Petition for Writ of Certiorari — Johnson v. United States (No. 07-9)
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Supreme Court, U.S.
Pe BO
() 07-09 JUN 28 2007
No. ____QFFICE OF THE CLERK
in the
Supreme Court of the United States
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CHARLES JOHNSON, GENELDA JOHNSON,
FRANCIS VANER JOHNSON, and
JOHNSON CRANBERRIES, LLP,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
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On Petition for Writ of Certiorari to the
United States Court of Appeals for the First Circuit
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PETITION FOR WRIT OF CERTIORARI
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DAMIEN S. SCHIFF M. REED HOPPER
Of Counsel Counsel of Record
Pacific Legal Foundation ROBIN L. RIVETT
3900 Lennane Drive, Suite 200 Pacific Legal Foundation
Sacramento, California 95834 3900 Lennane Drive, Suite 200
Telephone: (916) 419-7111 Sacramento, California 95834
Facsimile: (916) 419-7747 Telephone: (916) 419-7111
Facsimile: (916) 419-7747
Counsel for Petitioners
SINAN SBN SABE CORES EMR IRI SEIN SP BRERP CLE SANETIERCC LORS: SIE ANH RENILE TIDE LST GM OEE OEE TIS CET I
i
QUESTION PRESENTED
In Marks v. United-States, 430 U.S. 188, 193 (1977); this
Court stated that the controlling view in this Court’s split
decisions is “that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
(emphasis added). In putative reliance on Marks, the Seventh
and Ninth Circuits have held that the controlling opinion in
Rapanos v. United States, 126 S. Ct. 2208 (2006), is the lone
concurrence and that Clean Water Act jurisdiction must be
based on Justice Kennedy’s broad and undefined “significant
nexus” test. Those circuits have therefore prohibited federal
agencies from relying on the narrower plurality decision in
Rapanos to establish Clean Water Act jurisdiction. In this case,
the First Circuit held that the Seventh and Ninth Circuits are
wrong and that Clean Water Act jurisdiction may be established
based on either the Kennedy test or the plurality test.
In Rapanos, which opinion is controlling—the broad stand
alone concurrence of Justice Kennedy, or the narrower opinion
of the four Justice plurality as suggested by Marks? Or, may
the courts simply adopt an either/or test of conflicting standards
for establishing federal jurisdiction under the Clean Water Act?
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LIST OF ALL PARTIES
Petitioners: Charles Johnson, Genelda Johnson, Francis
Vaner Johnson, and Johnson Cranberries, LLP.
Respondents: United States of America.
CORPORATE DISCLOSURE STATEMENT
Johnson Cranberries, LLP, is wholly owned by Petitioners
Charles Johnson and Genelda Johnson. It has no parent
companies, subsidiaries, or affiliates that have issued shares to
the public.
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TABLE OF CONTENTS
Page
QUESTION PRESENTED ............... aoe
EPPO ALO PADI IS soos ooo cc vcsunvas i
CORPORATE DISCLOSURE STATEMENT .......... i
TABLE OF AUTHORITIES ...............-.00005- iii
PETITION FOR WRIT OF CERTIORARI ...........-.
pa
no RGSS at rls Stee ae eae
STATUTORY AND REGULATORY
PROVISIONS AT ISSUE .............0.e000.:
WCPIMERIIIONE eS 3
STATEMENT OF THECASE ..............e0e000: 5
REASONS FOR GRANTING THE WRIT ............. 7
I. THIS COURT SHOULD GRANT
THE WRIT OF CERTIORARI TO
RESOLVE A CONFLICT AMONG THE
CIRCUITS ABOUT WHETHER FEDERAL
JURISDICTION MAY EXTEND TO
WETLANDS BASED ON EITHER THE
RAPANOS PLURALITY TEST OR THE
KENNEDY “SIGNIFICANT NEXUS” TEST ..... 7
li. THIS COURT SHOULD GRANT THE WRIT
OF CERTIORARI TO RESOLVE A CONFLICT
AMONG THE CIRCUITS ABOUT WHETHER
MARKS APPLIES TO THIS COURT’S SPLIT
DECISIONS SUCH AS RAPANOS ............ 12
iv.
TABLE OF CONTENTS—Continued
Page
Il. THIS COURT SHOULD GRANT
THE WRIT OF CERTIORARI
BECAUSE THE UNDEFINED
“SIGNIFICANT NEXUS” STANDARD
IMPOSED BY THE COURT BELOW
RAISES DUE PROCESS CONCERNS ......... 14
CO 6 sia sk oe ae a ke ies FS ea oe 18
Vv
TABLE OF AUTHORITIES
Page
Cases
Borden Ranch Partnership v. United States Army Corps
of Engineers, 261 F.3d 810 (9th Cir. 2001) ......... 15
Furman v. Georgia, 408 U.S. 238 (1972) .............. 7
Gregg v. Georgia, 428 U.S. 153 (1976) ..........0.. 6-8
In re Michael Francis Cook, 322 B.R. 336 (2005) ....... 7
Johnson v. Board of Regents of the University of Georgia,
263 F3G7234 GUM GE 200). ois ei 9
King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) ....... 9,14
Marks v. United States, 430 U.S. 188 (1977) ....... 4, 6-7
Memoirs v. Attorney General of the Commonwealth
of Massachusetts, 383 U.S. 413 (1966) ............. 10
Nichols v. United States, 511 U.S. 738 (1994) ......... id
Northern California River Watch v. City of Healdsburg,
457 F.3d 1023 (9th Cir. 2006)
(petition for rehearing pending) ................ 4,12
Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 483 U.S. 711 (1987)... 2... ee eee 13
Rapanos v. United States,
126 3. CX. 2E06 CI) oo ks cece eens 3, 5-6, 11, 16
Student Public Interest Research Group of New
Jersey, Inc. v. AT & T Bell Labs,
BGe Fides VSR S0 GA: LOO) coe n cc ctr ssicavswoees 13
Tyler v. Bethlehem Steel Corp.,
PON see 8010 Mpls BOGE) so 5 Bs cc Gus ie una 12
vi
TABLE OF AUTHORITIES—Continued
United States v. Chevron Pipe Line Company,
437 F. Supp. 2d 605 (N.D. Tex. 2006)
United States v. Gerke Excavating, Inc.,
412 F.3d 804 (7th Cir. 2005) (petition for cert
pending ) (No. 06-1331)
United States v. Gradwell,
243 U.S. 476 (1917)
United States v. Johnson,
467 F.3d 56 (1st Cir. 2006)
United States v. Lanier, 520 U.S. 259 (1997)
United States v. Mills,
817 F. Supp. 1546 (N.D. Fla. 1993)
United States v. Williams,
435 F.3d 1148 (9th Cir. 2006)
28 U.S.C. § 1254(1)
33 U.S.C. § 1311(a)
33 C.F.R § 328.3(a) (2005)
§ 328.3(b)
§ 328.3(c)
Page
Vii
TABLE OF AUTHORITIES—Continued
Page
Miscellaneous
Brown, Gordon M., Regulatory Takings and Wetlands:
Comments on Public Benefits and Landowner Cost,
21 Ohio N.U. L. Rev. 527 (1994) ................. 15
Kimura, Ken, A Legitimacy Model for the
Interpretation of Plurality Decisions,
Ti Comes 1, ROY. 1599S CGE) oo i ie ees 10-11
Thurmon, Mark Alan, Note, When the Court
Divides: Reconsidering the Precedential
Value of Supreme Court Plurality Decisions,
OP ROU Eh te Ci es eis bp Si oe bible pee ores 9
U.S. General Accounting Office, Waters and Wetlands: —
Corps of Engineers Needs to Evaluate Its District
Office Practices in Determining Jurisdiction
(Feb. 2004), available at http://www.gao.gov/new.
items/d04297.pdf (last visited June 25, 2007) .... 14-15
1
PETITION FOR WRIT OF CERTIORARI
Petitioners. respectfully petition-this-Court for a- Writ of
Certiorari to review the judgment of the United States Court of
Appeals for the First Circuit.
OPINIONS BELOW
The challenged remand order of the Court of Appeals for
the First Circuit is reported as United States v. Johnson,
467 F.3d 56 (1st Cir. 2006), and is attached as Appendix (App.)
C.
JURISDICTION
The remand order of the Court of Appeals for the First
Circuit was entered on October 31, 2006. App. C. That court’s
denial of the Petition for Rehearing and Suggestion for
Rehearing En Banc was entered on February 21, 2007. App. A.
On May 3, 2007, this Court granted an extension of time in
which to file this Petition for Writ of Certiorari to and including
June 28, 2007. App. B. This Court has jurisdiction under 28
U.S.C. § 1254(1).
an
vy
STATUTORY AND
REGULATORY PROVISIONS AT ISSUE
The Clean Water Act (CWA) provides in pertinent part:
Except as in compliance with this section and
section{] . . . 1344 of this title, the discharge of any
pollutant by any person shall be un’awful.
33 U.S.C. § 1311(a) (CWA § 301(a)).
2
The Secretary may issue permits, after notice and
opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites.
33 USC. § 1344(a) (CWA § 404(a)).
(5) The term “person” means an_ individual,
corporation, partnership, association, State,
municipality, commission, or political subdivision of
a State, or any interstate body.
(6) The term “pollutant” means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste
discharged into water. ...
(7) The term “navigable waters” means the waters of
the United States, including the territorial seas.
33 U.S.C. § 1362(5)-(7) (CWA § 502(5)-(7)).
Federal regulations define “waters of the United States” to
mean:
(1) All waters which are currently used, or were
used in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate
wetlands;
(3) All 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,
3
degradation or destruction of which could affect
interstate or foreign commerce including any such ~
waters:
(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
or
(ii) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;
(4) All impoundments of waters otherwise defined
as waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs
(a)(1)-(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters
that are themselves wetlands) identified in
paragraphs (a)(1)-(6) of this section.
33 C.F.R § 328.3(a) (2005).
Federal regulations define “adjacent” as “bordering,
contiguous, or neighboring.” 33 C.F.R. § 328.3(c).
INTRODUCTION
In Rapanos v. United States, 126 S.Ct. 2208 (2006), a five
Justice majority of this Court held that federal jurisdiction did
not extend to wetlands under the Clean Water Act based solely
on a hydrological connection between those wetlands and a
navigable-in-fact waterway downstream. But this Court split on
the test for establishing such jurisdiction. A four Justice
4
plurality interpreted the Clean Water Act narrowly to cover
traditional rivers, lakes, and streams connected to navigable-in-
fact waters, and those wetlands “indistinguishable” from these
waters. But Justice Kennedy, who concurred in the judgment,
interpreted the Act broadly so as to reach any wetland with a
“significant nexus” to navigable-in-fact waters.
The Circuit Courts of Appeals are themselves split on how
to apply this Court’s Rapanos decision. Recently, in United
States v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005),
(petition for cert pending) (No. 06-1331), the Seventh Circuit
held Justice Kennedy’s “significant nexus” test was controlling.
The Ninth Circuit came to the same conclusion in Northern
California River Watch v. City of Healdsburg, 457 F.3d 1023
(9th Cir. 2006) (petition for rehearing pending). But, the First
Circuit expressly rejected this reading of Rapanos. In this case,
the First Circuit held that Clean Water Act jurisdiction could be
extended to inland wetlands based on either the plurality test or
Justice Kennedy’s “significant nexus” test.
These Circuit rulings conflict with this Court’s decision in
Marks v. United States, 430 U.S. 188, 193 (1977), wherein this
Court declared that in fragmented decisions “the holding of the
Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.”
Under a literal reading of Marks, the “narrowest grounds” in
Rapanos is the plurality position because it is a logical subset
of the Kennedy test. But not all courts follow a literal reading
of Marks. Indeed, there is general disagreement among the
Circuits as to whether and how Marks applies to this Court’s
split decisions.
Review by this Court is necessary not only to resolve a
clear and substantial conflict among the Circuit Courts as to
enforcement of the Clean Water Act under Rapanos, but also to
clarify this Court’s interpretive rules for split opinions.
STATEMENT OF THE CASE
Petitioners (Johnsons) were cited for filling private
wetlands without a federal permit under the Clean Water Act
while converting their land to use as cranberry bogs—a
recognized form of wetland. In defense, the Johnsons
challenged the government’s statutory jurisdiction. A fractured
panel of the First Circuit upheld federal jurisdiction over the
Johnsons’ wetlands citing a “hydrological connection” to
traditional navigable waters, although none of the panelists
could agree on the nature of that connection. See United States
v. Johnson, see Appendix D. Shortly thereafter, this Court
invalidated that basis for jurisdiction in Rapanos.
In Rapanos, a five-justice majority of this Court held that
something more than a “hydrological connection” between a
wetland and a navigable-in-fact waterway was required for the
exercise of federal jurisdiction under the Clean Water Act. But,
no single rationale garnered a majority vote. As noted above,
four Justices, forming a plurality, determined the Act required
limiting federal authority to those “relatively permanent,
standing or continuously flowing bodies of water” traditionally —
recognized as “streams[,].. . oceans, rivers [and] lakes” that are
connected to traditional (or navigable-in-fact) waters. Rapanos,
126 S. Ct. at 2225 (Scalia, J.). The plurality would also
authorize federal regulation of wetlands physically abutting
these water bodies, but only ifthey contain a continuous surface
water connection such that the wetland and the covered water
are “indistinguishable.” Jd. at 2234. Ephemeral and
insubstantial connections would not suffice. Jd. at 2225.
Justice Kennedy concurred in the judgment but proposed a
broad and undefined “significant nexus” test for determining
federal Clean Water Act jurisdiction. Jd. at 2236 (Kennedy, J.,
concurring in the result). Under this test, any wetland would be
subject to federal regulation if it is deemed to “significantly
6
affect” a traditional navigable waterway. Jd. at 2248. The four
Justices in the dissent supported the government’s view that the
agencies could choose to regulate essentially any water body to
advance the statutory goal of maintaining the “chemical,
physical, and biological integrity of the Nation’s waters,” id. at
2252, et seq. (Stevens J., dissenting), but added that they would
uphold federal jurisdiction in any case “in which either the
plurality’s or Justice Kennedy’s test is satisfied.” Jd. at 2265.
In reliance on Rapanos, the Johnsons petitioned the First
Circuit for rehearing. In response, the court vacated its prior
decision and remanded with directions on how to apply the
Rapanos decision. App. C. As a basis for choosing among this
Court’s disparate opinions, the First Circuit turned to the
language in Marks directing the lower courts to rely on “that
position taken by those Members who concurred in the
judgments on the narrowest grounds.” 430 U.S. at 193
(emphasis added) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
But although the plurality and Justice Kennedy are the only
members of the Court “who concurred in the judgments,” the
panel expressly rejected the Seventh and Ninth Circuit’s
adoption of the Kennedy test and instead followed the dissent’s
approach that authorizes federal regulation of wetlands if
“either the plurality’s or Justice Kennedy’s test is satisfied.”
App. at C-17.
Thus the First Circuit created a conflict with its sister
Circuits and misconstrued this Court’s rule for interpreting split
decisions.
REASONS FOR GRANTING THE WRIT
I
THIS COURT SHOULD GRANT
THE WRIT OF CERTIORARI TO
RESOLVE A CONFLICT AMONG THE
CIRCUITS ABOUT WHETHER FEDERAL
JURISDICTION MAY EXTEND TO
WETLANDS BASED ON EITHER THE
RAPANOS PLURALITY TEST OR THE
KENNEDY “SIGNIFICANT NEXUS” TEST
In this case, the First Circuit expressly rejected the
Seventh Circuit’s (and by implication the Ninth Circuit’s)
understanding of and reliance on Marks v. United States,
430 U.S. 188, to interpret this Court’s Rapanos decision. In
Marks, this Court was clear: “[w]hen a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may
be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.’ ”
430 U.S. at 193 (emphasis added). Although this interpretive
rule has been difficult in application, it has been recognized as
the only approach sanctioned by this Court for interpreting its
split decisions. Jn re Michael Francis Cook, 322 B.R. 336, 341
(2005) (“The only approach approved by the Supreme Court is
the ‘narrowest grounds’ approach.”).
The language of Marks was not unique to that case. It
derived from this Court’s decision in Gregg v. Georgia,
428 U.S. 153. In Gregg, this Court examined Furman y.
Georgia, 408 U.S. 238 (1972), which involved a challenge to
the constitutionality of a Georgia death penalty statute. In
Furman, as in Rapanos, five Justices agreed in the judgments,
but the Court was split on the legal standard that should be
8
applied to death penalty cases. Two Justices who concurred in
the judgments felt that capital punishment was unconstitutional
in all cases whereas the other three Justices believed that capital
punishment was unconstitutional only in the circumstances
presented in that case. Thus in Gregg, this Court held: “Since
five Justices wrote separately in support of the judgments in
Furman, the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds... .” 428 U.S. at 169
n.15.
In Gerke, 464 F.3d 723, which also involves a
jurisdictional challenge to federal regulation of inland wetlands,
the Seventh Circuit putatively relied on Marks to interpret
Rapanos, but it changed the wording of the Marks rule, and
therefore the test. In Gerke, the court cited Marks for the
proposition that
[wJhen a majority of the Supreme Court agrees only
on the outcome of a case and not on the ground for
that outcome, lower-court judges are to follow the
narrowest ground to which a majority of the Justices
would have assented if forced to choose. In
Rapanos, that is Justice Kennedy’s ground.
