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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MAR | ~ 2016

OFFICE OF THE CLERK

No. 15-290

In the

Supreme Court of the Anited States

UNITED STATES CORPS OF ENGINEERS,

Petitioner,

HAWKES, CO., INC.., et al.

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE IN SUP-

PORT OF RESPONDENTS

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Constitutional

Jurisprudence

c/o Chapman University

Fowler School of Law

One University Drive

Orange, CA 92866

Telephone: (714) 628-2666

E-Mail: caso@chapman.edu

Counsel for Amicus Curiae Center

for Constitutional Jurisprudence

QUESTION PRESENTED

Did Congress grant the Corps of Engineers unre-

viewable power to require landowners to pursue per-

mits under the Clean Water Act even when there is a

dispute as to whether the land in question is covered

by the Act?

‘3

TABLE OF CONTENTS

QUESTION PRESENTED. ....0.......cccccsecsescecsessecsesseeeee i

TABLE OF AUTHORITIES. ..............ccecsecsessesseeseeeees iii

IDENTITY AND INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT ............cccccssessessesseeseseees 1

RE Ba hs Oe Pt 2

I. Prohibition of Judicial Review of

Jurisdictional Determinations Violates

ERS ase 2

A. Actual separation of powers is critical

to the design of government in the

ia 2

B. The Army Corps of Engineers in this

case seeks to exercise executive,

legislative, and unreviewable judicial

SE wslinnsvesnenenmiadeninmnitnnnineenensinmagenininaianis 5

NN nici cccineteersienticaninsieaintaltiicaidaaitatiiin tied call 11

TABLE OF AUTHORITIES

Cases

Baccarat Fremont Developers, LLC v. U.S. Army

Corps of Eng’rs,

425 F.3d 1160 (Sth Cir. 2O06)...............00.0...000.000000.000. 9

Christopher v. SmithKlein Beecham Corp.,

I 1

Cmty. Assn. for Restoration of the Env’t v. Henry

Bosma Dairy,

BOG F.Ba O43 (Othe Cir. BOOB) ..u.....00cccccceccscossccscecseecse0ss x

Dep't of Transp. v. Ass'n of Am. Railroads,

TEE TA ED 1,7

Headwaters, Inc. v. Talent Irrigation Dist.,

343 F.3d COG (Sth Cir. BOO1) ...........c.ecsecccesceecescssccsensee 8

Mingo Logan Coal Company, Inc. v. U.S. Env. Prot.

Agency,

70 F. Supp. 3d 151 (D.D.C. 2014)... eee 9

Panama Refining Co. v. Ryan,

SE 7

Perez v. Mortgage Bankers Ass'n,

ETT ]

Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,

984 F Supp. 2d 538 (E.D. Va. 2013).........0000.0... 8

Rapanos v. United States,

I ie 7,9, 10

Resource Investments, Inc. v. United States,

151 F.3d 1162, (9th Cir. 1998)...02..0...... ce cccceeeeeeeees 9

Save Our Sonoran, Inc. v. Flowers,

408 F.3d 1113 (9th Cir. 2005)..................ccccceccsccerceseees 8

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’,

an 6,7

Treacy v. Newdunn Assoc.,

344 F.3d 407 (4tha Cir. S008) .........0.00.ccccessecccccccccsseccceeee 8

United States v. Deaton,

332 F.3d 698 (4th Cir. 2003)................cccccscccsscosssereesees x

United States v. Riverside Bayview Homes, Inc.,

I 6, 10

Statutes

oa aemeneeaannanienn 6

SIS: 6

THE DECLARATION OF INDEPENDENCE, 1 Stats. 1, 2

STUSTTITTII hchiestehbenbaeineiiiiaahbaiabaatiapaaanbcapeniiinditsenaialaiiaiataaaiabeieaianiaasied 4

Other Authorities

Adams, John, A DEFENSE OF THE CONSTITUTIONS OF

GOVERNMENT OF THE UNITED STATES OF AMERICA,

(1797) (Lawbook Exchange, Ltd. 2001)..................... 3

Montesquieu, THE SPIRIT OF THE LAWS (1748) (Franz

Neumann ed. & Thomas Nugent trans., 1949) ....... 3

Story, Joseph, COMMENTARIES ON THE CONSTITUTION

(1833) (Little Brown & Co. 1858) .............cccccccseeseeeeeee 4

THE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION, (John P Kaminski, et al. eds.

