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

No. 15-290

~~ ——

as

Gin The

Supreme Court of the Gnited States

+

—_—-=----—o-e Cl

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner;

Vv.

HAWKES COMPANY, INC., et ai.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

°

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

SUPPORTING RESPONDENTS

¢

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Road

Suite 320

Marietta, Georgia 30062

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

March 2016

COCKLE LEGAL BRIEFS (sul) 225-696)

WWW COCKLE) EGALBRIMFS.COM

i

QUESTION PRESENTED

Is a Jurisdictional Determination, that is conclu-

sive as to federal jurisdiction under the Clean Water

Act, and binding on all parties, subject to judicial

review under the Administrative Procedure Act?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED..................0.ccccceeeceeees i

acacia ii

TABLE OF AUTHORITIES. ................c:cccceceseeees iii

INTEREST OF AMICUS CURIAE...............-0-++. 1

SUMMARY OF ARGUMENT .................0s0cc0e0ce0s 2

ieee 4

I. A strong presumption of reviewability

supports judicial review of Jurisdictional

TT ciitaiiniseiicisishaitinddciseiinnaapaddinesmedimen 4

A. Judicial review of Jurisdictional De-

terminations is presumed ................... 4

B. Congress did not preclude judicial re-

view of Jurisdictional Determinations... 7

1. Congress did not intend to pre-

clude judicial review of Jurisdic-

tional Determinations .................... 9

2. Denying judicial review of Jurisdic-

tional Determinations leaves land-

owners with no means of obtaining

meaningful judicial review.............. 11

II. Denying judicial review of Jurisdictional

Determinations violates separation of

IIIc ccnccananenphnniegnectstaniiedaons 13

NE iaitiicihrencnseiensnnntinegnnnnienanieiensesinnecaees 17

il

TABLE OF AUTHORITIES

Page

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)......7, 8, 10

Alaska Dept. of Env. Conservation v. EPA, 540

ee GE ee ciscensnisiansinnciininssiteaiiinmenaiaiadendimemimibeaeaa 3

Alden v. Maine, 527 U.S. 706 (1999)............2..22.c000cee 13

Am. School of Magnetic Healing v. McAnnulty,

Be es Ce Si civtininincsnticcnstctinectiantanssieiiicdiasiniinanal 5

Ass’n of Data Processing Serv. Orgs., Inc. v.

Eg EE TEN TTT 9

Block v. Cmty. Nutrition Inst., 467 U.S. 340

TEE ssinnssccecicsiccntpsiniddnadibeciiiskipiinduhiaiimiesiaaadae ree 8

Bowen v. Mich. Academy of Family Physicians,

Rg eee 2, 4, 7, 8, 10

City of Arlington, Tex. v. FCC, 133 S. Ct. 1863

iii cnccisdshsncndnnentiiniuidedishiiiidiemamanasaane 13

Clinton v. City of New York, 524 U.S. 417

Eisele ssaniceiecnansnsinessesunieininensimuiiiamiaaaaaaiana 3,15

Dunlop v. Bachowski, 421 U.S. 560 (1975)............ 9,10

Ex Parte Young, 209 U.S. 123 (1908)....................02.. 12

Free Enter. Fund v. Pub. Co. Accounting Over-

sight Bd., 130 S. Ct. 3138 (2010).......... 11, 12, 13, 17

Geigow v. UhI1, 239 U.S. 3 (1915) ..........cccccccccoccececcrerees 5

Lane v. Hoglund, 244 U.S. 174 (1917)..................... 5,6

Lloyd Sabaudo Societa Anonima Per Azioni v.