Id. at 724.
This adulterated version of the Marks rule allowed the
Seventh Circuit to aggregate the four dissenters in Rapanos
with Justice Kennedy to find five Justices that would support
Justice Kennedy’s “significant nexus” standard for establishing
federal jurisdiction over wetlands under the Clean Water Act.
However, the court ignored the more persuasive argument that
when the -plurality standard is applied to find federal
jurisdiction, it would have the support of all nine Justices. But
under Marks, finding the support of five Justices is not the test,
especially in a case like Rapanos where five or more Justices
9
would support more than one opinion. Rather, under Marks,
_ lower-court judges are to look at the “narrowest grounds.”
The First Circuit in this case found it curious that Gerke
equated “narrowest grounds” with the opinion “least restrictive
of federal authority.” App. C-9. Although the cases on which
Marks relied involved situations in which the “narrowest
grounds” was the least restrictive of federal jurisdiction, the
First Circuit observed that this was mere coincidence and that
it “does not necessarily mean that the Supreme Court in Marks
equated the ‘narrowest grounds’ . . . to the grounds least
restrictive of the assertion of federal authority.” Jd. at C-12.
“Such an equation,” the court stated, “leaves unanswered the
question of how one would determine which opinion is
controlling in a case where the government is not a party.” Jd.
Given the constitutional issue raised, the court found it “just as
plausible to conclude that the narrowest ground of decision in
Rapanos is the ground most restrictive of government authority
(the position of the plurality),” because, the court concluded,
“that ground avoids the constitutional issue ofhow far Congress
can go in asserting jurisdiction under the Commerce Clause.”
Id.
In contrast to the Seventh Circuit’s reading of Marks in
Gerke, the First Circuit in this case opined that the “narrowest
grounds” might sensibly be interpreted to mean the “less far-
reaching-common ground,” citing Johnson v. Board of Regents
of the University of Georgia, 263 F.3d 1234, 1247 (11th Cir.
2001), or the opinion “most clearly tailored to the specific fact
situation before the Court and thus applicable to the fewest
cases,” citing Mark Alan Thurmon, Note, When the Court
Divides: Reconsidering the Precedential Value of Supreme
Court Plurality Decisions, 42 Duke L.J. 419, 420-21 (1992).
App. C-12 - C-13.
Relying on King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991), the First Circuit noted the D.C. Circuit found “Marks is
10
workable—one opinion can be meaningfully regarded as
‘narrower’ than another—only when one opinion is a logical
subset of other, broader opinions.” App. at C-13. “In other
words,” the First Circuit explained, “the ‘narrowest grounds’
approach makes the most sense when two opinions reach the
same result in a given case, but one opinion reaches that result
for less sweeping reasons than the other.” Jd. According to the
First Circuit, Marks followed this approach. In Marks this
Court examined Memoirs v. Attorney General of the
Commonwealth of Massachusetts, 383 U.S. 413 (1966), in
which a majority of this Court held that a lower court
incorrectly concluded a book was obscene and did not have
First Amendment protection. Three Justices decided that if
materials are deemed obscene they should receive no First
Amendment protection while two other Justices concluded that
the First Amendment provided an absolute shield against
government action. As a logical subset of the other, this Court
concluded in Marks that the former opinion, excluding obscene
materials from First Amendment protections, was the
“narrowest grounds” for the judgment and the controlling
opinion in the case.
Put another way:
The Justices supporting the broader legal rule must
necessarily recognize the validity of the narrower
legal rule. That is, if a statute is found to be
constitutionally permissible pursuant to a strict
scrutiny standard of review, then it is necessarily
permissible pursuant to a rational basis standard of
review. From the text of the alternative concurring
opinions, it is possible to determine that if all of the
Justices apply the narrower rule, the outcome would
have been the same.
11
Ken Kimura, A Legitimacy Model for the Interpretation of
Plurality Decisions, 77 Comell L. Rev. 1593, 1603-1604
(1992). 2 Oa yy
In this case, the First Circuit noted that the Kennedy
“significant nexus” standard in Rapanos is not a “logical
subset” of the plurality standard for federal jurisdiction over
wetlands: “The cases in which Justice Kennedy would limit
federal jurisdiction are not a subset of the cases in which the
plurality would limit jurisdiction.” App. at C-14. However, the
First Circuit failed to consider the obvious possibility that the
plurality standard is a “logical subset” of the Kennedy standard.
This possibility was simply ignored. So broad is the Kennedy
approach that the plurality found it barely distinguishable from
the government’s “any hydrological connection” test the
majority struck down: “Justice Kennedy tips a wink at the
agency, inviting it to try its same expansive reading again.”
Rapanos, 126 S. Ct. at 2235 n.15.
Thus, in Rapanos, the plurality’s jurisdictional standard is
comparable to the narrower strict scrutiny standard, whereas the
Kennedy “significant nexus” standard is comparable to the
broader rational basis standard. As Justice Stevens observed,
it would be an “unlikely event that the plurality’s test is met but
Justice Kennedy’s 1s not.” Jd. at 2265 n.14.
In other words, the plurality opinion was decided on the
“narrowest grounds,” not because it’s the most restrictive of
federal authority, but because it is less sweeping and would
require the same outcome in a subset of the cases as would the
more sweeping Kennedy opinion. For this reason, the First
Circuit reyected Gerke’s conclusion that under Marks Justice
Kennedy’s lone concurrence is controlling in Rapanos. Instead,
the First Circuit held that “Marks does not translate easily to
the present situation,” App. C-14, and that the “federal
government can establish jurisdiction over the target sites if it
can meet either the plurality’s or Justice Kennedy’s standard as
12
laid out in Rapanos.” App. C-17. This conflict creates a
substantial disparity between these Circuits in the enforcement
of the Clean Water Act which requires reconciliation by this
Court.’
Il
THIS COURT SHOULD GRANT
THE WRIT OF CERTIORARI TO
RESOLVE A CONFLICT AMONG THE
CIRCUITS ABOUT WHETHER MARKS
APPLIES TO THIS COURT’S SPLIT
DECISIONS SUCH AS RAPANOS
As the First Circuit points out, a number of Circuits have
abandoned this Court’s Marks approach to split opinions or
applied Marks selectively. Instead, they have sought to divine
the controlling opinion in this Court’s fragmented decisions,
like Rapanos, by adopting a “pragmatic” approach to the
situation. This approach involves assessing which grounds
would “command a majority of the Court.” App. at C-15. In
Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir.
1992), for example, the court concluded: “In essence, what we
must do is find common ground shared by five or more
justices.” See also United States v. Williams, 435 F.3d 1148,
1157 (9th Cir. 2006) (“We need not find a legal opinion which
a majority joined, but merely ‘a legal standard which, when
applied, will necessarily produce results with which a majority
of the Court from that case would agree.’ ”).
't addition to the Seventh Circuit in Gerke, the Ninth Circuit has
also concluded, without explanation, that Justice Kennedy’s
“significant nexus” standard is controlling in Rapanos under the
Marks rule, thus creating an additional conflict among the Circuits.
See Northern California River Watch v. Healdsburg, 457 F.3d at
1029 (currently on petition for rehearing).
13
The courts that have adepted this approach are not
particular as to the Justices that may be joined in a “majority.”
In contrast to the directive in Marks, that the controlling
opinion must be found among those Justices who concurred in
the judgments, some Circuits give equal weight to the
dissenting Justices. The Seventh Circuit in Gerke, which
purported to apply Marks, relied on the fact that “any
conclusion that Justice Kennedy reaches in favor of federal
authority over wetlands in a future case will command the
support of five Justices (himself plus the four dissenters).”
Gerke, 464 F.3d at 725. The First Circuit in this case used
similar logic to justify its determination that federal jurisdiction
over wetlands could be established under either the plurality test
in Rapanos or the Kennedy test:
If Justice Kennedy’s test is satisfied, then at least
Justice Kennedy plus the four dissenters would
support jurisdiction. If the plurality’s test is satisfied,
then at least the four plurality members plus the four
dissenters would support jurisdiction.
App. at C-15.
In Student Public Interest Research Group of New Jersey,
Inc. v. AT & T Bell Labs, 842 F.2d 1436 (3d Cir. 1988), the
Third Circuit examined Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 483 U.S. 711 (1987), to
determine the controlling opinion. In Pennsylvania, this Court
was asked to address the availability of contingency fees under
federal fee-shifting statutes. This Court split along the lines of
Rapanos with four Justices in the plurality, four Justices in the
dissent, and Justice O’Connor’s lone concurrence in the
judgments. The Third Circuit determined that “[b]ecause the
four dissenters would allow contingency multipliers in all cases
in which Justice O’Connor would allow them, her position
commands a majority of the Court” and is controlling. Student,
842 F.2d at 1451.
14
In King v. Palmer, 950 F.2d 771, the D.C. Circuit took a
different approach. According to Johnson, the D.C. Circuit
“refused to examine the points of commonality among Justice
O’Connor’s opinion and that of the dissent, relying mainly on
a literal reading of Marks’s [sic] language that the holding is the
position of the Justices ‘who concurred in the judgments on the
narrowest grounds.’ ” App. at C-15-C-16. The D.C. Circuit
relied as well on the fact that this Court “had not explicitly
applied Marks to situations where concurring and dissenting
votes would be combined.” App. at. C-16.
This widespread Circuit conflict has not gone unnoticed by
this Court. This Court has remarked on how the Marks’ inquiry
has “so obviously baffled and divided the lower courts that have
considered it.” Nichols v. United States, 511 U.S. 738, 746
(1994). It is time, therefore, for this Court to address this
conflict in the context of this case.
[il
THIS COURT SHOULD GRANT THE
WRIT OF CERTIORARI BECAUSE THE
UNDEFINED “SIGNIFICANT NEXUS”
STANDARD IMPOSED BY THE COURT
BELOW RAISES DUE PROCESS CONCERNS
For more than 30 years, the Corps and EPA have failed to
follow a consistent jurisdictional test under the Clean Water
Act. A report from the General Accounting Office confirms
that the Army Corps of Engineers’ local districts “differ in how
they interpret and apply the federal regulations when
determining what wetlands and other waters fall within the
[Act’s] jurisdiction.” U.S. General Accounting Office, Waters
and Wetlands: Corps of Engineers Needs to Evaluate Its
District Office Practices in Determining Jurisdiction 3 (Feb.
2004), available at http://www.gao.gov/new.items/d04297.pdf
(last visited June 25, 2007) (GAO Report).
In addition to the inter-district inconsistences, the GAO
Report concludes that even Corps staff working in the same
office cannot agree on the scope of the Clean Water Act and
that “three different district staff’ would likely make “three
different assessments” as to whether a particular water feature
is subject to the Clean Water Act. GAO Report at 22. This is
more than a theoretical concern. This degree of uncertainty
permeates the enforcement decisions of the Corps. In Rapanos,
those decisions became the basis for multimillion dollar fines
and criminal prosecution.
The right of the people to know when they have violated
the law is deserving of greater safeguard than the convenience
of the enforcing agency. But the scope of federal jurisdiction
under the Clean Water Act is beyond the comprehension of
ordinary people. The very definition of “wetlands” defies
common sense. Federal regulations define “wetlands” as those
- areas “inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.”
33 C.F.R. § 328.3(b). Under this definition, an area need be
wet only “for one to two weeks per year” to qualify as a
“wetland.” Gordon M. Brown, Regulatory Takings and
Wetlands: Comments on Public Benefits and Landowner Cost,
21 Ohio N.U. L. Rev. 527, 529 (1994). In other words, a
“wetland” may be mostly dry land.”
No reasonable person would conclude that mostly dry land
is subject to federal control as a jurisdictional wetland. Ocie
Mills and his son found this out the hard way. These two were
convicted in the Eleventh Circuit for filling “wetlands” on their
2 The definition of “discharge” also defies common sense. The
Corps interprets that term to mean the mere movement of dirt in situ.
See Borden Ranch Partnership v. United States Army Corps of
Engineers, 261 F.3d 810 (9th Cir. 2001).
16
property without a permit—an act a district court characterized
as the innocuous placing of clean fill on dry land:
This case presents the disturbing implications of the
expansive jurisdiction which has been assumed by the
United States Army Corp of Engineers under the
Clean Water Act. In a reversal of terms that is worthy
of Alice in Wonderland, the regulatory hydra which
emerged from the Clean Water Act mandates in this
case that a landowner who places clean fill dirt on a
plot of subdivided dry /Jand may be imprisoned for the
statutory felony offense of “discharging pollutants
into the navigable waters of the United States.”
United States v. Mills, 817 F. Supp. 1546, 1548 (N.D. Fla.
1993).
For this offense, Mills and his son served 21 months in
prison, one year in supervised release, paid $5,000 in fines, and
were required to restore the site to its origina] condition. Jd.
This Court has long held that “before a man can be
punished as a criminal under the Federal law his case must be
‘plainly and unmistakably’ within the provisions of some
statute.” United States v. Gradwell, 243 U.S. 476, 485 (1917).
See also United States v. Lanier, 520 U.S. 259, 267 (1997). But
the “significant nexus” test provides no such clarity. To the
contrary, as the Rapanos plurality points out, “Justice
Kennedy’s ‘significant nexus’ standard is perfectly opaque.
When, exactly, does a wetland ‘significantly affect’ covered
waters, and when are its effects ‘in contrast . . . speculative or
insubstantial?’” Rapanos, 126 S. Ct. at 2235 n.15.
Similar questions were raised by the district court in United
States v. Chevron Pipe Line Company, 437 F. Supp. 2d 605,
613 (N.D. Tex. 2006), the first case to apply the Rapanos
decision. That case involved an accidental discharge of oil into
a dry, unnamed drainage ditch that flowed only during
17
significant storm events. Jd. at 607. Although the oil was
cleaned up before it reached any water, as required by state law,
and the nearest navigable-in-fact waterway was connected to
the ditch by intermittent streams scores of miles away, the
Corps of Engineers sought fines from the company for
discharging into “navigable waters” without a federal permit.
Id. at 607-608. Therefore, the court looked to Rapanos for
guidance in determining the scope of federal jurisdiction.
The court was quick to dismiss the Kennedy approach as
an unworkable standard. The court observed that Justice
Kennedy “advanced an ambiguous test—whether a ‘significant
nexus’ exists to waters that are/were/might be navigable.” Jd.
at 613. According to the court, “[t}his test leaves no guidance
on how to implement its vague, subjective centerpiece. That is,
exactly what is ‘significant’ and how is a ‘nexus’ determined?”
Id. (citations omitted). Therefore, instead of relying on the
Kennedy opinion, the court based its decision on existing Fifth
Circuit precedent and “the Supreme Court’s plurality opinion in
Rapanos v. United States” and concluded there was no federal
jurisdiction. Jd. at 615. That decision underscores the real
world difficulties that are created for the enforcing agencies and
the trial courts when this Court does not provide clear limits on
federal authority.
Thus, the “significant nexus” standard imposed by the
court in Gerke, and authorized alternatively in this case, is sure
to result in inconsistent and unpredictable applications of the
law. Only the plurality test, with its clearer lines of
demarcation, is likely to provide agency officials and the
regulated public with consistent and predictable jurisdictional
rules. As the dissent in this case observed, the “significant
nexus” approach “leaves the door open to continued federal
overreach” while the plurality’s restriction on federal
jurisdiction “strikes a constitutional balance” between federal
power and individual rights. App. at. C-19 (Torruella, Circuit
Judge, dissenting).
18
CONCLUSION
The First Circuit expressly rejected the holdings of the
Seventh and Ninth Circuits that the Kennedy test is controlling
under Rapanos. This created a direct conflict over federal
wetland jurisdiction that must be resolved by this Court. The
decision below also added to the substantial confusion among
the Circuits as to how to apply Marks to this Court’s split
decisions. Inaction wil] result in continuing uncertainty as to
Clean Water Act jurisdiction and undermine the Constitution’s
safeguards against arbitrary enforcement of the law.
DATED: June, 2007.
Respectfully submitted,
DAMIEN M. SCHIFF M. REED HOPPER
Of Counsel Counsel of Record
Pacific Legal Foundation ROBIN L. RIVETT
3900 Lennane Drive, Suite 200 Pacific Legal Foundation
Sacramento, California 95834 3900 Lennane Drive, Suite 200
Telephone: (916) 419-7111 Sacramento, California 95834
Facsimile: (916) 419-7747 Telephone: (916) 419-7111
Facsimile: (916) 419-7747
Counsel for Petitioners
Appendix A-1
No. 05-1444
UNITED STATES COURT OF APPEALS,
FOR THE FIRST CIRCUIT
UNITED STATES, )
)
Plaintiff, Appellee, ) ORDER OF
) COURT
Vv.
Entered:
CHARLES JOHNSON, GENELDA February 21, 2007
JOHNSON, FRANCIS VANER
JOHNSON, and JOHNSON
CRANBERRIES, LLP,
Defendants, Appellants.
Before
Boudin, Chief Judge,
Torruella, Lynch,* Lipez,
and Howard, Circuit Judges,
DiClerico,** District Judge.
Pursuant to First Circuit Internal Operating Procedure
X(C), the petition for rehearing en banc has also been treated as
a petition for rehearing before the original panel. The petition
for rehearing having been denied by the panel of judges who
decided the case and the petition for rehearing en banc having
been submitted to the active judges of this court and a majority
of the judges not having voted that the case be heard en banc,
Appendix A-2
it is ordered that the petition for rehearing and petition for
rehearing en banc be denied.