TE ere ee ee 4

THE FEDERALIST (Clinton Rossiter ed,. 1961).......... 3,5

THE FOUNDERS’ CONSTITUTION (Philip B, Kurland &

ES eee 2

Rules

TRESS oeeenae Steen ar Rompe NeenIerote a

I a lasiiionaiaaiial )

I a iacnaemeianian &

SEER EERE erence tone l

IDENTITY AND

INTEREST OF AMICUS CURIAE

Amicus, the Center for Constitutional Jurispru-

dence! was established in 1999 as the public interest

law arm of the Claremont Institute, the mission of

which is to restore the principics of the American

Founding to their rightful and preeminent authority

in our national life. Those principles include that in-

dividual liberty is best protected by the design of sep-

arated powers. In addition to providing counsel for

parties at all levels of state and federal courts, the

Center has participated as amicus curiae before this

Court in several cases of constitutional significance

addressing separation of powers, including Perez v.

Mortgage Bankers Ass'n, 135 S.Ct. 1199 (2015), Dep't

of Transp. v. Ass'n of Am. Railroads, 135 S.Ct. 1225

(2015); and Christopher v. SmithKlein Beecham Corp.,

132 S.Ct. 2156 (2012), to name a few.

SUMMARY OF ARGUMENT

The bar on judicial review sought by the Corps of

Engineers in this case would concentrate all three

powers of government in the agency. In arguing that

its “jurisdictional determinations” are not reviewable,

the Corps asserts the power to compel property own-

ers to apply for permits they do not want and do not

believe that they need. This case is an example of

! Pursuant to this Court’s Rule 37.3 all parties have filed blan-

ket consents to amicus participation with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirm that no counsel

for any party authored this brief in whole or in part, and no coun-

sel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary con-

tribution to its preparation or submission.

what the framers feared when they insisted on a sep-

aration of powers in government.

ARGUMENT

I. Prohibition of Judicial Review of Juris-

dictional Determinations Violates Separa-

tion of Powers.

A. Actual separation of powers is critica]

to the design of government in the

Constitution.

The structural limits on the exercise on constitu-

tional powers were not designed because the founders

were “anti-government” or as a means of frustrating

democratic self-government. The framers of the Con-

stitution understood the need for a national govern-

ment to control the problems created by individual

state governments competing for trade and intent on

avoiding financial obligations. See Letter of George

Washington to John Jay, August 1, 1786, reprinted in

1 THE FOUNDERS’ CONSTITUTION, 162 (Philip B, Kur-

land & Ralph Lerner, eds. 1987); James Madison,

Vices of the Political System of the United States,

April, 1787, reprinted in 1 THE FOUNDERS’ CONSTITU-

TION, 167. Instead, these limitations on the exercise

of power grew out of the recognition that despite the

best intentions, those in power tend to accumulate

power at the expense of individual liberty. As James

Madison noted, the framers sought to design the gov-

ernment “to be administered by men over men” — that

is, one that took account of the shortcomings of human

nature. Although the electorate was the primary

means in the system they designed of “obliging the

government to control itself,” they had enough experi-

ence to recognize “the necessity of auxiliary precau-

tions.” The Federalist No. 51 at 322 (James Madison)

(Clinton Rossiter, ed. 1961).

Separation of powers emerged as the primary

structural mechanism that would insure that the gov-

ernment would govern itself. The Founders did not

invent this concept. They relied heavily on the writ-

ings of Montesquieu, Blackstone, and Locke for their

theory about how to design government. E£.g., John

Adams, A DEFENSE OF THE CONSTITUTIONS OF GOV-

ERNMENT OF THE UNITED STATES OF AMERICA, (1797)

Letter XXVIII, vol.1 at 154 (Lawbook Exchange, Ltd.

2001) (essay on Montesquieu). Montesquieu ex-

plained that, “there is no liberty, if the judiciary power

be not separated from the legislative and executive.”

