Reply Brief — Leslie Salt Co. v. United States

EBILED

JAN 31 1991

4) ' JQSEPH F. SPANIOL, JR.

No. 90-792 CLERK

['F Supeme Court, U.S, :

‘i

In the Supreme Court of the United States

OCTOBER TERM, 1990

LESLIE SALT Co. and CARGILL, INC.,

Petitioners,

VS.

UNITED STATES, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FOR PETITIONERS

Louis F. CLAIBORNE*

EDGAR B. WASHBURN

WASHBURN, BRISCOE & MCCARTHY

A Professional Corporation

144 Second Street

San Francisco, CA 94105

Tel.: (415) 543-8131

Attorneys for Petitioners

*Counsel of Record

BOWNE OF SAN FRANCISCO. INC. « 190 NINTH ST. « SF... CA 94103 + (415) 664-2300

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TABLE OF CONTENTS

Revisionist Facts .........

Ripeness and Importance of the Issue ..............

Congressional Intent ......

Administrative Construction

Se eee Peaese CACC ee oO 8 6 6.8

TABLE OF AUTHORITIES

Page

Cases

Cable Television Ass’n v. United States, 415 U.S. 336

COPIES ncn. c ¥acdduksd cid akbd ee Exe DANN SE Xe 7

Greene v. McElroy, 360 U.S. 474 (1959) ............... 7

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....... 7

Hodel v. Virginia Surface Mining & Reclamation Ass’n,

we ee BS Re ane 7

Katzenbach v. McClung, 379 U.S. 294 (1964) .......... 7

Metro Broadcasting v. F.C.C., 111 L.Ed.2d 445 (1990)... 7

Schechter v. United States, 295 U.S. 495 (1935) ........ 6

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

Va. 1988), aff'd, 885 F.2d 866, 20 ELR 20008, 30 ERC

i Srey rer A | noe p= Sa 4

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) .... 6

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

San CRUD AG oa bie bw Wah 0s CARR KT a Vases code sess passim

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) .......... 6

U.S. Constitution

Commerce Clause:

ee UE IEG 5 05 ao as ce ae hee tN bess cbr kab ee 6

Statutes

Administrative Procedure Act:

ee ce ines bed ee se neeces 4

Clean Water Act:

Pe EE oe eked sb isos ceesantoeanes passim

© Pe Bt I EEOIED i ed vbacesceccccatews 8

§ 101(a)(2), 33 U.S.C. 1251(a)(2) ................. 7,8

§ 403(c)(1)(A)-(C), 33 U.S.C. 1343(c)(1)(A)-(C).. 8

SO SP Gheetes BOE a bigrcdc cs babbci kets ccsvescs 8

§ 404(b) & (c), 33 U.S.C. 1344(b) & (c) ........... 8

TABLE OF AUTHORITIES

Regulations

Page

Corps of Engineers Regulations (1975)

EE ES 10

Corps of Engineers Regulations (1977)

IEEE EE LI 10

Corps of Engineers Regulations (1982)

ee 10

Proposed Corps of Engineers Regulations (1983)

MS FOG. HOR. ZISFS-ZIGTS. 0... ccc cece ceees 10

Corps of Engineers Regulations (1986)

51 Fed. Reg. 41250, 33 C.F.R. § 328.3(a)(3) ......... 3

Miscellaneous

Oversight Hearings on Section 404 of the Clean Water Act:

Hearings Before the Subcomm. on Environmental Pollu-

tion of the Senate Comm. on Environment and Public

Works, 99th Cong., Ist Sess. (1985) ............... 5,9, 10

Tribe, American Constitutional Law (2nd ed. 1988)...... 7

REPLY BRIEF FOR PETITIONERS

It is idle to conjecture why the United States and its allies are

at such pains to evade, belittle or rewrite the question presented.

One might have supposed that the administering agencies and the

environmental groups would have welcomed the opportunity to

obtain authoritative vindication for their reading of the Clean

Water Act. As it is, however, Respondents’ Oppositions require us

briefly to restate the case in its true dimensions and to show that it

is ripe for review in this Court.

