Opposition Brief — Leslie Salt Co. v. United States

Suprema Court, 0,8

RILED

@) jan 22 199!

No. 90-792 JOSEPH F. SPANIOL, JR.

In the Supreme Court of the United States

OcTOBER TERM, 1990

LESLIE SALT Co. and CARGILL, INC.,

Petitioners,

VS.

UNITED STATES, SAVE SAN FRANCISCO BAY

ASSOCIATION, NATIONAL AUDUBON SOCIETY, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

SAVE SAN FRANCISCO BAY ASSOCIATION AND

NATIONAL AUDUBON SOCIETY

E. CLEMENT SHUTE, JR.

ALLETTA D’A. BELIN

(Counsel of Record)

W. ROeERT WARD, JR.

SHUTE MIHALY & WEINBERGER

396 Hayes Street

San Francisco, CA 94102

(415) 552-7272

Counsel for Respondents

Save San Francisco Bay

Association and National

Audubon Society

BOWNE OF SAN FRANCISCO. INC + 190 NINTH ST + SF. CA 94103 + (415) 864-2300

QUESTIONS PRESENTED

1. Whether this case is ripe for adjudication by this Court

where the Ninth Circuit’s ruling is interlocutory and the case has

been remanded to the district court to determine the extent to

which, if any, the Army Corps has Clean Water Act jurisdiction

over a portion of petitioner’s Newark Coyote property used by

migratory birds and/or endangered species.

2. Whether the Ninth Circuit’s holding is correct that, be-

cause Congress intended to extend Clean Water Act jurisdiction

to all waters the use, degradation or destruction of which may

affect interstate commerce, it is proper for the Army Corps to

assert jurisdiction over waters which provide habitat for migratory

birds and endangered species.

se

TABLE OF CONTENTS

Page

Questions Presented .. 1.0... ccc ccc cece ccc cccs i

UII Oe ND ID osc ccc cect ccccccctccssecas ]

Characteristics of Leslie’s Newark Coyote Property. .... |

District Court Opinion ....................00 cece ee 3

SWUM GUI DS ci cca cc ccmccadcccateccces 5

Reasons for Denying the Writ......................0.. 6

I

The Ninth Circuit’s interlocutory Decision Is Not Ripe For

SUE Bl NN 6 bis veiw ncn kcdecadseapeass 6

II

The Decision Below Is Correct; Congress Intended That

Clean Water Act Jurisdiction Reach As Far As Permitted

Under The Commerce Clause ...................... 9

A. The Ninth Circuit’s Decision Is Not Nearly As Broad

ee ree a

B. The Purposes of the Clean Water Act Include Wild-

life Protection and Wetlands Preservation ......... 12

C. Congress Intended To Assert Clean Water Act Juris-

diction Over All Waters Whose Degradation Could

Affect Interstate Commerce .................... 14

1. The 1972 Clean Water Act, The Callaway Deci-

sion, And The 1975 Interim Final Regulations .. 15

2. Post-Callaway Congressional Consideration Of

The Corps Regulations And The Extent Of Juris-

diction Under The Clean Water Act.......... 17

3. Subsequent Corps Regulations............... 21

4. 1985 Congressional Oversight Hearings ....... 23

D. The Ninth Circuit’s Decision In This Case Is Consis-

tent With Pertinent Case Law .................. 26

Ill

The Ninth Circuit Decision Does Not, As Petitioner Claims,

Prohibit Development On Vast Amounts Of Land ..... 28

aR ER Ie Agr ag ee a me ve Nar 30

iti

TABLE OF AUTHORITIES

Cases

Page

American Construction Co. v. Jacksonville, T. & K. W. Ry.

ce RE PTET TT ELE ELT Leer 7

Avoyelles Sportsmen’s League, Inc. v. Alexander, 511

F.Supp. 278 (W.D.La. 1981) ..........-- eee eee eee 26

Brotherhood of Locomotive Firemen v. Bangor & A. R. R.

ee Ds coven ccciccascsccnccccess 7

Chemical Mfrs. Ass’n. v. Natural Resources Defense Coun-

ee a 0.) err ee 9

Chevron U.S.A., Inc. v. Natural Resources Defense Council,

I IP I vce ee isc tac secsssesasencs 9

Communist Party v. Subversive Activities Control Board,

BP Wee PRUED Bi Gece desccewe veces csscccascecces 7

E.P.A. v. State Water Resources Control Bd., 426 U.S. 200

EES rarer rr rrr eye Terre eT er 26

Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240 US.

ee nas cakes bSNbRSAR DAs HOO sane 7,8

Hodel v. Virginia Surface Mining & Reclamation Assn, 452

EE eee See Le cek saad ceases. 29

Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978)... 26

Michael v. United States, 454 U.S. 950 (1981).......... 8

Morton v. Ruiz, 415 U.S. 199 (1974) .................. 9

Natural Resources Defense Council, Inc. v. Callaway, 392

kk all) 16, 26

People of the State of California ex rel. State Water Re-

sources Control Bd. v. E.P.A., 511 F.2d 963 (9th Cir.

ee oe Cia hem eke bane en nears 26

Sun Enterprises, Ltd. v. Train, 394 F.Supp. 211 (S.D.N.Y.

1975), aff'd, 532 F.2d 280 (2nd Cir. 1976) ........... 26

Tabb Lakes, Ltd. v. United States, 715 F.Supp. 726 (E.D.

Va. 1988), afd, 885 F.2d 866 (4th Cir. 1989) ........ 27, 28

Thornburgh v. American College of Obstetricians & Gyne-

colopiets, 476 U.S. 747 (1986) ................00005- 8

Toilet Goods Association v. Gardner, 387 U.S. 158 (1967) 7

United States v. Ashland Oil and Transportation Co., 504

EE a is nach ecdaccrespaceessess 26

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) .... 26

United States v. Ciampitti, 583 F.Supp. 483 (D.N.J.1984) 26

United States v. General Motors Corp., 323 U.S. 373 (1945) 8

iv

TABLE OF AUTHORITIES

CASES

Page

United States v. Holland, 373 F.Supp. 665 (M.D.Fla. 1974) 26

United States v. Lambert, 695 F.2d 536 (11th Cir. 1983)... 26

United States v. Riverside Bayview Homes, Inc., 474 U.S.

ego io satay, TRICO FT 9, 13, 15, 20, 27, 29

United States v. Tilton, 705 F.2d 429 (11th Cir. 1983) ... 26

Statutes

Migratory Bird Treaty Act:

EE 3

Endangered Species Act of 1973:

a 3

Rivers and Harbors Act of 1899:

IR ion vs ons snnesaccecancasces. 4

Clean Water Act:

cit... . SESE greene Sen 12, 15

Nie wks vice one ohb cadete 12

tik dia one a's va bud cudeiccue os 12

SHE ER eae EU SEs. 12

NA nie whan 6 6 wisn nidred cd coun. 12

EE eS i2

A ah ene hen «<5 Fs baba dae ce ck ca 12

ER aap aE 12

EES IE aN eat 12

i a i i 12

a a i 12

EY ies nies dunn eicc. ck 12

i 21

Ph ihawnns-snw-ines cx 0cs ca 15

Vv

TABLE OF AUTHORITIES

Regulations

Page

Corps of Engineers Regulations:

33 C.F.R. § 209.120(d) (2) ... 2... cece cece eee eee eee 16

BTA SERT) 220s. neces cccccccccsccvcees 4

PEED covccsncccncccccccvecssees 4, 22

>) Fee ree 4

EEE Sn vccdecccccccscnsccesssevess 4

40 Fed. Rag, S13D ..... 1. cc cccccccccccccecccccess 16

ines Chins aake woah iw ews cecdos 16

errr Ter rer rrr 16

42 Fed. Reg. 37122 ..... ccc ccccccccccecscccncenes 17

EN iki ea Snes Ohed bo cernnesseges 21, 22

REE ee rey es 22

Miscellaneous

118 Cong. Rec. 33756-57 (statement of Congressman

t ) eer errr rrr eter Tre rrr eee rere 15

123 Cong. Rec. 26710-28 (debate over proposed Bentsen

SUIS 6 5 conc on.5s Gace eet densueetes 13, 18, 19, 20, 21

123 Cong. Rec. 39187 (statement of Sen. Muskie) ....... 20

123 Cong. Rec. 39209 (statement of Sen. Baker) ........ 20

H.R. Rep. No. 911, 92d Cong., 2d Sess. 131 (1972) ..... 15

H.R. 3199, 95th Cong, Ist Sess. 16 ..............-0005- 20

H.R. 11896, 92nd Cong., 2d Sess. § 502(8) ............ 15

Hearings Before the Senate Committee on Public Works on

Section 404 of the Federal Water Pollution Control Act

Amendments of 1972, 94th Cong., 2d Sess. (1976) ..... 17,18

Mitsch & Gosselink, Wetlands (1986) ................ i2, 29

Oversight Hearings on Section 404 of the Clean Water Act:

