Amicus Curiae Brief — Huebner v. United States

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No. 84-1613 JUN 10 1985

In The

AKEXANDER Lt. STEVAS.

Supreme Court of the Unite

October Term, 1984

— ,

——— ae

ROLAND G. HUEBNER, WILLIAM HUEBNER, and

PETENWELL POTATO FARM,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF CALIFORNIA

CATTLEMEN'S ASSOCIATION, NATIONAL

CATTLEMEN'S ASSOCIATION, AGRICULTURAL

COUNCIL OF CALIFORNIA, AND CALIFORNIA

FARM BUREAU FEDERATION IN SUPPORT

OF PETITIONERS’ WRIT OF CERTIORARI

“PF

Roxatp A. ZumMBrRUN

Ross L. Riverr

Counsel of Record

James S. Buriina

Of Counsel

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amici Curiae

California Cattlemen’s

Association, National

Cattlemen’s Association,

Agricultural Council

of California, and

California Farm Bureau

Federation

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ..0 ww.

INTEREST OF AMICI

-. a

_ OPINION BELOW

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT ......

I. INTRODUCTION

National Cattlemen’s Association

California Farm Bureau Federation _...........

California Cattlemen’s Association .....................

Agricultural Council of California 0.

II. THE PLAIN LANGUAGE OF THE

ITT.

CONCLUSION

CLEAN WATER ACT EXEMPTS FROM

REGULATION ACTIVITIES SUCH AS

THOSE PERFORMED BY THE HUEB-

NERS

A. All Normal Farming Activities Are

Exempt from Corps’ Regulation ................

B. ‘The Irrigation Ditch Exemption Applies

to Irrigation Ditches and Appurtenant

POS cc.

C. Road Building for Farm Purposes Is

Exempt _...... . a

D. Section 404(f)(2) Does Not Negate the

Exemptions Because the Huebners Are

Not Bringing the Subject Property into

es Mo

CONGRESS INTENDED THE AGRICUL-

TURAL EXEMPTIONS TO THE CLEAN

WATER ACT TO APPLY TO A FULL

RANGE OF AGRICULTURAL ACTIV-

ITIES

oo Ff» CO WwW Ww

~~]

TABLE OF AUTHORITIES CITED

Page

CasEs

United States v. Akers, Civ. No. 84-1276-RAR

(E.D. Cal. Jan. 15, 1985) 6

STATUTES

Clean Water Act § 404, 33 U.S.C. § 1344 ou 4, 6-7

94060), 42) we

§ 404(f)(1), $ 1344(£)(1) Ee. ‘iti

§ 404(f)(1)(A), § 1844(f)(1) (A) 2 9

$404(f)(1)(C), $ 1344(HH)(C) —_ 10

§ 404(f) (1) (EB), § 1844(£)(1)(B) 11

6 ett} CS), AIRE) nn “ane 1, 17-18

RvuLEs AND REGULATIONS

Supreme Court Rule No. 36

33 C.F.R. § 323.3 (1984) 9

§ 323.3.3 11

§ 323.4 i)

PF AD. | eA eae hans ae eA 9

-, ew OES ee ee Ronee 9-11

MISCELLANEOUS

Booher, FAO Agricultural Development Paper

No. 95, Surface Irrigation: No. 9 Wild Flood-

ing (United Nations Food and Agricultural Or-

SE TIT GD seinirtinnincincitastemsaais -

ili

TABLE OF AUTHORITIES CITED—Continued

Page

Environmental Policy Division of the Congres-

sional Reference Service, A Legislative History

of the Water Pollution Control Act Amend-

ments of 1972 (Comm. Print 1973) 0... Skee

Hansen, Israelsen, Stringham, Irrigation Prin-

ciples and Practice (4th ed. 1980) 10

Marr, California Agricultural Extension Service,

Grading Land for Surface Irrigation

(Its Cir. 438) (1954) ou... (O8n TY Sete Rr 10-11

No. 84-1613

fy.

