Respondents Brief — Johnson v. United States (No. 07-9)

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No 07 9 | SEFICEGF THEO! =

In the Supreme Court of the Anited States

CHARLES JOHNSON, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

RONALD J. TENPAS

Acting Assistant Attorney

General

ELLEN DURKEE

JOHN L. SMELTZER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the wetlands in this case are “waters of

the United States” within the meaning of the Federal

Water Pollution Control Act Amendments of 1972,

Pub. L. No. 92-500, 86 Stat. 816, as amended by Pub. L.

No. 95-217, 91 Stat. 1566 (83 U.S.C. 1251 et seq.); 33

U.S.C. 1862(7).

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 (2007)

Alexander v. Sandoval, 532 U.S. 275 (2001)

Broadrick v. Oklahoma, 413 U.S. 601 (1973)

Brotherhood of Locomotive Firemen v. Bangor

& Aroostook R.R., 389 U.S. 327 (1967)

Gregg v. Georgia, 428 U.S. 153 (1976)

Grutter v. Bollinger, 539 U.S. 306 (2003)

International Paper Co. v. Ouellette, 479 U.S. 481

(1987)

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991),

cert. denied, 505 U.S. 1229 (1992)

League of United Latin Am. Citizens v. Perry,

126 S. Ct. 2594 (2006)

Marks v. United States, 430 U.S. 188 (1977) .... 7, 10, 13, 15

Memoirs v. Massachusetts, 383 U.S. 413 (1966)

Nichols v. United States, 511 U.S. 738 (1994)

Cases—Continued:

Northern Cal. River Watch v. City of Healdsburg:

No. 04-15442, 2007 WL 2230186 (9th Cir. Aug. 6,

457 F.3d 1023 (9th Cir. 2006), superseded,

No. 04-15442, 2007 WL 2230186 (9th Cir. Aug. 6,

Pennsylvannia v. Delaware Valley Citizens’ Council

for Clean Air, 438 U.S. 711 (1987)

Rapanos v. United States, 126 S. Ct. 2208 (2006) ... passzm

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001)

United States v. Gerke Excavating, Inc., 464 F.3d 723

(7th Cir. 2006), petition for cert. pending, No. 06-

1331 (filed Apr. 2, 2007)

United States v. Mazurie, 419 U.S. 544 (1975)

United States v. Powell, 423 U.S. 87 (1975)

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004),

vacated, 126 S. Ct. 2208 (2006)

United States v. Riverside Bayview Homes, Inc.,

474 US. 121 (1985)

Virginia Military Inst. v. United States, 508 U.S. 946

(1993)

Waters v. Churchill, 511 U.S. 661 (1994)

Wilton v. Seven Falls Co., 515 U.S. 277 (1995)

Constitution, statutes, regulations and rule:

U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause)

Statutes, regulations and rule—Continued:

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 816, as amended

by Pub. L. No. 95-217, 91 Stat. 1566

(33 U.S.C. 1251 et seq.)

33 U.S.C. 1251(a)

33 U.S.C. 1311{a) (§ 301(a))

33 U.S.C. 1344 (§ 404)

33 U.S.C. 1344(a)-(c)

33 U.S.C. 1362(7)

33 U.S.C. 13862(12)(A)

33 C.F.R. :

Section 328.3

Section 328.3(a)

Section 328.3(a)(1)

Section 328.3(a)(5)

Section 328.3(a)(7)

Section 328.3(c)

40 C.F.R.:

Section 230.3(s)

Section 230.3(s)(1)

Section 230.3(s)(5)

Section 230.3(s)(7)

Fed. R. Civ. P. 59

In the Supreme Court of the United States

No. 07-9

CHARLES JOHNSON, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. C1-C19)

is reported at 467 F.3d 56. A prior opinion of the court of

appeals (Pet. App. D1-D58) is reported at 437 F.3d 157.

The orders of the district court (Pet. App. E1, F1-F2) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 31, 2006. A petition for rehearing was denied on

February 21, 2007 (Pet. App. Al-A2). On May 38, 2007,

Justice Souter extended the time within which to file a

petition for a writ of certiorari to and including June 28,

2007 (see Pet. App. B1), and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

This case involves a civil enforcement action brought

by the United States under the Federal Water Pollution

Control Act Amendments of 1972, Pub. L. No. 92-500, 86

Stat. 816, as amended by Pub. L. No. 95-217, 91 Stat.