1. Revisionist Facts. It ought not be necessary in this Court

to quibble over facts. But, exercising all possible restraint, we

must correct a few erroneous or misleading statements.

a. The Government has not resisted the temptation to “water

up” the litigation site. Most of the 100 acres involved in the

present petition (see Petition 3) do not constitute “seasonal

bodies of water” (U.S. Br. in Opp. i); nor does most of the

crystallizer acreage “fill with water during the rainy season, which

comes in the winter and spring months.” /d. at 5. It is disingenu-

ous to borrow the casual shorthand of the court of appeals opinion

when the undisturbed findings of the district court, accurately

reflecting the record, describe a very different reality. See Petition

4-5. Here, at least, the other Respondents are more candid,

stating that, in contrast to the “seasonally ponded” acreage

(actually only 14 acres, Pet. 4 n.4), “[s]ome of these areas are

‘ephemerally ponded,’ that is, ponded only for a period of days or

weeks after rainstorms.” Save S.F. Bay Ass’n Br. in Opp. 2. See

also id. at 6, 10. We add only that much of the “ponding” consists

of a few inches of rainwater in the bottom of plowed furrows, and

does not create anything resembling a shallow “lake” or “water

body.” See Pet. 4 n. 4; Pet. App. A-29, A-34 to A-35.

b. Equally misleading is the insistence of all Respondents that

the “waters” in suit are not truly “isolated.””’ This is fudging. The

' This is accomplished by various means: by discussing the southern

wetland “tips” or “corners” which are not before this Court; by charac-

terizing those areas as “tidal,” even though the District Court found

2

dispositive fact is that the only remaining assertion of jurisdiction

over the former crystallizers and calcium chloride pits is on the

basis that they constitute “other waters”—by definition isolated

waters—whose only link to interstate commerce is claimed to be

their use by migratory birds or endangered species. See Pet. App.

A-8 to A-9, A-11 to A-12; U.S. Br. in Opp. 7, 10 n.9. It is far too

late in the day to change the jurisdictional foundation of the case.

Nor will it do to rewrite the Corps’ regulations to obliterate the

distinction there made between tidal and interstate waters and

their adjuncts, on the one hand, and “other waters” isolated from

the first class, on the other hand.

c. Finally, Respondents leave the impression that an endan-

gered species, the salt marsh harvest mouse, uses the 100 acres

still in dispute as habitat. U.S. Br. in Opp. 6; Save S.F. Bay Ass’n

Br. in Opp. 11. The fact is that the only such rodents were found

on or near the parcel corners no longer in suit. See /d. at 3. Nor

are the crystallizers and pits of the remaining area potential

habitat for the salt marsh harvest mouse. Accordingly, the reiter-

ated references to “endangered species” are now anachronistic.

2. Ripeness and Importance of the Issue. There is no merit

to the several pleas in avoidance now interposed: that the question

we seek to present was addressed below only “somewhat ob-

liquely” (U.S. Br. in Opp. 20) or not at all (Save S.F. Bay Ass’n

Br. in Opp. 9-12); that it is “premature” or “not ripe for review”

(U.S. Br. in Opp. 8-9, 20; Save S.F. Bay Ass’n Br. in Opp. 6-9);

that it may become “moot” (U.S. Br. in Opp. 20; Save S.F. Ass’n

otherwise (Pet. App. A-29 to A30) and the Court of Appeals did not

reach the question (Pet. App. A-4 to A-5 n.5); by implying that Newark

Slough is “adjacent” to the areas in dispute (see Save S.F. Bay Ass’n

Br. in Opp. 10), notwithstanding that it is a quarter mile from the now

irrelevant Parcel 10 (Pet. App. A-19) and about half a mile from any

waters still in the case; and by baldly asserting that “[t]he property”

(without distinguishing the “corners” no longer in dispute) is “an

integral part of the San Francisco Bay estuary and wetland system”

(Save S.F. Bay Ass’n Br. in Opp. ‘O), or, more modestly, that the

waters before this Court “could reasonably be regarded as part of the

same ecosystem” as the discrete corners “subject to tida! inundation by

San Francisco Bay.” U.S. Br. in Opp. 10 n.9.