Hearings Before the Subcommittee on Environmental Pol-

lution of the Senate Committee on Environmental and

Public Works, S. Hearing No. 99-278, 99th Cong., Ist

Gs. Te SE ea oak beeh anhse ees 11, 13, 23, 24, 25, 28, 29

S. 2770, 92nd Cong., Ist Sess. S02(h) ..............--- 15

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972) ... 15

S. Rep. No. 370, 95th Cong., Ist Sess. 10-11 (1977) ..... 18

Steinhart, Tracks in the Sky: Wildlife and Wetlands of the

Fe FOP CIDSED conc ccc cceeneccaccscscccccess ll

baie =? Sijion Kerio si

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fies Weg e : vane hes =,

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No. 90-792

In the Supreme Court of the United States

OcTOBER TERM, 1990

Les.ieé SALT Co. and CARGILL, INC.,

Petitioners,

VS.

UNITED STATES, SAVE SAN FRANCISCO BAY

ASSOCIATION, NATIONAL AUDUBON SOCIETY, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

SAVE SAN FRANCISCO BAY ASSOCIATION AND

NATIONAL AUDUBON SOCIETY

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PTA h TEMS

The respondents Save San Francisco Bay Association and

National Audubon Society respectfully request that this Court

deny the petition for writ of certiorari seeking review of the

interlocutory opinion of the United States Court of Appeals for

the Ninth Circuit in this case.

STATEMENT OF THE CASE

Respondents Save San Francisco Bay Association and National

Audubon Society present the following Statement of the Case to

supplement that presented by petitioners Leslie Sait Co. and

Cargill, Inc. (hereinafter “petitioner,” “Leslie”).

Characteristics of Leslie’s Newark Coyote Property

The property which is the subject of this lawsuit, known as the

Newark Coyote property, consists of 153 acres which is adjacent

at its southern end to the Newark Slough, a meandering navigable

tidal arm of the San Francisco Bay. District Court Opinion

(“DCOP”), reprinted in Appendix to Petition at A-19; RT' 52,

861; Exh.” 733; Exh. 27(b). The property is divided into two

parcels, a 10-acre parcel (“Parcel 10”) and a 143-acre parcel

(“Parcel 143”). See Map of Property, Appendix A hereto (which

appeared as Appendix A to Respondent U.S.’s Ninth Circuit

Opening Brief). The 10-acre parcel is separated from Newark

Slough only by a culvert which passes under a road. Jd. The 143-

acre parcel is connected to the Slough by a culvert and a tidal

drainage ditch. RT 861; Exh. 734; Exh. 27(b). The Newark

Coyote property abuts the 23,000 acre San Francisco Wildlife

Refuge, which lies across a road (Thornton Avenue) to the west

of the property.

Tidal waters inundate the southern portions of both parcels

during high tides that occur on the order of once or twice a

month. Ninth Circuit Opinion (“OPIN”), reprinted in Appendix

' Citations to RT are to the Reporter's Transcript of the proceedings

in the U.S. District Court below and the page number of the Transcript.

? Citations to Exh. are to Exhibits submitted in the U.S. District

Court below.

2

to Petition at A-1, 3; Exhs. 733, 715; RT 772, 1088-89, 1127-28,

861, 328-33, 348-49. The Bay tidal waters extend from Newark

Slough through the culvert to the southern part of Parcel 10, and

across the Wildlife Refuge and through the culvert to the south-

ern part of Parcel 143. As a result of this regular tidal inundation,

the southern portions of the two parcels are densely vegetated

with pickleweed, a species cf salt marsh vegetation. RT 665-66.

The property historically was used for production of salt. RT

108-9. The western two-thirds of Parcel 143 consisted of salt

crystallizers. They were constructed by removing the topsoil from

the area, using that soil to form a levee around the perimeter of

the area, and leveling and compacting the excavated area to form

a watertight shallow basin. RT 110. Pits for collecting calcium

chloride from the salt brine were constructed on the eastern one-

third of Parcel 143. Salt production on the property ceased by the

late 1960’s. OPIN at A-2; RT 109.

There is ponding in the calcium chloride pits and much of the

crystallizers throughout the rainy season (the winter and early

spring). RT 575-76, 464, 173, 1715, 667; OPIN at A-2. Some of

these areas are “ephemerally ponded,” that is, ponded only for a

period of days or weeks after rainstorms; other areas are “season-

ally ponded,” that is, ponded for a period of months throughout

the rainy season. Leslie expert Patrick noted that the soil in part

of the crystallizer area was saturated for months at a time, and

that there was standing water in portions of the crystallizers from

November through April. RT 580, 575-76; see RT 464. The only

reason that he concluded that the area would not qualify as a

“wetland” under the Clean Water Act (“CWA”) was that it did

not have a sufficient plant community (due to the salinity of the

soil). RT 580-81.

The calcium chloride pits are particularly aquatic in nature. As

petitioner’s counsel stated at trial, “They are ponds, which every-

body concedes.” RT 1715. The testimony indicated that they

generally pond water for the major portion of the year (late

October to June or July). RT 1483-84.

Most of the plants found in the crystallizers and calcium

chloride ponds are obligate wetland species, that is, species that

3

are found 99% of the time in wetland conditions, and are typically

adapted for life in saturated soil conditions. RT 632, 682-88. One

of the plants found in the crystallizer furrows and the calcium

chloride ponds is “an aquatic plant” that “would only grow in

submerged conditions.” RT 694, 1215-16. Furthermore, both

Leslie and Government experts found evidence of stickleback fish

in both the calcium chloride ponds and the crystallizer furrows.

RT 677-78, 734, 1181-83 (remains of several hundreds of fish in

both crystailizers and calcium chloride pond); OPIN at A-2-3.

More than 59 species of birds have been observed on the

property, including numerous species of waterfowl, waterbirds,

and water-associated birds. RT 1265-1298; see also RT 1239-

1262. Fifty-five of those species are birds protected by the

Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. RT 1288.

Forty of the species found on the site are water or wetland birds.

RT 1289.

A table showing the observed bird use of the property in 1983,

’85 and ’87 shows that large flocks of birds were observed on the

property. Exh. 541. Certain areas, including the calcium chloride

ponds and portions of the crystallizers, always pond and support

waterbird use during the winter-spring months, even in relatively

dry years. See, e.g., RT 575-76, 464-65, 173, 1715.

The salt marsh harvest mouse, a rare mouse that lives in the

tidal salt marshes around the edges of the San Francisco Bay and

its tidal arms, or sloughs, is listed by the United States Fish and

Wildlife Service as “endangered” under the Endangered Species

Act, 16 U.S.C. section 1531 et seq. Two salt marsh harvest mice

were found in the pickleweed area on the southern portion of

Parcel 143. RT 1410; Exhs. 558, 651-652. Three additional mice

were found on the right of way between Parcel 10 and Thornton

Avenue, between one and eleven meters from the property line.

RT 1402-10. These mice were living in the southern portion of

Parcel 10 and the adjacent right of way. RT 1407.

District Court Opinion

In the trial court, respondents United States and Save San

Francisco Bay Association and National Audubon Society argued

4

that the Army Corps had Clean Water Act jurisdiction over

various portions of the Newark Coyote property on several differ-

ent grounds. Respondents argued that the Corps had jurisdiction

over the southern portions of the two parcels on three separate

theories: (1) that they were “subject to the ebb and flow of the

tide” under 33 C.F.R. § 328.3(a)(1); (2) that they were “adja-

cent wetlands” under 33 C.F.R. § 328.3(a) (7); and (3) that they

were “other waters” subject to Corps jurisdiction under 33 C.F.R.

§ 328.3(a)(3). Respondents also argued that the Corps had

jurisdiction over these portions of the property under the Rivers

and Harbors Act of 1899, 33 U.S.C. § 401 et seq. (“RHA”),

because they were subject to the ebb and flow of the tide.