1566 (33 U.S.C. 1251 et seq.) (Clean Water Act or CWA).

The district court held that petitioners’ unpermitted dis-

charges into wetlands violated the CWA, see Pet. App.

E11, and the court of appeals affirmed, see id. at D1-D58.

Petitioners moved for rehearing en banc, noting this

Court’s grant of certiorari in United States v. Rapanos,

376 F.3d 629 (6th Cir. 2004). See Pet. App. Cl. The

court of appeals held the rehearing petition in abeyance

pending this Court’s decision in that case. See ibid. Fol-

lowing the decision in Rapanos v. United States, 126

S. Ct. 2208 (2006), the court of appeals granted rehear-

ing, vacated its prior decision, issued a new opinion, and

remanded the case to the district court for further pro-

ceedings in light of Rapanos. Pet. App. C1-C19. Peti-

tioners now seek review of the court of appeals’ remand

order.

1. Congress enacted the CWA “to restore and main-

tain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. 1251(a). Section 301(a) of

the CWA prohibits the “discharge of any pollutant by any

person” except in compliance with the Act. 33 U.S.C.

1311(a). The term “discharge of a pollutant” is defined to

mean “any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. 1362(12)(A). The

CWA defines the term “navigable waters” to mean “the

waters of the United States, including the territorial

seas.” 33 U.S.C. 1362(7).

The United States Army Corps of Engineers (Corps)

and the United States Environmental Protection Agency

(EPA) share responsibility for implementing and enforc-

ing Section 404 of the CWA, 33 U.S.C. 1344, which autho-

rizes the issuance of permits for the discharge of dredged

or fill material into waters covered by the Act. See, e.g.,

33 U.S.C. 1344(a)-(c). The Corps and EPA have promul-

gated substantively equivalent regulatory definitions of

the term “waters of the United States.” See 33 C.F.R.

328.3(a) (Corps definition); 40 C.F.R. 230.3(s) (EPA defi-

nition). Those definitions encompass, inter alia, tradi-

tional navigable waters, which include waters susceptible

to use in interstate commerce, see 33 C.F.R. 328.3(a)(1),

- 40 C.F.R. 230.3(s)(1); “[t]ributaries” of traditional navi-

gable waters, see 33 C.F.R. 328.3(a)(5), 40 C.F.R.

230.3(s)(5); and wetlands “adjacent” to other covered

waters, see 33 C.F.R. 328.3(a)(7), 40 C.F.R. 230.3(s)(7).’

The Corps regulations define the term “adjacent” to

mean “bordering, contiguous, or neighboring.” 33 C.F.R.

328.3(c).

2. This Court has recognized that Congress, in enact-

ing the CWA, “evidently intended to repudiate limits that

had been placed on federal regulation by earlier water

pullution control statutes and to exercise its powers un-

der the Commerce Clause to regulate at least some wa-

ters that would not be deemed ‘navigable’ under the clas-

sical understanding of that term.” United States v. Riv-

erside Bayview Homes, Inc., 474 U.S. 121, 133 (1985)

(Riverside Bayview); see International Paper Co. v.

Ouellette, 479 U.S. 481, 486 n.6 (1987) (“While the Act

' To avoid confusion between the term “navigable waters” as defined

in the CWA and implementing regulations, see 33 U.S.C. 1362(7) and 33

C.F .R. 328.3, and the traditional use of the term “navigable waters” to

describe waters that are, have been, or could be used for interstate or

foreign commerce, 33 C.F.R. 328.3(a)(1), this brief will refer to the

latter as “traditional navigable waters.”

purports to regulate only ‘navigable waters,’ this term

has been construed expansively to cover waters that are

not navigable in the traditional sense.”). In Solid Waste

Agency of Northern Cook County v. United States Army

Corps of Engineers, 531. U.S. 159 (2001), the Court held

that use of “isolated” nonnavigable intrastate waters-by

migratory birds was not by itself a sufficient basis for the

exercise of federal regulatory jurisdiction under the

CWA. Id. at 166-174. The Court noted, and did not cast

doubt upon, its prior holding in Riverside Bayview that

the CWA’s coverage extends beyond waters that are

“navigable” in the traditional sense. See id. at 172.

