# 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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## Record

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

## Text

wr Swit, 47. O.

MAR | ~ 2016

OFFICE OF THE CLERK

No. 15-290

In the

Supreme Court of the Anited States

UNITED STATES 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 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

i
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

iv

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

1

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.

2

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

3

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

4

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

5

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

6

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

7

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.

8

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

9

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

10

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

ll

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,

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A13. Public record. Not legal advice.