Opposition Brief — Rapanos v. United States

‘

4 Mme

No. 00-1428 MAY h

CLERK

Jn the Supreme Court of the Gni £3

JOHN A. RAPANOS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

JOHN C. CRUDEN

Acting Assistant Attorney

General

ELLEN J. DURKEE

Attorney

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner’s convictions under the Clean

Water Act (CWA) are inconsistent with this Court’s

decision in Solid Waste Agency v. United States Army

Corps of Engineers, 121 S. Ct. 675 (2001), which held

that use of nonnavigable “isolated” intrastate waters as

habitat for migratory birds is not a sufficient basis for

the exercise of federal regulatory jurisdiction under the

CWA.

2. Whether petitioner is entitled to reversal of his

CWA convictions based on error in the jury instruc-

tions defining the term “waters of the United States,”

where petitioner requested an instruction substantially

equivalent to the one actually given, and where the

evidence showed that the wetlands filled by petitioner

were adjacent to tributaries of navigable-in-fact waters.

3. Whether, and under what circumstances, Con-

gress has constitutional authority to prohibit the filling

of nonnavigable “isolated” wetlands having no hydro-

logic connection to navigable-in-fact waters.

4, Whether petitioner suffered a violation of the Due

Process Clause based on the government’s alleged

failure to prove that he had actual knowledge that the

areas he was filling were wetlands.

(I)

TABLE OF CONTENTS

Page

Opinions below . i

Jurisdiction 1

Statement 1

Argument 6

Conclusion 12

TABLE OF AUTHORITIES

Cases:

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) 8

Johnson v. United States, 520 U.S. 461 (1997) .............00 9-10

Solid Waste Agency v. United States Army Corps

of Eng’rs, 121 S. Ct. 675 (2001) 6,7,8

United States v. Barrow, 118 F.3d 482 (6th Cir. 1997) .... 9

United States v. Olano, 507 U.S. 725 (1998) ........ess00+ 8, 9, 10

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) ....... 9

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) 8

United States v. Wilson, 133 F.3d 251 (4th Cir.

ROSAS ENA ene nO OER > ea eee ae a DEERE 5

United States v. Young, 745 F.2d 733 (2d Cir. 1984),

cert. denied, 470 U.S. 1084 (1985) ..........ccccsscsrsescsseeceereereees 9

Constitution, statutes, regulations and rule:

U.S. Const. Amend. V (Due Process Clause) ...............0+00+++ 11

Federal Water Pollution Control Act Amendments

of 1972 (Clean Water Act), 33 U.S.C. 1251 et seq.:

NU RAN OND sa eeiseseninSesecenscecneesscnees 2,3

NC OT a coimtaidtneneisaninbecs 3

§ 404(g)(1), 833 U.S.C. 1844(g)(1) «0... csesecesessecscsesscsseceees 2

TT TEED SUNIEAD dicepesennpiicnesooncasnnansscninssesesnipavone 2

33 C.F.R. (1995):

Section 328.3(a)(1) ..........se00 PERL EL AS ALS TCLS OOPS 2

I ca lapdlasdicstdotiblpivuianenact 2

(III)

IV

Regulations and rule—Continued: Page

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EE Sa ITB siceiesinticictnscciconndnnsnttcndicscinenehadiaiibnanpianenavanieniaite 3

40 C.F.R. (1995):

Section ZOMBCS)N1) .......cescrcssescorssesserssecsesccssssessssonsnsveccenenensesese , i

pees TCS D eticiicssccderiiniicieemnatininibiiniibtanvecbcbionmiabii

RE ID eiintindadaieticecitneseahopentacecdsiiiaiipeamibeteitbiinsition

Section 230.3(s)(3) . sscikehisaiihapeididaiiaslapiaiiiadinadeniatiéiins

Section 230.3(s)(5) <sidaiitisulonoeslinalins daciedieadai dada 2

RN TIC TD Siciscoksstnbtinvisinshcvbduhaninesianstdecsndiisiciadianiiebtiiinia 3

Section BED ..cccccacsscsocseseese seit mtahdimaciscclinieittaik

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In the Supreme Court of the Anited States

No. 00-1428 y

JOHN A. RAPANOS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-9a)

is reported at 235 F.3d 256. An earlier opinion of the

court of appeals is reported at 115 F.3d 367.