By the Court:
Richard Cushing Donovan, Clerk
By: /s/ MARGARET CARTER
Chief Deputy Clerk
* Judge Lynch is recused and did not participate in the consideration
of this matter.
** Of the District of New Hampshire, sitting by designation.
Appendix B-1
Supreme Court of the United States
Office-of the Clerk.
Washington, DC 20543-0001
William K. Suter
Clerk of the Court
(202) 479-3011
May 3, 2007
Mr. M. Reed Hopper
Pacific Legal Foundation
3900 Lennane Drive #200
Sacramento, CA 95834
Re: Charles Johnson, et al.
v. United States
Application No. 06A1031
Dear Mr. Hopper:
The application for an extension of time within which to
file a petition for a writ of certiorari in the above-entitled case
has been presented to Justice Souter, who on May 3, 2007
extended the time to and including June 28, 2007.
This letter has been sent to those designated on the
attached notification list.
Sincerely,
William K. Suter, Clerk
by /s/ Gail Johnson
Case Analyst
Appendix C-1
No. 05-1444
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
UNITED STATES,
Heard Oct. 7, 2005.
Decided
Oct. 31, 2006.
Plaintiff-Appellee,
v.
Charles JOHNSON, Genelda
Johnson, Francis Vaner Johnson,
and Johnson Cranberries, LLP,
Defendants-Appellants.
Before TORRUELLA and LIPEZ, Circuit Judges, and
DiCLERICO,* District Judge. |
LIPEZ, Circuit Judge.
Following the panel’s decision in this case, see United
States v. Johnson, 437 F.3d 157 (1st Cir. 2006), appellants
moved for rehearing en banc, noting the Supreme Court’s grant
of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir.
2004). We held their petition in abeyance pending a decision
in that case. Following the decision in Rapanos v. United
States,547U.S.___, 126 S. Ct. 2208, 165 L. Ed.2d 159 (2006),
appellants supplemented their previous petition. They request
that we grant rehearing en banc to resolve the conflict between
* Of the District of New Hampshire, sitting by designation.
Appendix C-2
the panel decision and Rapanos, or, alternately, that we vacate
the decision with prejudice on the ground that the evidence in
the record supports a judgment in their favor. The government
filed a response requesting that we vacate our previous decision
and remand to the district court. After careful consideration, we
vacate and remand for further proceedings consistent with
Rapanos, as described below.
I. The Panel Decision
This case began when the United States filed a civil action
alleging that defendants (now appellants), a group of cranberry
farmers in Carver, Massachusetts, had discharged pollutants
into federally-regulated waters without a permit in violation of
§ 301 and § 502 of the Clean Water Act (“CWA”), 33 U.S.C.
§§ 1311, 1362. In response, appellants contended that the
United States lacked jurisdiction over the three properties in
question: (1) the Cross Street site; (2) the Fosdick Street site;
and (3) the Forest/Fuller Street site (collectively, the “target
sites’’).
In separate rulings on liability and remedy, the district
court granted summary judgment in favor of the government.
The district court denied appellants’ motion for reconsideration,
stating that “there is a sufficient basis for the United States to
exercise jurisdiction because the undisputed evidence shows
that the three wetlands are hydrologically connected to the
navigable Weweantic River by nonnavigable tributaries.”
In an appeal to this court, appellants challenged the district
court’s judgment that the jurisdiction of the CWA extends to
the target sites. First, they asserted that their property is not
covered by the Environmental Protection Agency (“EPA”)
regulation promulgated to carry out the CWA. In the
alternative, appellants argued that, if their property is covered
by the regulation, either the regulation exceeds the authority
granted by the CWA, or the CWA exceeds Congress’s authority
under the Commerce Clause.
Appendix C-3
We affirmed the trial court’s judgment in a divided
decision,. with two_members.of the. panel concurring in the. .
judgment for different reasons, and one member dissenting.
One member of the majority concluded that the hydrological
connection between the target sites and the Weweantic River
establishes a “significant nexus” between the sites and the river,
sufficient to establish jurisdiction under the CWA without
creating constitutional issues under the Commerce Clause. For
two of the target sites, in the view of this judge, the
hydrological connection depended on diffusion of water
through wetlands. See 437 F.3d at 162.
The other member of the majority read the record
differently to conclude that the hydrological connection was a
system of tributaries, some of which happened to flow through
wetlands or other bogs. See id. at 182. The concurring panelist
thus concluded that it was unnecessary to decide whether the
diffusion of water through wetlands was a sufficient
hydrological connection to support a “significant nexus.” Jd.
The dissent concluded that the United States “may not
constitutionally regulate wetlands that are neither themselves
navigable nor truly adjacent to navigable waters.” Jd. at 187
(internal quotations and citation omitted). Moreover, even if
the EPA’s assertion of jurisdiction was constitutional, the
dissent would have held that the government’s attempt to assert
jurisdiction over appellants’ wetlands is inconsistent with its
own regulations because the system of tributaries linking the
target sites to the Weweantic includes other wetlands. Because
the regulations explicitly exclude wetlands adjacent to waters
that are themselves wetlands, the dissent argued that the
government lacked jurisdiction under its own regulations. /d.
at 187.’
' The regulation states that “waters of the United States” include
“Tw ]etlands adjacent to waters (other than waters that are themselves
(continued...)
LL
Appendix C-4
I]. Response to the Panel Decision
As noted, appellants filed a petition for rehearing en banc
pursuant to Rule 35 of the Federal Rules of Appellate
Procedure, arguing that the case should be reheard following the
Supreme Court’s then-pending decision in Rapanos. We
ordered appellants’ petition held in abeyance pending the
Supreme Court’s decision in Rapanos. We further stated that
appellants could file a supplemental petition for rehearing en
banc within fourteen days after the decision in Rapanos was
issued, and the government could then respond.
Ill. Rapanos v. United States
The decision in Rapanos v. United States, 547 U.S. ___,
126 S. Ct. 2208, 165 L. Ed. 2d 159 (2006), resolved two
consolidated cases from the Sixth Circuit. In one case, the
United States brought an enforcement action alleging that
property owners and their affiliated businesses deposited fill
materials into wetlands without a permit, in violation of the
CWA. Id. at 2219. In the other, property owners were denied
a permit to deposit fill material in a wetland approximately one
mile from a lake and, after exhausting their administrative
appeals, they filed suit. Jd. _
In both cases, the district court found that there was federal
regulatory jurisdiction over the sites in question, and the Sixth
Circuit affirmed. The Supreme Court then consolidated the
cases and granted certiorari to decide whether these wetlands
constitute “waters of the United States” under the CWA, and,
if so, whether the CWA is constitutional. See id. at 2220.
' (...continued)
wetlands) identified in paragraphs (s)(1)-(6) of this section.” 40
C.F.R. § 230.3(s)(7).
Appendix C-5
The Court issued a split decision construing the phrase
_ “waters of the United States” as used in the CWA. The
plurality concluded that the phrase “waters of the United States”
includes only “relatively permanent, standing or continuously
flowing bodies of water ‘forming geographic features’ that are
described in ordinary parlance as ‘streams{,] . .. oceans, rivers,
[and] lakes.’” Jd. at 2225. Thus, for purposes of determining
federal regulatory jurisdiction, “only those wetlands with a
continuous surface connection to bodies that are ‘waters of the
United States’ in their own right, so that there is no clear
demarcation between ‘waters’ and wetlands, are ‘adjacent to’
such waters and covered by the Act.” Jd. at 2226 (emphasis in
original). The plurality vacated the decision of the Sixth Circuit
in both cases and, noting “the paucity of the record,” remanded
for further proceedings. Jd. at 2235.
Justice Kennedy concurred in the judgment, but rejected
the plurality’s rationale. Instead, he concluded that jurisdiction
extends to wetlands that “possess a ‘significant nexus’ to waters
that are or were navigable in fact or that could reasonably be so
made.” Jd. at 2236. Justice Kennedy further found that
wetlands “possess the requisite nexus” if “either alone or in
combination with similarly situated lands in the region, [they]
significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as
‘navigable.’” Id. at 2248. Where the wetlands in question are
“adjacent to navigable-in-fact waters, [the government] may
rely on adjacency to establish its jurisdiction.” Jd. at 2249.
Where the wetlands are adjacent to nonnavigable tributaries,
“Ta]bsent more specific regulations . . . [the government] must
establish a significant nexus on a case-by-case basis.” Jd. at
2249.
Justice Stevens authored a dissent joined by three other
Justices. In the view of the dissenters, to the extent that the
CWA includes a “significant nexus” requirement, this
requirement “is categorically satisfied as to wetlands adjacent
Appendix C-6
to navigable waters or their tributaries.” Jd. at 2263-64. The
dissent concluded by noting specifically that “all four Justices
who have joined this opinion would uphold the Corps’
jurisdiction . . . in all other cases in which either the plurality’s
or Justice Kennedy’s test is satisfied. ...” Jd. at 2265.
IV. Subsequent Motions
Following the Supreme Court’s decision in Rapanos,
appellants filed a supplemental petition for rehearing en banc
challenging the view in one of the panel opinions that a
hydrological connection constitutes a jurisdictionally sufficient
“significant nexus.” Appellants contend that rehearing is
necessary to resolve the tension between the panel opinion and
Rapanos. They argue that under either the plurality opinion or
Justice Kennedy’s concurrence, a hydrological connection is
insufficient to establish jurisdiction, although they also argue
strenuously that the plurality’s test alone should apply.
Alternatively, appellants contend that the evidence in the record
is sufficient to support a finding in their favor under the
standards in Rapanos, and urge that we vacate the decision and
direct the district court to enter judgment for them.
The United States opposes the petition for en banc review
and urges us instead to vacate the panel’s decision and remand
the case to the district court. The government argues that
additional factiinding is necessary before the legal principles
articulated in Rapanos can be applied in this case. Moreover,
the government asserts that on remand it should be allowed to
establish CWA jurisdiction under either the Rapanos plurality’s
test or Justice Kennedy’s test.
V. Remand to the District Court
We agree with the government that remand to the district
court for application of the Rapanos standards is appropriate.
The parties presented their cases in the district court without
any awareness of the standards that now apply. They should
Appendix C-7
now have an opportunity to develop their positions in the
_ .__district court with an awareness of these standards. However, _
the question of what legal standard to apply is one of some
complexity, and other courts have taken varying approaches to
the issue. We conclude that the United States may assert
jurisdiction over the target sites if it meets either Justice
Kennedy’s legal standard or that of the plurality. We explain
our reasoning.
A. Other Courts’ Application of Rapanos
In the months since Rapanos, four courts have applied its
legal standards—two district courts and two courts of appeals.
1. Decisions of District Courts
In United States v. Evans, 2006 WL 2221629 (M.D. Fila.
Aug. 2, 2006), the Middle District of Florida adopted Justice
Stevens’s suggestion to apply either the plurality’s or Justice
Kennedy’s standard. That court cited the Supreme Court’s
decision in Marks v. United States for the proposition that
“Tw]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds.” Evans at *19 (citing Marks v. United
States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260
(1977)). The court noted that “‘narrowest grounds’ is
understood as the ‘less far-reaching’ common ground,” Evans
at *19 (citing Johnson v. Bd. of Regents of the Univ. of Ga., 263
F.3d 1234, 1247 (11th Cir. 2001)), but found that because the
plurality and Justice Kennedy articulated different standards for
application on remand it was unclear which would control.
Hence, the court adopted Justice Stevens’s approach. Evans at
*19.
The Northern District of Texas used a sharply contrasting
approach in United States v. Chevron Pipe Line Co., 437
Appendix C-8
F. Supp. 2d 605 (N.D. Tex. 2006), determining that because of
the lack of a clear legal standard in Rapanos, it would instead
rely on precedent within its own circuit. The court noted that
“the Supreme Court failed to reach a consensus of a majority as
to the jurisdictional boundary of the CWA.” It added that
Justice Kennedy “advanced an ambiguous test—whether a
‘significant nexus’ exists to waters that are/were/might be
navigable. This test leaves no guidance on how to implement
its vague, subjective centerpiece. That is, exactly what is
‘significant’ and how is a ‘nexus’ determined?” Id. at 613
(internal citation omitted). The court then concluded:
Because Justice Kennedy failed to elaborate on the
“significant nexus” required, this Court will look to
the prior reasoning in this circuit. The Fifth Circuit,
as discussed above, has interpreted “the waters of the
United States” narrowly under the OPA. Without any
clear direction on determining a significant nexus, this
Court will do exactly as Chief Justice Roberts
declared—“feel [its] way on a case-by-case basis.”
Id. The court did not discuss Justice Stevens’s instruction.
2. Decisions of Courts of Appeals
The Ninth Circuit, the first circuit court to apply Rapanos,
concluded without analysis that Justice Kennedy’s concurrence
provides the controlling test. No. Cal. River Watch v. City of
Healdsburg, 457 F.3d 1023 (9th Cir. 2006). The court stated:
Justice Kennedy, constituting the fifth vote for
reversal, concurred only in the judgment and,
therefore, provides the controlling rule of law. See
Marks v. United States, 430 U.S. 188, 193, 97 S. Ct.
990, 51 L. Ed. 2d 260 (1977) (explaining that “[w]hen
a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as
Appendix C-9 -
that position taken by those Members who concurred
___in the judgments on the narrowest grounds.”). =)
Id. at 1029. Without further discussion, the Ninth Circuit
applied Justice Kennedy’s test. The court did not acknowledge
Justice Stevens’s instruction.
Most recently, in United States v. Gerke Excavating, Inc.,
464 F.3d 723 (7th Cir. 2006), the Seventh Circuit also found
that Justice Kennedy’s test is controlling without discussing
Justice Stevens’s instruction. The court paraphrases Marks v.
United States:
When a majority of the Supreme Court agrees only on
the outcome of a case and not on the ground for that
outcome, lower-court judges are to follow the
narrowest ground to which a majority of the Justices
would have assented if forced to choose. In Rapanos,
that is Justice Kennedy’s ground.
Id. at 724 (citing Marks, 430 U.S. at 193, 97 S. Ct. 990).
Curiously, without explanation, the court equates the
“narrowest opinion” with the one least restrictive of federal
authority to regulate. It states:
The plurality Justices thought that Justice Kennedy’s
ground for reversing was narrower than their own,
because they concluded their extensive and in places
harsh criticism of the concurrence by saying that
“Justice Kennedy tips a wink at the agency [i.e., the
Corps of Engineers], inviting it to try its same
expansive reading again.”
[Justice Kennedy’ s] test is narrower (so far as reining
in federal authority is concerned) than the plurality’s
in most cases, though not in all because Justice
Kennedy also said that “by saying the Act covers
Appendix C-10
wetlands (however remote) possessing a surface-water
connection with a continuously flowing stream
(however small), the plurality’s reading would permit
applications of the statute as far from traditional
federal authority as are the waters it deems beyond the
statute’s reach.”
Id. at 724, 725 (quoting Rapanos, 126 S. Ct. at 2234 n.15 &
2246) (emphasis added). Gerke concludes by acknowledging
the following anomaly: If Justice Kennedy finds federal
jurisdiction over a particular site using the “significant nexus”
test the four dissenters would also find jurisdiction. However,
if Justice Kennedy does not find federal jurisdiction, there could
be instances where both the plurality and the dissent disagree
with his conclusion. /d. at 724-25. In other words, there could
be a case in which Justice Kennedy
would vote against federal authority only to be
outvoted 8-to-1 (the four dissenting Justices plus the
members of the Rapanos plurality) because there was
a slight surface hydrological connection. The
plurality’s insistence that the issue of federal authority
be governed by strict rules will on occasion align the
Justices in the plurality with the Rapanos dissenters
when the balancing approach of Justice Kennedy
favors the landowner.
Id. However, Gerke writes off this “rare case,” concluding that
“as a practical matter the Kennedy concurrence is the least
common denominator.” Jd.
B. Interpretation of Marks
The Marks directive that “[w]hen a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds,” Marks,
Appendix C-11
430 U.S. at 193, 97 S. Ct. 990 (internal citation omitted), has
____proven troublesome in application for the Supreme Court itself
and for the lower courts. Therefore, the genesis of that directive
and its application require scrutiny.
In Marks, the defendant raised a Due Process challenge to
his obscenity conviction on the grounds that he had been
punished retroactively under a definition of obscenity laid out
in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed.
2d 419 (1973), when he had actually engaged in the punished
conduct prior to the Miller decision. The “narrowest grounds”
approach emerged when the Court examined Miller’s
predecessor, Memoirs v. Attorney General of the
Commonwealth of Massachusetts, 383 U.S. 413, 86 S. Ct. 975,
16 L. Ed. 2d 1 (1966), to determine whether the law had
provided fair warning at the time of the defendant’s conduct.
Marks, 430 U.S. at 193-94, 97 S. Ct. 990. In Memoirs, a
majority of the Supreme Court found that a lower court erred in
finding a book obscene and thus unprotected by the First
Amendment. However, three Justices felt that materials would
not be protected by the First Amendment if they were deemed
obscene, Memoirs, 383 U.S. at 418, 86 S. Ct. 975 (Brennan, J.),
while two other Justices insisted that the First Amendment
provides an absolute shield against government action aimed at
suppressing obscenity. Jd. at 421, 86 S. Ct. 975 (Black, J.,
concurring); id. at 426, 86 S. Ct. 975 (Douglas, J., concurring).