Respondents argued that the Corps had CWA jurisdiction over

the crystallizers and calcium chloride ponds on two theo-

ries: (1) that these areas were “other waters” subject to Corps

jurisdiction under 33 C.F.R. § 328.3(a)(3); and (2) that these

areas were “adjacent wetlands” subject to Corps jurisdiction

under 33 C.F.R. § 328.3(a)(7). Leslie claimed both that there

was no jurisdiction over any part of the property under either the

CWA or the RHA and that the Corps was estopped from

asserting jurisdiction over the property based on earlier actions

taken or not taken by the Corps.

The district court ruled against respondents on all theories of

jurisdiction, finding that the Corps had no jurisdiction over any

portion of the property under either the CWA or the RHA. The

district court found that because Bay tidal water reached the

Leslie property as a result of actions taken by state and federal

government agencies, that tidal inundation could not be consid-

ered in determining whether there was Corps jurisdiction. DCOP

at A-29-30. In addition, the district court held that the crystalliz-

ers and calcium chloride ponds were not “other waters” because

they were artificially created. DCOP at A-32-33. The district

court was also apparently troubled by the seasonal nature of the

ponding on the crystallizers and calcium chloride ponds. DCOP

at A-32. Finally, the district court found that the crystallizers and

calcium chloride ponds failed to qualify as “adjacent wetlands”

because they did not meet the specific definition of wetlands set

forth in the Corps regulations. 33 C.F.R. § 328.3(b). DCOP at

5

A-39-40. The district court did not reach the estoppel claim

raised by Leslie. DCOP at A-40.

Ninth Circuit Opinion

Respondents appealed all aspects of the trial court opinion

except the holding that the crystallizers and calcium chloride

ponds were not “adjacent wetlands.” The Ninth Circuit upheld

respondents’ appeal. The Ninth Circuit held that the fact that

government agencies had caused tidal inundation of the property

was not relevant and thus that the Corps did have jurisdiction

over the southern portions of the two parcels. Because it found

that these portions of the property qualified as “adjacent wet-

lands,” it did not reach respondents’ arguments that there was

Corps jurisdiction under both the CWA and the RHA due to the

ebb and flow of tidal waters. OPIN at A-4, n.5.

The Ninth Circuit did not rule that the crystallizers and

calcium chloride ponds were within the Corps “other waters”

jurisdiction. Rather than finding Corps jurisdiction over these

portions of the property, the court remanded the issue to the

district court “to determine if the property has the requisite

connections to interstate commerce.” OPIN at A-12. The court

held only that neither the seasonality of the waters on that part of

the property nor the fact that they were artificially created (by

Leslie’s predecessor) were obstacles to Corps jurisdiction. With

respect to migratory birds and endangered species, the court held

that the CWA is broad enough to extend Corps jurisdiction to

local waters which may provide habitat to migratory birds and

endangered species. OPIN at A-12.

Judge Rymer joined in that part of the Ninth Circuit opinion

finding CWA jurisdiction over the southern portions of the two

parcels. Judge Rymer dissented on the portion of the holding

relating to the crystallizers and calcium chloride ponds. Although

she agreed with the majority that the seasonal nature of the

ponding was not an obstacle to jurisdiction, Judge Rymer opined

that these portions of the property should not qualify as “other

waters” because she understood that there was “no hydrological

connection” between the water in those areas and “any other body

of water.” OPIN, App. at A-13.

6

REASONS FOR DENYING THE WRIT

I

THE NINTH CIRCUIT’S INTERLOCUTORY DECISION IS

NOT RIPE FOR RESOLUTION BY THIS COURT

The interlocutory nature of the Ninth Circuit’s ruling makes

petitioner’s request for certiorari in this case premature. As set

forth above, the Ninth Circuit did not find that any part of the

crystallizers or calcium chloride pits was subject to CWA “other

waters” jurisdiction; it remanded the issue to the district court.

OPIN at A-!2.

On remand, the district court must make factual determina-

tions regarding migratory bird and endangered species habitat on

the property, as well as factual determinations regarding which

portions of the property qualify as “waters.” If the court finds that

there are some waters whose condition affects interstate com-

merce, the court must then determine how many acres of the

property are involved. Alternatively, the district court might

decline to reach these issues, holding that the Government is

estopped from asserting jurisdiction.

Both the district court’s factfinding and its legal analysis will

have a great bearing on the appropriateness of granting certiorari.

If, for example, the district court were to find that there was

CWA jurisdiction over only a one-acre calcium chloride pit that is

ponded 9-12 months each year and that supports dozens of

species of rare migratory waterbirds, that decision would have a

very difierent meaning than a determination that there was

jurisdiction over the entire 100 acres of crystallizers, including

parts that never pond for more than a few hours at a time and that

only provide potential habitat for non-water-dependent migratory

birds. By the same token, the issue posed in Leslie’s petition

would never arise if the court were to agree with Leslie’s estoppel

argument.

Denying certiorari now is consistent with the Court’s long

recognized guiding principle that “by the very nature of the

judicial process, courts can most wisely determine issues precisely

defined by the confining circumstances of particular situations.”

7

Communist Party v. Subversive Activities Control Board, 367

U.S. 1, 72 (1961). Thus, the Court has generally disfavored pre-

enforcement challenges to regulations allegedly in excess of

statutory authority because judicial review “is likely to stand on a

much surer footing in the context of a specific application of . . .

[a] regulation than could be the case in the framework of .. . [a]

generalized challenge... .” Toilet Goods Association v. Gardner,

387 U.S. 158, 164 (1967). Where, as here, such “surer footing”

awaits the outcome of remand proceedings, granting certiorari at

the interlocutory stage is premature.

Reviewing the legal issues raised at this stage of the proceed-

ings would only serve as an advisory opinion to guide remand

proceedings. The Court has repeatedly refused to issue such

advisory opinions on the meaning of a statute or otherwise

interpret statutes outside the narrow confines of a particular fact

situation:

“Passing upon the possible significance of the manifold

provisions of a broad statute in advance of efforts to apply the

separate provisions is analogous to rendering an advisory

opinion upon a statute or a declaratory judgment upon a

hypothetical case.” Watson v. Buck, 313 U.S. 387, 402.

Communist Party v. Subversive Activities Control Board, 367

U.S. at 71.

Consistent with its desire to avoid issuing advisory opinions and

its preference for deciding legal issues in the context of well-

defined fact scenarios, the Court has long held that the lack of

finality in the judgment below may “of itself alone” furnish

“sufficient ground for the denial of the application” for a petition

of certiorari. Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 258 (1916). See also American Construction Co. v.

Jacksonville, T. & K.W.Ry. Co., 148 U.S. 372, 384 (1893). The

Court will generally deny a petition for certiorari in a case, such as

this one, where the court of appeals has remanded the case to the

trial court. Brotherhood of Locomotive Firemen v. Bangor &

A.R.R., 389 U.S. 327, 328 (1967) (“because the Court of

Appeals remanded the case, it is not yet ripe for review by this

Court.”’).

The Court has rarely shown a willingness to depart from its

customary rule of denying review at the interlocutory stage of a

case. Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. at

258 (“except in extraordinary cases, the writ is not issued until

final decree”). The few cases in which the Court has granted

certiorari prior to a decision on remand have most often involved

the resolution of an important and clearcut issue of constitutional

interpretation that is critical to the outcome of the case and that

might resolve a conflict with prior decisions of the Supreme Court

or another circuit. See, e.g., United States v. General Motors

Corp., 323 U.S. 373 (1945) (certiorari granted at the interlocu-

tory stage to resolve a clear conflict in the federal courts regarding

the scope and meaning of the just compensation clause of the

Fifth Amendment); Thornburgh v. American College of Obstetri-

cians and Gynecologists, 476 U.S. 747 (1986) (certiorari granted

prior to remand to affirm that provisions of abortion law were

unconstitutional and in conflict with existing Supreme Court

caselaw). However, even the existence of such extraordinary

circumstances is no guarantee that certiorari will be granted at the

interlocutory stage. See Michael v. United States, 454 U.S. 950,

951 (1981) (certiorari denied at the interlocutory stage despite

split in circuits over Fourth Amendment question).

Because the Ninth Circuit’s ruling has none of the characteris-

tics of those few cases in which certiorari has been granted before

remand proceedings, certiorari should be denied here. No consti-

tutional question is raised in this case. While petitioner speculates

that the Ninth Circuit’s ruling may result in takings claims under

the Fifth Amendment (Pet. at 9), no takings claim has been

brought.