Elting, 287 U.S. 329 (1932)....ccc.ccccssesssesssecssseseseesseee 6

iv

TABLE OF AUTHORITIES — Continued

Page

Marbury v. Madison, 5 U.S. 137 (1803)....................... 4

McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

IE EE ea eee 11

Nati Labor Relations Bd. v. Union Food &

Commercial Workers Union, 484 U.S. 112

LES Ee ea ee 8

Rapanos v. United States, 547 U.S. 715 (2006)......... 15

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004) ....... ccc. ccccccceceeeeeeeeees 10

Sackett v. EPA, 132 S. Ct. 1367 (2012) ...... 3, 12, 15, 17

Shalala v. Ill. Council on Long Term Care, Inc.,

ESE 8

Solid Waste Agency of N. Cook County v. Army

Corps of Eng’rs, 531 U.S. 159 (2001)...................... 15

Stark v. Wickard, 321 U.S. 288 (1944)................. 6, 7,9

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

TT eal aiailaiiahdaelinbeaaiaaiapiaisiaiidnaaiestanied 8, 11

United States v. Nourse, 9 Pet. 8 (1835).................. 2,4

Utility Air Regulation Group, et al. v. EPA, 134

ES ee 1

Youngstown Sheet & Tube Co. v. Sawyer, 343

EE SR 14

STATUTES

EES passim

ST hanhiiestieesentiemnensinigenentecininneniesinenstnnseeinenee 7

Vv

TABLE OF AUTHORITIES — Continued

Page

_—, EEREIRESRERIP TERRE DONC nr new Sm Dawei DE 2

ee es ee i riccstricntcitnccncinnsscttaiaciniindei passim

I canned niinitennnieineleninisadiadl 15

I icicle lineata )

ee CIID cninssiteinenisncciniiatsenniaiinetatineindecnaiininanieiti 9

REGULATIONS

Clean Water Rule: Definition of “Waters of the

United States,” 80 Fed Reg. 37,053-37,127

a TIE cistsinssnnitbeieniarceinaianiisbidciutaeapaiicicanscacilinaiiadl 16

RULES

SE HZ TT icynenciepeccngpnsatineniniiinictinpeninemmudulitdiniatel 1

OTHER AUTHORITIES

3 M. Farrand, Records of the Federal Conven-

tion of 1787 (rev. ed. 1966)................cccccceceeseeeeees 4,14

Louis L. Jaffe, Judicial Control of Administra-

tive Action 320 (Little, Brown, 1965)........................ 2

S.J. Res. 22, 114th Cong. (2015-2016) ....................... 16

S. Rep. No. 752, 79th Cong., 1st Sess. (1945).............. 7

The Federalist No. 45 (James Madison) (Clin-

ial 13

The Federalist Nos. 47-51 (James Madison)

(Clinton Rossiter ed., 1961) ...............cccccceceeeseseeeeees 14

1

INTEREST OF AMICUS CURIAE'

Southeastern Legal Foundation (SLF), founded

in 1976, is a national non-profit, public interest law

firm and policy center that advocates constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion.

SLF drafts legislative models, educates the public on

key policy issues, and litigates regularly before the

Supreme Court, including such cases as Utility Air

Regulation Group, et al. v. EPA, 134 S.Ct. 2427

(2014).

This case is of particular interest to SLF because

the Army Corps of Engineers’ (Army Corps) assertion

‘hat courts are precluded from reviewing its final

Jurisdictional Determinations is a prime example of

the Executive Branch’s unconstitutional usurpation of

power through creation of an expansive administra-

tive state. Over the last decade, the administrative

state has grown in two primary ways — through the

launching of new agencies and through the expansion

of existing agencies’ jurisdiction. While both means of

growth offend the founding principles of limited

government and enumerated powers, the latter is of

‘ All parties have consented to the filing of this brief in

letters on file with the Clerk of Court. No counsel for a party has

authored this brief in whole or in part, and no person other than

amicus curiae, its members, and its counsel has made monetary

contribution to the preparation or submission of this brief. See

Sup. Ct. R. 37.4.

2

prime concern because expansion of administrative

jurisdiction raises serious constitutional concerns.

The Army Corps issues nearly 10,000 Jurisdic-

tional Determinations a year and in doing so, unilat-

erally declares that innumerable acres of private

property fall within its jurisdiction. Ignoring the

presumption of reviewability and basic separation of

powers principles, the Army Corps claims that the

judiciary has no power to review its Jurisdictional

Determinations. Amicus writes separately to stress

that the Army Corps’ disregard for the Constitution

and the intent of Congress must be stopped.