JURISDICTION

The judgment of the court of appeals was entered on

December 15, 2000. The petition for a writ of certiorari

was filed on March 14, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Michigan, petitioner was

convicted on two counts of knowingly discharging

pollutants into waters of the United States without a

(1)

2

permit, in violation of Section 301(a) of the Federal

Water Pollution Control Act Amendments of 1972

(Clean Water Act or CWA), 33 U.S.C. 1311(a). He was

sentenced to three years’ probation and fined $185,100.

Petitioner appealed the convictions, and the govern-

ment cross-appealed the sentence. The court of appeals

affirmed the convictions and remanded to the district

court for resentencing. Pet. App. la-9a.

1. Section 301(a) of the CWA, 33 U.S.C. 1311(a), pro-

hibits the discharge of any pollutants, including

dredged or fill material, into “navigable waters” except

in accordance with the Act. The CWA provides that

“(t]he term ‘navigable waters’ means the waters of the

United States, including the territorial seas.” 33 U.S.C.

1362(7). Discharges of dredged or fill material into

“waters of the United States” may be authorized by a

permit issued by the Army Corps of Engineers (Corps)

pursuant to Section 404 of the CWA, 33 U.S.C. 1344, or

by a state agency in States, including Michigan, that

have been authorized by the United States Environ-

mental Protection Agency (EPA) to administer the

Section 404 permit program. See 33 U.S.C. 13844(g)(1);

40 C.F.R. 233.70 (1995). )

At the time of petitioner’s trial, the regulatory defini-

tion of the term “waters of the United States” utilized

by the Corps and the EPA included seven categories of

waters subject to CWA permitting jurisdiction. See

40 C.F.R. 230.3(s)(1)-(7), 282.2 (1995); 338 C.F.R.

328.3(a)(1)-(8) (1995). Those categories included waters

susceptible for use in interstate or foreign commerce,

including tidal waters, 40 C.F.R. 230.3(s)(1) (1995); 33

C.F.R. 328.3(a)(1) (1995); interstate waters, 40 C.F.R.

230.3(s)(2) (1995); 33 C.F.R. 328.3(a)(2) (1995); and

tributaries of such waters, 40 C.F.R. 230(s)(5) (1995); 33

C.F.R. 328.3(a)(5) (1995). The regulatory definition also

- 3

extended to “(aJll other waters * * * «the use, a

degradation or destruction of which could affect ites Be ot ae

state or foreign commerce.” 40 C.F.R. 280.8(s)(3)

(1995); 33 C.F.R. 328.3(a)(8) (1995). The regulations

further provided that “[w]Jetlands adjacent to waters

[encompassed within the regulatory definition] (other

than waters that are themselves wetlands)” were

defined to be “waters of the United States.” 40 C.F.R.

230.3(s)(7) (1995); 33 C.F.R. 328.3(a)(7) (1995).

2. Petitioner owns a 175-acre parcel of land in

Williams Township, Michigan. To make the parcel more

attractive for development, petitioner cleared the

heavily-wooded property of trees and shrubs, and he

eradicated forested wetlands on the property by filling

them with sand. Petitioner carried out those activities

despite warnings from his own environmental consult-

ants and from state regulators that the property

contained wetlands and that development of the area

would therefore require a permit. 115 F.3d at 368-369.

3.a. On July 27, 1994, a federal grand jury returned a

second superseding indictment charging petitioner with

two counts of knowingly discharging pollutants into

waters of the United States, in violation of 33 U.S.C.

1311(a), and two counts of witness tampering, in viola-

tion of 18 U.S.C. 1512. Pet. App. 3la-33a. The CWA

counts alleged that petitioner had deposited fill mate-

rial into wetlands on his property between December

1988 and October 1991. Jd. at 31a-32a, 33a.”

* The witness tampering counts alleged that petitioner had

threatened one of his environmental consultants, Dr. Frederick

Glenn Goff, for the purpose of intimidating him into keeping silent

and destroying his records and reports, which had confirmed the

presence of extensive wetlands on the property. Pet. App. 32a.

The district court dismissed those counts at the conclusion of the

government’s case. Gov’t C.A. Br. 4.