Nor has petitioner alleged that the Ninth Circuit’s holding

conflicts with any decisions of the Court or other circuits. Indeed,

petitioner can only point to the dissent in the Ninth Circuit

opinion and “concerned comments elsewhere.” Pet. at 22. A

dissenting opinion and “concerned comments” are, alone, no basis

for reviewing this interlocutory decision.

Stripped of any pretense that this case raises constitutional

issues or involves a conflict among the circuits, it becomes clear

that petitioner is making an extraordinary request for interlocu-

9

tory review in a very ordinary case of statutory construction

wherein the court of appeals found that the agency’s regulations

were not on their face contrary to the CWA. In fact, given judicial

deference to the views of the agency charged with administering a

statute,’ this case would not be appropriate for certiorari even if

the decision at issue were not interlocutory. This is because

certiorari is ordinarily reserved for cases of statutory interpretation

involving a judgment that is inconsistent with long-established

agency policy. In Morton v. Ruiz, 415 U.S. 199, 201 (1974), for

example, certiorari was granted “because of the significance of

the issue and because of the vigorous assertion that the judgment

of the Court of Appeals was inconsistent with long-established

policy of the Secretary and of the Bureau” (emphasis added). See

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121

(1985) (“Riverside Bayview”) (certiorari granted because court

adopted narrow view of Corps’ jurisdiction in conflict with Corps’

view); Chemical Mfrs. Ass'n. v. National Resources Defense

Council, Inc., 470 U.S. 116, 125 (1985) (certiorari granted when

lower court decision challenging agency’s statutory interpretation

was in direct conflict with earlier decision of another circuit

affirming the agency’s view).

Il

THE DECISION BELOW IS CORRECT; CONGRESS IN-

TENDED THAT CLEAN WATER ACT JURISDICTION

REACH AS FAR AS PERMITTED UNDER THE COM-

MERCE CLAUSE

A. The Ninth Circuit’s Decision Is Not Nearly As Broad As

Petitioner Claims

Petitioner asserts that the question presented to this Court is

“[w]hether the Clean Water Act reaches temporarily wet areas

whose ‘waters’ (a few inches of rainwater ponding only days or

>“ A] court may not substitute its own construction of a statutory

provision for a reasonable interpretation made by the administrator of an

agency.” Chevron U.S.A., Inc. v. National Resources Defense Council,

Inc., 467 U.S. 837, 844 (1984).

10

weeks during the winter season) are neither navigable nor adja-

cent to, or connected with, any navigable waterbody, and whose

claimed link with interstate commerce is solely the presence of

migratory birds or endangered species.” Petitioner implies that

the Ninth Circuit’s decision establishes CWA jurisdiction over

the many acres of the property which are subject to “ephemeral

ponding,” which petitioner describes as where there is “standing

rainwater a few inches deep in the bottom of the furrows of a

plowed field for no more than a few hours at a time.” Pet. at 9.

The decision below does no such thing. The only part of the

property over which the Ninth Circuit found Corps jurisdiction

was the southern portions of Parcels 143 and 10, which are

subject to regular tidal inundation by Bay waters. As to the

remainder of the property, the appellate court’s decision was

carefully limited. Declining to find CWA jurisdiction over any of

the crystallizers or calcium chloride ponds, the court remanded

the case to the district court to determine whether there was any

CWA jurisdiction over these portions of the property.

The Ninth Circuit did not hold that “ephemeral ponding”

renders a site a “water,” nor did it express any opinion as to

exactly how wet a site must be to qualify as a “water.” It held

only that “the seasonal nature of the ponding is no obstacle to

Corps jurisdiction,” and that the fact that the site was artificially

created also does not bar jurisdiction. OPIN at A-9-11. In other

words, the court held that sites that are dry during a particular

season or part of a season may under appropriate circumstances

be subject to CWA jurisdiction. Exactly which circumstances

render a site sufficiently aquatic, and which parts of the crystalliz-

ers and calcium chloride pits are considered “waters,” remains to

be determined by the trial court.

Nor does this case present a situation of waters that are totally

isolated from navigable waters, their nonnavigable tributaries, or

their adjacent wetlands, as petitioner would have it. The property

at issue in this case is, by any estimation, an integral part of the

San Francisco Bay estuary and wetlands system. The property is

adjacent to both the navigable Newark Slough and the San

Francisco Bay National Wildlife Refuge, connected to both by

1]

culverts through which tidal waters flow.‘ Parts of the property

have been found by the Ninth Circuit to be adjacent wetlands and

that determination is now final. The endangered salt marsh

harvest mouse, which inhabits only the salt marshes surrounding

the San Francisco Bay, lives on the property.

The property, as part of the San Francisco Bay wetlands

system, is on the Pacific flyway, “a chain of wetlands” stretching

from the Arctic to South America which serves as the principal

bird migration route along the west coast of the Americas. See

Steinhart, Tracks in the Sky: Wildlife and Wetlands of the Pacific

Flyway (1987) at 28. Wetlands around the San Francisco Bay are

a particularly important part of the Pacific flyway:

San Francisco Bay is the largest wintering and staging area

along the coast. More than 70% of the shorebirds using the

flyway stage or winter or breed there. “It’s the major refuel-

ing and resting place for birds on the Pacific flyway,” says

Roger Johnson, manager of the San Francisco Bay National

Wildlife Refuge. “There’s no other place of any greater

significance on the Pacific coast.”

Id. at 30-31; see RT 1294. Estimates are that over 90% of San

Francisco Bay’s original wetlands have been lost to fill or develop-

ment. Oversight Hearings on Section 404 of the Clean Water Act:

Hearings Before the Subcommittee on Environmental Pollution of

the Senate Committee on Environmental and Public Works, S.

Hearing No. 99-278, 99th Cong., Ist Sess. 292 (1985) (“1985

Oversight Hearings”).

In short, this case does not, as petitioner asserts, present the

question whether CWA jurisdiction extends to ephemerally

ponded areas that are totally isolated from navigable waters, their

* Although the district court made no findings on the issue, evidence

was presented indicating some hydrological connection between the

waters on the crystallizers and calcium chloride ponds, and the tidal

waters on the southern portions of the property. Government hydrologist

Robert Coats observed tidal water on the crystallizers “on several

occasions,” and noted that “[dJuring intense and prolonged rainfall,

water overflows from the depressions [on the crystallizers] and drains to

Newark Slough.” RT 1128; Exh. 535 at 2.

12

tributaries, and their adjacent wetlands. Indeed, the issue cannot

yet be framed in a meaningful factual context because the district

court has yet to determine how much, if any, of the crystallizers

and calcium chloride ponds fall within CWA “other waters”

jurisdiction.

B. The Purposes of the Clean Water Act Include Wildlife

Protection and Wetlands Preservation

Petitioner asserts that the purpose of the CWA is “to attempt

to restore the purity of the national waters, not to protect

interstate wildfowl or endangered species.” Pet. at 11. Petitioner

is wrong. As the Act itself states, its objective is to restore and

maintain not just the chemical and physical integrity of the

nation’s waters, but also their “biological integrity.” 33 U.S.C.

§ 1251(a). The goal set forth in the Act is to achieve a water

quality “which provides for the protection and propagation of fish,

shellfish, and wildlife... . “ 33 U.S.C. § 1251(a)(2). This central

purpose is echoed throughout the Act. See eg., 33 U.S.C.

§§ 1312(a), 1313(d)(1)(B), 1321(b) and (d), 1326(a),

1330(a), (b) and (k), 1343(c)(1)(A), and 1344(c).

Because wetlands provide vital habitat for a wide array of

wildlife, particularly a disproportionate number of endangered

species, wetlands preservation and wildlife protection go hand in

hand. Over half of the fish and amphibian species listed as

threatened or endangered, as well as 31% of threatened or

endangered birds and reptiles and i5% of mammals, are associ-

ated with wetlands. Mitsch & Gosselink, Wetlands (1986) at

398-99. Moreover, wetlands serve a number of other ecosystem

purposes, such as flood mitigation and aquifer recharge, which

affect hydrological cycles regardless whether the wetland is “iso-

lated” or not.

The legislative history of the CWA confirms that wetlands

protection is an important purpose of the Act. As Senator Muskie

stated during the debate on the 1977 amendments:

There is no question that the systematic destruction of the

Nation’s wetlands is causing serious, permanent ecological

damage .... The wetlands and bays, the estuaries and deltas

are the Nation’s most biologically active areas... . They are

13

a principal source of food supply. They are the spawning

grounds for much of the fish and shellfish which populate th.

oceans, and they are passages for numerous upland game

fish. They also provide nesting areas for a myriad of species

of birds and wildlife.