Montesquieu, THE SPIRIT OF THE LAWS (1748) bk. XI,

ch. 6, at 152 (Franz Neumann ed. & Thomas Nugent

trans., 1949). He cautioned that if judicial power is

joined with legislative power, “the life and liberty of

the [governed] would be exposed to arbitrary control.”

Likewise, if judicial power were joined to the executive

power, “the judge might behave with violence and op-

pression.” Jd. This, he said, “would be an end of eve-

rything.” Id.

There was little argument during the ratification

debates challenging the view that separation of pow-

ers needed to be an essential component in any new

federal government. Even before a national constitu-

tion was ever considered, the Founding generation

made sure that newly formed state governments were

based on separated powers.

The Virginia Declaration of Rights, adopted in

June, 1776, insisted that “legislative and executive

powers ... should be separate and distinct from the ju-

diciary. Va. Dec. of Rights, Sec. 5 (1776), reprinted in

8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 530 (John P Kaminski, et al. eds.

2009). The new Virginia Constitution adopted that

same month also required that the branches of gov-

ernment be “separate and distinct” and commanded

that they not “exercise powers properly belonging to

the other.” Va. Const. of 1776, in 8 DOCUMENTARY HISs.-

TORY, supra at 533.

The Massachusetts Constitution of 1780 con-

tained a similar provision, and added the purpose of

separated powers “to the end it may be a government

of laws, and not men.” Mass. Const. of 1786, Part I,

Art. XXX, in 4 DOCUMENTARY HISTORY, supra at 445.

The denial of separated powers was among the

complaints against the crown listed in the Declaration

of Independence. THE DECLARATION OF INDEPEND-

ENCE, 1 Stats. 1, 2 (1776) (noting obstruction of the ad-

ministration of justice and making judges “dependent

on his will alone”). Justice Story noted that the first

resolution adopted by the Constitutional Convention

in 1787 was for a plan of government consisting of

three separate branches of government. Joseph Story,

COMMENTARIES ON THE CONSTITUTION, § 519 (1833)

(Little Brown & Co. 1858).

Indeed, there was no debate about whether the

separation of powers would be a feature of the new

government. Instead, the question was whether the

proposed constitution provided sufficient separation.

James Madison explained that a mere prohibi-

tion on exercising the powers of another branch of gov-

ernment was not sufficient. Such a prohibition was a

mere “parchment barrier” between the branches. THE

FEDERALIST No. 48 at 166 (James Madison). Thus, the

Constitution was designed to give the members of

each branch the power to resist encroachment on their

powers. THE FEDERALIST No. 51, at 182.

The judiciary, in particular, was designed to

serve as a check on the political branches, to ensure

that they did not venture beyond their constitutional

authority and thereby endanger liberty. As Alexander

Hamilton noted, a robust judicial power was neces-

sary if the courts were to serve as “bulwarks” for lib-

erty. The Federalist No. 78, supra, at 287 (Alexander

Hamilton).

The rise of the modern administrative state

proves that the framers’ fears were warranted. This

case demonstrates that the concentration of all three

powers of government in one agency endangers indi-

vidual liberty — here individual rights in private prop-

erty.

B. The Army Corps of Engineers in this

case seeks to exercise executive, legis-

lative, and unreviewable judicial

power.

First, the Corps has used legislative power to

expand its power under the Clean Water Act from reg-

ulating activity that directly affects a navigable wa-

terway to its claim today of regulating even non-navi-

gable waters, including small tributaries and dry

channels, thereby displacing the states as the primary

regulator of land use. This is a claim of extraordinary

legislative power not granted by Congress.

The Clean Water Act empowers the Corps of En-

gineers to regulate dredging and filling of “navigable

waters” defined as “waters of the United States, in-

cluding the territorial seas.” 33 U.S.C. §§ 1344, 1362.

Initially, the Corps interpreted its jurisdiction as en-

compassing waters that were useable as a channel of

interstate or foreign commerce. See Solid Waste

Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs.

(Solid Waste Agency), 531 U.S. 159, 168 (2001). Alt-

hough that interpretation appeared to extend to the

limit of Congress’ authority under the Commerce

Clause, the Corps soon began to extend its own power

by redefining “navigable waters” much more broadly.