Most recently, the Court again construed the CWA

term “waters of the United States” in Rapanos, supra.

Rapanos involved two consolidated cases in which the

CWA had been applied to wetlands adjacent to non-

navigable tributaries of traditional navigable waters. See

126 S. Ct. at 2219 (plurality opinion). All Members of the

Court agreed that the term “waters of the United States”

encompasses some waters that are not navigable in the

traditional sense. See id. at 2220 (plurality opinion); id.

at 2241 (Kennedy, J., concurring in the judgment); 7d. at

2255 (Stevens, J., dissenting).

Four Justices in Rapanos interpreted the term “wa-

ters of the United States” as covering “relatively perma-

nent, standing or continuously flowing bodies of water,”

126 S. Ct. at 2225 (plurality opinion), that are connected

to traditional navigable waters, id. at 2226-2227, as well

as wetlands with a continuous surface connection to such

water bodies, id. at 2227.” Justice Kennedy interpreted

* The Rapanos plurality noted that its reference to “relatively per-

manent” waters “d[id] not necessarily exclude streams, rivers, or lakes

that might dry up in extraordinary circumstances, such as drought,” or

the term to encompass wetlands that “possess a ‘signifi-

cant nexus’ to waters that are or were navigable in fact

or that could reasonably be so made.” Jd. at 2236 (Ken-

nedy, J., concurring in the judgment); see 7d. at 2248. In

addition, Justice Kennedy concluded that the Corps’ as-

sertion of jurisdiction over “wetlands adjacent to

navigable-in-fact waters” may be sustained “by showing

adjacency alone.” Jbid. The four dissenting Justices,

who would have affirmed the court of appeals’ application

of the pertinent regulatory provisions, also concluded

that the term “waters of the United States” encom-

passes, inter alia, all tributaries and wetlands that satisfy

either the plurality’s standard or that of Justice Ken-

nedy. See 7d. at 2265-2266 & n.14 (Stevens, J., dissent-

ing).

3. This case arises out of a civil enforcement action

brought by the United States under the CWA. The gov-

ernment alleged that petitioners had violated the CWA

by discharging fill material into wetlands at three sites in

Carver, Massachusetts, to construct, expand, and main-

tain cranberry bogs. Pet. App. D8, D5-D8. The district

court entered summary judgment for the United States

on the issue of liability, 7d. at E1, and directed petition-

ers to perform restoration activities and pay a civil fine

of $75,000, id. at F1-F 2.

Petitioners moved to alter or amend the judgment

under Federal Rule of Civil Procedure 59(e), arguing

that the subject wetlands were not part of “the waters of

the United States” for purposes of the CWA. See Pet.

App. D3. The district court denied the motion, holding

that there was “a sufficient basis for the United States to

“seasonal rivers, wh'-’ contain continuous flow during some months of

the year but no flow © ing dry months.” 1265S. Ct. at 2221 n.5.

exercise jurisdiction,” given the “undisputed evidence”

that the subject waters were “hydrologically connected

to the navigable Weweantic River by nonnavigable tribu-

taries.” See ibid. (quoting district court opinion).

_ 4. The court of appeals affirmed. Pet. App. D1-D58.

The court concluded that the hydrological connection

between each of the three target sites and the Weweantic

River was sufficient to establish jurisdiction under the

Clean Water Act and to avoid constitutional issues under

the Commerce Clause. Jd. at D29-D44. Judge Torruella

dissented, finding that the United States “may not con-

stitutionally regulate wetlands that are neither them-

selves navigable nor truly adjacent to navigable waters.”

Id. at D55 (citation and internal quotation marks omit-

ted).

5. Petitioners sought rehearing en banc, and the

court of appeals held the rehearing petition in abeyance

in light of this Court’s grant of certiorari in Rapanos.