3

Br. in Opp. 6, 9-10); and, in any event, that the issue has little

practical importance (U.S. Br. in Opp. 21-22; Save S.F. Bay

Ass’n Br. in Opp. 28-29).

a. Although the court below disposed of the argument

swiftly,even cavalierly, there is no doubt that our question was

decided, and there is no ambiguity about how it was decided. The

court squarely held that the Clean Water Act “is broad enough to

extend the Corps’ jurisdiction to local waters which may provide

habitat to migratory birds and endangered species.” Pet. App. A-

12 (emphasis added). In context, it is clear that “local” refers to

“waters” embraced by the “other waters” regulation (33 C.F.R.

328.3(a) (3), Pet. App. A-44 to A-45)—which is to say, “isolated

waters,” unconnected to any tidal water, any interstate waterway,

or any tributary of such waters. See Pet. App. A-11. Likewise, the

reference to waters that “may” provide habitat to migratory or

endangered species obviously invokes, and treats as legitimate,

the so-called “EPA criteria” published in 1986 which extended

jurisdiction to areas that “are or would be” used as habitat by

migratory birds or endangered species. Pet. App. A-11 to A-12.

b. Nevertheless, because the court of appeals remanded the

case, it is said review here would be premature. As we said in the

petition (Pet. 22-23), the issue in no event will be mooted on

remand since it is undisputed that some portion of the litigation

site is the actual or potential habitat of some migratory birds and

otherwise satisfies the standard approved by the court of appeals

for “other waters” See Pet. 7, 22.? Accordingly, the question will

remain in the case no matter how the “habitat” area is precisely

delimited.’

?We do not, of course, concede that the areas subject to only

“ephemeral” ponding fall within the regulation. See Pet. 6 n.7; Save S.F.

Bay Ass’n. Br. in Opp. 9-11.

>It is suggested by intervening respondents that the question

presented would be mooted if the district court, on remand, were to

uphold petitioners’ estoppel plea. S.F. Bay Ass’n Br. in Opp. 6. Alas,

that prospect is almost certainly foreclosed in respect to the Corps’

present ground for asserting jurisdiction, a ground not available to it

4

Mere incantation of hoary formulae does not answer our

submission that this is one of those instances in which the Court’s

intervention is appropriate notwithstanding the technically inter-

locutory character of the judgement because a significant legal

question urgently calling for resolution is unavoidable and further

skirmishing in the lower courts will only be wasteful.

c. Equally misleading is the claim that this Court need not

hear the case because there is no conflict among the lower courts.

Not only have substantia! doubts been expressed in three Circuits,

but the fact is that the United States’ acquiescence in the Fourth

Circuit’s invalidation of the migratory bird “regulation” in Tabb

Lakes (albeit on procedural grounds) creates a conflict between

the substantive law applied in the States within the Fourth Circuit

and that applied in the rest of the country. See Pet. 20-21.* Here,

as we have explained, the issue tendered is the one the Court

pointedly reserved in United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 124 n.2, 138 n.8 (1985). If our submission on

the merits is correct and those who administer the Clean Water

Act have gone far beyond the limits set by Congress, with

significant practical consequences, that is reason enough for the

Court to intercede.

d. This brings us to perhaps the most startling of the Govern-

ment’s representations: that, contrary to our allegation, the deci-

sion below will have no far-reaching consequences, both because

“cases in which the only connection to interstate commerce is use

by migratory birds have been rare”—and, presumably, will con-

tinue to be so—and because it is “not clear at this point that

petitioner will be denied permission to develop or significantly

limited in the manner it may do so.” U.S. Br. in Opp. 21-22. We

when the United States expressly or impliedly disclaimed jurisdiction

before 1985.

* As we have noted, the Government appears to be in no hurry to end

this dual legal regime by initiating formal APA rulemaking. One

advantage of delaying such a proceeding is presumably to avoid the

serious risk of provoking an adverse ruling on the merits in the Fourth

Circuit, given the “grave doubts” articulated in Tabb Lakes, and thereby

creating a square conflict.

5

have already dealt with the second point. See Pet. 10, 22-23. The

suggestion that cases like ours are numerically insignificant merits

a word of rebuttal, however.