In The

Supreme Court of the United States

October Term, 1984

ROLAND G. HUEBNER, WILLIAM HUEBNER, and

PETENWELL POTATO FARM,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

fy.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

ray

BRIEF AMICUS CURIAE OF CALIFORNIA

CATTLEMEN’S ASSOCIATION, NATIONAL

CATTLEMEN’S ASSOCIATION, AGRICULTURAL

COUNCIL OF CALIFORNIA, AND CALIFORNIA

FARM BUREAU FEDERATION IN SUPPORT

OF PETITIONERS’ WRIT OF CERTIORARI

ray

INTEREST OF AMICI

Pursuant to Supreme Court Rule 36, California

Cattlemen’s Association, National Cattlemen’s Associa-

tion, Agricultural Council of California, and California

Farm Bureau Federation respecifully submit this brief

amicus curiae in support of petitioners’ petition for writ

of certiorari. Consent to the filing of this brief has been

granted by counsel for all parties. Copies of the letters

of consent have been lodged with the Clerk of this Court.

The interests of amici are listed below:

A. National Cattlemen’s Association

National Cattlemen’s Association is a nonprofit cor-

poration composed of 245,000 individual and 50 state

association members, whose purpose is to protect the

varied interests of farmers, ranchers, and breeders and

owners of beef cattle through the cooperative promotion,

fostering, and encouraging of intelligent and orderly mar-

keting of agricultural and horticultural products. Mem-

bers, many of whom farm and/or raise cattle throughout

the United States and engage in wetlands agriculture, will

be negatively affected by any interpretation of the agri-

cultural, irrigation, or road building exemptions to the

Clean Water Act, 33 U.S.C. § 1344(f)(1), that reduces the

acreage available for new crop production, withholds ex-

emption for wetlands irrigation with the structures it nec-

essarily employs, or impinges upon day-to-day farm or

ranch management decisions regarding the location of

necessary service roads. These adverse effects will impact

upon both the individual farms and ranchers as well as the

National Cattlemen’s Association itself, for the viability

of the association is dependent upon that of its members.

B. California Farm Bureau Federation

The California Farm Bureau Federation is a volun-

tary nongovernmental, nonprofit California corporation.

Its primary purpose is to protect and foster agricultural

interests throughout the State of California. Its members

consist of 52 county farm bureaus with a combined mem-

bership at the close of its 1984 membership year of ap-

proximately 98,000 farm families. Over 85% of all com-

mercial farmers in the State of California are members

of the county farm bureaus. The agricultural regulations

at issue in this case have a direct impact upon members

of the federation as well as the federation itself.

C. California Cattlemen’s Association

California Cattlemen’s Association is a nonprofit Cali-

fornia corporation composed of 3,952 voluntary ranch fam-

ily members whose purpose is to promote, foster, and

encourage the intelligent and orderly marketing of agri-

cultural and horticultural products, particularly cattle and

beef, through cooperation. Members, many of whom raise

eattle in California and engage in wetlands agriculture,

will be affected by any interpretation of the agricultural,

irrigation, or road building exemptions to the Clean Water

Act, 33 U.S.C. § 1344(f).

D. Agricultural Council of California

The Agricultural Council of California is a private

association of farmer-owned and operated marketing, bar-

gaining, and service cooperatives. Farmer-owners of the

cooperatives, who are members of the Agricultural Council

of California, engage in agricultural activities in wetlands

areas. They will be affected by any interpretation of the

agricultural, irrigation, or road building exemptions of the-

Clean Water Act, 33 U.S.C. §¢ 1344(f), and regulatory

applications of that Act.

ray

OPINION BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit is reported at 752 F.2d 1235 (1985).

A copy of that opinion is reproduced in the appendix to

petitioners’ petition for writ of certiorari.

STATEMENT OF THE CASE

In 1977 the Huebners purchased 5,000 acres of farm-

land which according to the Army Corps of Engineers

(Corps) is wetlands.' Like all good farmers who wish to

maintain economic viability in a time fraught with farmer

bankruptcies, the Huebners seek to modernize their farm-

ing operation by altering crop paiterns, intensifying irri-

gation activities, and generally upgrading the efficiency

of the operation. When the Huebners first began to im-

prove their farming operations after they purchased the

new property in 1977 the Corps stepped in. Because

the Corps believed these identified wetlands to be subject

to its regulatory jurisdiction it attempted to regulate the

Huebners’ farming activities through the Section 404

permitting process. An initial consent decree requiring

the Huebners to obtain a permit before engaging in any

activity subject to the Corps’ regulation was entered.

After the decree was entered the Huebners, believing

in good faith that certain farming activities were exempt

from regulation by the Corps, proceeded for a time with

these farming operations. In response to these activities

the Corps brought the suit which is the basis of the

Huebners’ petition for writ of certiorari.