Marks concluded that the opinion excluding obscene materials
from First Amendment protection was the “narrowest grounds”
for the judgment in Memoirs.
Relatedly, the “narrowest grounds” language of Marks is
itself a quotation from a previous Supreme Court case, Gregg
v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976). Gregg discusses Furman v. Georgia, 408 U.S. 238, 92
S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which examined the
constitutionality of the death penalty as imposed under a
Georgia statute. In Furman, five Justices agreed that the death
Appendix C-12
penalty was unconstitutional as imposed in the case. However,
two of these Justices believed that capital punishment was
unconstitutional per se, while the other three Justices felt that
the death penalty was unconstitutional under the conditions
present in the cases before the court but did not necessarily
agree that capital punishment was per se unconstitutional.
Gregg concluded: “Since five Justices wrote separately in
support of the judgments in Furman, the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds. .. .” 428
U.S. at 169 n.15, 96 S. Ct. 2909.
In sum, the cases on which Marks directly relies both
involve situations in which the “narrowest ground” was also the
ground least restrictive of federal jurisdiction, as the Seventh
Circuit indicated in Gerke. However, this coincidence does not
necessarily mean that the Supreme Court in Marks equated the
“narrowest grounds” of decision in a case with fragmented
decisions to the grounds least restrictive of the assertion of
federal authority. Such an equation leaves unanswered the
question of how one would determine which opinion is
controlling in a case where the government is not a party.
Moreover, given the underlying constitutional question
presented by Rapanos, it seems just as plausible to conclude
that the narrowest ground of decision in Rapanos is the ground
most restrictive of government authority (the position of the
plurality), because that ground avoids the constitutional issue of
how far Congress can go in asserting jurisdiction under the
Commerce Clause. See Rapanos, 126 S. Ct. at 2224 (plurality
opinion). The appellants argue for that result here.
As an alternative to the Seventh Circuit’s reading of Marks,
one might sensibly conclude, as one court has, that the
“narrowest grounds” are simply understood as the “less
far-reaching-common ground.” Johnson v. Bd. of Regents of
the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001); see also
Mark Alan Thurmon, Note, When the Court Divides:
Acvererey
Appendix C-13
Reconsidering the Precedential Value of Supreme Court
Plurality Decisions, 42 Duke.L.J. 419, 420-21 (1992) (quoting
Linda Novak, Note, The Precedential Value of Supreme Court
Plurality Decisions, 80 Colum. L. Rev. 756, 763 (1980)) (“One
way to determine the ‘narrowest grounds’ is to look for the
opinion ‘most clearly tailored to the specific fact situation
before the Court and thus applicable to the fewest cases, in
contrast to an opinion that takes a more absolutist position or
suggests more general rules.’”). This reading is also consistent
with Memoirs and Furman: in both cases, the opinion deemed
“narrowest” was the one more closely tailored to the specific
situation the Court confronted.
Even if we take this more sensible approach to Marks,
however, the case still poses problems in the situation before us.
As the D.C. Circuit held in an en banc opinion, “Marks is
workable—one opinion can be meaningfully regarded as
‘narrower’ than another—only when one opinion is a logical
subset of other, broader opinions.” King v. Palmer, 950 F.2d
771, 781 (D.C. Cir. 1991) (en banc). In other words, the
“narrowest grounds” approach makes the most sense when two
opinions reach the same result in a given case, but one opinion
reaches that result for less sweeping reasons than the other.
When applied to future cases, the less sweeping opinion would
require the same outcome in a subset of the cases that the more
sweeping opinion would. For example, in Furman, the Justices
who concluded that capital punishment was per se
unconstitutional would always strike down future death penalty
sentences, but the Justices who found only that the death
penalty was unconstitutional as administered in Furman would
only strike down capital sentences in a subset of future capital
cases. Similarly, in Memoirs, the absolutist view of the First
Amendment held by two Justices would always require a ruling
in favor of protecting speech, but the view of three other
Justices that only non-obscene speech is protected would extend
First Amendment protection only to a subset of such cases.
Appendix C-14
Thus, the less sweeping opinion in each case represents the
“narrowest grounds” for the decision.
This understanding of “narrowest grounds” as used in
Marks does not translate easily to the present situation. The
cases in which Justice Kennedy would limit federal jurisdiction
are not a subset of the cases in which the plurality would limit
jurisdiction. As Gerke points out, in cases where there is a
small surface water connection to a stream or brook, the
plurality’s jurisdictional test would be satisfied, but Justice
Kennedy’s balancing of interests might militate against finding
a significant nexus. In such a case, if Justice Kennedy’s test is
the single controlling test (as advocated by the Seventh and
Ninth Circuits), there would be a bizarre outcome—the court
would find no federal jurisdiction even though eight Justices
(the four members of the plurality and the four dissenters)
would all agree that federal authority should extend to such a
situation. This possibility demonstrates the shortcomings of the
Marks formulation in applying Rapanos.
C. The Rapanos Dissent’s Approach
Justice Stevens foresaw the possibility that the plurality
might find jurisdiction in some cases where Justice Kennedy
does not. His instruction to find jurisdiction where either test
is satisfied provides a simple and pragmatic way to assess what
grounds would command a majority of the Court. Justice
Stevens observes:
I assume that Justice Kennedy’s approach will be
controlling in most cases because it treats more of the
Nation’s waters as within the Corps’ jurisdiction, but
in the unlikely event that the plurality’s test is met but
Justice Kennedy’s is not, courts should also uphold
the Corps’ jurisdiction. In sum, in these and future
Appendix C-15
cases the United States may elect to prove jurisdiction
under either test.
Rapanos, 126 S. Ct at 2265.n.14. Following Justice Stevens’s
instruction ensures that lower courts will find jurisdiction in all
cases where a majority of the Court would support such a
finding. If Justice Kennedy’s test is satisfied, then at least
Justice Kennedy plus the four dissenters would support
jurisdiction. If the plurality’s test is satisfied, then at least the
four plurality members plus the four dissenters would support
jurisdiction. Other circuits have previously taken this common
sense approach to fragmented opinions. See, e.g., Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir. 1992) (“In
essence, what we must do is find common ground shared by
five or more justices.”); United States v. Williams, 435 F.3d
1148, 1157 (9th Cir. 2006) (“We need not find a legal opinion
which a majority joined, but merely a legal standard which,
when applied, will necessarily produce results with which a
majority of the Court from that case would agree.” (internal
quotation marks and citations omitted)). ,
We note that one circuit court has previously reached a
conclusion at odds with the position Justice Stevens now
advocates. In King v. Palmer, the D.C. Circuit stated that “we
do not think we are free to combine a dissent with a
concurrence to form a Marks majority.” 950 F.2d at 783. King
discussed Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585
(1987) (Delaware Valley I/), in which the Supreme Court
considered the availability and amount of contingency fees
under federal fee-shifting statutes. In Delaware Valley II, the
Court ultimately issued a plurality opinion signed by four
Justices, a dissent signed by four Justices, and a concurrence by
Justice O’Connor. The D.C. Circuit refused to examine the
points of commonality among Justice O’Connor’s opinion and
that of the. dissent, relying mainly on a literal reading of
Marks’s language that the holding is the position of the Justices
Appendix C-16
“who concurred in the judgments on the narrowest grounds,”
Marks, 430 U.S. at 193, 97 S. Ct. 990 (emphasis added), as well
as the fact that the Supreme Court had not explicitly applied
Marks to situations where concurring and dissenting votes
would be combined. King, 950 F.2d at 783.
However, the situation in King is different from the case
before us. In Delaware Valley II, Justice O’Connor and the
dissenting Justices simply took different approaches to the
question of how to calculate a contingency enhancement, with
the result that it is not immediately obvious how their views
could be combined to form a five-Justice majority. In Rapanos,
Justice Stevens states that whenever either the plurality or
Justice Kennedy would find jurisdiction, the Rapanos dissenters
would agree. Moreover, the Third Circuit took a position
opposite to that of the D.C. Circuit in interpreting Delaware
Valley II, holding that “[b}Jecause the four dissenters would
allow contingency multipliers in all cases in which Justice
O’Connor would allow them, her position commands a majority
of the court.” Student Pub. Interest Research Group of N.J.,
Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d Cir. 1988).
Therefore, we do not share the reservations of the D.C. Circuit
about combining a dissent with a concurrence to find the
ground of decision embraced by a majority of the Justices.
Moreover, Justice Stevens’s instruction seems particularly
sound given that the Supreme Court itself has moved away
from the Marks formula. In Nichols v. United States, the court
observed that “[t]his test is more easily stated than applied,”
adding, “[w]e think it not useful to pursue the Marks inquiry to
the utmost logical possibility when it has so obviously baffled
and divided the lower courts that have considered it.” 511 U.S.
738, 745-46, 114 S. Ct. 1921, 128 L. Ed.2d 745 (1994); see
also Grutter v. Bollinger, 539 U.S. 306, 325, 123 S. Ct. 2325,
156 L. Ed. 2d 304 (2003) (quoting Nichols for the same
proposition). Since Marks, several members of the Court have
indicated that whenever a decision is fragmented such that no
Appendix C-17
single opinion has the support of five Justices, lower courts
should examine the plurality, concurring and dissenting
opinions to extract the principles that a majority has embraced.
See Waters v. Churchill, 511 U.S. 661, 685, 114 S. Ct. 1878,
128 L. Ed. 2d 686 (1994) (Souter, J., concurring) (analyzing the
points of agreement between plurality, concurring, and
dissenting opinions to identify the test that lower courts should
apply); League of United Latin Am. Citizens v. Perry, __US.
__, 126 S. Ct. 2594, 2607, 165 L. Ed. 2d 609 (2006)
(Kennedy, J.) (analyzing Vieth v. Jubelirer, 541 U.S. 267, 124
S. Ct. 1769, 158 L. Ed. 2d 546 (2004) to find that agreement
among one concurring and four dissenting Justices establishes
majority support for a legal proposition); Alexander v.
Sandoval, 532 U.S. 275, 281-82, 121 S. Ct. 1511, 149 L. Ed. 2d
517 (2001) (Scalia, J.) (noting the agreement of five Justices
who joined plurality and various dissenting opinions). Thus, it
is not surprising that Justice Stevens in his Rapanos dissent
explicitly directs courts to examine the views of dissenting
Justices to determine which propositions have the support of a
majority. This approval is consistent with the direction that the
Court as a whole has taken since Marks. Moreover, the fact
that Justice Stevens does not even refer to Marks indicates that
he found its framework inapplicable to the interpretation by the
lower courts of the divergent tests laid out by the opinions in
Rapanos.
VI. Conclusion
The foregoing considerations lead us to conclude that the
district court should do exactly as Justice Stevens has
suggested. The federal government can establish jurisdiction
over the target sites if it can meet either the plurality’s or Justice
Kennedy’s standard as laid out in Rapanos.
In light of these standards, the district court may conduct
additional factfinding if it deems it necessary to address the
jurisdictional question. The district court may also address any
Appendix C-18
other issues it deems necessary in deciding that jurisdictional
issue. As discussed previously, the two members of the
majority each had different interpretations of the record. We
urge the parties and the district court to provide a clear factual
record in the context of applying the new standards.
Accordingly, we vacate our decision in United States v.
Johnson, 437 F.3d 157 (1st Cir. 2006), and remand for further
proceedings. Each party is to bear its own costs.
So ordered.
TORRUELLA, Circuit Judge (Concurring in part,
Dissenting in part).
I join the majority in remanding the case to the district
court so that the new legal standards developed in Rapanos v.
United States,547U.S.___, 126 S. Ct. 2208, 165 L. Ed. 2d 159
(2006), can be applied on the first instance by that court after
the parties have had an opportunity to expand the record to the
extent necessary given the new standards. The opportunity to
expand the record 1s important to both the government and the
Johnsons. New evidence is as likely to militate against federal
regulatory jurisdiction over the Johnsons’ property as it is to
demonstrate it.
1 depart from the majority in-interpreting what standards
Rapanos has established. The plurality’s “hydrological
connection” test provides the proper constitutional limit on
federal regulation under the Clean Water Act. Although the
majority has provided an able analysis of a thomy issue, I
cannot concur that Justice Kennedy’s seemingly opaque
“significant nexus” test is a constitutional measure of federal
regulatory jurisdiction. Extending regulatory jurisdiction to
wetlands that “possess a ‘significant nexus’ to waters that are or
were navigable in fact or that could reasonably be so made... .”
id. at 2236, leaves the door open to continued federal overreach.
The plurality’s restriction of federal jurisdiction to “only those
Appendix C-19
wetlands with a continuous surface connection to bodies that
_are ‘waters of the United States’ in their own right, so that there .
is no clear demarcation between ‘waters’ and wetlands, are
‘adjacent to’ such waters and covered by the [Clean Water] Act
...” id. at 2226 (emphasis in original), strikes a constitutional
balance between federal and state regulatory interests, and our
nation’s interest in clean water and the individual land owner’s
right to manage their property in accordance with their dreams
and aspirations, whether economic or otherwise.
Appendix D-1
No. 05-1444
UNITED STATES COURT OF APPEALS ©
FOR THE FIRST CIRCUIT
UNITED STATES,
Plaintiff-Appellee, ) Heard Oct. 7, 2005.
Decided
V. Feb. 13, 2006.
Charles JOHNSON, Genelda
Johnson, Francis Vaner Johnson,
and Johnson Cranberries, LLP,
Defendants-Appellants.
Before TORRUELLA and LIPEZ, Circuit Judges, and
DiCLERICO,* District Judge.
LIPEZ, Circuit Judge.
In December 1999, the United States filed a civil action
against Defendants, claiming that they had discharged
pollutants into federally-regulated waters without a permit in
violation of provisions of the Clean Water Act in the operation
of their cranberry farm. Defendants challenged the United
States’ jurisdiction over the properties in question. In separate
rulings on liability and remedy, the district court granted
* Of the District of New Hampshire, sitting by designation.
Appendix D-2
summary judgment in favor of the government, reasoning that
“there is a sufficient basis for the United States to exercise
jurisdiction because the undisputed evidence shows that the
thee wetlands [the Johnsons’ properties] are hydrologically
connected to the navigable Weweantic River by nonnavigable
tributaries.”
Defendants appeal the district court’s judgment that the
jurisdiction of the Clean Water Act extends to their property.
They assert that their property is not covered by the regulation
promulgated by the Environmental Protection Agency (the
“EPA”) in conjunction with the United States Army Corps of
Engineers (the “Corps”), to carry out the mandate of the Clean
Water Act, as interpreted by the EPA and the Corps. In the
alternative, if their property is covered by the regulation,
Defendants contend that either the regulation exceeds the
authority granted by the Act, or the Act exceeds Congress’
authority under the Commerce Clause. These contentions
require us to determine whether the government’s exercise of
jurisdiction over the three parcels of land at issue complies with
constitutional, statutory, and regulatory requirements. This
opinion concludes that it does.
5.
A. Standards of Review
Review of a district court’s grant of summary judgment is .
de novo. Johnson v. Gordon, 409 F.3d 12, 16 (1st Cir. 2005).
Review of an agency’s interpretation of the statute that it
administers is also de novo, subject to established principles of
deference. See Perez-Olivio v. Chavez, 394 F.3d 45, 48 (ist
Cir. 2005). Constitutional challenges to a statute are also
reviewed de novo. United States v. Lewko, 269 F.3d 64, 67 (1st
Cir. 2001).
Appendix D-3
B. Procedural Background
The.-United-States--(or-“the-government’)- brought -this-
action in November 1999 to address alleged violations of the
Clean Water Act (the “CWA” or the “Act’’), 33 U.S.C. § 1241,
et seq., by a group of cranberry farmers—Charles Johnson,
Genelda Johnson, Francis Vaner Johnson, and Johnson
Cranberries, Limited Partnership (collectively, the “Johnsons”
or “Defendants”). It asserted that the Johnsons discharged
dredged and fill material’ into wetlands at three sites in Carver,
Massachusetts, without a permit issued pursuant to § 404 of the
CWA, 33 U.S.C. § 1344, in violation of § 301(a) of the CWA,
33 U.S.C. § 1311. In February 2004, following extended
discovery, the government filed a motion for summary
judgment on liability. In May 2004, the district court granted
the government’s motion, expressly adopting as the bases for its
ruling “the arguments set forth in the United States’
Memorandum in Support of Its Motion for Summary Judgment
on Liability.”
In November 2004, the government filed a motion for
summary judgment on remedy. On January 15, 2005, the
district court issued a final order granting the government’s
motion and ordering the requested relief. On January 27, 2005,
the Johnsons filed a motion for reconsideration under Rule
59(e) of the Federal Rules of Civil Procedure. In February
2005, the district court issued an order denying the Johnsons’
motion, stating that:
there is a sufficient basis for the United States to
exercise jurisdiction because the undisputed evidence
shows that the three wetlands are hydrologically
connected to the navigable Weweantic River by
nonnavigable tributaries.
’ Dredged and fill material include dirt, spoil, rock, and sand.
A On te meen ee
Appendix D-4
This appeal followed.”
The untimeliness of Defendants’ letter was caused by the
withdrawal of Defendants’ counsel on the day the response to
the government’s summary judgment motion was due, which
forced Defendants to proceed pro se and file a tardy response.