Given the novelty of asserting migratory bird use as a ground

for asserting jurisdiction (see pp. 9-10, infra), it is not surprising

that litigated cases so far have been few. But that does not tell us

how commonplace will become such assertions of jurisdiction if

this Court leaves the present ruling undisturbed. We stard by our

estimate that “tens of millions” of acres will be affected--a

conclusion based on official Government publications. See Pet. 8-

9 n. 10.° We may add that the filings of the concerned amici

supporting our petition afford at least some evidence that the

effect of the decision below is more than marginal.°

* Although the Fish and Wildlife Service apparently once supplied a

figure of 13 million acres for “isolated wetlands” (Save S.F. Bay Ass’n

Br. in Opp. 28 n. 13), that presumably did not include the very

substantial Alaskan acreage. See Br. A.C. of Pacific Legal Foundation 9.

At all events, as Senator Chafee remarked in the oversight hearings he

chaired in 1985, the issue now presented involves a “tremendous number

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

Hearings Before the Subcomm. on Environmental Pollution of the

Senate Comm. on Environment and Public Works, 99th Cong., Ist Sess.

121 (1985) (hereinafter “/985 Oversight Hearings”). See, also, id. at

229.

*See Brief Amicus Curiae of the National Association of Industrial

and Office Parks, International Council of Shopping Centers, Inc.,

National Association of Home Builders, National Multi Housing Coun-

cil, and National Realty Committee in Support of Petitioners 3, 5, 9, 13;

Brief Amicus Curiae of Pacific Legal Foundation and National Cattle-

men’s Association in Support of the Petiticn for Certiorari 2, 9; Brief of

the American Forest Councii, the American Paper Institute and the

National Forest Products Association as Amici Curiae in Support of

Petitioners 3, 8-11; Brief of Amicus Curiae American Mining Congress

in Support of Petitioners 3; Brief of the Foundation for Environmental &

Economic Progress as Amicus Curiae in Support of Petitioners 2, 5, 6-9.

Nor is there any basis for the claim that other links to interstate

commerce will greatly diminish the impact of the challenged ground of

jurisdiction. U.S. Br. in Opp. 21. No doubi, some isolated waters that

6

3. Congressional Intent. At the end of the day, the submis-

sion of respondents is that, in enacting the Clean Water Aci,

Congress wholly abdicated its defining function, eschewing any

decision as to what effects on interstate commerce would justify

federal regulation of local waters, and left the administering

agencies entirely free to search out, from time to time, the

constitutional limits of geographic jurisdiction, relying on the

judiciary, if and when called upon, to curb any overstepping of the

Commerce Clause. To say the least, there are serious problems

with this scenario.

a. One may question the legitimacy of such a sweeping

delegation of legislative power “not canalized within banks that

keep it from overflowing,” but “unconfined and vagrant.” See

Schechter v. United States, 295 U.S. 495, 551 (1935) (Cordozo,

J., concurring). Perhaps more immediately, however, doubts arise

about the constitutional propriety of an administrative invocation

of Commerce Clause power to reach wholly isolated sites on the

sole ground that they may be used by out-of-state birds. It is far

from clear that Congress itself could expressly legislate such a

result, at least in respect of use by unprotected migratory birds,

many of which are not even waterfowl. See Br. A.C. of Pacific

Legal Foundation 16-19.’ But, even if Congress could do so, on

the basis of full legislative consideration and articulated findings,

it does not follow that a mere administrative agency, acting

without an explicit Congressional mandate, is equally free to

exercise constitutional power to the same boundary. Special

attract migratory birds or endangered species will also attract interstate

human visitors and a few will breed fish destined for out-of-state

markets. E.g., United States v. Byrd, 609 F.2d 1204, 1210 (7th Cir.

1979); Utah v. Marsh, 740 F.2d 799, 803-804 (10th Cir. 1984). But that

will not usually be the case with respect to the more typical, relatively

small, non-navigable isolated waters or wetlands—especially when, as

here, the site is mainly used by ordinary upland birds of no special

interest tc hunters or birdwatchers.

"Indeed, at the oral argument of Riverside Bayview Homes, at least

one Member of the Court seemed dubious whether an “aerial connec-

tion” through migrating bird use could bring isolated waters or wetlands

within the sway of the Commerce Clause. Tr. Or. Arg. 21-24.