This re-definition took place without any new law

from Congress. The agency simply decided that the

law now meant something different.

This Court acquiesced in the decision of the Corps

to expand the reach of the Clean Water Act to a “wet-

land” that was immediately adjacent to a navigable

water. United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 131 (1985). The Corps then decided

to stretch the Clean Water Act even further to cover

waters that had no connection at all to navigable riv-

ers, lakes, or seas. In Solid Waste Agency, the Corps

argued that it was sufficient for coverage under the

Clean Water Act if migratory water fowl] might use the

waters. Solid Waste Agency, 531 U.S., at 164. This

Court ruled that the text of the Clean Water Act would

not allow the Corps’ attempt to expand its jurisdiction.

Id., at 168. Nonetheless, the Corps continues to test

the bounds of its jurisdiction to regulate land use.

There are no statutory guidelines that control the

Corps’ desire to increase its jurisdiction. As noted in

Solid Waste Agency, the Riverside Bayview Court rec-

ognized that Congress intended the phrase “navigable

waters” to include “at least some waters that would

not be deemed ‘navigable’ under the classical under-

standing of that term.” Solid Waste Agency, 531 U.S.,

at 171. This Court candidly admitted, however, that

the statute gives no guidance “of what those waters

might be.” Jd. That is, there is no intelligible princi-

ple by which the Court can judge the Corps’ claim of

authority to regulate “waters” that are not navigable.

See Panama Refining Co. v. Ryan, 293 U.S. 388, 430

(1935); Dep’t of Transp., 135 S.Ct at 1246 (Thomas. J.,

concurring in the judgment) (noting that the “intelli-

gible principle doctrine does not “adequately reinforce

the Constitution’s allocation of legislative power.”).

The Court again faced the problem of the Corps’

expansive assertion of jurisdiction under the Clean

Water Act in Rapanos. There, the Corps sought to in-

clude within its Clean Water Act jurisdiction any land

containing a channel through which rainwater might

occasionally flow. Rapanos v. United States, 547 U.S.

715, 722 (2006) (Scalia, J., plurality opinion) (Scalia,

J., plurality opinion). The plurality rejected a reading

of the Clean Water Act that would allow regulation of

dry channels through which water occasionally flows.

Id., at 733. The Corps has chosen not to follow the

guidance in the plurality opinion, however. Instead,

the Corps claims to follow Justice Kennedy’s separate

opinion arguing that the Clean Water Act could ex-

tend to some dry channels so long as there was a “sig-

nificant nexus.” Jd., at 782 (Kennedy, J., concurring

in the judgment).

Although the Corps purports to rely on Justice

Kennedy’s “significant nexus” formulation, their

claim of jurisdiction in such cases deprives that for-

mulation of any meaning. See Precon Dev. Corp. v.

U.S. Army Corps of Eng’rs, 984 F Supp. 2d 538 (E.D.

Va. 2013) (asserting jurisdiction over a patch of wet-

lands that sits adjacent to (but does not directly abut)

a 2,500-foot manmade drainage ditch, which flows

from February through April into another perennial

drainage ditch 900 feet away, which runs into a larger

tributary about 3,000 feet away, which eventually

flows, after approximately three to four miles, into a

traditional navigable water); see also, Treacy v.

Newdunn Assoc., 344 F.3d 407, 410 (4th Cir. 2003);

United States v. Deaton, 332 F.3d 698, 702 (4th Cir.

2003) (where water from a “roadside ditch” took “a

winding, thirty-two-mile path to the Chesapeake

Bay”); Cmty. Assn. for Restoration of the Env v.

Henry Bosma Dairv 305 F.3d 943, 954-55 (9th Cir.

2002) (irrigation diiches and drains that intermit-

tently connect to covered waters); Headwaters, Inc. v.

Talent Irrigation Dist., 243 F.3d 526, 534 (9th Cir.

2001); Save Our Sonoran, Inc. v. Flowers, 408 F.3d

1113, 1118 (9th Cir. 2005) (where the Corps was as-

serting jurisdiction over land where “water courses

through the washes and arroyos of the arid develop-

ment site during periods of heavy rain”).

