Amicus Curiae Brief — Leslie Salt Co. v. United States

, i. re: BD

No. 90-792

i 21991

t doce F SPANIOL, JR

In The CLEP

Supreme Court of the United States —

October Term, 1990

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LESLIE SALT CO. and CARGILL, INC.,

Petitioners,

UNITED STATES, et al.,

Respondents.

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Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

a.

4

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION AND NATIONAL

CATTLEMEN’S ASSOCIATION IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

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ww

RONALD A. ZUMBRUN

*Rosin L. Rivett

*Counsel of Record

James S. BuRLING

CHarces A. KLINGE

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae,

Pacific Legal Foundation and

National Cattlemen’s Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL CCLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.................. ii

INTEREST OF AMICI CURIAE .................... 1

rtp ee ee ere 2

REASONS FOR GRANTING THE WRIT ........... 5

I. WHETHER THE CORPS MAY REGULATE ISO-

LATED WATERS AND WETLANDS PRESENTS

AN IMPORTANT QUESTION OF FEDERAL

LAW THAT SHOULD BE SETTLED BY THIS

A. The Corps Has Radically Expanded the Ter-

ritorial Scope of Its Section 404 Permit

PESO PEE EP ETE TTT EEE 7

B. The Corps Has Illegally Transformed Its

Section 404 Permit Program into a Scheme

to Exact Open Space from Owners of Private

FR ach ea Re nn Senhe en hGSn sheen hseevess 9

Il. THE DECISION BELOW IS CONTRARY TO

THIS COURT’S INTERPRETATION OF CLEAN

og eee 13

III. REGULATION OF ISOLATED WATERS AND

WETLANDS CANNOT BE JUSTIFIED UNDER

pp eee le ee eee eee 16

CE y ha vbeceduhnee bh sbndeckcanediaenens 20

ii

TABLE OF AUTHORITIES CITED

Page

Cases

California v. Environmental Protection Agency,

511 F.2d 963 (9th Cir. 1975), rev’d, 426 U.S. 200

(TDFE) . 0. ca cnccesaneeeeeh Nb eee eee EN wES AM hha k bos 14

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

Council, Inc., 467 U.S. 837 (1984) .............. 13, 16

Douglas v. Seacoast Products, Inc., 431 U.S. 265

(WS77) . ov vvanvecnysieeetpeenen Chaya ET ERE eS kis 18

Geer v. Connecticut, 161 U.S. 519 (1896)............. 18

Hodel v. Indiana, 452 U.S. 314 (1981) ............ 18, 19

Hoffman Group, Inc. v. Environmental Protection

Agency, 902 F.2d 567 (7th Cir. 1990) .............. 12

Hough v. Marsh, 557 F. Supp. 74 (1982)............. 10

Hughes v. Oklahoma, 441 U.S. 322 (1979) ........ 7,40

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

197B)... os .cnncccchbuedamehetens Samenh Gae aia ae’ 6 14

Maryland v. Wirtz, 392 U.S. 183 (1968).............. 17

Mulberry Hills Development Corporation v.

United States, 32 E.R.C. 1195 (D. Md. 1989)........ 8

Municipality of Anchorage v. United States,

32. EA. TESS GER Fee SO Sines ccewdiaeecsas. 11

National Labor Relations Board v. Jones &

Laughlin Steel Corp., 301 U.S. 1 (1937) ........... 18

Nollan v. California Coastal Commission,

OBS US. GE Gir in ea ce wo ek he 41,32

Southern Pines Associates v. United States,

U2 Fae Faw Gee te Ns ia oe ee or oa hae kccusss 12

ee errr —

pease ee

. iii

TABLE OF AUTHORITIES CITED—continued

Page

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

(E.D. Va. 1988), aff’d, 885 F.2d 866 (4th Cir.

EE ESP PPI OT Trt cere eee re 7

United States v. Larkins, 852 F.2d 189 (6th Cir.