¢

SUMMARY OF ARGUMENT

“The availability of judicial review, is the neces-

sary condition, psychologically if not logically, of a

system of administrative power which purports to be

legitimate, or legally void.” Louis L. Jaffe, Judicial

Control of Administrative Action 320 (Little, Brown,

1965). The common law presumption of reviewability

grew out of the constitutionally protected right to

claim protection of the laws. See Bowen v. Mich.

Academy of Family Physicians, 476 U.S. 667, 670

(1986) (citing United States v. Nourse, 9 Pet. 8, 28-29

(1835)). Congress codified the presumption of review-

ability when it enacted the Administrative Procedure

Act (APA), 5 U.S.C. §§ 701 et seq. In designing the

APA, Congress expressly provided judicial review of

final agency action, 5 U.S.C. § 704, which is exactly

3

what the Jurisdictional Determination in this case is.

Alaska Dept. of Env. Conservation v. EPA, 540 U.S.

461 (2004).

“The APA’s presumption of judicial review is a

repudiation of the principle that efficiency of regula-

tion conquers all.” Sackett v. EPA, 132 S. Ct. 1367,

1374 (2012). Unless an adminisirative agency can

establish that Congress intended to preclude judicial

review, courts have the power to review challenges

like the one presented in this case. The Army Corps

issues nearly 10,000 Jurisdictional Determinations a

year, unilaterally declaring that nearly any piece of

property that is wet at least part of the year falls

within its regulatory jurisdiction. Through Jurisdic-

tional Determinations the Army Corps, and invaria-

bly the Environmental Protection Agency (EPA),

expands its reach far beyond what Congress ever

intended when it enacted the Clean Water Act, 33

U.S.C. §§ 1251 et seq.

Even more egregious than its unilateral assertion

of jurisdiction though, is the Army Corps claim that

courts lack the power to review Jurisdictional Deter-

minations. The Framers of the Constitution sought to

create a government structure limited in nature.

“Liberty is always at stake when one or more of the

branches seek to transgress the separation of pow-

ers.” Clinton v. City of New York, 524 U.S. 417, 450

(1988). “In a government, where liberties of the

people are to be preserved , the executive, legisla-

tive and judicial, should ever be separate and dis-

tinct, and consist of parts, mutually forming a check

4

upon each other.” Charles Pinckney, Observations of

the Plan of Government Submitted to the Federal

Convention of May 28, 1787, reprinted in 3 M. Far-

rand, Records of the Federal Convention of 1787,

p.108 (rev. ed. 1966).

The strong presumption of reviewability supports

judicial review of Jurisdictional Determinations, as

does basic separation of powers principles.

¢

ARGUMENT

I. A strong presumption of reviewability

supports judicial review of Jurisdictional

Determinations.

A. Judicial review of Jurisdictional De-

terminations is presumed.

1. This Court’s precedent antedating the APA

supports judicial review of executive action. In Mar-

bury v. Madison, 5 U.S. 137 (1803), Chief Justice

Marshall declared: “The very essence of civil liberty

certainly consists in the right of every individual to

claim the protection of the laws.” Jd. at 163. Inherent

in the constitutionally protected right to claim protec-

tion of the laws is a strong presumption of judicial

review. See Bowen, 476 U.S. at 670 (citing Nourse, 9

Pet. at 28-29).

Throughout history, the Court has emphasized

the need for the judiciary to review executive actions.

And, despite a period of judicial restraint that resulted

5

only out of deference to Congress, by the early 20th

century, any perceived barriers to judicial review

faded away. See Am. School of Magnetic Healing v.

McAnnulty, 187 U.S. 94, 108 (1902) (explaining that

the acts of all administrative agency “officers must be

justified by some law, and in the case an official

violates the law to the injury of an individual the

courts generally have jurisdiction to grant relief”).