1 The Corps’ definition of wetlands and the constitutional

limits of the Corps’ jurisdiction over nonagricultural wetlands

are not at issue in this case.

SUMMARY OF ARGUMENT

1. The plain language of the Clean Water Act ex-

empts from regulation activities such as those performed

by the Huebners.

2. Congress intended the agricultural exemptions to

the Clean Water Act to apply to a full range of agricul-

tural activities.

I '

INTRODUCTION

This case involves far more than the difficulties of

a single Wisconsin farm family coping with the overly

zealous enforcement of federal regulations where such

regulations were never meant to apply. Rather, it in-

volves the fate of farmers and ranchers throughout the

nation who have already been harmed and who will contin-

ue to be harmed by another federal bureaucracy run amok.

The Corps has crossed a line drawn by Congress designed

to protect this nation’s farmers and ranchers from an

onslaughter of regulatory oversight and abuse; by cross-

ing this line the Corps has invaded our agricultural

industry in a way not intended and in fact strictly pro-

scribed by Congress. This case presents an opportunity

for this Court to enforce the wishes of Congress and end

the Corps’ regulatory invasion into the day-to-day activ-

ities of our farmers and ranchers.

The case of the Huebners is hardly isolated or alone.

For example, at the present time another case in which

the Nationa] Cattlemen’s Association, California Cattle-

men’s Association, California Farm Bureau Federation,

and the Agricultural Council of California have all inter-

vened is brewing in Northern California. It involves re-

markably similar factual circumstances and an identically

crabbed interpretation of the Clean Water Act’s agricul-

tural exemptions by the Army Corps of Engineers. That

ease, United States v. Akers, Civ. No. 84-1276-RAR (E.D.

Cal. Jan. 15, 1985), is currently on appeal to the Ninth

Cireuit Court of Appeals, No. 85-1750 (filed March 7,

1985). With the Huebner case this Court has a chance to

rectify the continuing regulatory transgressions of the

Corps that can only become more egregious in their cumu-

lative impact as the Corps’ unauthorized regulatory reach

becomes further institutionalized.

American farmers and ranchers are the backbone of

this nation’s economic prosperity. Farming and ranch-

ing, by their inherent nature, must alter the character

and use of land, but the tremendous benefits derived gen-

erally far outweigh any concern over the conversion of

undeveloped land into farm and ranchland, or as in this

case the intensification of uses on underdeveloped land.

However, it is also evident that undeveloped lands are

crucial to the natural environment. For example, Con-

gress recognizes the importance of natural wetlands for

flood control, fisheries, and migratory bird populations.

For this reason, Congress passed Section 404 of the Clean

Water Act’ to preserve and protect this country’s wet-

lands. Congress was well aware, however, that an over-

broad reading of the Clean Water Act could unjustifiably

and adversely affect the ability of farmers and ranchers

to carry on their day-to-day operations. Thus, Congress

2 Codified at 33 U.S.C. § 1344.

enacted a well-balanced statute that not only preserves

the ability of farmers and ranchers to efficiently and

independently manage their operations but also protects

this nation’s wetland environments to the maximum extent

practical. It is this crucial balance that is at stake in

this and similar lawsuits.

What is most troubling to amici in the Huebner case

is the District Court’s interpretation of the agricultural

exemptions to Section 404 of the Clean Water Act as up-

held by the Seventh Circuit Court of Appeals. It is clear

that the court’s interpretation totally emasculates the ef-

fectiveness and purpose of these exemptions and is un-

equivocally contrary to the plain language and legislative

intent of the Clean Water Act. Because the proper inter-

pretation of the agricultural exemptions to the Clean

Water Act is crucial to the viability and efficiency of so

many American farms and ranches, amici take this oppor-

tunity to briefly explain the applicability of these agri-

cultural exemptions and the crucial importance for this

Court to restore the regulatory balance designed by Con-

gress.

THE PLAIN LANGUAGE OF THE CLEAN

WATER ACT EXEMPTS FROM

REGULATION ACTIVITIES SUCH AS

THOSE PERFORMED BY THE HUEBNERS

Section 404(f) of the Clean Water Act, codified at

33 U.S.C. § 1344(f), provides an exemption for a range

of farming, silviculture, and ranching activities from the

regulatory jurisdiction of the Army Corps of Engineers.