1988), cert. denied, 489 U.S. 1016 (1989)............ 9

United States v. Marathon Development Corpora-

Ee Ee eee 10

United States v. Riverside Bayview Homes, Inc.,

es ie as 6 5 dev bod do esta sdncee passim

Wickard v. Filburn, 317 U.S. 111 (1942) ............. 19

STATUTES

5 U.S.C. § 553(b)(3)(A), Administrative Procedure

etic rec eee Nn CGh Gs Wedd 6e wks 6b doe eases eee 7

33 U.S.C. § 1251, et seq., Clean Water Act § 101,

ENT CEPT ECO TCE CT ECT COLT EET y

§ 1319(c)(1)(A), Clean Water Act § 309(c)(1)(A)....... 6

§ 1341(a)(1), Clean Water Act § 401(a)(1)............ 10

§ 1344(a), Clean Water Act § 404(a).................. 3

§ 1362(6), Clean Water Act § 502(6)................. 15

§ 1362(7), Clean Water Act § 502(7).................. 3

Federal Water Pollution Control Act Amendments

ee Gwin ccun'st sé wesdebecsceuaness 3

iv

TABLE OF AUTHORITIES CITED—continued

Page

RULES AND REGULATIONS

Supreme Court Rule 20. 1(c)..... 22... ccc csc ccccens 5

SUID CUTE TREO BF 6 osc cscs ccecccccecsesesences 1

55 COR 6 I... 5 oo ces a

is ei aka nc evade Adak an een ia nee 4,7

es SS 8 err reer erry eter 10

ee Cea sce bah ka wa man wae ee 10

TN a i wt ale eK AA RAE EO 10

I a WA. Cu eweee rk Cea a ORS OS owns hewennn 10

aU Cea cag hdc gl ake ide eae estaeaaauee’ 10

Be Pe WU Ue MUM cic escbaaceccest eed invauss 4

UNITED States CONSTITUTION

Ya | G&S peereerrrr er, eon) tre re 4,5

MISCELLANEOUS

Douglas, William O., The Court Years, 1939-1975

CN dg wins bo VEE CNG T CU CERUS SER SE AEROS TOA Sd wa Os 19

Epstein, The Proper Scope of the Commerce

oo we BL Uk rere 19

Jackson and Nitze, Wetlands Protection Under

Section 404 of the Clean Water Act—The River-

side Bayview Decision, Its Past and Future,

7 Pub. Land L. Rev. 21 (1986)

Vv

TABLE OF AUTHORITIES CITED—continued

Resource Development Council, Resource Review,

Wetlands Policy Could Cripple Alaska’s Econ-

CU, eee a en hirano ua ce ewhe scataness

Resource Development Council, Resource Review,

MR )

Section 404 of the Federal Water Pollution Control

Act Amendments of 1972: Hearings Before the

Senate Comm. on Public Works, 94th Cong.,

ry fe FR ter ee er

Tabler and Shere, EPA’s Practice of Regulation-by-

Memo, 5 Nat. Resources & Env’t 3 (Fall 1990)

Testimony of Robert K. Dawson, Acting Assistant

Secretary of the Army for Civil Works, Over-

sight 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.,

bok Te SN CO cee uesdansaaaseeuhnaens

Tribe, American Constitutional Law (2d ed. 1988)

Want, William L., Law of Wetlands Regulation

(1990)

Page

aoe ae

Pre |

OCTET TT CTT TEE ee ee eee 5, 8, 10

No. 90-792

—

_

In The

Supreme Court of the United States

October Term, 1990

LESLIE SALT CO. and CARGILL, INC.,

Petitioners,

v.

UNITED STATES, et al.,

Respondents.

- *

vy

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

»

.

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION AND NATIONAL

CATTLEMEN’S ASSOCIATION IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

,%

—

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) and the National Cattlemen’s Associa-

tion (NCA) respectfully submit this brief amicus curiae in

support of petitioners, Leslie Salt Company and Cargill,

Inc. Written consent to the filing of this brief has been

granted by counsel for all parties. Copies have been

lodged with the Clerk of the Court.

PLF is a nonprofit, tax-exempt corporation organized

under the jaws of the State of California for the purpose

1

2

of engaging in litigation in matters affecting the public

interest. Policy is set by a Board of Trustees composed of

concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated

legal action and authorizes such legal action only where

the Foundation’s position has broad support within the

general community. PLF’s Board has authorized the filing

of an amicus curiae brief in this matter.

NCA is a nonprofit, tax-exempt corporation repre-

senting over 230,000 members nationwide. Many NCA

members own land potentially subject to the regulatory

power of the Army Corps of Engineers (Corps) under the

theory of the court below. The disposition of this case will

have a direct impact on the rights of those members.

The opinion below holds that the Clean Water Act,

33 U.S.C. § 1251, et seq., authorizes the Corps to exercise

regulatory jurisdiction over temporary rainwater pud-

dles. Amici believe that the ruling below is incorrect and

will severely impact private property rights. Congress

granted broad powers under the Clean Water Act to

protect the nation’s waters from pollution. However,

Congress did not intend that the Corps regulate land, dry

most of the year and hydrologically unconnected to open

water, solely because migratory birds might use the land

as habitat. Further, Congress’ constitutional power to reg-

ulate interstate commerce does not authorize regulaticn

of private land on such tenuous grounds. The public

interest strongly supports limiting agency power to that

granted by Congress and the Constitution.

STATEMENT OF THE CASE

This case involves the geographical limits of the

Corps’ regulatory jurisdiction under the Clean Water Act

3

(CWA or the Act). 33 U.S.C. § 1251, et seq. Congress

enacted the Clean Water Act for the purpose of improv-

ing water quality, “to restore and maintain the chemical, |

physical, and biological integrity of the Nation’s waters.”