The increased level of executive actions and the

already growing administrative state underscored the

need for judicial review. In 1915, the Court reaffirmed

the common law presumption of reviewability when it

reviewed the Acting Commissioner of Immigration’s

detention of a group of aliens for the purpose of

deportation even though the statute at issue did not

provide for judicial review. Geigow v. Uhl, 239 U.S. 3,

8 (1915). Writing for the Court, Justice Oliver

Wendall Holmes explained that judicial review was

appropriate because the statute did not forbid courts

from considering whether the Commissioner’s act

violated the statute. Jd. at 9. In doing so, Justice

Holmes made clear that under the common law,

unless a statute forbids judicial review, the courts

have both the power and duty to review challenged

executive actions.

Over the next few decades, the Court continued

to stress the need for judicial review of administrative

actions. By way of example, in Lane v. Hoglund,

244 U.S. 174 (1917), the Court reviewed the actions of

the Secretary of Interior taken under a homestead

law. In doing so, the Court found judicial review of

administrative acts both appropriate and necessary,

6

explaining that to find otherwise would “limit{] the

powers of the court” and “be most unfortunate, as it

would relieve from judicial supervision all executive

officers in the performance of their duties.” Jd. at 182.

And, in Lloyd Sabaudo Societa Anonima Per Azioni v.

Elting, 287 U.S. 329 (1932), the Court reviewed the

Secretary of Labor’s imposition of fines against

steamship companies for bringing aliens with illness-

es into the United States. The Court explained that it

had the power to review the administrative action

because even though “Congress confer{red] on the

Secretary great power, it is not wholly uncon-

trolled.” Jd. at 339.

In 1944, the “powers of the court” to review

executive actions that the Court so often spoke about

received their greatest affirmation and explanation.

In Stark v. Wickard, 321 U.S. 288 (1944), the Court

explained that the presumption of reviewability

arises from Article III of the United States Constitu-

tion because “[t]he responsibility of determining the

limits of statutory grants of authority is a judicial

function entrusted to the courts by Congress by the

statutes establishing courts and marking their juris-

diction.” Jd. at 310. The Court continued: “Under

Article III, Congress established courts to adjudicate

cases and controversies as to claims of infringement

of individual rights whether by unlawful action of

private persons or by the exertion of unauthorized

administrative power.” Jd. Starting with the pre-

sumption of reviewability inherent in the Constitu-

tion, the Court reviewed the statute governing the

7

Secretary of Agriculture’s actions and, finding it

silent as to judicial review, explained that “the silence

of Congress as to judicial review is not to be

construed as a denial of authority to the aggrieved

person to seek appropriate relief in the federal courts

in the exercise of their general jurisdiction.” Jd. at

309.

2. In 1946, Congress enacted the Administra-

tive Procedure Act and codified “the basic presump-

tion of judicial review to one ‘suffering legal wrong

because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a

relevant statute.’” Abbott Labs. v. Gardner, 387 U.S.

136, 140 (1967) (quoting 5 U.S.C. § 702). When de-

termining whether administrative action like the

Jurisdictional Determination is subject to judicial

review, the Court demands that the APA’s “generous

review provisions be given a hospitable interpre-

tation.” Jd. at 141 (internal quotations omitted). Both

the Court and Congress have emphasized that “‘very

rarely do statutes withhold judicial review/[ ]’” be-

cause to do so would convert statutes into “blank

checks drawn to the credit of some administrative

officer or board.” Bowen, 476 U.S. at 671 (quoting S.

Rep. No. 752, 79th Cong., Ist Sess., 26 (1945)).

B. Congress did not preclude judicial re-

view of Jurisdictional Determinations.

This Court’s precedent establishes “that judicial

review of a final agency action by an aggrieved person

8

will not be cut off unless there is persuasive reason to

believe that such was the purpose of Congress.”

Bowen, 476 U.S. at 670 (quoting Abbott Labs, 387

U.S. at 140). “Statutory preclusion of judicial review

must be demonstrated clearly and convincingly.” Nat’

Labor Relations Bd. v. Union Food & Commercial

Workers Union, 484 U.S. 112, 131 (1987). Although

this Court does not apply the “clear and convincing

standard” in a strictly evidentiary sense, “the stan-

dard serves as ‘a useful reminder to courts that,

where substantial doubt about the congressional

intent exists, the general presumption favoring

judicial review of administrative action is control-

ling.’” Bowen, 476 U.S. at 672 n.3 (quoting Block v.