The district court never ruled on the timeliness issue. Instead,
the district court delayed its ruling regarding liability until after
Defendants had submitted their responsive letter. The
government never raised a timeliness objection below. Given
the circumstances, excuse of the tardiness of Defendants’ letter
is warranted.
The letter is a four-page, single-spaced document with
numerous statements questioning the government’s jurisdiction
over the property at issue. Defendants properly raised their
statutory and regulatory arguments in the letter. As for
Defendants’ Commerce Clause argument, we have held that
“Tajithough Appellant failed to raise his Lopez-based challenge
below, a claim that a statute is unconstitutional or that the court
lacked jurisdiction may be raised for the first time on appeal.”
United States v. DiSanto, 86 F.3d 1238, 1244 (1st Cir. 1996)
(referencing United States v. Lopez, 514 U.S. 549, 115 S. Ct.
1624, 131 L. Ed. 2d 626 (1995)). Based on DiSanto,
Defendants may raise their constitutional challenge on appeal.
The government asserts, incorrectly, that United States v.
Bongiorno, 106 F.3d 1027 (1st Cir. 1997)—where we held that
the defendant’s constitutional challenges to his conviction were
2 The government asserts that Defendants have waived the arguments
they now raise on appeal. Specifically, the government argues that
in responsé to its motion for summary judgment on liability, the
Johnsons filed only an untimely pro se letter. Then, in response to
its motion for summary judgment on remedy, the Johnsons did not
file any response—only later filing their Rule 59(e) motion for
reconsideration. There is no merit in the government’s waiver
argument.
Appendix D-5
subject to the raise-or-waive rule—forecloses this possibility.
However, in Bongiorno, the constitutional challenges that we
found procedurally defaulted were not challenges to the statute —
at issue in that case. Therefore, Bongiorno and DiSanto are
consistent with one another, and Bongiorno does not preclude
review of Defendants’ Commerce Clause argument.
C. Factual Background
The property at issue involves three sites in Carver,
Massachusetts: (1) the Cross Street site; (2) the Fosdick Street
site; and (3) the Forest/Fuller Street site (collectively, the
“target sites”). These sites are “hydrologically connected” to
the Weweantic River, a “navigable-in-fact”? waterway that
flows south from Carver, Massachusetts, to Wareham,
Massachusetts, where it empties into Buzzards Bay and the
Atlantic Ocean. “Hydrologically connected” here means that
water from the three sites eventually drains into the Weweantic
River. Consequently, any pollutants discharged on or from the
target sites would reach the Weweantic River through this
hydrological connection.
The government introduced the testimony of a number of
experts in support of its Motion for Summary Judgment on
Liability. These experts had reviewed topographic and other
maps, aerial photographs, and EPA reports, and had performed
visual inspections to reach their conclusion that the targets sites
> “Navigable-in-fact” is used to describe a body of water on which
navigation, i.e. boat or ship traffic, takes place or could take place.
The CWA uses the term “navigable waters” to label waters over
which it has jurisdiction, some of which are not navigable-in-fact.
Where used in this opinion, “navigable waters” will have the
meaning the CWA attributes to it: waters over which federal
regulatory jurisdiction extends. As further discussed below, “waters
of the United States” is synonymous with “navigable waters” in this
usage.
Appendix D-6
are hydrologically connected to the Weweantic River.
Defendants do not dispute this conclusion; in fact, the
government’s experts relied on some of the testimony and
analysis of Defendants’ expert in reaching their conclusion.
As will become apparent later in the discussion, the
particular bodies of water that form the connection between the
target sites and the Weweantic River are vital to the question of .
whether the exercise of CWA jurisdiction is valid. Each target
site is immediately adjacent to, i.e. connected to, a stream,
creek, or ditch; and every wetland, bog, or swamp in the chain
of waters connecting the target sites to the Weweantic River is
also immediately adjacent to a stream, creek, ditch, or pond.
Defendants do not dispute either the factual descriptions of
the target sites or the waters that link the target sites to the
Weweantic River. Defendants’ arguments on appeal are purely
legal.
1. The Weweantic River
The Weweantic River is formed by the merging of two
brooks: the Rocky Meadow Brook and the South Meadow
Brook. Water from the target sites—after it travels through a
number of intermediary waters—makes its way into these
brooks a short distance before the two brooks join and form the
Weweantic. Prior to the Johnsons’ actions on the target sites,
water from the target sites had surface water (as distinguished
from ground water*) hydrological connections to the Weweantic
River via the Rocky Meadow or South Meadow Brooks.
* Ground water is defined as water beneath the earth’s surface, often
between saturated rock and soil. See, e.g., 10 C.F.R. § 63.302
(“Ground water means water that is below the land surface and in a
saturated zone.”). This is the type of water that typically supplies
wells and springs. By contrast, surface water is water found on the
soil’s surface, i.e. all water that is not ground water. Wetlands are a
type of surface water.
Appendix D-7
The CWA does not cover any type of ground water; the
CWA covers only surface water. Nothing in the terms of the
‘CWA or the regulation at issue here interpreting the CWA
could be construed as extending jurisdiction to a body of
ground water. Federal regulation of ground water is covered in
other statutes. See, eg, 42 U.S.C. §§ 300h, 6949a(c),
9621(d)(2)(B)(ii). Two Seventh Circuit cases explain in greater
detail why ground water is a limiting principle for the CWA.
See United States v. Gerke Excavating, Inc., 412 F.3d 804, 807
(7th Cir. 2005); Village of Oconomowoc Laxe v. Dayton
Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).
2. The Cross Street site
Prior to the Johnsons’ activities, the Cross Street site
contained an area of forested wetlands in the north and an area
of grassy marsh and scrub-shrub wetlands in the soutn. The
northern wetlands drained into an unnamed stream/ditch that
flowed across the site and into Beaver Dam Brook. The
southern wetlands were adjacent to Beaver Dam Brook and
were part of a larger wetland area that stretches to South
Meadow Brook. The southern wetlands drained into either
Beaver Dam Brook or to South Meadow Brook. Beaver Dam
Brook joins South Meadow Brook just south of the Cross Street
site. Therefore, in summary, water from the Cross Street site
drains into an unnamed stream/ditch, which in turn drains into
another stream/ditch (Beaver Dam Brook and/or South Meadow
Brook), which in tum flows into the navigable-in-fact
Weweantic River.
3. The Fosdick Street site
The Fosdick Street site lies north of the Cross Street site.
Prior to the Johnsons’ activities, the site contained a shallow
reservoir formed by the historic impoundment of the confluence
of two unnamed streams, one perennial, the other intermittent.
The site also contained forested wetlands along the two streams,
and scrub-shrub wetlands near the reservoir. Ail of these
Appendix D-8
wetlands drained into an unnamed perennial stream that flowed
through cranberry bogs south of the reservoir and then into a
pond. The pond drains through a channel to Rocky Meadow
Brook, and then into the Weweantic River. Therefore, in
summary, water from the Fosdick Street site flows from the
wetlands into a stream, into another wetland, then into a pond,
into a channel, into another stream (Rocky Meadow Brook),
and finally into the navigable-in-fact Weweantic River.
4. The Forest/Fuller Street site
The Forest/Fuller Street site lies north of the Fosdick Street
site. Prior to the Johnsons’ activities, the site contained
forested, shrub, and shrub/emergent wetlands, all surrounding
an existing cranberry bog (“Bog A”). Bog A and the
surrounding wetlands drain into an unnamed stream, which in
turn flows into the Log Swamp Reservoir. From there, water
moves through another bog system into a stream that travels
through a wetland and into a pond. Water then flows from the
pond through another bog system, and then into the Rocky
Meadow Brook, which flows into the Weweantic. Therefore,
in summary, water flows from the Forest/Fuller site through a
stream, a reservoir, a bog, another stream, a wetland, a pond,
another bog, a third stream (Rocky Meadow Brook), and then
finally into the navigable-in-fact Weweantic River.
5. The Johnsons activities
At various times between 1979 and 1999, the Johnsons and
their agents discharged dredged and fill material at all three of
the target sites in order to construct, expand, and maintain
cranberry bogs. The Johnsons did not obtain permits from the
Corps for these discharges pursuant to 33 U.S.C. § 1344.
Defendants do not dispute their activities on the target sites, nor
their failure to obtain a permit from the Corps for those
activities. |
Appendix D-9
6. The concurrence’s reading of the record
The-concurrence-has a-differing-view-of the-hydrelogical -
connections between the target sites and the Weweantic River.
The concurrence contends that “[n]o factual basis is presented
by the EPA for the conclusion that either connecting system [of
waters] depends upon wetlands other than the target sites ....”
Therefore, in the concurrence’s view, it is unnecessary to
address the jurisdictional question raised by wetlands that form
part of the hydrological connection between the target sites and
the Weweantic River. Respectfully, both this opinion and the
dissent disagree with this interpretation of the record.
The concurrence relies primarily on the EPA’s description
in its briefs on appeal of the hydrological connection between
the target sites and the Weweantic River, and supplements the
EPA’s description with some quotations taken from the EPA’s
expert, Mr. Scott Horsley. The concurrence emphasizes the
EPA’s use of the phrase “flow through” to describe the
movement of a stream through wetlands. In the view of the
concurrence, this language means that the stream never loses its
identity as a stream as it moves through wetlands. I do not
believe that the record supports this interpretation.
Mr. Horsley describes the hydrological connection of the
Forest/Fuller Street site as follows:
The 1941 and 1949 maps show a hydrological
connection from Bog A, with a channel which
emptied into a finger-shaped swamp that jutted north
from the Low Swamp Reservoir. The 1977 map
shows a streaiim connecting the area of Bog A to the
Log Swamp Reservoir. The 1977 USGS map shows
that from the Log Swamp Reservoir, water flows
south through another bog system, into a stream that
travels through a wetland and into a pond. Water
from this pond drains into another bog system, and
becomes Rocky Meadow Brook.
Appendix D-10
This language describes a chain of waters that includes
wetlands as well as streams and ponds. There is a “channel
which emptied into a finger-shaped swamp”. The channel does
not cross or span the swamp. It empties into the swamp.
“(F]rom the Log Swamp Reservoir, water flows south through
another bog system, into a stream that travels through a wetland
and into a pond.” Water, not the “stream or channel”, flows
through another bog system and then into a stream. The stream
is interrupted. The “stream [ ] travels through a wetland and
into a pond. Water from this pond drains into another bog
system, and becomes Rocky Meadow Brook.” Again, the
stream is interrupted by a pond, and the water enters another
bog system before becoming Rocky Meadow Brook.
Although Mr. Horsley sometimes uses the phrase “flow
through” to describe a stream traveling through a wetland, he
also uses the phrase to describe water flowing through a bog
system. Because Mr. Horsley attributes a variable meaning to
the phrase “flow through”, that phrase, when used by the EPA,
does not have the singular meaning that the water at issue is
always flowing as an identifiable stream. Sometimes it does
flow in that fashion; sometimes it loses that identity and
becomes diffuse water that drains through a wetland.
Mr. Horsley uses the “flow through” language to describe
the hydrological connection for the Fosdick Street site as well.
But because of the variable meaning attributed to “flow
through”, his use of the phrase does not permit the conclusion
that the Fosdick Street site must have a hydrological connection
that consists only of streams, creeks, and brooks—.e.
non-wetland waters—flowing through wetlands without losing
their identity. The concurrence contends that a continuous blue
line found on some of the maps “suggest[s] that the
hydrological connections are through streams and brooks rather
than diffused through wetlands.” However, on some of the
maps in the record, the thin blue line is actually identified as
“drainage” and not a stream. According to Mr. Horsley’s
Appendix D-11
testimony, there is not an unbroken tributary connecting the
Forest/Fuller Street site to the Weweantic River. Therefore, the
blue line does not necessarily mean that the hydrological
connections of the target sites are only through streams and
brooks as the concurrence suggests.
Additionally, the concurrence contends that the EPA did
not present to the district court the question raised by wetlands
that form part of the hydrological connection between the target
sites and the Weweantic River; and that the district court, by
relying exclusively on the EPA’s memorandum and evidence,
did not address this question. However, as we have
demonstrated by a close examination of the testimony of
Mr. Horsley, the hydrological connection advanced by the EPA
in the district court included these additional wetlands.
Therefore, the jurisdictional issue raised by these additional
wetlands was necessarily before the district court.
D. Statutory and Regulatory Background
The government asserts jurisdiction over Defendants’
actions on the target sites pursuant to the Clean Water Act.°
Under § 301 and § 502 of the CWA, 33 U.S.C. § 1311 and
§ 1362, any discharge of dredged or fill material into “navigable
waters”—defined in the Act as “waters of the United States”
—is forbidden unless authorized by a permit issued by the
Corps pursuant to § 404 of the CWA, codified at 33 U.S.C.
* The relevant portions of the Clean Water Act originated in the
Federal Water Pollution Control Act Amendments of 1972, 86 Stat.
$16.
® 33 U.S.C. § 1362(7) states that under the CWA, “[t]he term
‘navigable waters’ means the waters of the United States, including
the territorial seas.”
Appendix D-12
§ 1344.’ The EPA and the Corps are empowered by the CWA
to develop regulations to implement the mandates of the CWA.®
The two relevant Supreme Court decisions, United States
v. Riverside Bayview Homes, infra., and Solid Waste Agency of
Northern Cook County v. United States Army Corps of
Engineers, infra., involved disputes arising from the Corps’s
enforcement of the CWA. Hence, these two decisions used the
Corps’ regulation in their analysis. That fact in no way
diminishes the applicability of those cases to this case.
In United States v. Riverside Bayview Homes, 474 U.S.
121, 106 S. Ct. 455, 88 L. Ed. 2d 419 (1985), the Court found
that:
[a]fter initially construing the Act to cover only waters
navigable in fact, in 1975 the Corps issued interim
final regulations redefining “the Waters of the United
States” to include not only actually navigable waters
but also tributaries of such waters, interstate waters
? 33 U.S.C. § !1344(a)—entitled “Discharge into navigable waters at
specified disposal sites”—-states in relevant part that: “The Secretary
[of the Army, acting through the Chief of Engineers} may issue
permits, after notice and opportunity for public hearings for the
discharge of dredged or fill material into the navigable waters at
specified disposal sites.” :
® The Corps regulation and the EPA regulation applicable to the
Johnsons’ property are identical. See 40 C.F.R. § 328.3(a); 40C.F.R.
§ 230.3(s). The Corps and the EPA are jointly charged with
enforcing the CWA. See 33 U.S.C. § 1344(s) and 33 U.S.C.
§§ 1319(a)(3) & (b). Here, because the EPA brings this civil
enforcement action against the Johnsons, not the Corps, the EPA’s
regulation is used for the analysis.
Appendix D-13
and their tributaries, and nonnavigable intrastate
waters ....
Id. at 123-24, 106 S. Ct. 455. The regulation at issue here has
not significantly changed from the regulation issued in 1975.
This regulation, found at 40 C.F.R. § 230.3(EPA),’ states in
relevant part:
For the purposes of this regulation these terms are
defined as follows:
(b) The term “adjacent” means bordering, contiguous, or
neighboring. . . .
(s) The term “waters of the United States” means
(1) All waters which are currently used, or were used
in the past, or may be susceptible to use in interstate
or foreign commerce, including all waters which are
subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All 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 including any such
waters:
(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes; or
° The Corp’s version of this regulation is 33 C.F.R. § 328.3.
Appendix D-14
(ii) From which fish or shellfish are or could be taken
and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;
(4) Allimpoundments of waters otherwise defined as
waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs
(s)(1)-(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters
that are themselves wetlands) identified in paragraphs
(s)(1)-(6) of this section.
Sections (s)(1)-(s)(4) and (s)(6) are best understood as
simultaneously stating the type of water over which the CWA
has jurisdiction and providing the interstate or foreign rationale
under the Commerce Clause for that jurisdiction. Sections
(s)(1)-({s)(4) and (s)(6) each have what will be termed an
“independent” rationale for jurisdiction. Sections (s)(5) and
(s)(7), however, have what will be labeled a “derivative”
rationale, meaning that there is no independent rationale
justifying jurisdiction over waters described in (s)(5) and (s)(7).
Jurisdiction over waters covered by (s)(5) and (s)(7) is valid
only if the jurisdictional rationale for the water on which it is
“piggybacking” is also valid. The government asserts
jurisdiction here over the target sites via (s)(5), which extends
jurisdiction over “tributaries”, and (s)(7), which extends
jurisdiction over “[w]etlands adjacent to waters (other than
waters that are themselves wetlands) identified in paragraphs
(a)(1)-(6) of this section.”
For example, (s1) covers waters used in the past and
present, and that could potentially be used, “in interstate or
foreign commerce”. Subsection (s)(1) establishes jurisdiction
over navigable-in-fact waters and justifies jurisdiction with
Appendix D-15
explicit reference to “interstate or foreign commerce”, i.e. (S)(1)
covers waters used as “channels of commerce”. See United
~ “States v. Lopez, 514 U.S. 549, 558, 115 S. Ct. 1624, 131 L. Ed.”