Pursuant to this goal, Section 404(a) of the Act authorizes

the Corps to “issue permits . . . for the discharge of

dredged or fill material into the navigable waters at spe-

cified disposal sites.” 33 U.S.C. § 1344(a). The Act defines

navigable waters as “waters of the United States includ-

ing the territorial seas.” CWA § 502(7), 33 U.S.C.

§ 1362(7). Thus, the statutory language “navigable

waters” and “waters of the United States” define the

geographical limits of Corps regulatory jurisdiction.

In this case, Leslie Salt Company owns 143 acres of

land partially containing former crystallizers and calcium

chloride pits once used in the salt manufacturing process.

These artificially created pits temporarily hold rainwater

during the winter rainy season. See Petitioners’ Appendix

at A-2.

The court below held that Corps regulatory jurisdic-

tion over “waters of the United States” extends to these

former crystallizers and calcium chloride pits. The opin-

ion below concluded that the Corps properly asserted

authority over the property as a “water” of the United

States because migratory birds or an endangered species

might use the property as habitat. Id. at A-12. This poten-

tial habitat theory, the court below reasons, is a valid

interpretation of the Clean Water Act and authorizes

regulation of temporarily wet, artificially created low

areas as “waters of the United States.”

' CWA’s predecessor was the Federal Water Pollution Control

Act Amendments of 1972 (FWPCA), 86 Stat. 616. See United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985).

4

The Corps regulation at issue in this case is the

“other waters” provision which defines “waters of the

United States” to include “[aJll other waters such as

intrastate lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds,

the use, degradation, or destruction of which could affect

interstate or foreign commerce.” 33 C.FR. § 328.3(a)(3)

(1989). The Corps interprets the regulation to extend to

any waters “[w]Jhich are or would be” used as habitat by

migratory birds which cross state lines or as habitat for

endangered species. 51 Fed. Reg. 41,206, 41,217 (1986).

The court below determined that the potential habitat

connection is a sufficient connection to interstate com-

merce for the purposes of satisfying the regulation ..4

establishing congressional authority under the Commerce

Clause. U.S. Const. Art. I, § 8, cl. 3. See Petitioners’

Appendix A-11 and A-12.

As a whole, the “other waters” subsection of Sec-

tion 328.3 is called the “isolated” waters and wetlands

provision because these “other waters” are physically

unconnected with other waters of the United States. See

Petitioners’ Appendix at A-31. The issue presented for

this Court’s resolution is whether the Clean Water Act

grants the Corps regulatory power over isolated waters

and wetlands, even temporary puddles, solely because

wildlife might use the property as habitat. This Court

specifically reserved the question of Corps authority over

isolated waters and wetlands in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 124 n.2, 131 n.8 (1985).

Additionally, if Congress did go this far, the question

presented raises the issue of whether regulating private

5

property to protect habitat for migratory birds or endan-

gered species violates Congress’ constitutional power

under the Commerce Clause. U.S. Const. Art. 1, § 8, cl. 3.

REASONS FOR GRANTING THE WRIT

Supreme Court Rule 10.1(c) lists among the consider-

ations governing review on certiorari the circumstance

when a United States Court of Appeals has decided an

important question of federal law which has not been, but

should be, settled by this Court, or has decided a federal

question in a way that conflicts with applicable decisions

of this Court. Both of these grounds for review are pres-

ent in this case.

I

WHETHER THE CORPS MAY REGULATE

ISOLATED WATERS AND WETLANDS

PRESENTS AN IMPORTANT QUESTION

OF FEDERAL LAW THAT SHOULD

BE SETTLED BY THIS COURT

The court below sanctions the Corps’ radical expansion

of territorial jurisdiction under Clean Water Act § 404.

Accordingly, navigable waters has come to mean an isolated

puddle theoretically suitable as a resting place for any bird

crossing state lines. This potential habitat theory of jurisdic-

tion brings millions of acres of private land within federal

control without regard to clean water. In short, the Corps has

abandoned the Act’s water quality goals and transformed

Section 404 into a national land planning and zoning law to

protect open space.?

2 See William L. Want, Law of Wetlands Regulation vii (1990),

stating in reference to the Corps’ regulatory program under the

(Continued on following page)

6

The Corps’ expanding territorial limits cause dan-

gerous uncertainty to landowners. Few of them could

ever imagine that engaging in a simple productive activ-

ity on their own land, such as the ditch digging in this

case, would require a permit from the federal govern-

ment. Even fewer private property owners can afford the

time (over five years in this case) or money to challenge

agency jurisdiction and, thus, make a “federal case” out

of a ditch digging or grading permit. In short, most

affected property owners apply for a permit in the first

instance, or after being notified by the Corps that the Act

authorizes severe civil penalties and jail time for Sec-

tion 404 violations.

On paper, being subjected to Corps regulatory juris-

diction means having to apply for a permit before going

forward with the project. In practice, the Corps uses the

permitting program to expand the habitat protection zon-

ing scheme read into the Act by administrative fiat. This

overzealous regulatory expansion denies private prop-

erty owners the reasonable use of their land without any

improvement in water quality. Therefore, this Court’s

intervention is sorely needed to clarify whether private

lands containing isolated waters and wetlands are subject

to Corps permitting authority.