Section 404(f) reads in relevant part:

“(f)(1) Except as provided in paragraph (2)

of this subsection, the discharge of dredged or fill

material—

“(A) from normal farming, silviculture, and

ranching activities such as plowing, seeding, culti-

vating, minor drainage, harvesting for the pro-

duction of food, fiber, and forest products, or

upland soil and water conservation practices;

“(C) for the purpose of construction or

maintenance of farm or stock ponds or irriga-

tion ditches, or the maintenance of drainage

ditches ;

“(E) for the purpose of construction or

maintenance of farm roads or forest roads, or

temporary roads for moving mining equipment,

where such roads are constructed and maintained,

in accordance with best management practices, to

assure that flow and circulation patterns and

chemical and biological characteristics of the nav-

igable waters are not impaired, that the reach

of the navigable waters is not reduced, and that

any adverse effect on the aquatic environment

will be otherwise minimized;

is not prohibited by or otherwise subject to regula-

tion under this section or section 1311(a) or 1342 of

this title (except for effluent standards or prohibitions

under section 1317 of this title).

“(2) <Any discharge of dredged or fill ma-

terial into the navigable waters incidental to any

activity having as its purpose bringing an area

of the navigable waters into a use to which it

was not previously subject, where the flow or

circulation of navigable waters may be impaired

or the reach of such waters be reduced, shali be

required to have a permit under this section.”

A. All Normal Farming Activities

Are Exempt from Corps’ Regulation

Section 404(f)(1)(A) exempts normal farming and

ranching activities from the Corps’ regulatory jurisdic-

tion. The subsection also lists certain specific activities

as being within this exemption. However, because the

list is preceded by the words ‘‘such as’’ the list is not ex-

clusive. What is relevant is whether or not the Huebners’

activities constitute “normal farming.’’ No ailegations

have ever been advanced that the activities of the Hueb-

ners were for any purpose but normal farming. The area

is not being converied into a housing development, golf

course, or shopping center; the present and anticipated

future use is for farming and only farming.

The regulations promulgated by the Army Corps of

Engineers for this exemption, 33 C.F.R. § 323.4 (1984),

and proposed regulation 33 C.F.R. § 232.3, located in

49 Federal Register 39,019 (1984), help define the scope of

normal farming activities. Specifically, they are required

to be “part of an established (7.e., on-going) farming, silvi-

culture, or ranching operation.” It is undisputed that the

Huebners’ property has been farmed since the turn of the

eentury. The activities of the Huebners will not bring

any previously unfarmed area into a new farming use;

the activities will only modernize and intensify the farm-

ing uses of the property. The regulations continue that an

operation “ceases to be established when the area on which

it was conducted has been converted to another use or has

lain idle so long that modifications to the hydrological re-

gime are necessary to resume operations.’’ 33 C.F.R.

§ 323.4(a)(1)(ii) and proposed 33 C.F.R. § 232.3(¢e)(1)

(ii)(A), (B) in 49 Fed. Reg. 39,019. Because there have

been farming operations since the turn of the century and

only the character of ‘ie operations is changing after a

period of exclusive use for cranberry production it is clear

that this regulation’s limitation upon the normal farming

exemption does not apply, even if the hydrological regime

had been altered. Any reading that the regulations pre-

vent crop intensification activities such as those engaged

in by the Huebners is clearly contrary to the plain lan-

guage of the “normal farming” statutory exemption.

It is submitted that the Corps must adhere to the

plain language of the statute and regulations.

B. The Irrigation Ditch Exemption

Applies to Irrigation Ditches

and Appurtenant Structures

Section 404(f)(1)(C) exempts the construction or

maintenance of irrigation ditches. An irrigation ditch

encompasses more than a mere ditch but also includes the

raised bank of a ditch or those appurtenant structures that

bring the water out of the ditch or spread the water de-

livered by the ditch. This exemption must cover the full

scope of irrigation utilized in farming activities including

the necessity of placing material extracted from an irri-

gation ditch on either a levee or leveled site adjacent to

the ditch, as is the normal and economical farming prac-

tice. See Booher, FAO Agricultural Development Paper

No. 95, Surface Irrigation: No. 9 Wild Flooding (United

Nations Food and Agricultural Organization 1974); Han-

sen, Israelsen, Stringham, Jrrigation Principles and Prac-

tices at 199-206, 240-41, 250-51 (4th ed. 1980); and Marr,

California Agricultural Extension Service, Grading Land

for Surface Irrigation 1-46 (Its Cir. 488) (1954); see also

proposed regulation 33 C.F.R. § 232.3.3 found in 49 Fed.