123 Cong. Rec. 26720 (Aug. 4, 1977). And, as this Court noted

in Riverside Bayview, the inclusion in the 1977 amendments of a

provision authorizing a $6 million appropriation to complete a

“National Wetlands Inventory” “reflects congressional recogni-

tion that wetlands are a concern of the Clean Water Act....”

474 USS. at 139. In addition, during the 1985 Senate Oversight

Hearings on Section 404, when an Army Corps official asserted,

as petitioner does herein, that the CWA was not a wetlands

protection law, the senators responded vehemently, affirming that

to the contrary the congressional intent was to protect wetlands.°

In fact, the senators emphasized that the intent was to protect all

wetlands, including so-called “isolated” wetlands that were not

connected to navigable waters or their tributaries. 1985 Oversight

Hearings at 113-116, 121, 172.

* Senator Stafford stated:

it was the intent of the Congress that wetlands are important and are

to be protected under section 404 of the Clean Water Act. For an

agency as important to this task as the civilian arm of the Army Corps

of Engineers to hold otherwise is to frustrate .he very goals of the act.

1985 Oversight Hearings, at 102.

Senator Mitcheli also emphasized these purposes of the CWA:

[Section 404] of the Act was intended by Congress to be one of the

most important regulatory tools to stem the loss of wetlands. Unfortu-

nately, it has not done so.

Few Americans would disagree that wetlands are of national

importance. Waterfowl and other water birds are dependent on

wetlands throughout their life cycles, as are many fur-bearing animals.

It is estimated nearly two-thirds of the fish caught by American

commercial fishermen are dependent on estuarine areas and associ-

ated wetlands. These areas also buffer the effects of storms, purify

water, aid in ground water recharge, and provide substantial flood

control.

Id. at 105. See also remarks of Senator Chafee, Jd. at 96.

a

14

C. Congress Intended To Assert Clean Water Act Jurisdiction

Over All Waters Whose Degradation Could Affect Inter-

state Commerce

Petitioner’s argument that the Ninth Circuit’s decision is le-

gally erroneous is built upon a flimsy cardhouse of unsupportable

claims. Most fundamental among these is petitioner’s assertion,

without any support in the language or the legislative history of

the CWA, that in the CWA “[f]rom first to last, the [congres-

sional] preoccupation was with navigability.” Pet. at 15. As

respondents will demonstrate however, Congress did not wish

jurisdiction under the CWA to be restricted on the basis of any

reference to navigability.

Petitioner is also wrong that asserting CWA jurisdiction to the

full extent permitted by the Commerce Clause was a brand new

expansion of jurisdiction instituted by the Army Corps and EPA

for the first time in 1985, without the knowledge or support of

Congress. A review of the pertinent legislative history and regula-

tions demonstrates that the federal agencies had since 1975, in

response to court decisions and the urging of Congress, asserted

jurisdiction over all waters the use, degradation or destruction of

which could affect interstate commerce. Such waters, not surpris-

ingly, include waters that provide habitat for migratory birds and

endangered species.

Indeed, the history of CWA enforcement shows that the Corps

never overstepped its congressional mandate; to the contrary, the

Corps consistently was reluctant to assert its jurisdiction to the

full extent intended by Congress, only doing so when Congress

and the courts took it to task for its failure to effectuate the

congressional intent. The explicit reference to migratory birds and

endangered species was inserted in the preamble to the 1986

Corps regulations not because the Corps wanted to expand its

jurisdiction but rather in direct response to adamant pressure

from senators who expressed concern during the 1985 oversight

hearings that the Corps was not enforcing the CWA broadly

enough.

15

1. The 1972 Clean Water Act, The Callaway Decision,

And The 1975 Interim Final Regulations

Congress formulated a broad definition of “navigable waters”

to facilitate accomplishment of the CWA’s far-sighted objective

“to restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251 (a). The final

version of the CWA, unlike the original House and Senate

versions, eschewed references to navigability in establishing the

jurisdictional sweep of the Act, instead defining “navigable wa-

ters” as “the waters of the United States, includéag the territorial

seas.” 33 U.S.C. § 1362(7). See S. 2770, 92nd Cong., Ist Sess.

§ 502(h); H.R. 11896, 92nd Cong., 2d Sess. § 502(8). As this

Court noted in Riverside Bayview, 474 U.S. at 133, the legislative

history of the 1972 Act “makes it clear that the term ‘navigable’

as used in the Act is of limited import.”

The Conference Report on the bill explained the omission of

the word “navigable” from the definition of navigable waters as

follows:

The conferees fully intend that the term “navigable waters”

be given the broadest possible constitutional interpretation

unencumbered by agency determinations which have been

made or may be made for administrative purposes.

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972)

(emphasis added); see H.R. Rep. No. 911, 92d Cong., 2d Sess.

131 (1972). In presenting the Conference version of the Act to

the full House, Congressman Dingell further explained that, for

purposes of the Act, navigable waters

means all “the waters of the United States” in a geographical

sense. It does not mean “navigable waters of the United

States” in the technical sense as we sometimes see in the

laws .... The authority of Congress over navigable waters is

based on the [commerce clause] . ... No longer are the old,

narrow definitions of navigability, as determined by the

Corps of Engineers, going to govern matters covered by this

bill.

118 Cong. Rec. 33756-57 (1972).

16

Courts have consistently interpreted the scope of CWA juris-

diction in the broadest constitutional manner. In 1975, the Dis-

trict Court for the District of Columbia invalidated the Army

Corps CWA regulations then in effect on the grounds that they

unlawfully restricted CWA jurisdiction by reference to navigabil-

ity. Natural Resources Defense Council, Inc. v. Callaway, 392

F.Supp. 685, 686 (D.D.C. 1975). In Callaway, the court held

that in enacting the CWA, Congress

asserted federal jurisdiction over the nation’s waters to the

maximum extent permissible under the Commerce Clause of

the Constitution. Accordingly, as used in the [Clean] Water

Act, the term is not limited to the traditional tests of

navigability.

Id.

In response to Callaway, the Corps published interim final

regulations in 1975 which greatly broadened the scope of its

regulatory activities under the CWA. 40 Fed. Reg. 31320 (1975);

33 C.F.R. § 209.120(d)(2). Those regulations included in the

definition of “waters,” inter alia, intrastate waters used for activi-

ties involving interstate commerce and

[t]hose other waters which the District Engineer determines

necessitate regulation for the protection of water quality as

expressed in the guidelines (40 CFR 230). For example, in

the case of intermittent rivers, streams, tributaries, and

perched wetlands that are not contiguous or adjacent to

navigable waters identified in paragraphs (a)-(h), a decision

on jurisdiction shall be made by the District Engineer.

40 Fed. “eg. at 31324-25 (emphasis added). While the 1975

regul>’ vii listed certain of the intrastate waters whose condition

affected interstate commerce (40 Fed. Reg. at 31324), the

preamble to these regulations was careful to state that:

this list was not all inclusive, as some waters may be invoived

as links to interstate commerce in a manner that is not

readily established by the listing of a broad category. The

1975 regulation, therefore, gave the District Engineer au-

thority to assert jurisdiction over “other waters”, such as

intermittent rivers, streams, tributaries and perched wet-

17

lands, to protect water quality. Implicit in this assertion of

jurisdiction over these other waters was the requirement that

some connection to interstate commerce be established, even

though that requirement was not clearly expressed in the

1975 definition.

42 Fed. Reg. 37122 at 37128 (1977) (emphasis added).

Thus, the 1975 interim regulations responded to the Callaway

decision by acknowledging that the CWA could extend to all

waters whose condition could affect interstate commerce. The

regulations did not attempt to spell out every conceivable type of

water whose condition could affect interstate commerce. Rather,

they listed a few of the obvious categories of such waters and gave

wide discretion to the District Engineer to assert jurisdiction over

any other waters with some connection to interstate commerce. In

sum, the only waters apparently excluded from jurisdiction under

these regulations were other waters which were not adjacent to

navigable waters and which were not related at all to interstate

commerce.