Clean Water Act, “[t]here is no other federal law that can be

applied so much like a local zoning law, whereby local and

national interest groups can, on general public interest and

environmental grounds, decide the fate of major proposed

developments. In a real sense, wetlands law can be considered

a national zoning law.”

3 See, e.g., CWA § 309(c)(1)(A), 33 U.S.C. § 1319(c)(1)(A) (first

offense of negligently discharging fill into waters of the United

States is punishable by up to $25,000 per day of violation and

one year imprisonment).

7

A. The Corps Has Radically Expanded the Territorial

Scope of Its Section 404 Permit Authority

Section 404’s regulatory history demonstrates the

radical expansion of power by the Corps. Initially, the

Corps limited its regulatory power to waters meeting a

strict test of navigability. See Riverside, 474 U.S. at 123.

Next, the Corps asserted jurisdiction over coastal and

freshwater wetlands based on periodic inundation by

adjacent open water. See id. at 124. Then, the Corps

replaced the periodic inundation requirement and

asserted power over any wetland “inundated or satu-

rated by surface or groundwater.” See id. This step

severed the connection to open water, thus beginning the

Corps’ regulation over isolated waters and wetlands.4

The sole limitation on the territorial jurisdiction was a

requirement that degradation of the waters or wetlands

must affect interstate commerce such as recreational trav-

elers, fishing commerce, or industrial commerce. 33 C.F.R.

§ 328.3(a)(3). Finally, the Corps adopted the final blow,

asserting jurisdiction over any waters “[w]hich are or

would be used” as habitat by migratory birds, or habitat

for endangered species. 51 Fed. Reg. at 41,217.5

4 In Riverside, this Court approved the Corps’ regulation of

wetlands only so far as it applied to wetlands adjacent to open

waters, and specifically reserved the question of whether the

Act reached isolated waters. 474 U.S. at 124 n.2, 131 n.8.

> The Corps adopted +s potential habitat theory of territorial

jurisdiction without notice and opportunity for comment, thus

promulgating a rule in violation of the Administrative Pro-

cedure Act, 5 U.S.C. § 553(b)(3)(A). Tabb Lakes, Ltd. v. United

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

Cir. 1989) (Table). However, the Corps continues to rely on this

potential habitat theory in every legal jurisdiction except the

Fourth Circuit. See Petitioners’ Appendix at A-46 to A-49.

8

The Corps has further extended its territorial reach

since 1986 without even a notification in the Federal

Register prior to promulgation. In 1987, the Corps pub-

lished a manual which technically described how to

delineate or define both adjacent and isolated wetlands

for purposes of regulation under Section 404. That is, the

manual purported to distinguish between wetlands and

nonwetlands. The fundamental requirement for finding a

wetland was the concurrent presence of three conditions:

saturation with water, hydric soil, and a prevalence of

plants adapted to such wet areas. In 1989, a new manual®

was adopted expanding further the geographic scope of

Section 404; the new manual allows the Corps to assume

that one or two of the prerequisite conditions exists due

to the confirmed presence of others.” In this case, the

Corps’ jurisdiction goes beyond this tenuous definition of

“wetlands” to cover temporary puddles. Now, a mere

showing of some rainwater and the potential for bird

bathing is sufficient to bring land within Corps power.

The Corps uses the potential habitat theory to assert

regulatory power over all categories of “other waters”

6 Federal Intera,-ncy Committee for Wetland Delineation.

1989. Federal Manual for Identifying and Delineating Jurisdictional

Wetlands. United States Army Corps of Engineers, United

States Environmental Protection Agency, United States Fish

and Wildlife Service, and United States Department of Agricul-

ture Soil Conservation Service, Washington, D.C., Cooperative

technical publication (January, 1989). This agreement was

entered into without notice or opportunity for public comment.

Pending litigation challenges the manual as a rule promulgated

without proper procedures. Mulberry Hills Development Corpo-

ration v. United States, 32 E.R.C. 1195 (D. Md. 1989) (motion for

reconsideration pending). For a critical view of agencies regu-

lating by memorandum, see Tabler and Shere, EPA's Practice of

Regulation-by-Memo, 5 Nat. Resources & Env’t 3 (Fall 1990)

(causes poor decisions and short-circuits the political process).

7 See Want, supra note 2, at 2-11.

9

such as, isolated wetlands, vernal pools, and prairie pot-

holes, which may be miles from open water. Isolated

wetlands alone easily encompass millions of acres in the

continental United States. See petition at 8 n.10. In Alaska,

fully 74% of nonmountainous land or at least 170 million

acres are estimated to be wetlands with a substantial

percentage being isolated wetlands. See Resource Devel-

opment Council, Resource Review, “Wetlands Policy Could

Cripple Alaska’s Economy” 5 (Oct. 1989). The decision

below drastically expands the reach of the Corps beyond

these millions of acres by including mere temporary rain

puddles as another navigable water.