Pet. App. Cl. After this Court issued its decision in

Rapanos, the court of appeals in the instant case vacated

its original decision, issued a new opinion, and remanded

the case to the district court for further proceedings in

light of Rapanos. Id. at C1-C19. Based on its analysis of

the various opinions in Rapanos, id. at C4-C6, the court

of appeals “conclude{d] that the United States may as-

sert jurisdiction over the target sites if it meets either

Justice Kennedy’s legal standard or that of the plural-

ity,” zd. at C7.

In explaining that conclusion, the court of appeals

noted this Court’s statement in Marks v. United States,

430 U.S. 188 (1977), that, “[wJhen a fragmented Court

decides a case and nosingle rationale explaining the re-

sult enjoys the assent of five Justices, the holding of the

Court may be viewed as the position taken by those

Members who concurred in the judgments on the nar-

rowest grounds.” Pet. App. C10 (quoting Marks, 430

U.S. at 193). The court of appeals concluded that, for

purposes of Marks analysis, one ground of decision can

reliably be identified as “narrower” than another only

when the first rationale is a “logical subset” of the sec-

ond. /d. at C13 (quoting King v. Palmer, 950 F.2d 771,

781 (D.C. Cir. 1991) (en bane), cert. denied, 505 U.S. 1229

(1992)). The court further explained that “[t]his under-

standing of ‘narrowest grounds’ as used in Marks does

not translate easily to the present situation” because

“(t]he cases in which Justice Kennedy would limit federal

jurisdiction are not a subset of the cases in which the

plurality would limit jurisdiction.” Jd. at C14. The court

of appeals also observed that, “[s]ince Marks, several

members of [this] Court have indicated that whenever a

decision is fragmented such that no 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.” Jd. at C16-

C17.

The court of appeals concluded that “(t]he federal

government can establish jurisdiction over [wetlands] if

it can meet either the plurality’s or Justice Kennedy’s

standard as laid out in Rapanos.” Pet. App. Ci7. The

court explained that, because the four Rapanos dissent-

ers would find federal regulatory jurisdiction in any case

where either of those standards is satisfied, this ap-

proach “provides a simple and pragmatic way to assess

what grounds would command a majority of the Court.”

Id. at C14. The court of appeals remanded the case to

the district court for application of the standards set

forth in the Rapanos opinions, noting that “the district

court may conduct additional factfinding if it deems it

necessary.” Jd. at C17. The court observed that “the two

members of the majority [on the court of appeals panel]

each had different interpretations of the record,” and it

“urge[d] the parties and the district court to provide a

clear factual record in the context of applying the new

standards.” Jd. at C18.

Judge Torruella concurred in part and dissented in

part. Pet. App. C18-C19. He would have held that the

standard adopted by the Rapanos plurality “provides the

proper constitutional limit on federal regulation under

the Clean Water Act.” Jd. at C18.

ARGUMENT

Petitioners contend (Pet. 11) that the plurality opin-

ion in Rapanos, see 126 S. Ct. at 2225-2227, articulated

the “narrowest grounds” for the Court’s decision and is

therefore controlling in future cases under the principles

set forth in Marks. Petitioners seek review (see Pet. 7-

12) of the court of appeals’ holding that, if the wetlands

at issue in this case are found to satisfy the “significant

nexus” standard articulated in Justice Kennedy’s concur-

ring opinion in Rapanos, see 126 S. Ct. at 2241, those

wetlands are subject to federal regulatory jurisdiction

under the CWA, whether or not they also satisfy the plu-

rality’s standard. The court of appeals’ holding is correct

and does not conflict with any decision of this Court or of

another court of appeals. Further review is not war-

ranted.

1. As athreshold matter, this Court’s review is un-

warranted because of the interlocutory posture of the

case. The court of appeals did not apply this Court’s de-

cision in Rapanos to the wetlands at issue here, but in-

stead remanded the case to allow the district court to

perform that task in the first instance. Although peti-

tioners contend that the court of appeals’ remand order

announced an erroneous legal standard, this Court “gen-

erally await[s] final judgment in the lower courts before

exercising [its] certiorari jurisdiction.” Virginia Milt-

tary Inst. v. United States, 508 U.S. 946 (1993) (opinion

of Scalia, J., respecting the denial of the petition for a

writ of certiorari); see Brotherhood of Locomotive Fire-

men v. Bangor & Aroostook R.R., 389 U.S. 327, 328

(1967) (per curiam) (denying certiorari “because the

Court of Appeals remanded the case,” making it “not yet

ripe for review by this Court”).

