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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

TEs OE RAF CE ED vevcecsceerccssensnssnenceenininitinan ii
Ft 1
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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os ssensemeunsnnaied 12
I enenecani 13
Regulations

I 5, 6, 7
| EES RRO eae Dennen ee =e 14
Te, Ba cccccnectesccccccecccctecccccctssccssecess 12
ld. BF” Ren 12
a 5
es Oe Se A I cenecitenntnttincenntentnntatntontinnatinns 13
LLL ORT Re 6
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Te me nes Leen aee 6
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aaa 0 6
ESSENSE Oe NR Nae ees 6
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A10. Public record. Not legal advice.