2d 626 (1995); The Daniel Ball, 10 Wall. 557, 77 U.S. 557,
563, 19 L. Ed. 999 (1870) (stating that “[waters] are navigable
in fact when they are used, or are susceptible of being used, in
their ordinary condition, as highways for commerce, over which
trade and travel are or may be conducted in the customary
modes of trade and travel on water”). In the scheme established
by § 230.3, the government’s jurisdiction over waters described
in (s)(5) (tributaries) and (s)(7) (wetlands adjacent) would
derive from the government’s jurisdiction over waters covered
by (s)(1) (navigable-in-fact). In fact, this is precisely the
rationale the government asserts here.
Certain terms in the text of § 230.3 emphasize this
distinction between independent and derivative rationales. For
instance, the word “tributary” as used in the regulation and
navigability-in-fact are mutually exclusive. If § 230.3(s)(1)
extends jurisdiction over navigable-in-fact waters, “tributaries”
of such waters, discussed in (s)(5), cannot be navigable-in-fact.
If a tributary were navigable-in-fact, jurisdiction over that
particular water would be covered by (s)({1). Although in
common usage a tributary could be navigable-in-fact—e.g. the
Missouri River is a tributary of the Mississippi
River—navigability-in-fact and “tributary” are not redundant
bases for jurisdiction under the regulation.
In the same way that (s)(5) would be repetitive if
“tributaries” were navigable-in-fact, (s)(7) is redundant unless
“wetlands adjacent” are not “tributaries” as described in (s)(5)
or navigable-in-fact waters as described in (s)(1). For example,
if an (s)(7) “wetland adjacent” were navigable-in-fact,
jurisdiction over that wetland would actually be covered by
(s)(1). Section (s)(7) would be unnecessary. Similarly, if an
(s)(7) wetland were a “tributary” as covered by (s)(5), again,
(s)(7) would be extraneous. Only if an (s)(7) “wetland
Appendix D-16
adjacent” is categorically different from a navigable-in-fact
water or an (s)(5) tributary does the inclusion of (s)(7) make
sense. '°
E. Supreme Court Precedents
In addition to assessing the statutory and regulatory
background, two Supreme Court decisions regarding the
jurisdictional reach of the CWA must be considered: Riverside
and Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675,
148 L. Ed. 2d 576 (2001) [hereinafter SWANCC ]. Each party
asserts that a Supreme Court precedent squarely disposes of this
appeal. The government contends that Riverside resolves the
matter of regulatory jurisdiction in its favor; Defendants assert
that SVANCC resolves the jurisdictional question in their favor.
These contentions are unpersuasive. Although each decision
10 The district court states in its order denying Defendants’ Motion
for Reconsideration that “the three wetlands are hydrologically
connected to the navigable Weweantic River by nonnavigable
tributaries.” (Emphasis added.) The concurrence takes the district
court to mean that only tributaries, and no wetlands, comprise the
hydrological connections of the target sites to the Weweantic River.
The concurrence bases this interpretation of the district court’s
statement on its assumption—a correct one—that the district court
based its decision entirely on the EPA’s position. But the
concurrence, as already noted, incorrectly attributes to the EPA the
position that no wetlands are part of the hydrological connections at
issue here. The EPA’s expert explained that there are wetlands
involved in the hydrological connection. That is the EPA’s position.
Whatever the district court’s language in the single dispositive
sentence on the Motion for Reconsideration, it must necessarily have
incorporated the presence of these additional wetlands into its
conclusion.
Appendix D-17
provides important guidance for resolution of this appeal,
neither decision directly disposes of the questions concerning
regulatory jurisdiction over the target sites.
1. Riverside
The Court’s holding in Riverside begins with the
recognition of a deference question. Citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct.
2778, 81 L. Ed. 2d 694 (1984), the Court stated that:
our review is limited to the question whether it is
reasonable in light of the language, policies, and
legislative history of the Act for the Corps to exercise
jurisdiction over wetlands adjacent to . . . rivers,
streams, and other hydrographic features more
conventionally identifiable as “waters.”
Riverside, 474 U.S. at 131, 106 S. Ct. 455. The Court
acknowledged that while the CWA used the term “navigable”
to denote the reach of regulatory jurisdiction, its definition of
“navigable waters” as “waters of the United States” extended
jurisdiction over some waters that were not navigable-in-fact.
Id. at 133, 106 S. Ct. 455. Hence, “the evident breadth of
congressional concern for protection of water quality and
aquatic ecosystems suggests that it is reasonable for the Corps
to interpret the term ‘waters’ to encompass wetlands adjacent
to waters as more conventionally defined.” Jd. The Court
concluded that:
a definition of “waters of the United States”
encompassing all wetlands adjacent to other bodies of
water over which the Corps has jurisdiction is a
permissible interpretation of the Act.
Id, at 135, 106 S. Ct. 455.
Appendix D-18
Relying on expansive language such as this, the
government asserts that Riverside answers the question of
whether jurisdiction over the target sites is valid. However, the
government has uncoupled Riverside’s holding from its facts.
The property at issue in Riverside was “80 acres of low-lying,
marshy land near the shores of Lake St. Clair in Macomb
County, Michigan,” id. at 124, 106 S. Ct. 455—a wetland
adjacent to a navigable-in-fact water. Because the site at issue
in Riverside was a wetland “that actually abuts on a navigable
waterway,” id. at 135, 106 S. Ct. 455, the Court never addressed
the term “tributaries” as used in § 230.3(s)(5).
In the parlance used in the previous section, Riverside
approves the independent rationale for jurisdiction provided in
§ 230.3(s)(1)}—for navigable-in-fact waters. The Riverside
court also approved jurisdiction over adjacent tributaries and
wetlands, via (s)(5) (tributaries) and (s)(7) (wetlands adjacent),
and the derivative rationale necessary to justify that extension
of jurisdiction. Specifically, the Court approved an (s){7)
(wetlands adjacent) derivative rationale based on the
independent rationale of (s)(1) (navigable-in-fact). By
implication, this means that jurisdiction over an (s)(5) tributary
adjacent to an (s)(1) water would also be valid. However,
Riverside does not address the meaning or scope of the term
“tributaries” as used in (s)(5), which is critical to this appeal.
2. SWANCC
The property at issue in SWANCC was “an abandoned sand
and gravel pit in northern Illinois which provides habitat for
migratory birds.” 531 U.S. at 162, 121 S. Ct. 675. The Court
described the property as “nonnavigable[-in-fact], isolated,
intrastate waters” and “ponds that are not adjacent to open
water”. Id. at 166, 168, 121 S. Ct. 675 (original emphasis).
The property at issue was not a navigable-in-fact water under
(s)(1), a tributary of a navigable-in-fact water under (s)(5), or a
wetland adjacent to either of these two categories of water
under (s)(7).
Appendix D-19
The Corps had exerted federal jurisdiction over the ponds
in SWANCC pursuant to subpart (b) of the “Migratory Bird
-Rule” (or the “Rule”), which the Corps issued to clarify the
reach of its jurisdiction under § 404(a) of the CWA."' The
Migratory Bird Rule is the Corps’ interpretation”” of 33 C.F.R.
'! The Migratory Bird Rule states that § 404(a) jurisdiction extends
to intrastate waters:
a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
b. Which are or would be used as habitat by other migratory
birds which cross state lines; or
c. Which are or would be used as habitat for endangered
species; or
d. Used to irrigate crops sold in interstate commerce.
Migratory Bird Rule, 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986);
see also SWANCC, 531 U.S. at 164, 121 S. Ct. 675.
'2 “The Corps issued the ‘Migratory Bird Rule’ without following
the notice and comment procedures outlined in the Administrative
Procedure Act, 5 U.S.C. § 553.” SWANCC, 531 U.S. at 164, 121 S.
Ct. 675 n.1. As such, the Rule is best understood as an agency
interpretation of an agency regulation, rather than an agency
regulation. This fact becomes important when issues of deference to
administrative agencies arise.
Appendix D-20
§ 328.3(a)(3)(1999). Section 328.3(a)(3) states that
jurisdiction of the CWA extends to:
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. ...
The Court held that “33 C.F.R. § 328.3(a)(3) (1999), as
clarified and applied to petitioner’s balefill site pursuant to the
“Migratory Bird Rule,’. .. exceeds the authority granted to [the
Corps] under § 404(a) of the CWA.” SWANCC, 531 US. at
174, 121 S. Ct. 675. Asa result, any extensions of jurisdiction
over waters that rely on the Migratory Bird Rule, including
(s)(3) (intrastate) waters and (s)(5) (tributaries) and (s)(7)
(wetlands adjacent) waters through a rationale derived via
(s)(3), are invalid.
Defendants insist that SWANCC sharply curtails the reach
of Riverside, which should be understood as creating an
exception to the general rule that CWA jurisdiction extends
only to navigable-in-fact waters: “[t]he Riverside Bayview
exception to the ‘navigable waters’ requirement only extends to
nonnavigable waters that ‘actually abut [ ] on a navigable
waterway.” Although they correctly characterize what
Riverside directly addressed, Defendants misinterpret Riverside
by conflating what Riverside held about CWA jurisdiction with
the entirety of CWA jurisdiction. Put another way, Defendants
incorrectly assert that Riverside constitutes the outer reach of
the CWA.
Defendants base this misinterpretation of Riverside’s
holding on a misapprehension of the phrase “open water”, a
‘3 The parallel EPA regulation is 40 C.F.R. § 230.3(s)(3).
Appendix D-21
phrase the Court used in both Riverside and SWANCC. Ina
footnote discussing what it was not addressing, the Riverside
court stated:
we are not called upon to address the question of the
authority of the Corps to regulate discharges of fill
material into wetlands that are not adjacent to bodies
of open water, see 33 C.F.R. §§ 323.2(a)(2) and (3)
(1985), and we do not express any opinion on that
question.
474 U.S. at 131, 106 S. Ct. 455 n.8 (emphasis added).
Section 323.2(a)(2) (1985) includes “[ajll interstate waters
including interstate wetlands.” Section 323.2(a)(3) includes:
(3) All other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, p:airie potholes, wet
meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect
interstate or foreign commerce including any such
waters:
(1) Which are or could be used by interstate or foreign
travels for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken
and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial
purposes by industries in interstate commerce;
'* In Riverside, the Court addressed 33 C.F.R. § 323.2(a) (1985).
Here, 40 C.F.R. § 230.3(s) (EPA) and 33 C.F.R. § 328.3{a) (Corps),
which superceded § 323.2(a), are addressed. The language of the
two regulations is virtually identical, as is the regulatory scheme
established by the two regulations. Therefore, the change in
regulation has no effect on the reach of Riverside.
Appendix D-22
When the Court revisited Riverside in SWANCC, it stated
that:
our holding [in Riverside ] was based in large measure
upon Congress’ unequivocal acquiescence to, and
approval of, the Corps’ regulations interpreting the
CWA to cover wetlands adjacent to navigable waters.
We found that Congress’ concern for the protection of
water quality and aquatic ecosystems indicated its
intent to regulate wetlands “inseparably bound up
with the ‘waters’ of the United States.” * It was the
significant nexus between the wetlands and
“navigable waters” that informed our reading of the
CWA in Riverside Bayview Homes. Indeed, we did
not “express any opinion” on the “question of the
authority of the Corps to regulate discharges of fill
material into wetlands that are not adjacent to bodies
of open water... .”
SWANCC, 531 U.S. at 167, 121 S. Ct. 675 (quoting Riverside,
474 U.S. at 131, 106 S. Ct. 455 n.8) (internal citations omitted)
(emphasis added). Relying on this language from the two
cases, Defendants have equated “open water” with
navigability-in-fact. Based on this interpretation, Defendants
assert in their brief that “as explained in SWANCC, Clean Water
Act jurisdiction is limited to navigable[-in-fact] waters and
those wetlands that abut and are ‘inseparably bound up’ with
navigable[-in-fact] waters,” i.e. jurisdiction under the CWA is
limited only to (s)(1) (navigable-in-fact) waters and (s)(7)
adjacent wetlands using (s)(1) for its derivative rationale.
However, Defendants overlook crucial language from
Riverside. There, the Court states that “between open waters
and dry land may lie shallows, marshes, mudflats, swamps,
bogs—in short, a huge array of areas that are not wholly aquatic
but nevertheless fall far short of being dry land.” 474 US. at
132, 106 S. Ct. 455 (emphasis added). It is clear from this
language that the Riverside court uses “open water”
Appendix D-23
descriptively to distinguish rivers, lakes, streams, and similar
bodies of water from those intermediate forms of partially wet,
partially dry areas, i.e. wetlands, and from dry land. In short,
“open water” means “wholly aquatic”. It has nothing to do with
navigability-in-fact.°
SWANCC does not establish Riverside as the limit of CWA
jurisdiction over “waters of the United States”. SWANCC’s
discussion of Riverside is aimed at distinguishing Riverside
from SWANCC. At one point, the Court emphatically states
that “[i}n order to rule for [the Corps] here, we would have to
hold that the jurisdiction of the Corps extends to ponds that are
not adjacent to open water. But we conclude that the text of the
statute will not allow this.” SWANCC, 531 U.S. at 168, 121 S.
Ct. 675 (original emphasis). At other points, the Court uses the
word “isolated” when referring to the ponds at issue. See, e.g.,
id. at 171, 121 S. Ct. 675. SWANCC’s meaning in relation to
Riverside is clear: jurisdiction over waters that are not
“inseparably bound up with” navigable-in-fact waters, e.g. the
ponds at issue in SWANCC, cannot find support in Riverside.
This is the extent to which SWANCC’s holding constrains
'S This concept of “open water” must be consistent with the
understanding of how § 230.3 operates, i.e. the distinction between
independent and derivative rationales. For them to be consistent,
§ 230.3 should incorporate the Court’s concept of “open water”. The
regulation would demonstrate this consistency by distinguishing
between types of open water, e.g. streams and creeks, that are and are
not navigable-in-fact—which it does. While all navigable-in-fact
waters are covered by (s)(1), § 230.3 contains sections that recognize
non-navigable-in-fact “open water”: (s)(3) (“rivers, streams
(including intermittent streams)”) and (s)(5) (not navigable-in-fact
“tributaries”). The “open water” described in (s)(3) (intrastate
waters) and (s)(5) (tributaries) is by definition not navigable-in-fact,
based on the same redundancy reasoning used when the regulation
was first introduced.
Appendix D-24
Riverside’s.'© Put another way, SWANCC itself is best
understood as establishing the ouier boundary of CWA
jurisdiction. But it does not directly address the type of waters
at issue here.
Nevertheless, the language that SWANCC uses to describe
this outer boundary of CWA jurisdiction over a particular water
is important. As noted above, the Court stated:
We found that Congress’ concern for the protection of
water quality and aquatic ecosystems indicated its
intent to regulate wetlands “inseparably bound up
with the ‘waters’ of the United States.” It was the
significant nexus between the wetlands and
“navigable waters” that informed our reading of the
CWA in Riverside Bayview Homes.
SWANCC, 531 U.S. at 167, 121 S. Ct. 675 (citing Riverside,
474 U.S. at 131, 106 S. Ct. 455 n.8.) (internal citations
omitted). In order for the extension of CWA jurisdiction over
wetlands, such as the target sites, to be valid, those wetlands
must be “inseparably bound up with the waters of the United
States,” i.e. there must be a “significant nexus” between the
target sites and a navigable-in-fact water. On the basis of
Riverside and SWANCC, this opinion has rejected Defendants’
assertion that these phrases—“inseparably bound up with” or
“significant nexus”—require adjacency to a navigable-in-fact
water. The target sites do not have that adjacency. Instead,
they have a hydrological connection to a navigable-in-fact
'© In this respect, this opinion respectfully disagrees with the Fifth
Circuit’s decisions in Jn re Needham, 354 F.3d 340 (Sth Cir. 2003),
and Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001).
These decisions interpret SWANCC in substantially the same manner
as Defendants do, holding that SWANCC understands Riverside to
constitute a mere exception that narrowly extends CWA jurisdiction
to wetlands adjacent to navigable-in-fact waters.
Appendix D-25
water. This opinion must now evaluate the government’s
jurisdictional assertion that this hydrological connection
- qualifies as a “significant nexus” within the meaning of
Riverside and SWANCC.
II.
A. The Deaton decision and methodology
Navigation between Riverside and SWANCC requires an
independent inquiry into the validity of regulatory jurisdiction
over the target sites. The Fourth Circuit’s decision in United
States v. Deaton, 332 F.3d 698 (4th Cir. 2003), provides helpful
methodological and substantive guidance.'’ There, the property
at issue was a wetland with a similar connection to a
navigable-in-fact water;"* also, the parties likewise had little or
‘7 Other circuits have gone so far as to adopt the reasoning of
Deaton almost wholesale when confronted with similar factual
circumstances. See, e.g., Gerke Excavating, Inc., 412 F.3d at 804;
United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003). As we
explain above, Defendants present a statutory- and regulatory-based
argument and a constitutional argument in favor of overturning the
district court’s decision. The Deaton court’s methodology, which we
follow here, was to answer the constitutional question first.
'8 The Deaton court described the site as follows: “The parcel
slopes gently downhill toward a country road, Morris Leonard Road.
A drainage ditch runs alongside the road between the pavement and
the Deatons’ property . ... The parties agree that surface water from
the Deatons’ property drains into the roadside ditch .... At the
northwest edge of the Deaton’s property, the roadside ditch drains
into a culvert under Morris Leonard Road. On the other side of the
road, the culvert drains into another ditch, known as the John Adkins
Prong of Perdue Creek. Perdue Creek flows into Beaverdam Creek,
a natural watercourse with several dams and ponds. Beaverdam
Creek is a direct tributary of the Wicomico River, which is
navigable.” Deaton, 332 F.3d at 702.