7

deference is due to the constitutional determination of legislators

directly entrusted by the Constitution itself with the task of

assessing the need for national solutions. E.g., Katzenbach v.

McClung, 379 U.S. 294, 303-305 (1964); Hodel v. Virginia

Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276-27

(1981); Metro Broadcasting v. F.C.C., 111 L.Ed.2d 445, 462-464

& nn. 11-13 (1990). No like presumption operates in favor of

implementing agencies, whose “expertise” and practical experi-

ence justifies deference to their reading of statutes, but not the

Constitution. See Hampton v. Mow Sun Wong, 426 U.S. 88, 103-

104, 114-116 (1976); Greene v. McElroy, 360 U.S. 474, 507

(1959).°

b. Moreover, constitutional objections aside, it must be

deemed most unlikely that Congress would legislate so irresponsi-

bly. If the Constitution sets the only boundary, there is nothing to

prevent the agencies from regulating for reasons that are unre-

lated—or only very remotely related—to the legislative goals.

Thus, although Congress was concerned with water quality, EPA

and the Corps of Engineers, goaded by the Fish and Wildlife

Service, might be inclined to preserve isolated waters whose filling

would in no way affect the objective of clean water, but would

prejudice commercial fish or migratory birds or other wildlife. As

we have noted, the United States itself has vigorously argued that

the Corps of Engineers was given no such broad power in the

Clean Water Act. See Pet. 18 & n. 20.

*We do not press the constitutional question here because it is a rare

case in which a regulation that oversteps constitutional boundaries is to

be voided on that ground. Absent the clearest indication to the contrary,

one must of course assume that Congress did not intend to authorize the

administrators to act unconstitutionally, and, accordingly, the excessive

regulation normally should be faulted as unauthorized. See Greene v.

McElroy, supra; Cable Television Ass'n v. United States, 415 U.S. 336,

342 (1974). That is our present submission. At the least, one is entitled

to doubt that, absent a clear statement of such an intention, Congress

meant to unleash those charged with implementing the statute to cross

into such dangerous territory. See Tribe, American Constitutional Law

316-317 (2d ed. 1988).

8

c. To be sure, it is said that we read the goals of the Act too

narrowly and we are reminded that the statute expressly adverts to

protecting “fish, shellfish and wildlife.” U.S. Br. in Opp. 11. This

is a false point. Of course, the underlying reasons for wishing to

achieve clean water include protection of wildlife, as well as

protection of the human population, concern for “aesthetic, recre-

ation and economic values,” and the facilitation of navigation. See

33 U.S.C. 1343(c) (1) (A)-(C), 1344(b) & (c). And the ability

of a waterbody to sustain fish and shellfish is also a stated test of

water quality. 33 U.S.C. 1251(a)(2). The fact remains, however,

that the focus of the Clean Water Act is pollution, whatever

benefits result, the Congress was here concerned to “restore and

maintain the... integrity of the Nation’s waters.” 33 U.S.C.

1251(a). If we were dealing with a wildlife protection statute, it

would not permit—as the Clean Water Act does—the destruction

of fish or bird or animal habitat by any means other than the

discharge of pollutants. See Petition 11-12.

d. We do not find in the Respondents’ Briefs any serious

response to our points on the statutory text and the legislative

history of the 1972 statute. See Petition 13-17. Much reliance is

placed, instead, on a few remarks made during the 1977 amend-

ments to the Clean Water Act, together with the suggestion that

Congress then approved the Corps’ more expansive regulations

promulgated that year. This is accompanied by repeated invoca-

tion of this Court’s decision in Riverside Bayview Homes, supra,

without any recognition of the very limited holding there vindicat-

ing only the regulation of wetlands immediately adjacent to true

navigable waters, not isolated waters.

When all is said and done, however, Respondents can point to

only one statement explicitly treating “isolated wetlands and

lakes” as properly within the Corps’ jurisdiction. U.S. Br. in Opp.

14. That was the comment of a single Representative in an

extension of his oral remarks—hardly an authoritative statement

of what the Congress as a whole intended. At all events, there is

not a word remotely suggesting that jurisdiction could be predi-

cated on the use, or potential use, of a site by migratory birds.