If the district court on remand concludes that the

wetlands at issue in this case satisfy the Rapanos plural-

ity’s standard for CWA coverage (or that they satisfy

neither the plurality’s standard nor that of Justice Ken-

nedy), the aspect of the court of appeals’ decision that

petitioners find objectionable will have no practical im-

pact on the disposition of the case. If the courts below

ultimately conclude that the wetlands satisfy Justice Ken-

nedy’s standard but not that of the plurality, and if peti-

tioners are subjected to CWA liability on that ground,

petitioners can reassert their current challenge in a new

petition for a writ of certiorari. Adherence to this

Court’s usual practice of awaiting the entry of final judg-

ment is particularly appropriate here because no court

has yet applied the legal standards set forth in Rapanos

to the wetlands at issue in this case. The court of appeals

expressed concern, moreover, that the existing factual

record might be inadequate to that task, and it “urge[d]

the parties and the district court to provide a clear fac-

tual record in the context of applying the new stan-

dards.” Pet. App. C18. This Court’s intervention there-

fore would be premature at the current stage of the pro-

ceedings, even if the question presented otherwise war-

ranted review.

2. Petitioners contend (Pet. 4, 11) that, under this

Court’s decision in Marks, the plurality opinion. in

Rapanos established the controlling legal standard for

determining whether the CWA encompasses particular

wetlands. That argument lacks merit. .

a. Under a proper understanding of Rapanos, the

Corps and EPA may continue to exercise regulatory ju-

risdiction over any wetland that satisfies either the stan-

dard for CWA coverage adopted by the Rapanos plural-

ity or the standard set forth in Justice Kennedy’s concur-

rence. That is so because the four dissenting Justices in

Rapanos stated explicitly that they would sustain the

exercise of federal regulatory jurisdiction under the

CWA whenever either of those standards is satisfied.

See 126 S. Ct. at 2265-2266 & n.14 (Stevens, J., dissent-

ing). Thus, in all such cases, the agencies’ exercise of

regulatory jurisdiction would be consistent with the

views of a majority of this Court’s Members.

In Marks, this Court stated that, “[w]hen a frag-

mented Court decides a case and no single rationale ex-

plaining 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 judg-

ment{] on the narrowest grounds.’” 430 U.S. at 193

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976));

see pp. 6-7, supra. Taken in isolation, the Marks Court’s

reference to “those Members who concurred in the judg-

ment[]” might be read to suggest that lower courts, in

determining the precedential effect of a fractured deci-

sion of this Court, should ignore the views of dissenting

Justices. This Court has subsequently recognized, how-

ever, that in some cases the Marks test is “more easily

stated than applied to the various opinions supporting

the result,” Grutter v. Bollinger, 539 U.S. 306, 325 (2003)

(quoting Nichols v. United States, 511 U.S. 738, 745

(1994)), and has acknowledged that “{i]t does not seem

‘useful to pursue the Marks inquiry to the utmost logical

possibility’” in every case, ibid. (quoting Nichols, 511

U.S. at 745-746).