Reg. 39,019 (structures appurtenant to irrigation ditches

to be exempt from regulation).

C. Road Building for Farm Purposes Is Exempt

The Huebners have been found in violation of the

Clean Water Act and not within the road building exemp-

tion of Section 404(f)(1)(E) because their roads were built

at a “greater width than necessary.’’ 752 F.2d at 1243.

This is patently absurd and plainly contrary to the

language of Section 404(f)(1)(E). The roads were built

with material removed for the expansion and maintenance

of irrigation ditches. This material must be placed some-

where, and it is clearly a wise management practice to

use it in building adjacent roads. ‘ihe Corps seeks to

extend its regulatory jurisdiction over the day-to-day ditch

and read maintenance and building activities with the bi-

zarre requirement that farmers must adopt uneconomic

management activities by shipping such soil removed from

irrigation ditches to points unknown. ‘his makes no eco-

nomic or environmental sense and is hardly what Con-

gress intended.

D. Section 404(f)(2) Does Not

Negate the Exemptions Because

the Huebners Are Not Bringing the

Subject Property into a New Use

Section 404(f)(2) of the Clean Water Act states that

the exemptions outlined in Section 404(f)(1) do not apply

when there is a ‘‘discharge of dredged or fill material . . .

incidental to any activity having as its purpose bringing

an area of the navigable waters into a use to which it was

not previously subject, where the flow or circulation of

navigable waters may be impaired or the reach of such

waters be reduced.’’ (Emphasis added.) The Corps be-

lieves that this section is invoked when an irrigation

spoils bank is enlarged. It is doubtful Congress intended

such an interpretation. Even if it is assumed that the

Corps’ and the lower court’s findings are correct that the

activities of the Huebners serve to reduce the reach of

the subject wetlands identified by the Corps, the normal

farming exemption still must apply because the activities

of the Huebners do not change the use of the subject

wetlands. They have been and shall continue to be sub-

ject to the use of farming. The property has always

been used for farming, and most likely it always shall

be used for farming. Thus, all of the activities of the

Huebners fall squarely within the agricultural exemptions

of the Clean Water Act. However, contrary to the intent

of Congress the Corps would sacrifice sound and economic

principles of farm management for what can only be de-

scribed as a stifling devotion to the expansion of its reg-

ulatory domain.

III

CONGRESS INTENDED THE AGRICULTURAL

EXEMPTIONS TO THE CLEAN WATER ACT TO

APPLY TO A FULL RANGE OF

AGRICULTURAL ACTIVITIES

Although the piain language of the exemptions to

the Clean Water Act leaves little ambiguity it has been

argued by the United States that they do not encompass

a full range of normal farming activities and furthermore

that the legislative history of the amendments to the Clean

Water Act demonstrates that the exemption must be so

narrowly construed that only a bare minimum of farming-

related activities will be tolerated by the Corps. However,

when the entire legislative history is examined, it be-

comes abundantly clear that Congress had every intention

to exclude a!l normal farming activities from the regula-

tory domain of the Army Corps of Engineers. Further-

more, it is apparent that the activities of the Huebners

fall well within the congressional intent.

When Congress enacted the Clean Water Act in 1972

it extended the jurisdiction of the Army Corps of Engi-

neers from navigable waterways to further include all

those waters affecting navigable waterways, including

wetlands. Soon thereafter the Corps began to promulgate

regulations which would have extended its regulatory

contro] into the day-to-day activities of all farming in

wetlands areas and even those areas that were merely

farmlands with high seasonal saturations.’

In response to the Corps’ attempt to expand exces-

sively its jurisdiction under the 1972 Clean Water Act,

3 During the Senate debate over the 1977 Amendments to

the Clean Water Act Senator Muskie stated:

“The corps proceeded to take [the Clean Water Act] and

. expand it far beyond any intent of the Congress so

that it found itself threatening regulation in areas of the

country which the corps had never imagined it had any

jurisdiction over.