In a case before the United States Court of Appeals

for the Sixth Circuit, the scope of this broad jurisdiction

over isolated waters and wetlands was discussed:

“[T]he Corps has now expanded the definition

of ‘navigable waters’ to include any creek or

stream or moist area. .. . A farmer’s low lying

farmland or a homeowner’s low lying backyard

—adjacent to a small stream or creek but many

miles from any navigable waterway—has appar-

ently been converted into government property

no longer subject to control or improvement by

the owner without government permission.”

United States v. Larkins, 852 F.2d 189, 193-94 (6th

Cir. 1988) (Merritt, C.J., concurring), cert. denied,

489 U.S. 1016 (1989).

And, the facts in this case go even further. Here, the moist

area is not even adjacent to a stream or creek. Thus, the

regulation reaches even more private property.

B. The Corps Has Illegally Transformed Its Section 404

Permit Program into a Scheme to Exact Open Space

from Owners of Private Property

In Riverside, this Court assumed that overbroad regu-

lations reaching insignificant “waters” could be remedied

10

through issuance of permits. 474 U.S. at 135 n.9 (referencing

wetlands adjacent to navigable waters). However, the

Corps’ permitting program may mean either no develop-

ment or very expensive development due to oppressive

mitigation conditions. Often, expensive mitigation measures

are required even for projects in low quality isolated waters

and wetlands which provide neither water quality benefits

nor useful wildlife habitat. Thus, the permitting program is

not a reasonable remedy for overbroad regulations, but an

opportunity for the Corps to expand its habitat protection

scheme by exacting valuable property rights.

Section 404(b)(1) of the Act mandates the preparation of

guidelines for evaluating Section 404(a) permit applications.

The guidelines create a presumption against discharges of fill

into any “waters” of the United States. See 40 C.FR.

§ 230.1(c) (1989); see also Want, supra note 2,

at 6-8 n.32. The guidelines treat the filling of special aquatic

sites, including isolated wetlands and mudflats, as “among

the most severe environmental impacts covered” by the

guidelines. 40 C.FR. §§ 230.1(d) and 230.42. Accordingly, the

guidelines flatly prohibit filling isolated wetlands and mud-

flats if practicable alternatives exist, even if the “water” is

not useful for water quality or wildlife habitat. 40 C.FR.

§ 230.10(a). Further, practicable alternatives are presumed to

exist for all nonwater-dependent projects unless clearly dem-

onstrated otherwise. 40 C.F.R. § 230.10(a)(3). These onerous

regulations have stopped even small development projects

on minuscule “waters,” thus severely interfering with rea-

sonable property use. See Hough v. Marsh, 557 F. Supp. 74,

83-84 (1982) (developer of two homes, requiring filling of

® But, permits may not be available. For example, states may deny

certification to federal permits, making the general or individual

permits absolutely unavailable as remedies to private property

owners. CWA § 401(a)(1), 33 U.S.C. § 1341(a)(1); see United States v.

Marathon Development Corporation, 867 F.2d 96 (1st Cir. 1989).

11 -

one-quarter acre wetland, failed to “clearly demonstrate”

that no practicable alternative existed).

Once the Corps has the permit applicant over the

proverbial barrel, the exactions begin through the use of

mitigation conditions. Specifically, the Corps and the Envi-

ronmental Protection Agency have entered into a Memoran-

dum of Agreement demanding “no net loss of wetlands.”?

This agreement imposes absolute mitigation requirements on

all individual permits even for filling low quality isolated

wetlands, or where the public need for the project is great.

For example, the Municipality of Anchorage, Alaska, needed

a Corps permit to fill 14 acres for infrastructure expansion at

its port, but the federal government demanded off-site mit-

igation costing up to $1 million. Resource Development

Council, Resource Review “Wetlands” 5 (Nov. 1989). Anchor-

age Mayor, Tom Fink, called the mitigation conditions

“extortion.” Id.

This Court has recognized that private property owner-

ship includes the right to build and the right to make

productive use of property, “subject[ ] to legitimate permitting

requirements.” Nollan v. California Coastal Commission,

483 U.S. 825, 833 n.2 (1987) (emphasis added); see also River-

side, 474 U.S. at 127. In Nollan, this Court ruled that if a state

agency has authority to deny the permit outright, the agency

could instead grant the permit subject to conditions that

ameliorate the harms that would have justified denial.

9° Memorandum of Agreement Between the Environmental Protection

Agency and the Department of the Army Concerning the Determination

of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines 2

(Feb. 7, 1990). This is another example of regulation by memoran-

cum without notice and opportunity for public comment, see supra

notes 4 and 7, being challenged in the courts as a rule promulgated

without proper procedures. Municipality of Anchorage v. United

States, 32 E.R.C. 1199 (D. Alaska 1990) (motion for reconsideration

denied, notice of appeal due March 5, 1991).