2. Post-Callaway Congressional Consideration Of The

Corps Regulations And The Extent Of Jurisdiction

Under The Clean Water Act

The Congressional debate leading up to the 1977 amendments

to the CWA focused on perceived problems relating to the

expanded jurisdiction set forth in the 1975 Corps interim final

regulations.° In particular, although the Corps proposed to require

° See Testimony of Senator Dole, Hearings Before the Senate Com-

mittee on Public Works on Section 404 of the Federal Water Pollution

Control Act Amendments of 1972, 94th Cong., 2d Sess. (1976), p. 34-36

(noting broad sweep of Corp’s regulatory jurisdiction after Callaway

encompasses “most waters in the United States”); Testimony of Senator

Domenici, /d. at 156 (Callaway interprets Section 404 to apply to “all

waters”); Statement of Senator Bentsen, Jd. at 561-62 (under Callaway,

Corps will exercise jurisdiction “on nearly every body of water in this

country”); Statement of Senator Hansen, Jd. at 563 (pursuant to

Section 404, Corps “has jurisdiction over almost all waters of the United .

States”); Letter submitted by Senators Hart, Moss, and Weicker, /d. at

564 (regulatory authority under Section 404 is “broad” and includes

18

section 404 permits under all circumstances, Congress was united

in determining that amendments to the Act should ensure that

normal farming, ranching, and forestry activities should be ex-

empted from section 404 permitting requirements. Absent

amendments to the CWA, these activities would have been

subject to permitting requirements as a result of the expanded

Corps jurisdiction embodied in the new regulations.

Two different solutions to this problem were proposed. The

Senate Committee on Environment and Public Works proposed

amendments which retained the broad scope of jurisdiction speci-

fied in Callaway and the new regulations, but exempted normal

ranching, agricultural activities, and silvicultural practices from

permitting requirements. See S. Rep. No. 370, 95th Cong., Ist

Sess. 10-11 (1977). The Senate Committee Report makes abun-

dantly clear the Committee’s intent to leave undisturbed those

provisions in the Act extending jurisdiction as far as the constitu-

tion allows:

The 1972 Federal Water Pollution Control Act exercised

comprehensive jurisdiction over the Nation’s waters to con-

trol pollution to the fullest possible constitutional extent... .

Restriction of jurisdiction to those relatively few waterways

that are used or are susceptible to use for navigation would

render this purpose impossible to achieve... . The commit-

tee amendment does not redefine navigable waters.

Id. at 75.’

“marshes, potholes, and other waterfowl nesting areas”); Statement of

Senator Long, Jd. at 565 (after Callaway, Corps has extended its

regulatory program over “almost everything that is wet,” including

“lakes over five acres in area even if they are completely landlocked and

privately owned”); Statement of Senator McClellan, Jd. at 578 (after

Callaway, Corps has expanded its regulatory program to include “all

waters of the United States”); Statement of Senator McGee, /d. at 579

(Callaway effects an “extremely broad definition of ‘navigable waters”

which includes “practically every body of water”).

’The Committee bill received broad support on the floor of the

Senate. Senator Hart spoke of the importance of maintaining the Clean

Water Act’s protection of “all of the elements of [water] systems,”

including “small streams, marshes, wetlands, and swamps.” 123 Cong.

hel

19

A minority in the Senate proposed a different solution to the

problem. This minority rallied around a substitute to the Commit-

tee bill proposed by Senator Bentsen which would have greatly

narrowed the scope of Corps jurisdiction under the Act by

redefining navigable waters to mean only traditionally navigable

waters and adjacent wetlands. A long debate over the Bentsen

substitute ensued, during which the membership of the Senate

displayed an intimate familiarity with the 1972 enactment, the

Callaway decision, and the Corps’ 1975 interim final regulations

which defined navigable waters as broadly as the constitution

would allow. 123 Cong.Rec. 26710-28.°

Rec. 26713 (August 4, 1977). Senator Stafford spoke of the “compre-

hensive jurisdiction over the Nation’s waters to control pollution” which

was effected by the 1972 enactment, and stated that “[a]fter extensive

deliberation, the committee amendment rejects the redefinition of navi-

gable waters.” 123 Cong Rec. 26714. Senator Chafee rose to warn of the

dangers inherent in any attempt to narrow the scope of the Corps’

regulatory jurisdiction under Section 404. 123 Cong.Rec. 26716. Senator

Baker stated that “[a] fundamental element of the Water Act is broad

jurisdiction over water for pollution control purposes” and asserted that

“[c]omprehensive jurisdiction is necessary not only to protect the

natural environment but also to avoid creating unfair competition.” 123

Cong. Rec. 26718.

* As with the 1976 Oversight Hearings, the comments of numerous

senators indicate their understanding that absent an amendment reduc-

ing the scope of Corps jurisdiction under the Act, the Act’s jurisdiction

would apply to all waters whose use or condition affects interstate

commerce. See Statement of Senator Bentsen (under :he Committee’s

amendment “[t]}he [section 404] program would still cover all waters of

the United States, including small streams, ponds, isolated marshes, and

intermittently flowing gullies”; the thrust of the Bentsen amendment is

“dramatically cuttung the size. ..of the present program”), 123 Cong.

Rec. 26711-12; Statement of Senator Hart (“if [the Bentsen] amend-

ment is adopted it will remove 98 percent of all the rivers, streams, and

lakes from the protection program which the Congress has adopted. It

will remove 85 percent of the wetland areas of this country from this

kind of necessary national and Federal protection.”), 123 Cong. Rec.

26713; Statement of Senator Muskie (speaking in support of the

Committee proposal) (“we have to care about these marshes above the

high water mark and about our inland marshes. It is also important for

20

Ultimately the Bentsen substitute was defeated. 123 Cong.Rec.

26728. Thus, the Senate expressly rebuffed an attempt to limit

the scope of waters which were subject to the Corps’ regulatory

authority under the CWA. The fact that the Senate spurned the

proposed narrowing amendment to the CWA with full knowledge

of the judicial decisions construing the Act and of the manner in

which the Act was being implemented by the Corps is particularly

significant. See Riverside Bayview, 474 U.S. at 137-38.

After the House and Senate passed their respective bills to

amend the CWA, a Conference Committee was convened. The

conferees decided to retain the comprehensive jurisdictional

sweep of the CWA anid to repudiate the narrowing of Section 404

jurisdiction which had been rejected earlier in the Senate but had

passed in the House. See H.R. 3199, 95th Cong, Ist Sess. 16

(1977).

In presenting the Act which emerged from conference to the

full Senate, Senator Muskie proudly stated that “[t]he confer-

ence bill follows the Senate bill by maintaining the full scope of

Federal regulatory authority over all discharges of dredged or fill

material into any of the Nation’s waters.” 123 Cong. Rec. 39187

(December 17, 1977). Likewise, Senator Baker reiterated that

“the conference bill retains the comprehensive jurisdiction over

the Nation’s waters exercised in the 1972 Federal Water Pollution

Control Act to control pollution to the fullest constitutional

extent.” 123 Cong. Rec. 39209. The Act, as reported by the

Conference Committee, sailed through both the House and the

Senate with near unanimous votes.

The language of the 1977 CWA amendments confirms that

Congress understood that CWA jurisdiction reached to isolated

those who are sportsmen to remember that these wetlands provide the

breeding and feeding areas for our migratory waterfowl and for furbear-

ing mammals and the spawning grounds and nursery areas for fish. We

must care about what happens to inland wetlands’), 123 Cong. Rec.

26716 (emphasis added); Statement of Senator Tower (“If the current

definition of navigable water is allowed to stand, it will mean that many

day-to-day activities on lands that are wet, swampy, or poorly drained

will require a permit”), 123 Cong. Rec. 26722.

21

waters whose condition affected interstate commerce. The

amendments expressly omitted construction and maintenance of

stock ponds and irrigation ditches, and maintenance of drainage

ditches from coverage under section 404. See 33 U.S.C.

§ 1344(f)(1)(C). If petitioner were correct in its assertion that

Congress intended that jurisdiction only reach to navigable wa-

ters, their tributaries, and adjacent wetlands, then such an exemp-

tion would have been unnecessary. Under petitioner’s

interpretation, it also would have been unnecessary for Congress

to exempt normal agricultural, silvicultural, and ranching activi-

ties from section 404 permitting requirements, as these activities

would not typically fall within the narrowed scope of jurisdiction

proposed by petitioner.

Thus, both the congressional debate over the 1977 amendments

and the language of the amendments clearly demonstrate that

Congress intended to confirm the approach taken by the courts

(evidenced by the Callaway opinion) and by the Corps in

applying CWA jurisdiction as broadly as permitted under the

commerce clause.