That adventurous idea was first mentioned in /985 Hearings—

obviously much too late to illumine the intent of the Congress

9

that wrote Section 404 in 1972. See Save S.F. Bay Ass’n Br. in

Opp. 13, 23-26. As Judge Rymer noted here, the argument for

legislative ratification of regulations in this context is not remotely

comparable to what the Court endorsed in Riverside. See Pet.

App. A-13 to A-14 n. 1.

4. Administrative Construction. We have submitted that the

administrative construction of the Clean Water Act reflected in

the 1986 “advice” about migratory bird use as a sufficient

interstate commerce nexus is not arguably a “reasonable” reading

of the statute and, accordingly, must be rejected. Pet. 17-18. We

added that deference to the Corps’ new statutory construction was

in any event inappropriate, given that the new ground of jurisdic-

tion was only espoused in 1985—13 years after the statute was

enacted—and, even then, under duress, not as a consequence of a

well-considered expert judgment based on experience. Pet. 18-20.

The Government now responds that the migratory bird use rule

was not born in 1985, but in fact dates back at least to 1977, the

only new feature being the acceptance of mere potential use as

sufficient. U.S. Br. in Opp. 18-19 & n.15. At this point, we must

cry “foul.” .

a. The evidence cited by the Government—the belated and

self-serving statement of Acting Assistant Secretary of the Army

Dawson during the 1985 Oversight Hearings (U.S. Br. in Opp.

18)—simply is not credible, and was not credited by the question-

ing Senators. See 1985 Oversight Hearings at 105-106, 113-115,

121. Earlier in the hearing, Mr. Dawson declined to answer the

direct question by Senator Mitchell whether he agreed “that

isolated wetlands are within the Corps’ section 404 jurisdiction

where they are used by migratory fowl, waterfowl, which estab-

lishes the interstate basis for jurisdiction.” Jd. at 115. See also id.

at 116.” The truth is that, under continuing pressure from the

” Note that the formulation, at this stage, is limited to actual use by

waterfowl. Even so, Mr. Dawson could not commit himself, orally or,

later, in writing.

Still earlier, Mr. Dawson had expressed his view that “Section 404 is

not a federal land use control statute” or “a wetland protection mecha-

nism.” 1985 Oversight Hearings at 37, 61. He was duly taken to task for

10

Committee, the Corps eventually accepted the full migratory bird

use rule. See id. at 168, 171-172, 203, 204-205, 208-209, 212. But

that is a far cry from a showing that it was always accepted. See

generally Save S.F. Bay Ass’n Br. in Opp. 23-36. It is no accident

that migratory bird use was never articulated as a, sufficient link

with interstate commerce in any regulation or other written

directive before 1985. See 1975 Corps Regulations, 40 Fed. Reg.

at 31324; 1977 Corps Regulations, 42 Fed. Reg. at 37144; 1982

Corps Regulations, 47 Fed. Reg. at 31810-31811; 1983 Proposed

Corps Reguiations, 48 Fed. Reg. at 21474-21475. Whatever

individual Districts might do, it was not general Corps policy to

assert jurisdiction on any such basis. See, e.g., id. at 113-115, 121-

123.

b. At all events, the matter was fully aired and decided in

Tabb Lakes, supra. The District Court there expressly found that

the migratory bird use criterion announced in 1985 effected “a

change in Corps policy” which carried “far-reaching” conse-

quences. 715 F.Supp. at 728, 729. As we have noted, that decision

was affirmed by the Fourth Circuit “on the district court’s

opinion.” 20 ELR at 20009, 30 ERC at 1511. That should be the

end of the matter.

For the reasons stated here and in the Petition, a writ of

certiorari should be granted to review the decision of the Court of

Appeals.

Respectfully submitted,

Louis F. CLAIBORNE

EDGAR B. WASHBURN

WASHBURN, BRISCOE & MCCARTHY

A Professional Corporation

Attorneys for Petitioners

January 31, 1991

those remarks (id. at 37, 96, 99), his nomination as Assistant Secretary

was cpposed on this ground (id. 298-301, 315-317), and the nomination

hearing was postponed (id. at 156-157).