Cmty. Nutrition Inst., 467 U.S. 340, 350-51 (1984)).

Various considerations inform the Court’s analy-

sis of whether Congress intended to foreclose a given

avenue of judicial review, including the nature of the

administrative action, and the statute’s language,

structure, objectives and legislative history. See

Block, 467 U.S. at 349; see also Bowen, 476 U.S. at

673. The leading consideration in determining

whether Congress precluded judicial review is wheth-

er a party can obtain meaningful judicial review of

the agency action at issue if review under the APA is

precluded. See Thunder Basin Coal Co. v. Reich, 510

U.S. 200, 207 (1994); Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1 (2000).

9

1. Congress did not intend to pre-

clude judicial review of Jurisdic-

tional Determinations.

The text of the Clean Water Act contains no

provision that explicitly prohibits judicial review of

Jurisdictional Determinations. Indeed, the statute

says nothing at all about judicial review of Jurisdic-

tional Determinations. “[SJilence of Congress as to

judicial review is not to be construed as a denial of

authority to the aggrieved person to seek appropriate

relief in federal courts.” Stark, 321 U.S. at 309; see

also Dunlop v. Bachowski, 421 U.S. 560, 566-67

(1975); Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 157 (1970).

Here, the statutory silence is striking because

Congress expressly foreclosed judicial review of

similar pre-enforcement non-permit decisions. If

Congress had intended to preclude review of Jurisdic-

tional Determinations, it knew how do to it. For

example, in the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA),

42 U.S.C. §§ 9601 et seg., Congress expressly fore-

closed courts from reviewing orders issued pursuant

to Section 9606(a) except in specifically enumerated

proceedings. See 42 J.S.C. §9613(h). Congress did

not include any similar limitation in the Clean Water

Act.

Because the plain words of the Clean Water Act

lack an express prohibition against judicial review, the

Army Corps “bears the heavy burden of overcoming

10

the strong presumption that Congress did not mean

to prohibit all judicial review of [its] decision.” Dun-

lop, 421 U.S. at 567 The presumption of reviewabil-

ity demands that “[t]he question is phrased in terms

of ‘prohibition’ rather than ‘authorization[.]” Jd.

(quoting Abbott Labs, 387 U.S. at 140). “[Ojnly upon a

showing of ‘clear and convincing evidence’ of a contra-

ry legislative intent should the courts restrict access

to judicial review.” Jd. (quoting Abbott Labs, 387 U.S.

at 141).

Turming to the remaining factors the Court

considers, the Army Corps has offered no evidence

that the legislative history of the Clean Water Act

supports preclusion. See Bowen, 476 U.S. at 673

(noting that the court will consider “specific legisla-

tive history that is a reliable indicator of congression-

al intent”). That is because the Clean Water Act’s

legislative history contains no specific statement that

would support preclusion of judicial review of Juris-

dictional Determinations under the APA.

Finally, judicial review of Jurisdictional Deter-

minations is consistent with the objective of the

Clean Water Act. The Clean Water Act’s “stated

objective was ‘to restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters.’” S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 102 (2004) (quoting 33

U.S.C. § 1251). Judicial review of the Army Corps’

assertion of jurisdiction based on a factually intensive

analysis does not in any way defeat the purpose of the

Clean Water Act. Rather, it is wholly consistent with

11

the statutory objectives because the Clean Water Act

allows the Army Corps to exercise jurisdiction only

over certain specified lands. The Army Corps should

not be permitted to skirt judicial review of its exercise

of extraterritorial jurisdiction over private property

that does not fall within its reach.

2. Denying judicial review of Juris-

dictional Determinations leaves

landowners with no means of ob-

taining meaningful judicial review.

The leading consideration in determining wheth-

er the Clean Water Act precludes judicial review, is

whether Respondents can otherwise obtain meaning-

ful judicial review. Thunder Basin, 510 U.S. at 207

This consideration is based on the presumption that

Congress does not intend to foreclose meaningful

judicial review which would deny due process.