3. Subsequent Corps Regulations

The Corps’ 1975 interim final regulations were superceded by

final regulations effective July 19, 1977. The Senate debate over

the pertinent provisions of the 1977 CWA amendments occurred

shortly after these regulations went into effect, and at least some

senators were aware of these regulations. See 123 Cong. Rec.

26718 (1977) (statement of Senator Baker). The preamble to

these regulations states: |

We have interpreted the guidance contained in this legisla-

tive history to be consistent with the Federal Government’s

broad constitutional power to regulate activities that affect

interstate commerce as interpreted by the Supreme Court on

several occasions.

42 Fed. Reg. 37127 (citations omitted). In addition to navigable

waters, tributaries to navigable waters, interstate waters, and

adjacent wetlands, the 1977 Corps regulations included the fol-

lowing category in its list of waters under CWA jurisdiction:

22

(5) Ali other waters of the United States not identified in

paragraphs (1)-(4) above, such as isolated wetlands and

lakes, intermittent streams, prairie potholes, and other waters

that are not part of a tributary system to interstate waters or

to navigable waters of the United States, the degradation or

destruction of which could affect interstate commerce.’

42 Fed. Reg. 37144 (1977). This regulation did not include any

specific examples of other waters wherein the interstate com-

merce nexus was satisfied. The preamble notes that rather than

substantively changing the definition of “navigable waters” set

forth in the 1975 interim regulations, it merely “consolidated” the

1975 list of categories to “assist in clarifying those waters that are

subject to the Section 404 program.” 42 Fed. Reg. 37127.

With respect to their definition of “navigable waters,” the 1977

regulations are virtually the same as the 1986 regulations which

have governed the instant case.'° Although the 1986 regulations

contain some examples of other waters whose condition could

* [This footnote is included in the regulation as fn.2.] In defining the

jurisdiction of the FWPCA as the “waters of the United States,”

Congress, in the legislative history to the Act, specified that the term

“be given the broadest constitutional interpretation unencumbered by

agency determinations which would have been made or may be made for

administrative purposes.” ... Paragraph (a) (5) incorporates all other

waters of the United States that could be regulated under the Federal

government's Constitutional powers to regulate and protect interstate

commerce, including those for which the connection! to interstate com-

merce may not be readily obvious or where the location or size of the

waterbody generaliy may not require regulation, through individual or

general permits to achieve the objective of the Act.... (emphasis

added).

‘The 1986 regulations define “waters of the United States,” in

pertinent part, as:

+ (3) All other waters such as intrastate lakes, rivers, streams (includ-

ing intermittent streams), mudflats, sandflats, wetlands, sloughs, prai-

rie potholes, wet meadows, playa lakes, or natural ponds, the use,

degradation or destruction of which could affect interstate or foreign

commerce...

33 C.F.R. § 328.3(a) (3).

wi ll la ll

AO atte thay

23

affect interstate commerce, both the preamble and the history of

the regulations clarify that these examples are not intended to be

all-inclusive.

4. 1985 Congressional Oversight Hearings

In 1985, a controversy developed over the Corps’ regulation of

wetlands, and particularly isolated wetlands, under section 404.

Members of the Senate Environment and Public Works Commit-

tee conducted hearings to determine whether the Army Corps

and EPA were exercising CWA jurisdiction as broadly as Con-

gress intended, or whether, as the senators suspected, the Corps

was “dragging its heels” on wetlands protection. 1985 Oversight

Hearings at 102. Senator Stafford described the problem as

follows:

[T]he EPA seems to be allowing the corps to exclude from

section 404 coverage hundreds of thousands of acres of

valuable swamps and bogs that are undeniably waters of the

United States.

Id. In these hearings, the senators repeatedly confirmed that the

CWA should be given the broadest possible interpretation consis-

tent with the commerce clause. Senator Mitchell warned Robert

Dawson, Acting Assistant Secretary of the Army, not to unduly

restrict Corps CWA jurisdiction:

I think there is a need for a clear national policy. And as you

devise that policy, I strongly encourage you to look at the law

expressly set forth by the court in the Callaway case, to

which I referred earlier, and which I repeat. The court said

that Congress, in enacting the 1972 law, had asserted Federal

jurisdiction over the Nation’s waters to the maximum extent

permissible under the commerce clause of the Constitution.

The act has been dealt with by Congress in the interim.

Congress has not in that time sought in any way to repudiate

or contravene or contradict that court’s statement. So you

may assume under well established principles of judicial

construction that that is a correct statement of the intent of

Congress, known to and acquiesced by Congress since then.

And the national policy, which it seems to me you must

24

enunciate, must by law incorporate that to the extent

possible.

Id. at 128-29; see also id. at 95-6, 101-102, 113-115, 121-123,

172, 193, 207.

The senators evinced particular concern that the Corps was

failing to enforce section 404 in connection with isolated wet-

lands. Over and over again, the senators emphasized that the

CWA was intended to protect all wetlands, including isolated

wetlands. See, e.g., id. at 95-6, 101-105, 113-116, 120-123, 194.

Senator Mitchell stated:

Any reading of the background of this must inevitably lead to

the conclusion that you should ascertain and implement

jurisdiction over isolated wetlands. . .

Id. at 172. In fact, it was at these hearings where senators

questioned whether the Corps understood that use of isolated

wetlands by migratory waterfowl would establish the requisite

interstate commerce connection such that there was CWA juris-

diction. Senator Mitchell posed the issue to Corps official

Dawson:

Do you agree that isolated wetlands are within the corps’

section 404 jurisdiction where they are used by migratory

fowl, waterfowl, which establishes the interstate commerce

basis for jurisdiction?

Id. at 115.

Subsequently, EPA submitted a written statement responding

to the subcommittee’s concerns regarding isolated wetlands. This

statement for the first time spelled out in detail the federal

agency’s enforcement policies with respect to non-navigable iso-

lated waters. “The simple answer” to the question of jurisdiction

over these waters, stated EPA, “is that all such waters are

regulated if their use, degradation or destruction would or could

affect interstate or foreign commerce.” Jd. at 189. EPA

continued:

The more difficult issue is defining the criteria to be used in

determining whether or not there is a connection to interstate

or foreign commerce, and how such criteria would be applied

ae

25

to individual lakes, ponds and wetlands...It would be

virtually impossible to delimit all possible combinations of

circumstances which would affect interstate or foreign com-

merce. We fear that in trying to do so we might overlook

some possibilities and inadvertently narrow jurisdiction.

Since the legislative history of the Clean Water Act makes

clear that Congress intended to extend its jurisdiction to the

maximum extent permissible under the Commerce Clause of

the Constitution, I am sure you share our concern with this

possible outcome.

Id. at 189. With that proviso, EPA went on to list circumstances

which provided the necessary interstate commerce nexus, empha-

sizing that the list was not “all inclusive.” The list included the

following:

¢ waters used as habitat by birds protected by Migratory Bird

Treaties. This represents a national interest of very nearly the

first magnitude, as it can be protected only by national action

in concert with that of another nation.

* waters used as habitat by other migratory birds which cross

state lines

¢ waters which are habitat for endangered species, to preserve

the possibility of interstate movement of persons, such as

scientists, who come to a state to observe and study these

species

Id. at 189-90.

Senator Mitchell expressed concern that this definition ex-

cluded waters which could be used as habitat for migratory birds

or endangered species. Jd. at 169-71. No one—neither the sena-

tors nor the Corps nor EPA—dquestioned that use of waters by

migratory birds or endangered species established the requisite

interstate commerce connection. The debate centered only on

whether potential use established enough of a connection. A

subsequent EPA Memorandum on Clean Water Act Jurisdiction

Over Isolated Waters was prepared describing the agency’s posi-

tion as consistent with that of Senator Mitchell. See Exh. 575.

That memorandum was forwarded by the Corps to its field offices

26

with a cover memorandum stating that the memo “is consistent

with our regulations at 33 C.F.R. 323.2(a)(3).” Exh. 575 at 2.

D. The Ninth Circuit’s Decision In This Case Is Consistent

With Pertinent Case Law

Notably absent from the petition in this case is any assertion

that the Ninth Circuit decision is inconsistent with any court

decisions either of this Court or of other circuit courts. Indeed,

the Ninth Circuit decision herein is fully in line with a long line of

case law interpreting the CWA. Federal courts have unanimously

held that the scope of Corps’ regulatory jurisdiction under section

404 of the CWA extends as far as the commerce clause constitu-

tionally permits."