“We all began to get letters from farmers, foresters,

ranchers, from people whose activities in the mind of

Congress were not in the slightest bit intended to be

affected ....”" See Environmental Policy Division of the

Congressional Reference Service, A Legislative History of

the Water Pollution Control Act Amendments of 1972

at 948 (Comm. Print 1973) (Legislative History).

Congress in 1977 passed the Section 404(f) exemptions

which are the subject of this lawsuit. The intent of these

exemptions clearly was to remove the Corps’ regulatory

jurisdiction from normal farming activities. Even with

the proposed exemptions, however, there remained a cer-

tain amount of wariness of the Curps among many mem-

bers of the Senate. Led by Senator Bentsen these mem-

bers attempted to pass an additional amendment to the

Clean Water Act which would have removed al! wetlands

entirely from all regulation. It is most telling to note

that during the debate over Senator Bentsen’s amendment,

the Senate was repeatedly assured that the Section

404(f) exemptions alone would relieve farmers from the

type of excessive regulatory jurisdiction that the senators

were concerned with, and that all parties in this case are

concerned with.

For example, in introducing the amendment that

would have excluded wetlands from Clean Water Act

regulation Senator Bentsen stated:

“I find it offensive that before a small farmer

ean dig new irrigation ditches he must first write

the U. S. Army for permission, complete the necessary

Federal forms, and then wait an «verage of 125 days

while his request is shuffled from one bureaucrat’s

in-box to another. I also find it offensive that a

farmer who has paid hard-earned money for new

land 2 years ago may now be prohibited by the Gov-

ernment from improving that land for agriculturally

productive uses, and will not receive a penny in just

compensation for his loss of income from the prop-

erty.’’ Legislative History at 905.

In response, Senator Bentsen was assured that the

proposed Section 404(f) exemption alone would free

farmers from excessive government regulation. As Sen-

ator Hart stated, the exemption “does exempt activities

which are normal farming or agricultural activities, run

by individuals or family farmers.’’ Legislative History

at 907-08. See also Remarks of Senator Stafford at 912

and Remarks of Senator Baker at 922 (“the committee’s

amendment [Section 404(f)] has responded to this con-

fusion and makes it clear, for example, that normal farm-

ing, silviculture and ranching activities such as plowing,

cultivating, seeding, harvesting, upland soil and water

conservation practices and minor drainage are excluded

from section 404 altogether’’).

Despite these reassurances there was still some un-

easiness by some senators. Senator Domenici, in support

of Senator Bentsen’s amendment, stated:

“T think we have an opportunity here in the Senate

to undo something that has grown up that we really

never intended, and not to continue to ignore the fact

that we never intended under section 404 that the

Corps of Engineers he involved in the daily lives of

our farmers, realtors, people involved in forestry,

anyone that is moving a little bit of earth anywhere

in this country that might have an impact on navi-

gable streams. We just did not intend that.

“We exempt ordinary farming, but farming

should not have been involved to begin with. So the

farmer still does not know whether his activity is

normal or not.’’ Legislative History at 924 (emphasis

added).

Senator Hart reassured Senators Domenici and

Bentsen that the proposed Section 404(f) exemptions

would cover farmers. Senator Hart stated:

“Every proposal before this Senate, every one,

is designed to exempt those normal activities from

that kind of overregulation by the Corps of Engineers

or anybody else. Any argument that is made on the

floor to the contrary simply misrepresents one or

the other of the proposals upon which we will be

asked to vote before this debate is over.

“The committee amendment [Section 404(f)]

also specifically exempts the construction and main-

tenance of agricultural irrigation ditches and the

maintenance of agricultural drainage ditches."’ Leg-

islative History at 928.

The debate continued. Senator Dole stated that

“(without this [the Bentsen] amendment, our farmers

and ranchers and others could be subjected to unneces-

sary bureaucratic harassment."’ Legislative History

at 938. Once again the senators were reassured that the

Section 404(f) exemption protected the farmers although

the Corps should continue to have jurisdiction over wet-

lands because without that jurisdiction there would be

“an open invitation for the dredgers of this country to

find wetland areas for the disposal of their contaminated

waste and spoil. If we adopt the [Bentsen] amendment,

that is what will happen.’’ Legislative statement of Sen-

ator Muskie, Legislative History at 940. Despite the mis-

givings of the senators who wished to pass the Bentsen

amendment the Senate ultimately decided that farmers

would be fully protected by the Section 404(f) exemptions.