12

483 U.S. at 835.19 With isolated waters and wetlands, the

Corps is without authority to deny these permits in the first

place because the private property is beyond the territorial

jurisdiction of the agency. Therefore, the Corps has no

authority to impose permit conditions. The Corps forces

permit applicants into mitigation concessions based on the

illegitimate assumption that the permit could be denied

outright.1! These illegitimate permitting requirements inter-

fere with the landowner’s private property rights and consti-

tute “an out-and-out plan of extortion.” Nollan, 483 US.

at 837 (citation omitted).

In sum, the Corps’ regulatory program can be pictured

as a creeping lava flow, threatening to consume vast

amounts of private property in the country. “Navigable

waters” are now defined to include temporary puddles. The

goal of “water quality” is now a guise for acquiring open

space and wildlife habitat. In short, the Clean Water Act

permitting authority has been subverted into a tool for unre-

lated exactions. By administrative fiat, the executive agencies

have radically expanded the Section 404 regulatory program

beyond its legislative scope and intent, and all at the expense

of private property.

10 This Court went on to hold that a regulatory taking occurred

because the condition imposed failed to “substantially advance” a

legitimate governmental interest. 483 U.S. at 834.

'! Private property owners may be forced into the permit program

during a project on a mere assertion of agency pcwer, and may

need to spend substantial sums on restoration before having their

permit application heard, despite holding a good faith belief that

the agency has no jurisdiction. See 33 C.F.R. § 326.3(e) (no action on

after-the-fact permit application until restoration complete); see also

Hoffman Group, Inc. v. Environmental Protection Agency, 902 F.2d 567

(7th Cir. 1990), Southern Pines Associates v. United States,

912 F.2d 713 (4th Cir. 1990) (agency compliance orders per CWA

§ 309(a) not reviewable until civil action filed by agency or permit

denied).

13

Il

THE DECISION BELOW IS CONTRARY TO

THIS COURT’S INTERPRETATION OF

CLEAN WATER ACT § 404

The agencies and the court below have abandoned the

express intent of Congress. In United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, this Court concluded that

the Clean Water Act in general and Section 404(a) in particu-

lar were intended by Congress to combat the problem of

water pollution.!? In the decision below, the Ninth Circuit

failed to consider this Court’s interpretation of Clean Water

Act § 404(a) as stated in Riverside. Instead, the court below

decided that the “waters” at issue were subject to Section

404(a), not because of the potential to cause water pollution,

but solely due to the possibility that migratory birds might

use the property. Petitioners’ Appendix at A-11 and A-12.

Thus, the decision below conflicts with an applicable deci-

sion by this Court.

This departure from congressional intent stems from the

Ninth Circuit’s failure to apply this Court’s two-step

approach for analyzing agency interpretations of statutes as

announced in Chevron U.S.A., Inc. v. National Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984). First, a court

must determine whether Congress spoke to the issue and, if

not, whether the agency’s interpretation is reasonable or

permissible. Id. In Riverside, this Court applied this two part

test to evaluate the Corps’ regulatory power under Clean

Water Act § 404(a). 474 U.S. at 131.

In the opinion below, the Ninth Circuit fails to analyze

whether Congress spoke to the precise issue at bar; namely,

'12In Riverside, this Court said that any definition of “waters”

subject to Section 404(a) must consider “the realities of the problem

of water pollution that the Clean Water Act was intended to

combat.” Riverside, 474 ‘U.S. at 132.

14

whether Congress intended the Clean Water Act to extend

Corps regulatory power to a “water” based on migratory

bird use, without any connection to water pollution. Instead,

the court below states that Congress intended to extend

Corps jurisdiction “to any aquatic features within the reach

of the Commerce Clause power.” Petitioners’ Appendix

at A-6. The court then cites for authority its own precedent

supporting that proposition in dicta.13 However, neither the

decision below, nor any Circuit Court of Appeals decision,

addresses the issue raised here; whether the Corps’ regula-

tory power under the Clean Water Act extends to a marginal

wetland area, tenuously classified as a “water,” the filling of

which has no effect on water pollution.

This Court specifically stated that Congress intended “to

exercise its powers under the Commerce Clause to regulate

at least some waters that would not be deemed ‘navigable’

under the classical understanding of that term.” Riverside,

474 U.S. at 133. Thus, this Court found that Congress

invoked powers under the Commerce Clause, but this Court

did not rule that Congress invoked all its power under the

Commerce Clause, as the Ninth Circuit held. 4. comprehen-

sive reading of the legislative history indicates that Congress

intended to regulate only water connected with waterborne

commerce.!4

'3 The court cites Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755-56 (9th

Cir. 1978) (holding that Corps jurisdiction extends to periodically

inundated diked lands which formerly were marshlands subject to

the ebb and flow of tide: “We express no opinion on the outer

limits to which the Corps’s [sic] jurisdiction under the FWPCA

might extend”) and California v. Environmental Protection Agency,

511 F.2d 963, 964 n.1 (9th Cir. 1975) (holding that federal agencies

are required to comply with state water pollution permit pro-

grams), rev'd, 426 U.S. 200 (1976).