4

Petitioner’s trial began on February 1, 1995. The evi-

dence showed that until its alteration through peti-

tioner’s fill activities, the property in question con-

tained at least 29 acres of wetlands. The evidence

further demonstrated that those wetlands were hy-

drologically connected to a waterway known as the

“Labozinski drain,” which drained into Hoppler Creek,

the Kawkawlin River (a navigable river), and ulti-

mately into Saginaw Bay, a part of Lake Huron. See

Gov’t C.A. Br. 20; 02/01/95 Tr. 175-177.

Petitioner requested a jury instruction defining the

term “waters of the United States” as follows:

Waters such as lakes, rivers, streams (including

intermittent streams), or wetlands, the use, deg-

radation, or destruction of which could affect inter-

state or foreign commerce.

The definition of waters of the United States also

includes tributaries of the waters which I have

identified, and wetlands adjacent to waters of the

United States.

R. 174 (Waters of the United States). The district court

instructed the jury substantially as petitioner had

requested, giving the following instruction:

The term waters of the United States includes

waters such as lakes, rivers, streams, including

intermittent streams or wetlands. The use degrada-

. tion or destruction of, which could affect interstate

or foreign commerce, including any such water from

which fish or shellfish are or could be taken and sold

in interstate or foreign commerce.

The definition of waters of the United States also

includes tributaries of the waters that I’ve just

yas

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patepnd ta

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5

identified, and wetlands adjacent to waters aie: pee

United States. | “ye

Pet. App. 38a-39a.

The jury found petitioner guilty on both of the CWA

counts. The district court subsequently granted peti-

tioner’s motion for a new trial on the ground that the

government had improperly cross-examined petitioner

regarding his refusal to consent to warrantless searches

of his property by state regulatory officials. 115 F.3d at

371. The government appealed, and the court of

appeals reversed, concluding that “the prosecutor’s

questions and characterization did not constitute a

prejudicial comment on a defendant’s assertion of a

constitutional privilege.” Id. at 374; see id. at 372-374.

~ On remand, the district court sentenced petitioner to

three years’ probation and a fine of $185,100. Pet. App.

2a.

b. Petitioner appealed his convictions. He con-

tended, inter alia, that the jury instruction defining the

term “waters of the United States” was erroneous

under United States v. Wilson, 133 F.3d 251, 256-257

(4th Cir. 1997), because it permitted the jury to enter a

guilty verdict based on a finding that degradation of the

waters on petitioner’s property “could affect” interstate

commerce. Pet. C.A. Br. 16-18. In response, the gov-

ernment contended that petitioner had invited the

alleged error by proposing a jury instruction substan-

tially equivalent to the one given by the district court,

and that petitioner could not satisfy the requirements

of Federal Rule of Criminal Procedure 52(b) because

the wetlands in question were hydrologically connected

to tributaries of navigable waters that were used as

habitat for spawning commercially harvested carp.

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Gam Yetta Lass

6

Gov't C.A. Br. 17-22. The government cross-appealed

on sentencing issues. /d. at 41-61.

The court of appeals affirmed petitioner’s convictions

and remanded for resentencing. Pet. App. la-9a. With

respect to petitioner’s appeal, the court stated only that

it had “reviewed each of [petitioner’s] claims and

flou]nd that the district court did not err.” Jd. at 2a.

With respect to the government’s cross-appeal, the

court of appeals held that the district court had erred in

granting two one-level downward departures and a

two-level decrease for acceptance of responsibility from

petitioner’s sentencing range under the Sentencing

Guidelines. /d. at 3a-9a.

ARGUMENT

1. Petitioner contends (Pet. 7-11) that his convic-

tions should be vacated because the areas that he filled

were not “waters of the United States” within the

meaning of the CWA, as that term was construed in

Solid Waste Agency v. United States Army Corps of

Engineers, 121 S. Ct. 675 (2001). Petitioner suggests

(Pet. 8) that the wetlands in question “must be

classified as ‘isolated wetlands’ as they lacked a surface

water connection to any other body of water.” That

claim is controverted by the record at trial and by the

course of briefing in the court of appeals.

The government’s expert testified at trial that the

wetlands on petitioner’s property drain into Hoppler

Creek, which flows into the Kawkawlin River (a

navigable river), which in turn flows into Saginaw Bay.