The Bentsen amendment was not passed.

This legislative history is highly relevant to the prop-

er interpretation of Section 404(f). In this debate it is

clear that normal day-to-day farming activities, such as

crop rotations, or increasing efficiencies or moderniza-

tions of farmland were to be covered under the Section

404(f) exemptions. If there had been any credible evidence

that normal farming activities such as those conducted by

the Huebners were not to fall within the exemption then

the Senate would not have passed the exemptions without

further modifications. Instead, the exemptions were

passed in their present form because the senators be-

lieved that the Section 404(f) amendment completely pre-

eluded the Army Corps of Engineers from asserting its

jurisdiction over the lives of America’s farmers.

It should be further noted that Section 404(f) (2)

was intended only to preclude the change from an agri-

cultural use into some other use under the cuise of “farm-

ing activities’’ and was not intended to affect chance

among farm uses. Section 404(f) (2) was most certainly

not intended to preclude the changing of one crop to an-

other crop. The Senate had no intention of forever pre-

venting farmers from engaging in necessary and essential

crop rotations or intensifications of existing agricultural

uses. In fact, the only time the Senate debated the sub-

ject of “bringing an area of the navigable waters into a

use to which it was not previously subject,’’ Section

404(f) (2), the senators mentioned only a conversion of

agricultural or silvicultural uses into nonagrienitura! or

nonsilvicultural uses. For example, in the Senate de-

bates it was stated by Senator Stafford that “permit re-

view is necessary for discharges to convert a hardwood

swamp to another use through construction of dikes or

drainage channels."’ Legislative History at 913 (emphasis

added).

Finally, it should be noted that the House of Rep-

resentatives also believed that the agricultural exemp-

tions would be applied to a broad range of farming activ-

ities. In the House debate of April 5, 1977, on H.R. 3199

a nearly identical agricultural exemption was debated.

The agricultural exemption Section 404(h), reprinted im

Legislative History at 1240, was the subject of the com

ments of representatives Harsha and Cleveland who

stated that “[t]his procedure would exempt by statute

virtually all agricultural operations by straight exemption

of a list of specific activities from any requirement for

any permit whatsoever.”’ Legislative History at 1265

and 1298 (emphasis added). Any agricultural activities

not covered by the new exemptions were to be covered

by blanket permits. Jd. at 1265 and 1298. The final version

as reached in conference committee is nearly the same,

except that more activities were included in the exemp

tion and Section 404(*) (2) was incorporated to preven

abuse of the exemptions.

Congress did not intend to permit the Corps to reg

ulate such activities as those of the Huebners. Congress

did not intend to allow the intrusion of federal regulation

into the day-to-day activities of this nation’s farmers.

Rather, Congress intended to prevent the wholesale pol

lution or alteration of this nation’s wetlands by indus-

trialists or developers who were not engaging in legitimate

farming or silvicultural activities. Because all of the ac

tivities on the Huebners’ farm were crucial functional

elements of their agricultural work, because they do not

involve the conversion of farmland into nonfarm uses,

and because there is no credible factual evidence that

these activities fall outside of the exemptions, the deci-

sion below cannot stand.

o———_—————

CONCLUSION

Isolated farming activities in a remote and rural

region of Wisconsin should not, under normal cireum.

stances, be the subject of Supreme Court deliberations.

However, when a powerful federal agency wanders from

the proper bounds cf its jurisdiction into the field of day-

to-day agricultural activities, contrary to congressional

intent, the propriety of that agency action must be re

viewed. The necessity of Court review is especially mani-

fest when the agency abuse is not a mere incident of iso-

lated overzealousness, but rather is symptomatic of a dis-

turbing pattern of regulatory abuse throughout the nation.

In 1977, Congress exempted agricultural activities

from regulation by the Army Corps of Engineers. The

Corps has ignored the unambiguous meaning and intent

of this exemption. Rather the Corps has proceeded to

extend its reguiatory grip over agricultural activities

without respite and without any but the most crabbed, un

reasonable, and untenable interpretation imaginable of

Congress’ exemption language.

It is respectfully urged that the Huebners’ petition

for a writ of certiorari be granted.

DATED: June, 1985.

Respectfully submitted,

Ronaup A. ZUMBRUN

Rosin L. Rivettr