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,

496-97 (1991); see also Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 130 S. Ct. 3138, 3150-51

(2010).

The Clean Water Act offers no “meaningful”

review of Jurisdictional Determinations. Thus, with-

out review under the APA, the only options available

to Respondents, and the 10,000 property owners that

receive Jurisdictional Determinations annually, are to

abandon the project or to proceed and risk significant

fines. The Army Corps argues that subsequent judi-

cial review of any enforcement proceeding or permit

12

denial constitutes meaningful judicial review of its

claim to jurisdiction. This Court has already found

that it does not. Just four years ago in Sackett, this

Court rejected a nearly identical argument made by

the EPA. In doing so, the Court explained that en-

forcement proceedings did not constitute a means of

obtaining meaningful review because each day that

the landowner was denied an answer to its question,

it accrued an additional $75,000 in potential liability,

and potential criminal sanctions. Sackett, 132 S. Ct.

at 1372.

Here, Respondents are faced with the same

situation. They can either spend hundreds of thou-

sands of dollars on pursuing a permit that they may

or may not need (because the Army Corps may have

erred in its unilateral determination that it has

jurisdiction over the property), and that will likely be

denied, or they can proceed with the peat harvesting

project and risk substantial fines and criminal sanc-

tion. “When the remedy is so onerous and impractica-

ble as to substantially give none at all, the law is

invalid, although what is termed a remedy is in fact

given.” Ex Parte Young, 209 U.S. 123, 147 (1908). See

Free Enter. Fund, 130 S. Ct. at 3143 (rejecting the

government’s argument that meaningful judicial

review was available to petitioners because they

could obtain adequate review by violating the law).

Absent clear and convincing evidence of Congression-

al intent, the Court has never required a party to risk

such immense liability to obtain judicial review and it

should not do so now.

13

Il. Denying judicial review of Jurisdictional

Determinations violates separation of

powers principles.

“The administrative state ‘wields vast power and

touches almost every aspect of daily life.’” City of

Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013)

(Roberts, C.J., dissenting) (quoting Free Enter. Fund,

130 S. Ct. at 3156). “[TIhe authority administrative

agencies now hold over our economic, social, and

political activities” id. at 1878, stands in stark con-

trast to the government of enumerated powers the

Framers envisioned. Our Founding Fathers sought to

create a government structure limited in nature — as

James Madison explained in an effort to ease con-

cerns that the proposed national government would

usurp the People’s power to govern themselves: “The

powers delegated by the proposed Constitution to the

federal government are few and defined [and] will

be exercised principally on external objects, as ware,

peace. negotiation, and foreign commerce. ” The

Federalist No. 45 (James Madison), at 292 (Clinton

Rossiter ed., 1961).

Today's wide-reaching “‘administrative state

with its reams of regulations would leave [the Found-

ers) rubbing their eyes.’” City of Arlington, 133 S. Ct.

at 1878 (quoting Alden v. Maine, 527 U.S. 706, 807

(1999) (Souter, J., dissenting)). “It would be a bit

much to describe the result as the very definition of

tyranny, but the danger posed by the growing power

of the administrative state cannot be dismissed.” Jd.

at 1879 (citation and quotation omitted).

14

In Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952), the Members of the Court warned

that the “accretion of dangerous power” is spawned

by “unchecked disregard of the restrictions that fence

in even the most disinterested assertion of authority.”

Id. at 594 (Frankfurter, J., concurring). The purpose

of the separation of powers is “not to avoid friction,

but, by means of the inevitable friction incident to the

distribution of the governmental powers among three

departments, to save the people from autocracy.” Id.

at 629. As Justice Jackson stressed, any presidential

claim to power “at once so conclusive and preclusive

must be scrutinized with caution, for what is at stake

is the equilibrium established by our constitution.”

Id. at 638 (Jackson, J., concurring).