Appendix D-26
no dispute over the presence of a hydrological connection. See
id. at 702.
As in Deaton, Defendants here argue that this court should
not defer to the EPA’s regulation or its administrative
interpretation of it because § 230.3(s), as applied to the target
sites, pushes the limits of congressional authority under the
Commerce Clause and thereby raises serious constitutional
questions. Thus, Defendants assert that § 230.3(s), as
interpreted and applied to the target sites, cannot survive the
threshold requirement described in SWANCC: “where an
administrative interpretation ofa statute invokes the outer limits
of Congress’ power,” the interpretation is not entitled to
deference under Chevron unless Congress gave “a clear
indication that [it] intended that result.” SWANCC, 531 U.S. at
172, 121 S. Ct. 675. According to Defendants, Congress never
clearly stated its intention to use the CWA for the broad
assertion of Commerce Clause authority at issue here and
thereby reach wetlands so far removed from navigable-in-fact
waters.
The “clear statement” rule that Defendants assert is a
corollary to the doctrine of constitutional avoidance. This
doctrine reflects a “prudential desire not to needlessly reach
constitutional issues and [an] assumption that Congress does
not casually authorize administrative agencies to interpret a
statute to push the limit of congressional authority.” Jd. at
172-73, 121 S. Ct. 675. In Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 108
S. Ct. 1392, 99 L. Ed. 2d 645 (1988), the Court held that
“where an otherwise acceptable construction of a statute would
raise serious constitutional problems, [courts] will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.” Jd. at 575, 108 S.
Ct. 1392.
However, the Deaton court concluded that this clear
statement principle of constitutional avoidance set forth in
Appendix D-27
SWANCC and DeBartolo had to be understood in light of the
Court’s holding in Rust v. Sullivan, 500 U.S. 173, 111 S. Ct.
~ 17595114 LD. Ed- 24-233 (1991). See Deaton, 332 F.3d at 705. ©
In Rust, the Supreme Court decided the constitutionality of
Department of Health and Human Services regulations
promulgated in the wake of Roe v. Wade, 410 U.S. 113, 93 S.
Ct. 705, 35 L. Ed. 2d 147 (1973), relating to the ability of
federal fund recipients to engage in abortion-related activities.
Confronting statutory and constitutional challenges to the
regulations similar to the challenges in this case, the Court
refused to circumscribe or invalidate the regulations to avoid
ruling on the constitutionality of the underlying statute. The
Court offered this rationale for its rejection of constitutional
avoidance:
[t]he extensive litigation regarding governmental
restrictions on abortion since our decision in Roe v.
Wade . . . suggests that it was likely that any set of
regulations promulgated by the Secretary—other than
the ones in force prior to 1988 and found by him to be
relatively toothless and ineffectual—would be
challenged on constitutional grounds. While we do
not think that the constitutional arguments made by
petitioners in these cases are without some force .. .
we hold that they do not carry the day. Applying the
canon of construction [the doctrine of constitutional
avoidance] under discussion as best we can, we hold
that the regulations promulgated by the Secretary do
not raise the sort of “grave and doubtful constitutional
questions”. . . that would lead us to assume Congress
did not intend to authorize their issuance. Therefore,
we need not invalidate the regulations in order to save
the statute from unconstitutionality.
Rust, 500 U.S. at 191, 111 S. Ct. 1759 (internal citations
omitted).
Appendix D-28
Rust creates an “exception” to the command to
circumscribe the scope of regulations and related interpretations
that arguably implicate the constitutionality of the underlying
statutes, in those situations where “it [is] likely that any set of
regulations promulgated by the [agency] . . . would be
challenged on constitutional grounds.” 500 U.S. at 191, 111S.
Ct. 1759; see also Charles Alan Wright & Charles H. Koch, Jr.,
33 Federal Practice and Procedure § 8363 (2006). Rust is a
reminder that “avoidance of a difficulty will not be pressed to
the point of disingenuous evasion.” 500 U.S. at 191, 111 S. Ct.
1759 (quoting George Moore Ice Cream Co. v. Rose, 289 U.S.
373, 379, 53 S. Ct. 620, 77 L. Ed. 1265 (1933)). Constitutional
avoidance under the aegis of the clear statement principle is not
a neutral principle that simply defers difficult decisions on the
validity of regulations without consequences. Application of
the clear statement principle has the effect of rejecting the scope
or validity of administrative regulations and interpretations in
favor of circumscribed versions that seem to avoid
constitutional challenges to the underlying statute. Without
Rust, the unyielding application of the constitutional avoidance
doctrine “would apparently make every rule invalid merely
upon any constitutional challenge and, in fact, would prevent
the resolution of many constitutional questions raised by a
regulatory regime.” Wright and Koch, 33 Federal Practice and
Procedure § 8363.
For almost thirty years, the assertion of jurisdiction by the
EPA and the Corps has gone beyond navigable-in-fact waters.
Over that time, most challenges to the extension of CWA
jurisdiction have raised constitutional questions, see, e.g.,
Riverside, 474 U.S. at 123, 106 S. Ct. 455, because the statute
speaks of “navigable waters”, making navigable-in-fact waters
the only “safe” extension of jurisdiction, constitutionally
speaking. However, to apply the doctrine of constitutional
avoidance here in favor of the safe “navigation-in-fact” reading
of the statute would ignore the CWA’s text, which asserts
Appendix D-29
jurisdiction beyond navigable-in-fact waters by defining
“navigable waters” as “waters of the United States”.
Rust allows us to assess the merits of the constitutional
arguments against the government’s interpretation and
application of § 230.3(s) instead of invalidating the agency’s
action because of a reflexive adherence to the doctrine of
constitutional avoidance. See Deaton, 332 F.3d at 705. If this
opinion concludes that these arguments do not “raise the sort of
grave and doubtful constitutional questions that . . . would lead
us to assume Congress did not intend to authorize [the
regulation’s] issuance,” Rust, 500 U.S. at 191, 111 S. Ct. 1759
(internal citations omitted), it may, as the Deaton court
concluded, “proceed to the Chevron analysis.” Deaton, 332
F.3d at 705. That is, with the specter of statutory
unconstitutionality removed, familiar issues of deference to
administrative regulations may then be addressed.
Therefore, the constitutional challenge posed by
Defendants will be addressed first before proceeding to evaluate
their claim that there is an inconsistency between the CWA and
the regulation promulgated to give effect to the CWA and/or the
EPA’s interpretation and application of that regulation.
Specifically, the remaining question is whether the Commerce
Clause gives Congress the authority to enact legislation—the
CWA-—-that extends jurisdiction over the tributaries and
wetlands implicated by the EPA’s extension of regulatory
jurisdiction over the target sites.
B. The constitutional question
Supreme Court jurisprudence has identified three broad
categories of activity that Congress may properly regulate
pursuant to the Commerce Clause:
First, Congress may regulate the use of the channels
of interstate commerce. Second, Congress is
empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or
Appendix D-30
things in interstate commerce, even though the threat
may come only from intrastate activities. Finally,
Congress’ commerce authority includes the power to
regulate those activities having a substantial relation
to interstate commerce, i.e., those activities that
substantially affect interstate commerce.
Lopez, 514 U.S. at 558-59, 115 S. Ct. 1624 (internal citations
omitted). Congress may regulate activities under the third
category only if those activities are “economic in nature”.
United States v. Morrison, 529 U.S. 598, 613, 120 S. Ct. 1740,
146 L. Ed. 2d 658 (2000).
The purpose of the CWA “is to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a). Optimistically, it included the
“national goal that the discharge of pollutants into the navigable
waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). The
EPA invokes this explicit statutory purpose and goal to support
its assertion of jurisdiction over the wetlands involved in this
case. In assessing the constitutional implications of this
assertion (whether it raises grave and vexing constitutional
questions), the Commerce Clause rationale for the CWA itself
must be addressed. This will be done in two parts. First, the
Fourth Circuit’s persuasive approach to this question in Deaton
will be summarized; second, the consistency of the Deaton
court’s approach with the Supreme Court’s decisions in
Riverside and SWANCC will be tested.
1. The Deaton court’s Commerce Clause analysis
The Deaton court begins with two _ indisputable
propositions: (1) Congress enacted the Clean Water Act under
“its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made,” 332
F.3d at 706 (quoting SWANCC, 531 U.S. at 172, 121 S. Ct.
675); and (2) “[t]he power over navigab!< waters is an aspect of
the authority to regulate channels of interstate commerce,”
Appendix D-31
Deaton, 332 F.3d at 706 (quoting Gibbs v. Babbitt, 214 F.3d
483, 490-91 (4th Cir. 2000)). “Unlike its power to regulate
activities- with- a- substantial relation to interstate commerce,
Congress’s power over the channels of interstate commerce
reaches beyond the regulation of activities that are purely
economic in nature.” Deaton, 332 F.3d at 706. Indeed, “the
authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been
frequently sustained ....” Jd. (quoting Caminetti v. United
States, 242 U.S. 470, 491, 37S. Ct. 192, 61 L. Ed. 442 (1917)).
Caminetti held that “barr[ing] the transport of any woman or
girl in interstate channels for an immoral purpose was within
congressional authority, even though the defendant’s
conduct—transporting a woman across state lines to be and
become his mistress and concubine—was entirely
noncommercial.” Deaton, 332 F.3d at 706 (internal quotation
marks and citations omitted). The Deaton court continued:
“there is no reason to believe Congress has less power over
navigable waters than over other interstate channels such as
highways, which may be regulated to prevent their ‘immoral
and injurious usef J.’” Jd. at 707 (quoting Caminetti, 242 U.S.
at 491, 37 S. Ct. 192). Such injurious uses would include the
release of pollutants and fill material into non-navigable-in-fact
waters. As the Deaton court points out, “[a]ny pollutant or fill
material that degrades water quality in a tributary of navigable
waters has the potential to move downstream and degrade the
quality of the navigable waters themselves.” 332 F.3d at 707.
The Deaton court concluded that “Congress’s authority
over the channels of commerce is thus broad enough to allow
it to legislate, as it did in the Clean Water Act, to prevent the
use of navigable waters for injurious purposes.” Jd. Faced with
this reality, “Congress . .. may decide that the aggregate effect
of all of the individual instances of discharge . . . justifies
regulating each of them.” Jd. at 707 (citing Wickard v. Filburn,
317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942)). The Deaton
court then adds these crucial points: “if Congress itself has the
Appendix D-32
authority to make that decision, it may delegate it to the Corps,
as long as it provides an ‘intelligible principle’ to guide the
agency’s decisionmaking.” 332 F.3d at 707. In fact, “the Corps
has pursued this goal by regulating non-navigable tributaries
and their adjacent wetlands. This use of delegated authority is
well within Congress’s traditional power over navigable
waters.” Id. Thus, this assertion of jurisdiction by the Corps
“does not invoke the outer limits of Congress’s power or alter
the federal-state framework.” Jd. at 708.
2. Testing the Deaton approach pursuant to the
Riverside/SWANCC Commerce Clause analysis
The Riverside court assumed that the CWA was an
appropriate exercise of Congress’ commerce power because the
Court reached the statutory question, validated regulatory
jurisdiction over some waters that were not navigable-in-fact,
and did not even mention the possibility that Congress had
exceeded its power under the Commerce Clause. The
SWANCC court, on the other hand, explicitly acknowledged the
“channels of commerce” rationale for the CWA. It stated that
“ft]he term ‘navigable’ has at least the import of showing us
what Congress had in mind as its authority for enacting the
CWA: its traditional jurisdiction over waters that were or had
been navigable in fact or which could reasonably be so made.”
Id. at 172, 106 S. Ct. 455. As in Riverside, the Court does not
question the CWA’s constitutional validity insofar as the
exercise of congressional authority springs from Congress’
“traditional jurisdiction” over navigable-in-fact waters, i.e. a
“channels of commerce” rationale.
However, Congress did not enact the CWA simply to
safeguard the navigability of the Nation’s waters. Boats and
ships can travel on polluted waters. Instead, as noted earlier,
Congress designed the CWA “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
Appendix D-33
waters.” 33 U.S.C. § 1251(a). The Riverside court
acknowledged the CWA’s objective, which:
incorporated a broad, systemic view of the goal of
maintaining and improving water quality: as the
House Report on the legislation put it, “the word
‘integrity . . . refers to a condition in which the natural
structure and function of ecosystems is [are]
maintained.”” H.R. Rep. No. 92-911, p. 76 (1972).
Protection of aquatic ecosystems, Congress
recognized, demanded broad federal authority to
control pollution, for “[w]Jater moves in hydrologic
cycles and it is essential that discharge of pollutants
be controlled at the source.” S. Rep. No. 92-414, p.
77 (1972), U.S. Code Cong. & Admin. News 1972,
pp. 3668, 3742.
Riverside, 474 U.S. at 132, 106 S. Ct. 455. The Court’s
recognition of this congressional intent was critical to its
approval of CWA jurisdiction in Riverside:
[w]e are thus persuaded that the language, policies,
and history of the Clean Water Act compel a finding
that the Corps has acted reasonably in interpreting the
Act to require permits for the discharge of fill material
into wetlands adjacent to “waters of the United States.
Id, at 178, 106 S. Ct. 455.
In SWANCC, the Court re-affirmed its holding in
Riverside—the finding of jurisdiction, the existence of a valid
constitutional rationale justifying the assertion of jurisdiction,
and Congress’ purpose in creating the Clean Water Act:
our holding [in Riverside ] was based in large measure
upon Congress’ unequivocal acquiescence to, and
approval of, the Corps’ regulations interpreting the
CWA to cover wetlands adjacent to navigable waters.
We found that Congress’ concern for the protection of
Appendix D-34
water quality and aquatic ecosystems indicated its
intent to regulate wetlands “inseparably bound up
with the ‘waters’ of the United States.”
SWANCC, 531 U.S. at 167, 121 S. Ct. 675 (internal citation
omitted) (quoting Riverside, 474 U.S. at 134, 106 S. Ct. 455).
When the Court refers in SWANCC to a “significant nexus”
between wetlands and “navigable waters”, it is referring to
wetlands that are “inseparably bound up with ‘waters’ of the
United States.” Jd. Both Riverside and SWANCC confirm the
validity under the Commerce Clause of the Clean Water Act’s
overriding purpose—‘“a concern for the protection of water
quality and aquatic ecosystems.” Jd. In such ecosystems, as the
Deaton court noted, “[a]ny pollutant or fill material that
degrades water quality in a tributary of navigable waters has the
potential to move downstream and degrade the quality of the
navigable waters themselves.” 332 F.3d at 707. In the words
of the Supreme Court, such tributaries or wetlands are
“inseparably bound up with waters of the United States.”
Riverside, 474 U.S. at 134, 106 S. Ct. 455 (internal quotation
marks omitted).
The Court’s approval in both Riverside and SWANCC of
the CWA’s express purpose “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters,” 33 U.S.C. § 1251(a), confirms that the Deaton court’s
analysis of the CWA as an exercise of Congress’ power over
“channels of commerce” is consistent with those decisions.
Pursuant to the Commerce Clause, Congress had the power in
the CWA to prevent the injurious use of navigable waters by
regulating the discharge of pollutants at their source. The
CWA, and the agency regulations implementing the CWA, do
not raise grave constitutional questions when justified on a
“channels of commerce” rationale. The application of Chevron
deference to the regulation does not require a clear statement
from Congress that it intended to assert its full authority under
Appendix D-35
the Commerce Clause when it enacted the CWA. As the
Deaton court stated:
In sum, the Corps’s regulatory interpretation of the
term “waters of the United States” as encompassing
nonnavigable tributaries of navigable waters does not
invoke the outer limits of Congress’s power.... The
agency’s interpretation of the statute therefore does
not present a serious constitutional question that
wovld cause us to assume that Congress did not
intend to authorize the regulation.
332 F.3d at 708.
What remains for decision in this appeal is precisely the
type of question that the SWANCC court decided: is the
regulation—and the interpretation of that regulation—
promulgated by the EPA to implement the CWA a valid
exercise of the authority delegated to the EPA by Congress, as
it is applied by the EPA to the target sites? Thus posed, this
question raises Defendants’ statutory argument against the
EPA’s position in this case.
C. The statutory question
The thrust of Defendants’ statutory objection is this: even
if the EPA could regulate the target sites without raising serious
constitutional questions, the regulation as interpreted by the
EPA is an unreasonable interpretation of the CWA. This
argument, posing questions about deference to administrative
agencies, brings the discussion to Chevron and its two-part
inquiry:
When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
Appendix D-36
must give effect to the unambiguously expressed
intent of Congress. If, however, the court determines
Congress has not directly addressed the precise
question at issue, the court does not simply impose its
own construction on the statute, as would be
necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer
is based on a permissible construction of the statute.
467 US. at 842-43, 1048S. Ct. 2778.
Under step one of Chevron, proceeding with this inquiry
into Defendants’ statutory- and regulatory-based objections
requires us to determine whether the CWA directly resolves the
question raised by extending jurisdiction over the target sites,
or if the CWA is silent or ambiguous on that question. If
Congress has been silent or ambiguous on the issue—thereby
delegating to the EPA and the Corps the authority to give
content to the phrase “waters of the United States”—the inquiry
proceeds to the second step in the Chevron analysis—
determining whether the agency’s regulation extending
jurisdiction to the particular waters at issue here reflects a
reasonable construction of the statute.
