water Act

and its implementing regulations.

Interpreting “final agency action” in this way

would bar the Government, at least, from

relitigating, in an enforcement action, the issues of

jurisdiction and “the applicability of general permits

or statutory exemptions to proposed activities” (33

C.F.R. 320.1(a)(6)), which were adjudicated to finality

in the approved JD. (See B&B Hardware, Inc. v.

Hargis Indus., 135 S.Ct. 1293, 1303 (2015) (“a valid

and final adjudicative determination by an

administrative tribunal has the same effects under

the rules of res judicata, subject to the same

exceptions and qualifications, as a judgment of a

court”, internal citation and quotation marks

omitted).) Barring the Government from relitigating

those issues once a JD is approved would give

landowners at least some degree of certainty about

which parts of their properties, and which activities

carried out on them, are regulated by the Act.

Such an _ interpretation would also allow

landowners to bring court challenges to approved

JDs which misapply the law on the reach and scope

of the Act. Allowing the courts to correct incorrect

applications of the law should bring some needed

clarity and consistency to the implementation of the

Act.

If, however, the Corps’ interpretation prevails

here, the tremendous uncertainty that ordinary

people already face in trying to understand how they

15

can structure their conduct so as to comply with the

Act would only get worse. For a statute whose

violation imposes potential criminal penalties, such

uncertainty is constitutionally intolerable. This

Court should help mitigate that problem by

interpreting “final agency action” to include approved

JDs.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

PETER S. PROWS

Counsel of Record

BRISCOE IVESTER & BAZEL LLP

155 Sansome Street,

Seventh Floor

San Francisco, CA 94104

(415) 402-2700

pprows@briscoelaw.net