14 See Jackson and Nitze, Wetlands Protection Under Section 404 of the

Clean Water Act—The Riverside Bayview Decision, Its Past and Future,

(Continued on following page)

15

In Riverside, this Court found that extending Corps juris-

diction beyond open water to adjacent wetlands was reason-

able due to the “evident breadth of congressional concern for

protection of water quality,” and the interrelated nature of

navigable waters and adjacent wetlands. 474 US. at 133.

Contrarily, the Corps has never shown that putting clean fill

dirt'® on this category of “other waters,” namely isolated

crystallizers and calcium chloride pits containing rainwater,

impacts water pollution in any manner. This is clearly

because these waters do not connect hydrologically to any

other water body. Petitioners’ Appendix at A-13. Rather, the

Corps asserts that these isolated “waters,” which remain dry

land most of the year, and other isolated wetlands must be

protected as potential habitat or open space for wildlife

pursuant to the Clean Water Act.'6

7 Pub. Land L. Rev. 21, 33 (1986). (Congress intended to limit

Corps jurisdiction to “all waters covered by the expanded judicial

interpretations of [navigable waters], but no others.”)

'S Although not raised by petitioners, there is some question

whether Congress intended to regulate the discharge of clean fill

dirt as a pollutant. The definition of pollutant includes dredged

spoil, but not fill or dirt. CWA § 502(6), 33 U.S.C. § 1362(6).

According to Senator Muskie, the word fill was added to Section

404 to make clear that Congress intended to regulate the discharge

of dredge spoil on land which is then called fill. Section 404 of the

Federal Water Pollution Control Act Amendments of 1972: Hearings

Before the Senate Comm. on Public Works, 94th Cong., 2d Sess. 62

(1976).

‘6 The Corps asserts this despite the fact that as recently as 1985,

the Corps’ civilian supervisor told Congress: “One significant point

to recall is that the Congress did not design Section 404 to be a

wetland protection mechanism and it does not function well in that

capacity.” Testimony of Robert K. Dawson, Acting Assistant Secre-

tary of the Army for Civil Works, 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. 61 (1985).

16

The decision below holds that Corps jurisdiction over an

isolated “water” is reasonable due solely to migratory bird

use—without any effect on water quality. Congress’ clear

intent was to grant the Corps authority to combat water

pollution; Congress never intended that mere use by migra-

tory birds act as the surrogate to extend Corps regulatory

power to any wet area. Thus, the decision below violates this

Court’s admonition that “[i]f the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.” Chevron, 467 U.S. at 842-43.

ITI

REGULATION OF ISOLATED WATERS

AND WETLANDS CANNOT BE JUSTIFIED

UNDER THE COMMERCE CLAUSE

This Court need not go beyond petitioners’ argument

that Congress did not intend to regulate the isolated waters

at issue in this case in order to conclude that this case

warrants review. However, in the event that this Court were

to conclude that Congress did intend to regulate these iso-

lated waters, certiorari must still be granted because by

attempting to regulate isolated waters and wetlands Con-

gress is exceeding the scope of its constitutional authority.

Petitioners’ statement that “Congress was aware that,

constitutionally, it could reach further,” petition at 14, is too

generous. Similarly, the opinion below is inaccurate when it

states that “[t]he Commerce Clause power . . . is broad

enough to extend the Corps’ jurisdiction to local waters

which may provide habitat to migratory birds or endangered

species.” Petitioners’ Appendix at A-12 (emphasis added).

Amici urge that there is an independent ground for granting

certiorari in this case—the ground that Congress lacks alto-

gether the authority under the Commerce Clause to regulate

17

isolated waters and wetlands that do not significantly affect

interstate commerce.

In essence, by attempting to regulate Leslie Salt’s prop-

erty, the Corps of Engineers has adopted the “glancing

duck” theory of jurisdiction’7—if a flying duck were to look

down and see standing water, then the duck might consider

landing on the water, and the duck’s glance would be an

effect on interstate commerce. But as this Court has stated,

the Commerce Clause does not justify congressional use of a

“relatively trivial impact on commerce as an excuse for

broad general regulation of state or private activities.” Mary-

land v. Wirtz, 392 U.S. 183, 196 n.27 (1968). See also Tribe,

American Constitutional Law, § 5-7 at 313-14 n.2 (2d ed. 1988).