In some fractured decisions, the narrowest rationale

adopted by one or more Justices who concur in the judg-

ment may be the only controlling principle on which a

majority of the Court’s Members agree. In that situa-

tion, application of the rule announced in Marks provides

a sensible approach to determining the controlling legal

principles of the case. But in Rapanos, as in some other

instances, no opinion for the Court exists and neither the

plurality nor the concurring opinion is in any. sense a

“lesser-included” version of the other. ~

In those circumstances, the principles on which a ma-

jority of the Court agreed may be illuminated only by

consideration of the dissenting Justices’ views. The dis-

senting opinions, by emphasizing controlling legal princi-

ples on ‘which a majority of the.Court agrees, may

thereby contribute to an understanding of the law cre-

ated by the case. And once those principles have been

identified, sound legal and practical reasons justify a rule

that a lower federal court should adhere to the view of

the law that a majority of this Court has unambiguously

embraced. See Waters v. Churchill, 511 U.S. 661, 685

(1994) (Souter, J., concurring) (analyzing the points of

agreement among the plurality, concurring, and dissent-

ing opinions to identify the legal “test * * * that lower

courts should apply,” under Marks, as the holding of the

Court); ef. Abdul-Kabir v. Quarterman, 127 S. Ct. 1654,

1667, 1668-1669 n.15, 1671 (2007) (analyzing concurring

and dissenting opinions in a prior case to identify a legal

conclusion of a majority of the Court); League of United

Latin Am. Citizens v. Perry, 126 8S. Ct. 2594, 2607 (2006)

(same); Alexander v. Sandoval, 5382 U.S. 275, 281-282

(2001) (same); Wilton v. Seven Falls Co., 515 U.S. 277,

285 (1995) (same).*

Consideration of the dissenting Justices’ views is con-

sistent with the underlying purpose of the specific rule

announced in Marks, because it enables lower courts to

discern the governing rule of law that emerges from a

fractured decision of the Court. Cf. Rapanos, 126 S. Ct.

at 2236 (Roberts, C.J., concurring) (noting the need to

look to Marks in view of the absence of an opinion com-

manding a majority of the Court). The application of that

approach here leads inexorably to the conclusion that

regulatory jurisdiction exists whenever the legal stan-

dard of the plurality or of Justice Kennedy’s concurrence

is satisfied, since a majority of the Court’s Members

> Petitioners’ reliance (Pet. 14) on King v. Palmer, 950 F.2d 771, 783

(D.C. Cir. 1991) (en banc), is misplaced. In attempting to identify the

rule of law established by this Court’s fractured decision in Pennsylva-

nia v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711

(1987) (Delaware Valley II), the court in King stated that it “d[id] not

think [it was] free to combine a dissent with a concurrence to form a

Marks majority.” 950 F.2d at 783. That statement was dictum, how-

ever, since the court further determined that the approach to contin-

gency enhancements endorsed in the Delaware Valley I] concurrence

“cannot possibly be thought a subset of the dissent’s approach to the

same issue.” /d. at 784 n.7. The court in King concluded that it had

“done [its] best to apply Delaware Valley I] but ha[d] been unable to

derive a governing rule from the opinion.” Jd. at 785. In any event,

K:mg predates the decisions of this Court cited in the text, which have

analyzed concurring and dissenting opinions in prior cases to identify

rules of law endorsed by a majority of the Court.

would find jurisdiction in either of those instances. See

id. at 2265 (Stevens, J., dissenting).

b. Petitioners contend that the lower courts must

apply solely the standard set forth by the Rapanos plu-

rality, not that of Justice Kennedy, in determining

whether particular wetlands fall within the CWA’s cover-

age. In petitioners’ view, the Rapanos plurality’s stan-

dard states the “narrowest grounds” for the Court’s

holding, Pet. 4 (quoting Marks, 430 U.S. at 193), because

“the plurality standard is a ‘logical subset’ of [Justice]

Kennedy[’s] standard,” Pet. 11 (quoting Pet. App. C13).

That argument lacks merit.

Contrary to petitioners’ contention, the Rapanos plu-

rality’s standard for CWA coverage is not a “logical sub-

set” of Justice Kennedy’s standard. In Rapanos, five

Justices agreed that the judgments of the Sixth Circuit

in the consolidated cases under review should be vacated

and the cases remanded for further proceedings. See 126

S. Ct. at 2285 (plurality opinion); 7d. at 2252 (Kennedy, J.,

concurring in the judgment). The plurality concluded

that a remand was necessary because the court of ap-

peals had not determined, and the existing record pro-

vided an inadequate basis for deciding, whether the trib-

utaries at issue “contain[ed] a relatively permanent flow”

or whether the pertinent wetlands “possess[ed] a contin-

uous surface connection” to those tributaries. Jd.-at

2235. Justice Kennedy found a remand to be appropriate

because neither the Corps nor the lower courts in the

consolidated cases had addressed the question “whether

the specific wetlands at issue possess a significant nexus

with [traditional] navigable waters.” Jd. at 2252; see zd.

at 2250-2252.