02/01/95 Tr. 175-177. In his opening brief to the court of

appeals, petitioner contended thatthe jury instruction

defining “waters of the United States” was deficient

because it permitted the jury to find him guilty based

on a potential rather than an actual effect on interstate

sr

‘

commerce resulting from degradation of the relevant

waters. Pet. C.A. Br. 16-18; p. 5, supra,. The govern-

ment argued in response that petitioner had invited:any

error by proposing a substantially equivalent instruc-

tion, and that in any event petitioner had suffered no

prejudice as a result of the instruction given by the

district court. Gov’t C.A. Br. 17-22. With respect to the

latter point, the government explained that the wet-

lands on petitioner’s property were ultimately con-

nected through surface waters to Saginaw Bay. Id. at

19-20. The government further explained that, under

the regulatory definition of “waters of the United

States,” the wetlands that petitioner filled were

“adjacent” to tributaries of traditional navigable waters

and therefore fell within the CWA’s coverage under 40

C.F.R. 230.3(s)(1), (5), and (7). Gov’t C.A. Br. 19-20.

Under the regulations, proof of adjacency to tributaries

of navigable-in-fact waters eliminated the need for any

case-specific showing of either an actual or a potential

effect on interstate commerce. Id. at 20. Petitioner’s

reply brief in the court of appeals was devoted solely to

sentencing issues and did not attempt to refute the

government’s description of the surface-water connec-

tion between petitioner’s wetlands and traditional

navigable waters.

Nothing in Solid Waste Agency suggests that the

hydrologic connection described above to traditional -

navigable waters is an inadequate basis for the exercise

of federal regulatory jurisdiction over petitioner's

wetlands pursuant to the CWA. The Court in Solid

Waste Agency rejected the government’s contention

that use of nonnavigable “isolated” intrastate ponds as

habitat for migratory birds was a sufficient basis for

treating those ponds as “waters of the United States”

within the meaning of the CWA. 121 S. Ct. at 683-684.

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8

The Court referred, however, with apparent approval

to its prior holding that “Congress’ concern for the

protection of water quality and aquatic ecosystems

indicated its intent to regulate wetlands ‘inseparably

bound up with the “waters” of the United States.’” Id.

at 680 (quoting United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 184 (1985)). This case falls

within the principle of Riverside Bayview, not Solid

Waste Agency.

2. The district court instructed the jury at peti-

tioner’s trial that “(t]he term waters of the United

States includes waters such as lakes, rivers, streams, -

* * * [t]he use degradation or destruction of[] which

could affect interstate or foreign commerce.” Pet. App.

38a. That instruction did not by its terms require the

jury to find that petitioner’s wetlands were hydrologi-

cally connected to (or could otherwise be expected to

affect the quality of) navigable-in-fact waters. Thus,

the instruction given by the district court might in

theory have resulted in a conviction based solely on the

sort of connection to commerce—e.g., use of the wet-

lands as habitat for migratory birds—that was held in

Solid Waste Agency to be an impermissible basis for

the exercise of federal regulatory jurisdiction under the

CWA. ;

Petitioner did not object to the pertinent instruction,

however, and indeed proposed an instruction defining

the term “waters of the United States” in a substan-

tially identical manner, which effectively invited the

error of which he now complains. He thus should not be

entitled to raise that issue in this Court. See, e.g., City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687, 704 (1999) (“As the city itself proposed the

essence of the instructions given to the jury, it cannot

now contend that the instructions did not provide an

9

accurate statement of the law.”); United States v.

Young, 745 F.2d 783, 752 (2d Cir. 1984) (“not even the

plain error doctrine permits reversal on the groand that

the trial court granted a defendant’s request to charge”;

citing cases), cert. denied, 470 U.S. 1084 (1985); United

States v. Barrow, 118 F.3d 482, 490-491 (6th Cir. 1997)