The government, of course, asserts that regulatory
jurisdiction over the target sites pursuant to § 230.3(s)
represents a proper exercise of Congress’ Commerce Clause
power, which Congress delegated to the EPA and the Corps.
Specifically, in its brief, the government asserts jurisdiction
over the waters at issue in this case by relying:
on the following three subsections of the regulatory
definition of “waters of the United States”:
subsection (1), which refers, inter alia, to waters that
have been or may be used in interstate commerce,
including waters “subject to the ebb and flow of the
Appendix D-37
tide” (i.e. traditional navigable waters); subsection (5),
which refers, inter alia, to “[t]ributaries” of such
traditional navigable- waters; and ‘subsection (7),
which refers, inter alia, to “[w]etlands adjacent” to
traditional navigable waters or their tributaries.
The government contends that the wetlands on the target
sites are “wetlands adjacent” under § 230.3(s)(7); the open
waters that comprise some of the segments connecting the
target sites to the Weweantic River are all “tributaries” within
the definition of § 230.3(s)(5); and the wetlands that comprise
some of the segments linking the target sites to the Weweantic
River are “wetlands adjacent” under § 230.3(s)(7); and the
Weweantic River is covered by § 230.3(s)(1). In the parlance
of this opinion, the government contends that there is an
independent rationale for jurisdiction over the Weweantic River
under (s)(1) (navigable-in-fact); there is a derivative rationale
for jurisdiction over the open waters connecting the target sites
to the Weweantic River via (s)(5) (tributaries); and there is a
derivative rationale for jurisdiction over the target sites and the
other wetlands in the chain of waters via (s)(7) (wetlands
adjacent) via (s)(5) (tributaries) via (s)(1) (navigable-in-fact).
1. Chevron, step one
The exact question here is whether the CWA, by its terms,
extends jurisdiction to distant, non-navigable tributaries of
navigable-in-fact waters, and wetlands adjacent to those
tributaries, such as the ones located on the target sites and in the
chain of waters linking the target sites to the Weweantic River.
As noted previously, 33 U.S.C. § 1344(a) defines “navigable
waters” as “waters of the United States”. Congress’ definition
does not limit jurisdiction to only navigable-in-fact waters.
Instead, Congress elected to move away from the
traditional definition of “navigable waters” and expand the
definition to “waters of the United States”, which the Supreme
Court in Riverside concluded was a strong indication that
Appendix D-38
Congress intended to regulate at least some waters that were not
navigable-in-fact. See 474 U.S. at 133, 106 S. Ct. 455.
Observing that the CWA was passed pursuant to Congress’
traditional reach over navigable-in-fact waters, SWANCC
emphasizes that the CWA _ extends only to those
non-navigable-in-fact waters that are “inseparably bound up
with the ‘waters’ of the United States.” 531 U.S. at 167, 121
S. Ct. 675. Nevertheless, even with the guidance from these
two decisions, the phrase “waters of the United States” is
ambiguous enough to constitute an implied delegation of
authority to the EPA to administer the Act and make rules to fill
the gaps within the confines of the CWA as outlined in
SWANCC. See Morton v. Ruiz, 415 U.S. 199, 231, 94S. Ct.
1055, 39 L. Ed. 2d 270 (1974) (discussing delegation of
congressional authority); see also Deaton, 332 F.3d at 709-10.
2. Regulation ambiguity and Seminole Rock
An additional step must be inserted in the Chevron analysis
because Defendants have challenged the meaning of the agency
regulation. The EPA interprets the regulation to cover the
waters connecting the target sites to the Weweantic River and
the target sites themselves. Defendants assert that the agency
interpretation is inconsistent with the words of the regulation.
Because of this dispute, the actual meaning of the regulation
must be determined before moving to the second step of
Chevron. In such an analysis, the Supreme Court has stated the
following:
Since this involves an interpretation of an
administrative regulation a court must necessarily
look to the administrative construction of the
regulation if the meaning of the words used is in
doubt. The intention of Congress or the principles of
the Constitution in some situations may be relevant in
the first instance in choosing between various
constructions. But the ultimate criterion is the
administrative interpretation, which becomes of
Appendix D-39
controlling weight unless it is plainly erroneous or
inconsistent with the regulation.
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65
S. Ct. 1215, 89 L. Ed. 1700 (1945); see also Auer v. Robbins,
519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)
(“Because the salary-basis test is a creature of the Secretary’s
own regulations, his interpretation of it is, under our
jurisprudence, controlling unless plainly erroneous or
inconsistent with the regulation.” (Internal quotation marks
omitted.)). This deference to an administrative agency’s
interpretation of its own regulations is known as Seminole Rock
deference. If the regulation is unambiguous, Seminole Rock
deference does not apply and the regulation’s plain language
controls. See Christensen v. Harris County, 529 U.S. 576, 588,
120 S. Ct. 1655, 146 L. Ed.2d 621 (2000) (“The regulation in
this case, however, is not ambiguous—it ts plainly permissive.
To defer to the agency’s position would be to permit the
agency, under the guise of interpreting a regulation, to create de
facto a new regulation.”).
The regulation at issue, § 230.3(s), defines “waters of the
United States” to include “tributaries” of navigable-in-fact
waters—through a derivative rationale of (s)(5) (tributaries)
waters via (s)(1) (navigable-in-fact); and “wetlands adjacent” to
navigable-in-fact waters and their tributaries—through a
derivative rationale of (s)(7) (wetlands adjacent) waters via
(s)(1) alone, or (s)(1) and (s)(5). Defendants assert that it is
incorrect to read the regulation as reaching “any nonnavigable
water with any hydrologic connection to a navigable[-in-fact]
water, no matter how distant or infrequent the connection and
regardless of the number of intervening, nonnavigable waters.”
Stated another way, Defendants contend “that it is wrong to
read the regulation to reach all branches of a system that
eventually flow into a navigable[-in-fact] waterway.” Deaton,
332 F.3d at 710.
Appendix D-40
There is no dispute between the parties, and there is
nothing in the record to the contrary, that the Weweantic River
is obviously a navigable-in-fact water, and therefore is covered
by § 230.3(s)(1). Similarly, there is no factual dispute that the
target sites contain wetlands that are adjacent to tributaries that
hydrologically connect those wetlands to the Weweantic River
via a series of tributaries and adjacent wetlands. Since the EPA
asserts jurisdiction over the wetlands on the target sites
pursuant to (s)(7) (wetlands adjacent), which has a derivative
rationale via (s)(5) (tributaries), the focus of the interpretive
dispute is whether the term “tributaries” in § 230.3(s)(5) refers
only to nonnavigable waters that empty directly into a
navigable-in-fact water; or does “tributaries” include the waters
that the target sites are adjacent to, and the bodies of open water
that form part of the chain linking the target sites to the
Weweantic River. In Defendants’ parlance, is the connection
between the target sites and the Weweantic River too
attenuated?
In Deaton, the Fourth Circuit found conflicting definitions
of “tributary” in two relatively contemporaneous versions of
Webster’s dictionaries. Deaton, 332 F.3d at 710-11. Webster’s
Third New International Dictionary (1993) defines “tributary”
as “(1) providing with or serving as a channel for supplies or
additional matter; or (2) one that is tributary to another: as. . .
a stream” (internal quotation marks omitted). By contrast,
Webster’s II New Riverside University Dictionary (1988)
defines “tributary” as “[a] river or stream flowing into a larger
river or stream.” The former definition would encompass an
interpretation of “tributary” as “tributary system”, i.e. any body
of open water with a “hydrological connection” is a tributary.
Under this definition, a small, distant creek, whose water
eventually made its way into the Missouri River, would be
considered a “tributary” of the Mississippi River. Under the
latter definition, the creek would only be considered a tributary
of the Missouri River if it flowed directly into—i.e. was
Appendix D-41
adjacent to—the Missouri.’ It must be concluded, as the
Deaton court did, that § 230.3(s)(5) is ambiguous on the
- question of how far the coverage of “tributaries” extends. See
Deaton, 332 F.3d at 711.
Turning to the agericy’s interpretation, the government
makes repeated use of the term “tributary system” throughout
its brief. For example, the government emphasizes repeatedly
that Defendants “make no effort to address the significance, as
a class, of the present waters—tributary systems of
navigable-in-fact waters and their adjacent wetlands-to
downstream water quality.” (Emphasis added.) There is no
doubt that the government interprets “tributaries” in (s)(5) to
mean “tributary system”. The Deaton court speaks to the
significance of all this:
[ajlthough the Corps has not always chosen to
regulate all tributaries, it has always used the word to
mean the entire tributary system, that is, all of the
streams whose water eventually flows into navigable
waters. Because the Corps’s longstanding
interpretation of the word “tributary” has support in
the dictionary and elsewhere, it is not plainly
erroneous. Nor is it inconsistent with the regulation.
The interpretation is therefore entitled to Seminole
Rock deference. In short, the word “tributaries” in the
regulation means what the Corps says it means.
'? Further inquiry into other sources does not make either definition
of “tributary” more plausible. The American Heritage Dictionary,
(4th ed. 2000) defines tributary as “a stream that flows into a larger
stream or other body of water.” On the other hand, the Oxford
English Dictionary, (2d ed. 1989) defines tributary as “[a] stream
contributing its flow to a larger stream or lake; an affluent, feeder.”
This latter definition could plausibly accommodate either a “tributary
system”/“any hydrological connection” or a “direct connection only”
interpretation.
Appendix D-42
Deaton, 332 F.3d at 710-11. This analysis is apt. The
government has reasonably interpreted “tributaries” in (s)(5) to
mean any body of open water, e.g. a stream or creek,
hydrologically connected to a navigable-in-fact water. This also
means that a “tributary system” need not be a contiguous series
of open waters, but may be interrupted by waters such as
wetlands.”
The concurrence concludes that “the EPA did not interpret
subpart (s)(5) to include other wetlands as part of the tributary
systems that constitute the hydrological connections between
the target sites and the [Weweantic River]... .” I agree with
this statement. As already emphasized (in Section II.C), any
additional wetlands that constitute part of the hydrological
connections between the target sites and the Weweantic River
are covered by subpart (s){7).
3. Chevron, step two
With the ambiguity in the meaning of the regulation
resolved, the second step of the Chevron analysis can proceed:
is the regulation “based on a permissible construction” of the
CWA? 467 U.S. at 843, 104S. Ct. 2778; see also Deaton, 332
F.3d at 711. Defendants assert that SWANCC establishes
Riverside (which approved of CWA jurisdiction over (s)(7)
adjacent wetlands via a derivative rationale from an (s)(1)
20 Contrary to the insistence of the concurrence, the opinion does
not interpret “tributary system” to ‘include other wetlands.
“Tributary” is a term the regulation uses to address only open waters,
such as rivers, lakes, and streams. This is why the regulation allows
for a “tributary system” to be “interrupted” by intervening wetlands.
Moreover, jurisdiction over these intervening wetlands is not
asserted via (s)(5) and an expansive definition of “tributary system”.
Instead, jurisdiction over these wetlands is asserted via (s)(7),
because those wetlands, as well as the target sites, are adjacent to
segments of an (s)(5) tributary system.
Appendix D-43
water) as the outer bound of CWA junsdiction—an
interpretation of SWANCC that this opinion has already
rejected: The conclusion in step one of the Chevron inquiry,
finding that there is ambiguity in the CWA, means that
Congress intended to delegate authority to the EPA to decide
how far coverage must extend to protect the “chemical,
physical, and biological integrity of the Nation’s waters.”
33 U.S.C. § 1251(a). Moreover, we decided, not long after the
Court’s decision in Riverside, that “Congress intended said term
[navigable waters] to be given ‘the broadest constitutional
interpretation.” United States v. Rivera Torres, 826 F.2d 151,
154 (1st Cir. 1987) (citing Conference Report on Section 2770,
reprinted in 1 A Legislative History of the Water Pollution
Control Act Amendments of 1972, at 178). This appeal deals
with an extension of CWA jurisdiction premised on a “channels
of commerce” rationale, which the Riverside and SWANCC
courts endorsed. An agency interpretation of the CWA that
falls within the bounds established by these two decisions
would be a reasonable and permissible one.
In Riverside, the Court concluded that the Corps’ extension
of CWA jurisdiction over “all wetlands adjacent to other bodies
of water over which the Corps has jurisdiction is a permissible
interpretation of the [CWA].” 474 U.S. at 135, 106 S. Ct. 455.
Citing congressional findings, the Riverside court highlighted
the reality that “[p]rotection of aquatic ecosystems .. .
demanded broad federal authority to control pollution, for
‘[w]ater moves in hydrologic cycles and it is essential that
discharge of pollutants be controlled at the source.’” Jd. at 132,
106 S. Ct. 455 (quoting S. Rep. No. 92-414 at 77 (1927),
reprinted in i972 U.S.C.C.A.N. 3668, 3742). SWANCC
confirmed this hoiding in part because of Congress’ intent “to
regulate wetlands inseparably bound up with the waters of the
United States” and “the significant nexus between the wetlands
and ‘navigable waters.’” 531 U.S. at 167, 121 S. Ct. 675
(internal citations omitted); see also Deaton, 332 F.3d at 712.
Appendix D-44
The government has asserted that discharges into a
tributary system and wetlands adjacent to rivers, streams, and
other types of open water that comprise the tributary system of
a navigable-in-fact water, i.e. waters that have a hydrological
connection to a navigable-in-fact water, have a substantial
effect on water quality in that navigable-in-fact water. There is
a “significant nexus” between a navigable-in-fact water and the
tributary system that drains into it. Here, the government has
provided undisputed evidence that hydrological connections
exist between the target sites and the Weweantic River.
Therefore, there is a sigrificant nexus between the target sites
and the Weweantic River; the target sites are inseparably bound
up with the Weweantic River. Given this connection and
Congress’ broad delegation of authority under the CWA, the
government has reasonably and permissibly interpreted the
CWA to extend jurisdiction over the entire tributary
system—and wetlands adjacent to that tributary system—of a
navigable-in-fact water.
iil.
These are the principal conclusions set forth in this
opinion. Although the Supreme Court precedents invoked by
the parties in support of their positions, Riverside and
SWANCC, did not control the outcome of this case, they
provided important guidance on the jurisdictional question at
issue. Contrary to the assertion by Defendants, the doctrine of
constitutional avoidance did not require invalidating the
application of the EPA’s regulations to the target sites. Instead,
this opinion assessed the merits of their constitutional challenge
to the application of the Clean Water Act to the target sites
before assessing their statutory and regulatory challenges.
Based on the Fourth Circuit’s reasoning in Deaton, and the
consistency of that reasoning with the Supreme Court’s
decisions in Riverside and SWANCC, it was concluded that the
extension of jurisdiction to the target sites, justified on the basis
Appendix D-45
of a “channels of commerce” rationale, fell safely within
Congress’ power under the Commerce Clause.
Moving to the J ohnsons’ statutory- and repulatory-based
arguments, this opinion applied the two-step Chevron inquiry.
It was concluded, first, that the CWA was silent on the
particular question of whether jurisdiction could be extended to
the target sites and the waters connecting the target sites to the
Weweantic River, which constituted a delegation of authority
by Congress to the EPA and the Corps to fill that gap. Second,
because the meaning of the word “tributaries” in § 230.3(s)(5)
was uncertain, an additional step was necessary to resolve this
definitional ambiguity before proceeding to Chevron’s second
step. On the basis of Seminole Rock, the EPA’s interpretation
of “tributaries” as “tributary system” was entitled to deference.
Finally, with the meaning of the regulation settled, the analysis
could proceed to the second step of Chevron, concluding that
the EPA’s interpretation of § 230.3(s) and its application to
extend jurisdiction over the target sites reflects a permissible,
reasonable interpretation of the CWA.
In the end, there is a striking harmony between the legal
doctrines that guide the jurisdictional analysis in this case and
the physical realities that underlie the dispute. The unwavering
constant that threads its way through the Clean Water Act,
. Deaton, Riverside, SWANCC, and this decision is the
recognition that “Congress’ concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate
wetlands inseparably bound up with the waters of the United
States.” SWANCC, 531 U.S. at 167, 121 S. Ct. 675 (internal
quotation marks omitted). Here, the target sites are inseparably
bound up with the navigable-in-fact Weweantic River because
of the uncontested fact that there is a. hydrological
connection—through a tributary system and its adjacent
wetlands—linking them together. The district court’s decision
that the Clean Water Act’s jurisdiction extends to the target
sites is affirmed.
Appendix D-46
So ordered. .
DICLERICO, District Judge, concurring in part and
concurring in the judgment.
I concur with the result reached by Judge Lipez in his
opinion (hereinafter “the opinion”), affirming the district
court’s decision that Clean Water Act jurisdiction extends to the
target sites involved in this case. However, I do so based on an
interpretation of the record that differs from that of the opinion.
Consequently, I must respectfully disagree with some of the
opinion’s reasoning in support of the result. I come to the same
result based, in part, on different reasoning.
I interpret the record to support the conclusion that there is
a hydrological connection, which constitutes a significant
nexus, between each of the three target sites and the Weweantic
River. Because each of the sites has a significant nexus through
a hydrological connection with a navigable-in-fact water, the
Commerce Clause supports CWA jurisdiction over the sites. I
disagre
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