Because neither of those grounds for decision is in-

herently narrower than the other, it is logically impossi-

ble to identify a consensus “narrowest” position among

the views of the Justices who concurred in the judgment.

Justice Kennedy observed that the plurality’s test “cov-

ers wetlands (however remote) possessing a surface-wa-

ter connection with a continuously flowing stream (how-

ever small),” 126 S. Ct. at 2246, and he indicated that at

least some such wetlands would not fall within the CWA’s

coverage as he construed the statute, see id. at 2246,

2249. As the court of appeals correctly recognized in the

remand order at issue here, that aspect of the Rapanos

concurrence suggests that there are certain cases in

which “the plurality’s jurisdictional test would be satis-

fied, but Justice Kennedy’s balancing of interests might

militate against finding a significant nexus.” Pet. App.

C14; see United States v. Gerke Excavating, Inc., 464

F.3d 723, 725 (7th Cir. 2006) (Gerke) (explaining that, in

“a rare case,” Justice Kennedy “would vote against fed-

eral authority only to be outvoted 8-to-1”), petition for

cert. pending, No. 06-1331 (filed Apr. 2, 2007).

Moreover, even if all wetlands satisfying the Rapanos

plurality’s standard for CWA coverage would also satisfy

Justice Kennedy’s “significant nexus” standard, petition-

ers would still be wrong in contending that the plurality’s

approach stated the “narrowest grounds” within the

meaning of the Marks rule. To the contrary, Justice Ken-

nedy’s concurrence would then state the “narrowest

grounds” because it would impose the least restrictive

limits on the exercise of regulatory authority. by the

Corps and EPA, and because it would reflect the narrow-

est disagreement with the judgments under review in

Rapanos and with the approach advocated by the four

dissenters. In Marks, the Court explained that the nar-

rowest ground for decision in Memoirs v. Massachusetts,

385 U.S. 413 (1966), was the rationale of the Memoirs

plurality, which allowed some government regulation of

obscene materials, rather than the “broader grounds”

urged by Justices Black and Douglas, who would have

held “that the First Amendment provides an absolute

shield against governmental action aimed at suppressing

obscenity.” Marks, 430 U.S. at 193. The Court in Marks

thus treated the rationale that imposed less sweeping

constitutional constraints on the government’s authority

to regulate obscenity (and that reflected the narrowest

disagreement with the judgment under review and with

the approaches advocated by the dissenters) as the nar-

rower grounds for the decision in Memoirs. Petitioners’

contrary suggestion—that the plurality opinion in

Rapanos must be deemed the narrowest grounds for the

judgment if it adopted the narrowest view of federal reg-

ulatory jurisdiction under the CWA— is thus inconsis-

tent with both the logic and the square holding of Marks

itself.

c. Petitioners contend (Pet. 4, 7-12) that the circuits

are divided with respect to the standard to be used in

identifying “the waters of the United States” in light of

. the various opinions in Rapanos. Contrary to petition-

ers’ contention, the First Circuit’s decision in this case

does not squarely conflict with any decision of another

court of appeals. In any event, the other courts of ap-

peals that have considered the issue have rejected the

proposition, advanced by petitioners in this case, that

wetlands satisfying Justice Kennedy’s legal standard but

not that of the Rapanos plurality fall outside the CWA’s

coverage.

Petitioners assert (Pet. 4, 7, 9) that the court of ap-

peals’ application of Marks principles to the various opin-

ions in Rapanos conflicts with the Seventh Circuit’s deci-

sion in Gerke. In remanding the government’s CWA en-

forcement action to the district court for further proceed-

ings in light of Rapanos, the Seventh Circuit in Gerke

stated that “Justice Kennedy’s proposed standard * * *

must govern the further stages of this litigation.” 464

F.3d at 725. The court observed 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), and in most cases in which he

concludes that there is no federal authority he will

command five votes (himself plus the four Justices in

the Rapanos plurality).