(same); but see United States v. Perez, 116 F.3d 840,

844-846 (9th Cir. 1997) (en banc). If petitioner is not

foreclosed from raising this issue by his own proposed

jury instruction, he can obtain relief based on instruc-

tional error only if he-can satisfy the requirements of

Federal Rule of Criminal Procedure 52(b), which

provides that “[p]lain errors or defects affecting sub-

stantial rights may be noticed although they were not

brought to the attention of the court.” In United States

v. Olano, 507 U.S. 725 (1993), this Court explained that

under Rule 52(b), a criminal defendant who fails to

object to an alleged error at trial is entitled to relief on

appeal only if he can make four distinct showings. The

defendant must establish that the district court

committed (1) an “error” (2) that was “plain,” in the

sense of “clear” or “obvious,” and (8) that “affec[ted]

[his] substantial rights.” 507 U.S. at 732-735. Even

when those showings are made, a reviewing court may

exercise its discretion to reverse a conviction for plain

error only (4) “if the error seriously affect[s] the fair-

ness, integrity or public reputation of judicial pro- |

ceedings.” Jd. at 736 (internal quotation marks

omitted).

Insofar as the district court’s instruction defining the

term “waters of the United States” would have allowed

the jury to find the jurisdictional element satisfied

based solely on migratory bird use, the error in the

instruction is “clear” or “obvious” after this Court’s

decision in Solid Waste Agency. See Johnson v. United

10

States, 520 U.S. 461, 468 (1997) (holding that “where the

law at the time of trial was settled and clearly contrary

to the law at the time of appeal(,] it is enough that an

error be ‘plain’ at the time of appellate consideration.”).

Petitioner cannot satisfy the third and fourth require-

ments for relief under Rule 52(b), however, because he

suffered no prejudice as a result of the instructional

error. As we explain above, the evidence at trial

established the existence of a surface-water connection

between petitioner’s wetlands and navigable-in-fact

waters. Indeed, the government sought to prove the

potential effect on interstate commerce required by the

district court’s instruction by introducing evidence that

petitioner’s wetlands drained into tributaries of naviga-

ble waters, that the tributaries supported spawning of

carp, and that carp were commercially harvested down-

stream. See 02/01/95 Tr. 177-188; 02/09/95 Tr. 115-130;

Gov't C.A. Br. 21.

Thus, unlike in Solid Waste Agency, the interstate

commercial nexus asserted by the government in this

case was itself dependent on the existence of a surface

connection to navigable-in-fact waters. Although the

instruction standing alone might have permitted the

jury to find petitioner guilty based on migratory bird

use, the actual course of proceedings at trial eliminates

any meaningful danger that such a result occurred. The

defect in the district court’s instructions therefore did

not “affect substantial rights” or “seriously affect the

fairness, integrity or public reputation of judicial pro-

ceedings.” Olano, 507 U.S. at 734, 736.

3. Petitioner contends (Pet. 11-14) that this Court

should grant certiorari to decide the question, left

unresolved in Solid Waste Agency, whether and under

what circumstances Congress may constitutionally

extend federal regulatory jurisdiction to cover non-

11

navigable “isolated” waters lacking any hydrologic a

connection to traditional navigable waters. As we

explain above, however; the wetlands: itivolved in'this

case do not fall within that category. This Court’s

resolution of the constitutional issue raised by peti-

tioner can therefore have no practical effect on the

proper disposition of the instant case.

4. Petitioner contends (Pet. 14) that his convictions

were obtained in violation of the Due Process Clause

because the government failed to prove that petitioner

“knew that the areas into which he was placing fill were

wetlands.” Petitioner asserts (Pet. 14) that govern-

ment counsel disclaimed any attempt to prove such

knowledge. The statement quoted by petitioner, how-

ever, simply reflected counsel’s view that the govern-

ment was not required to prove petitioner’s knowledge

of the downstream hydrologic connections that brought

his wetlands within the regulatory definition of “waters

of the United States.” See 03/03/95 Tr. 10.

Petitioner does not contend that the jury was im-

properly instructed on the scienter element of the -

criminal charges. And the evidence of petitioner’s

knowledge of the physical characteristics of the filled

area was fully sufficient to satisfy statutory and

constitutional requirements. As the court of appeals

noted on petitioner’s prior appeal, the record showed

that petitioner undertook his filling activities despite

warnings from both state regulators and his own

consultant that the property contained wetlands for

which a permit was required. 115 F.3d at 368-369.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

- ELLEN J. DURKEE

Attorney

May 2001