# Opposition Brief — Rapanos v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 913

## Text

‘
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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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
OORAOUE TIC GS i nibinisainitisisninncnnscidisitiasshintilicactisibaihiiasabiitenibiins

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1512%3A2. Public record. Not legal advice.