Second, the Corps of Engineers exercises robust

executive power under the Clean Water Act. The

Corps controls whether to issue a permit for “dredge

or fill” activity, it controls how long it will take to get

a permit, and it controls how expensive the process

will be for a property owner. Should a property owner

decline to secure the Corps’ permission before taking

action on property the Corps has deemed to be within

its jurisdiction, the Corps decides whether to refer the

case for criminal prosecution. 33 C.F.R. § 326.5

In 2002, the average time for processing a permit

was more than two-years and the average cost for

property owners exceeded a quarter million dollars.

Rapanos v. United States, 547 U.S. 715, 721 (2006)

(Scalia, J., plurality opinion). While the regulations

state that the Corps will act vn a permit within 60

days (33 C.F.R. § 325.2(d)), the Corps is in complete

control of the process because the 60 day period does

not start to run until the Corps decides the application

is complete (33 C.F.R. § 325.7(d)(10)).

The 2002 “averages” are exceeded by large pro-

jects, especially when there is opposition (either

within the Corps or by external groups). In one case,

a permit was denied six years after the application

was filed, and in another, the permit was granted af-

ter four years. Resource Investments, Inc. v. United

States, 151 F.3d 1162, (9th Cir. 1998) (Appellant’s

brief at n.15); Baccarat Fremont Developers, LLC v.

U.S. Army Corps of Eng’rs, 425 F.3d 1150, 1152-53

(9th Cir. 2005). The Mingo Logan Coal Company

spent millions of dollars on its application and waited

nearly 10 years to receive a permit. The Environmen-

tal Protection Agency, which also exercises authority

under the Clean Water Act, later vetoed the permit.

Mingo Logan Coal Company, Inc. v. U.S. Env. Prot.

Agency, 70 F. Supp. 3d 151, 158-60 (D.D.C. 2014).

The record in this case suggests that the peti-

tioner would be required to spend substantially more

than the average, and that it would take several years

before a final decision would be rendered. Army Corps

personne] have told petitioner that it should not even

bother to apply for a permit since the application will

require expensive environmental studies that will

take a significant time to complete. Even if petitioner

invests the time and money into the application, the

Corps personnel have said that the permit will be de-

nied.

Third, the Corps now claims exclusive interpre-

tive, or judicial, power to judge whether a parcel of

dry land is within the ever-expanding definition of

“navigable waters.” As noted above, there is no intel-

ligible principle for guiding the Corps’ exercise of

quasi-legislative power to define the scope of its juris-

diction. In this case, the Corps argues further that it

has the power to make an unreviewable quasi-judicial

determination as to whether a particular parcel of

property is subject to its jurisdiction under the Clean

Water Act.

If a property owner cannot obtain immediate ju-

dicial review of a jurisdictional determination, the

only choice is to pursue a permit from the Corps. This

is a permit that the property owner does not want,

does not believe it needs, and which the Corps has in-

dicated that it will deny after the owner spends signif-

icant sums on environmental studies and puts up with

years of delay. The property owner has no choice,

however, “because the Clean Water Act ‘impose{s]

criminal liability,’ as well as steep civil fines, ‘on a

broad range of ordinary industrial and commercial ac-

tivities.” Rapanos, 547 U.S., at 719 (Scalia, J., plural-

ity opinion).

Without judicial review, the Corps can force a

property owner to abandon his property. If the owner

decides to pursue the permit, the Corps controls the

length and cost of the process. Pursuit of a permit

that the law may not even require can come to resem-

ble a Sisyphean task of rolling the boulder up the

mountain while the Corps decides it needs new envi-

ronmental studies or more information, forcing the

owner to start the task all over. The property owner

loses under either scenario. This combination of exec-

utive, legislative, and judicial power allows the Corps

to expand its jurisdiction beyond the reach of Congres-

sional intent without ever having to face judicial re-

view. The separation of powers problem is exacer-

bated because the Corps will never have to face voters.

It simply becomes a government unto itself. This is

the tyranny of which Montesquieu warned, and which

the framers sought to avoid with their careful crafting

of separated powers.

CONCLUSION

The Court should hold that jurisdictional deter-

minations are subject to judicial review in order to

avoid a violation of separation of powers.

DATED: March, 2016.

Respectfully submitted,