# Amicus Curiae Brief — Huebner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0080%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 817 ## Text y Wey * vuepyvinN ve Se cep 1 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, v. UNITED STATES OF AMERICA, Respondent. ny a On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit ry 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 sy “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 i TABLE OF CONTENTS TABLE OF AUTHORITIES CITED ..0 ww. INTEREST OF AMICI A. B. C -. 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 ~~] 10 11 11 12 19 ii 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. Vv In The Supreme Court of the United States October Term, 1984 L. Vv ROLAND G. HUEBNER, WILLIAM HUEBNER, and PETENWELL POTATO FARM, Petitioners, V. UNITED STATES OF AMERICA, Respondent. fy. Vv 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 Vv 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. 2 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 3 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 So OPINION BELOW The opinion of the United States Court of Appeals for the Seventh Circuit is reported at 752 F.2d 1235 (1985). 4 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. or 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. II 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: 8 “(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)