Ibid. The court recognized, however, that “a rare case”

may occasionally arise 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),” zbid.; see p. 14, supra, and it did not

specify what it regarded as the proper disposition of such

a case. The Seventh Circuit thus did not squarely reject

the view, adopted by the First Circuit in this case, that

federal regulatory jurisdiction under the CWA extends

to all wetlands that are covered by either the Rapanos

plurality’s standard or that of Justice Kennedy. In any

event, the decision in Gerke is flatly inconsistent with pe-

titioners’ contention that the Rapanos plurality’s stan-

dard provides the only controlling rule of law. _

Petitioners’ reliance (Pet. 4) on Northern California

River Watch v. City of Healdsburg, 457 F.3d 1023 (9th

Cir. 2006), is also misplaced. On August 6, 2007, after the

petition for a writ of certiorari in the instant case was

filed, the Ninth Circuit withdrew its original opinion in

City of Healdsburg and issued a new opinion in its place.

See Northern Cal. River Watch v. City of Healdsburg,

No. 04-15442, 2007 WL 2230186. In its new opinion, the

court stated that Justice Kennedy’s concurring opinion

in Rapanos constitutes “the narrowest ground to which

a majority of the Justices would assent if forced to choose

in almost all cases,” and that the Rapanos concurrence

“provides the controlling rule of law for our case.” Id. at

*6 (emphases added). The Ninth Circuit thus carefully

refrained from stating a categorical rule concerning the

import of the fractured opinions in Rapanos, and it did

not specifically discuss the proper resolution of a cover-

age dispute involving wetlands that satisfy the Rapanos

plurality’s standard but not Justice Kennedy’s. Analysis

of that question was unnecessary because the Ninth Cir-

cuit held that Justice Kennedy’s standard was satisfied

and that the wetlands at issue therefore were covered by

the CWA. See id. at *6-*7. Like the Seventh Circuit’s

decision in Gerke, moreover, the amended opinion in City

of Healdsburg provides no support for petitioners’ con-

tention that the Rapanos plurality’s standard constitutes

the sole controlling rule of law.

Thus, the First, Seventh, and Ninth Circuits all agree

that wetlands satisfying Justice Kennedy’s “significant

nexus” standard are covered by the CWA. In the instant

case, the First Circuit squarely held that the CWA also

encompasses wetlands that satisfy the Rapanos plural-

ity’s standard but not that of Justice Kennedy. See Pet.

App. C14 (explaining that, if the CWA term “waters of

the United States” were read to exclude such wetlands,

“there would be a bizarre outecome—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”). No other court of appeals has specifi-

cally addressed the proper treatment under Rapanos of

wetlands that satisfy the plurality’s standard but not that

of Justice Kennedy. But even if a circuit conflict existed

with respect to the CWA’s application to that category of

wetlands, the instant case would be an unsuitable vehicle

to resolve the question. That is so both because it is cur-

rently unclear whether petitioners’ own wetlands fall

within that category (see pp. 8-9, swpra), and because

petitioners agree with the United States that wetlands in

that category are covered by the CWA.

4. Petitioners contend that the “significant nexus”

standard in Justice Kennedy’s opinion “raises due pro-

cess concerns” because it provides insufficient guidance

to regulated parties. Pet. 14; see Pet. 14-17. Under set-

tled legal principles, however, petitioners can prevail in

such a challenge only by showing that the CWA term

“waters of the United States,” if construed in accordance

with Justice Kennedy’s “substantial nexus” standard,

would be unconstitutionally vague as applied to petition-

ers’ own conduct. See, e.g., United States v. Powell, 423

U.S. 87, 92-93 (1975); United States v. Mazurie, 419 U.S.

544, 550 (1975) (“It is well established that vagueness

challenges to statutes which do not involve First Amend-

ment freedoms must be examined in the light of the facts

of the case at hand.”); Broadrick v. Oklahoma, 413 U.S.

601, 608 (1973). Although petitioners assert (Pet. 17)

that the standard articulated in Justice Kennedy’s con-

currence “is sure to result in inconsistent and unpredict-

able applications” in future cases, petitioners make no

effort to demonstrate that the “significant nexus” stan-

dard is impermissibly vague as applied to the circum-

stances of this case. In any event, because no court has

yet applied the “significant nexus” standard to the

wetlands at issue here, this Court’s consideration of peti-

tioners’ due process claim would be premature.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.