The Commerce Clause provides Congress substantial

authority to regulate activities that directly or indirectly

affect commerce, not the enumerated power to regulate

potential duck landing zones.'8

The court below relies upon Hughes v. Oklahoma,

441 U.S. 322, 329-36 (1979), a case dealing with the interstate

transportation of minnows, for the proposition that Com-

merce Clause power extends to the regulation of potential

habitat of migratory bird or endangered species because

Congress has Commerce Clause power over wildlife. See

Petitioners’ Appendix at A-12. This is a seriously distorted

gloss on Hughes that fails to put that case in its proper

'7 The glancing duck theory is a graphic description of the poten-

tial habitat theory of jurisdiction extensively discussed, supra.

'8 Indeed, if the federal government's Commerce Clause power

reaches to all lands that collect rainfall because wildfowl and

endangered species might use that land, why not all fields of grain

that might attract migratory birds? Why not all uplands where a

migratory bird might nest? Indeed, under the Ninth Circuit's

rubric, the only land that could not be regulated by the federal

government under the Commerce Clause would be fresh lava beds

and glaciers.

18

context—which was the ability of a state to impede interstate

commerce in animals. Hughes has nothing to do with the

question of whether or not all potential habitat for wildlife

falls under federal Commerce Clause jurisdiction. Hughes

merely found that once wildlife enters the stream of com-

merce (which usually occurs after killing or capture) a state

cannot place burdens upon interstate commerce unless the

traditional Commerce Clause burden tests are met. Hughes,

441 US. at 336.19

The proper test for determining whether a statute fits

under the auspices of the Commerce Clause was outlined in

Hodel v. Indiana, 452 U.S. 314, 323-24 (1981):

“A court may invalidate legislation enacted under

the Commerce Clause only if it is clear that there is

no rational basis for a congressional finding that

the regulated activity affects interstate commerce,

or that there is no reasonable connection between

the regulatory means selected and the asserted

ends.”20

19 For a time there existed the belief fostered in the 19th century

that once wild animals were reduced to possession, states retained

some sort of title in those animals and could prevent their intro-

duction into interstate commerce. See Geer v. Connecticut, 161 U.S.

519, 530 (1896). As discussed in Hughes, this principle was eroded

over time. In Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284

(1977), it was noted that a state’s “title” over game animals was an

anachronistic concept and could not be used by a state to discrimi-

nate against out-of-state fishermen. See Hughes, 441 U.S. at 334-35.

Finally, in Hughes the controversy was put to rest: A state’s interest

in its wildlife and natural resources was not sufficient justification,

a fortiori, for placing a burden upon interstate commerce. Hughes,

441 U.S. at 336. But see dissenting opinion of Chief Justice Burger

and Justice Rehnquist in Hughes, 411 U.S. at 339-46 (Geer remains

good law because the “ownership” theory is shorthand for a state's

strong interest in conserving its resources).

20 The impact on commerce must be “substantial.” National Labor

Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 24, 26

(1937).

19

There is no showing whatsoever in the legislative history of

the Clean Water Act that land use activities on isolated

waters and wetlands affect interstate commerce. Congress

nowhere found that the viability of migratory waterfowl or

endangered species populations is dependent upon the pre-

servation of such isolated wetlands. There is, therefore, no

congressional finding on which to examine the rational basis

test. The first prong of the Hodel test fails. The second prong

is likewise suspect because the nexus between interstate

commerce in migratory birds and wildlife has not been

shown to be connected, reasonably or otherwise, to a permit-

ting program on isolated waters and wetlands. These iso-

lated waters and wetlands have not been shown to contain

significant reservoirs of animal habitat—and certainly have

not been shown to be more habitable than any other area of

thoroughly dry land. Thus, even if Congress had intended to

extend the reach of its jurisdiction to isolated waters and

wetlands, that reach would violate the limits of the Com-

merce Clause.?!

21 This Court, of course, must be cautious before extending the

already stretched Commerce Clause beyond the breaking point.

The Commerce Clause has already been generously interpreted.

See Wickard v. Filburn, 317 U.S. 111 (1942), a case described by

Justice Douglas as having reached the “outward limits” of that

clause. William O. Douglas, The Court Years, 1939-1975, at 50 (1980).

Already, cogent arguments have been made that the New Deal

extensions of the Commerce Clause are doctrinally insupportable.

See Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev.

1387, 1449-554 (1987). Even if it were accepted that the Court's

interpretation of the Constitution must conform to modern percep-

tions of public policy, it is asserted that the New Deal policy

reasons in favor of increased federal intervention in commerce are

the result of flawed economic theory. Id. at 1453.

20

CONCLUSION

Whether the Clean Water Act authorizes regulation

of private property on the sole basis of protecting open

space for wildlife habitat is an issue needing definitive

resolution by this Court. The present case should now be

reviewed, not only to resolve this issue and prevent the

injustices that would otherwise result, but also to remove

the expansive Commerce Clause reasoning in the opinion

below.

DATED: January, 1991.

Respectfully submitted,

RONALD A. ZUMBRUN

*Rosin L. Rivettr

*Counsel of Record

James S. Bur.LING

CHaRLEs A. KLINGE

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae,

Pacific Legal Foundation and

National Cattlemen's Association