Under these principles, any action by which one

branch of the federal government presumes to en-

croach upon the constitutionally assigned functions of

another branch presents a fundamental threat to

liberty. “In a government, where the liberties of the

people are to be preserved , the executive, legisla-

tive and judicial, should ever be separate and dis-

tinct, and consist of parts, mutually forming a check

upon each other.” Charles Pinckney, Observations on

the Plan of Government Submitted to the Federal

Convention of May 28, 1787, reprinted in 3 M. Far-

rand, Records of the Federal Convention of 1787,

p.108 (rev. ed. 1966). See The Federalist Nos. 47-51

(James Madison) (Clinton Rossiter ed., 1961) (ex-

plaining and defending the Constitution’s structural

design of separated powers). “Liberty is always at

15

stake when one or more of the branches seek to

transgress the separation of powers.” Clinton, 524

U.S. at 450 (Kennedy, J., concurring). See id. at 447

(opinion for the Court) (striking down the line-item

veto as unconstitutional because it “gives the Presi-

dent the unilateral power to change the text of duly

enacted statutes”).

There are few administrative agencies whose

actions exhibit the tyranny that our Founding Fa-

thers feared more than the Army Corps and the EPA.

Congress could have never predicted the vast expan-

sion of jurisdiction that EPA and the Army Corps has

pursued since the Clean Water Act was enacted in

1972. The Clean Water Act provides that it covers

“the waters of the United States,” 33 U.S.C. § 1362(7),

but Congress did not define what it meant by “the

waters of the United States.” Since 1972, “the EPA

and the Army Corps of Engineers interpreted the

phrase as an essentially limitless grant of authority.”

Sackett, 132 S. Ct. at 1375 (Alito, J., concurring).

Time and again, this Court has rejected the Army

Corps and EPA’s expansive interpretation of its

jurisdiction. See Rapanos v. United States, 547 U.S.

715, 732-39 (2006) (plurality opinion); Solid Waste

Agency of N. Cook County v. Army Corps of Eng’rs,

531 U.S. 159, 167-74 (2001).

The executive branch’s latest attempt to expand

its jurisdiction underscores the need for judicial

review of Jurisdictional Determinations. In June

2015, the Army Corps and EPA published its final

rule which expands the definition of “the waters of

16

the United States” to nearly every inch of the United

States and for sure any piece of land that is wet at

least part of the year. Clean Water Rule: Definition of

“Waters of the United States,” 80 Fed Reg. 37,053-

37,127 (Jun. 29, 2015). Through legislation that

would overturn the new expansive definition of “the

waters of the United States,” Congress recently

attempted to reinstate the responsibilities and rights

of property owners and the States that Congress

intended to leave untouched by the Clean Water Act

but that the Army Corps and EPA has tried to evis-

cerate. S.J. Res. 22, 114th Cong. (2015-2016). Despite

the resolution passing, the President later vetoed it.

Dozens of parties, including SLF, have also chal-

lenged the rule in district and circuit courts around

the country.

The current administration and the present

leadership of the Army Corps and the EPA believe

that the need to restore and maintain the Nation’s

waters justifies the unilateral and unreviewable

expansion of their jurisdiction. The Army Corps’

insistence that the judiciary lacks any power to

review Jurisdictional Determinations shows as much.

Here, preclusion not only conflicts with the presump-

tion of reviewability founded in common law and

codified in the APA, but it runs afoul of the Constitu-

tion. As this Court has explained, “a judiciary that

licensed extraconstitutional government with each

issue of comparable gravity would, in the long run, be

far worse” than a judiciary that reviewed agency

17

action. Free Enter. Fund, 130 S. Ct. at 3157 (internal

quotation marks, alterations, and citations omitted).

“The APA’s presumption of judicial review is a

repudiation of the principle that efficiency of regula-

tion conquers all.” Sackett, 132 S. Ct. at 1374 (majori-

ty opinion). The lack of Congressional intent to

preclude judicial review and lack of meaningful

judicial review combined with the clear violation of

separation of powers principles that preclusion would

cause, supports affirmance of the Eighth Circuit’s

ruling and judicial review of Jurisdictional Determi-

nations.

¢

CONCLUSION

For the foregoing reasons, amicus curiae respect-

fully requests that this Court affirm the decision

below.

Respectfully submitted,

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Road

Suite 320

Mar etta, Georgia 30062

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

March 2016