This Court’s decision in Riverside Bayview is most instructive

as that case is very similar to the case at hand In Riverside

Bayview, a unanimous Court found that it was permissible under

the CWA for the Corps to assert jurisdiction over freshwater

wetlands that were adjacent to navigable waters, but whose

moisture did not come from those adjacent waters. The Court

noted that jurisdiction over such wetlands is reasonable even

where there are such adjacent wetlands that are of no great

importance to the adjacent aquatic environment, because as a

general proposition it was reasonable for the Corps to conclude

'' See, e.g., United States v. Tilton, 705 F.2d 429, 431 (11th Cir.

1983), United States v. Lambert, 695 F.2d 536, 538 (11th Cir. 1983),

United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979), Leslie Salt

Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir. 1978), People of the

State of California ex rel. State Water Resources Control Bd. v. E.PA.,

511 F.2d 963, 964 n. 1 (9th Cir. 1975), rev'd on other grounds sub nom.

E.P_A. v. State Water Resources Control Bd., 426 U.S. 200 (1976),

United States v. Ashland Oil and Transportation Co., 504 F.2d 1317,

1324-25 (6th Cir. 1974), United States v. Ciampitti, 583 F.Supp. 483,

491 (D.N.J. 1984), Avoyelles Sportsmen's League, Inc. v. Alexander,

511 F.Supp. 278, 285-86 (W.D.La. 1981), aff'd in part and rev'd in part

on other grounds, 715 F.2d 897 (Sth Cir. 1983), Sun Enterprises, Ltd. v.

Train, 394 F.Supp. 211, 223-224 (S.D.N.Y. 1975), aff'd, 532 F.2d 280

(2nd Cir. 1976), Natural Resources Defense Council, Inc. v. Callaway,

392 F.Supp. 685, 686 (D.D.C. 1975), United States v. Holland, 373

F.Supp. 665, 671-73 (M.D.Fla. 1974).

ALAA RCRA een 2 tects

Soe + ait te ih Poh me

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27

that all adjacent wetlands may function as integral parts of the

aquatic environment, regardless of the source of their moisture.

474 U.S. at 135, n.9. The Court pointed out that if a wetland is

not important to the aquatic environment, the Corps can always

simply issue the requested permit. Jd.

The Court also considered carefully the 1977 congressional

debate over the CWA amendments. The Court found it highly

significant that although the scope of asserted Corps wetlands

jurisdiction was specifically brought to Congress’ attention, Con-

gress rejected measures proposed to limit Corps jurisdiction:

Although we are chary of attributing significance to Con-

gress’ failure to act, a refusal by Congress to overrule an

agency’s construction of legislation is at least some evidence

of the reasonableness of that construction, particularly where

the administrative construction has been brought to Con-

gress’ attention through legislation specifically designed to

supplant it.

474 US. at 137 (citations omitted).

The Court’s reasoning in Riverside Bayview applies precisely to

this case. As the discussion in section II(C), supra, demonstrates,

Congress was well aware that both courts and the Corps had

interpreted CWA jurisdiction as extending to the maximum

extent permissible under the commerce clause. Indeed, it was this

broad assertion of jurisdiction over wetlands and isolated waters

that had prompted such vigorous debate over whether to reduce

the scope of jurisdiction. {n the end, however, Congress deliber-

ately chose to retain the broad scope of jurisdiction, rejecting

outright the proposed amendment that would have eliminated

aquatic areas such as those at issue in this case from a definition

of “waters of the United States.”

Petitioner’s assertion that the Ninth Circuit “ignored” the

Fourth Circuit’s unpublished ruling in Tabb Lakes, Ltd. v. United

States, 715 F.Supp. 726 (E.D. Va. 1988), aff'd, 885 F.2d 866 (4th

Cir. 1989) (Table), “thereby creating a square conflict,” is

wrong. The Ninth Circuit did not “ignore” Tabb Lakes, and no

conflict among the circuits was created.

28

In Tabb Lakes, the court set aside the Corps’ finding of

jurisdiction in a particular case because the Corps had improperly

relied upon an internal 1985 Corps memorandum in making its

jurisdictional determination. The court explicitly did not reach the

question whether the Corps may, consistent with the CWA, assert

jurisdiction over waters which provide habitat for migratory birds

or endangered species.'? 715 F.Supp. at 729. The Ninth Circuit

did not discuss Tabb Lakes because petitioner never made the

argument made in that case—that the Corps followed improper

procedures in asserting “other waters” jurisdiction over parts of

the Leslie property.

Il. THE NINTH CIRCUIT DECISION DOES NOT, AS

PETITIONER CLAIMS, PROHIBIT DEVELOPMENT

ON VAST AMOUNTS OF LAND

Petitioner goes so far as to assert that the Ninth Circuit’s

decision accomplishes “a radical transformation of private prop-

erty into public land,” potentially withdrawing tens of millions of

acres’* of land from development. Pet. at 8, 9. Petitioner’s theory

is apparently based on its unwarranted presumption that its own

chance for getting a section 404 permit from the Corps is

“virtually nil.” Pet. at 10.

This alarmist theory has no basis whatsoever. Petitioner's

suggestion that takings may in the future occur is mere specula-

tion, and in any event offers no support for a narrow reading of the

CWA. Petitioner’s argument was firmly rejected by the Court in

Riverside Bayview:

[T]he possibility that the application of a regulatory pro-

gram may in some instances result in the taking of individual

'? The “grave doubts” expressed by the district court in Tabb Lakes

were voiced with respect to whether providing habitat for migratory

birds establishes a sufficient nexus to interstate commerce, not whether

Congress intended CWA jurisdiction to extend as far as pertnitted under

the commerce clause. 715 F.Supp. at 729.

"The U.S. Fish and Wildlife Service estimates the number of

“isolated” wetlands at 13 million acres, not “tens of millions of acres.”

1985 Oversight Hearings at 121, 194.

29

pieces of property is no justification for the use of narrowing

constructions to curtail the program if compensation will in

any event be available in those cases where a taking has

occurred. Under such circumstances adoption of a narrowing

construction does not constitute avoidance of a constitutional

difficulty [citation omitted]; it merely frustrates permissible

applications of a statute or regulation.

474 US. at 128. See also Hodel v. Virginia Surface Mining &

Reclamation Assn, 452 U.S. 264, 293-297 (1981).

Furthermore, there is no reason to presume that development

will be stopped on property within Corps jurisdiction. The Corps

grants most permit applications, including applications for non-

water-dependent projects. In Fiscal Year 1984, for example, the

Corps issued 5,859 individual permits and denied 346 (one out of

eighteen). 1985 Oversight Hearings at 66 (testimony of Robert

Dawson, Acting Assistant Secretary of the Army).'* Of the

permits issued that year, approximately 1,200 were for non-

waterdependent projects. /d. at 67. There is simply no basis for

likening CWA jurisdiction to a denial of all development rights

and an unconstitutional taking of private property.

Nor is petitioner correct in claiming that the Ninth Circuit

decision will create additional problems in drawing the line

between land and water. That problem has always existed. See

Riverside Bayview, 474 U.S. at 132. Regardless of where on the

spectrum from oceans to totally dry land you draw the line

separating water from land, there will always be some potential

fuzziness around that line. See Mitsch & Gosselink, Wetlands

(1986) at 16. If, for example, the courts or Congress were to

endorse petitioner’s proposal that CWA jurisdiction extend orly

to navigable waters, their tributaries and adjacent wetlands, then

one still must determine which waters are “navigable,” what

exactly constitutes a “tributary” and what is a wetland adjacent to

'* The statistics are similar for other years:

FY 1983: 6,760 permits issued, 373 denied;

FY 1982: 8,864 permits issued, 324 denied;

FY 1981: 8,350 permits issued, 291 denied.

Id.

30

such waters and tributaries. These questions are no easier than

those posed by the current definition, which includes all waters

the use, degradation or destruction of which could affect inter-

state commerce.

CONCLUSION

For the reasons stated herein, the Court should deny Leslie’s

petition for certiorari.

DATED: January 22, 1991

E. CLEMENT SHUTE, JR.

ALLETTA D’A. BELIN

(Counsel of Record)

W. ROBERT WARD, JR.

SHUTE MIHALY & WEINBERGER

Counsel for Respondents

Save San Francisco Bay

Association and National

Audubon Society

ROAD

(RELOCATED)

0

SAN FRANCISCO

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