Amicus Curiae Brief — Brace v. United States

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No. 94-1669 dU 5 - 1999

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In the arene ©

SUPREME COURT OF THE UNITED STATES

October Term, 1994

ROBERT BRACE AND ROBERT BRACE FARMS, INC..,

a Pennsylvania corporation,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF THE

ADIRONDACK BLUELINE CONFEDERATION,

ADIRONDACK SOLIDARITY ALLIANCE,

ALLEGHENY HARDWOOD UTILIZATION GROUP,

ALLIANCE FOR AMERICA,

AMERICAN ENVIRONMENTAL FOUNDATION,

AS AMICI CURIAE*

IN SUPPORT OF PETITIONEL.

Nancie G. Marzulla**

Lisa M. Jaeger

DEFENDERS OF

PROPERTY RIGHTS

6235 33rd Street, NW

Washington, DC 20015-2405

(202) 686-4197

June 6, 1995 Counsel for amici curiae

*Amici listing continued on next page.

**Counsel of Record

[CONTINUED FROM COVER]

BRIEF AMICI CURIAE OF

AMERICAN HOMEOWNERS FOUNDATION,

AMERICANS FOR TAX REFORM,

CITIZENS AGAINST REPRESSIVE ZONING,

CITIZENS FOR CONSTITUTIONAL PROPERTY RIGHTS,

CITIZENS FOR PRIVATE PROPERTY RIGHTS,

CITIZENS FOR RESPONSIBLE ZONING AND

LANDOWNER RIGHTS, INC.,

GORGE RESOURCE COALITION,

HARDWOOD LUMBER MANUFACTURING ASSOCIATION

OF PENNSYLVANIA,

HILL COUNTRY LANDOWNERS ASSOCIATION,

ILLINOIS AGRI-WOMEN,

MAINE RIGHTS LEGAL FOUNDATION,

MOBILE COUNTY LANDOWNERS ASSOCIATION,

MOLALLA TIMBER ACTION COMMITTEE,

NEW HAMPSHIRE LANDOWNERSASSOCIATION,

OREGONIANS IN ACTION LEGAL CENTER,

PENNSYLVANIA AGGREGATES AND

CONCRETE ASSOCIATION,

PENNSYLVANIA ASSOCIATION OF REALTORS,

PENNSYLVANIA COAL ASSOCIATION,

PENNSYLVANIA INDEPENDENT PETROLEUM PRODUCERS,

PENNSYLVANIA LANDOWNERS’ ASSOCIATION,

PENNSYLVANIA MINING PROFESSIONALS,

PEOPLE FOR THE WEST! ACCORD CHAPTER,

PUTTING PEOPLE FIRST,

RIVERSIDE AND LANDOWNERS PROTECTION

COALITION, INC.,

RURAL LANDOWNERS MUTUAL ASSISTANCE

ASSOCIATION,

STOP TAKING OUR PROPERTY,

UNIFIED SPORTSMEN OF PENNSYLVANIA,

WESTERN MINING COUNCIL,

WESTERN TRADITIONS COALITION,

WINNING AMERICA’S RIGHTS, and

DEFENDERS OF PROPERTY RIGHTS.

ii

pao trie oats i LE NY AS ITI II NT , TE HIRI S/n 5

II.

QUESTIONS PRESENTED

Whether the “normal farming activity” exemption under

Section 404(f) of the Clean Water Act must be construed

in a manner consistent with the Fifth Amendment man-

date that private property be protected?

Whether the Fifth Amendment requires government to

compensate a property owner where government actions

frustrate reasonable investment-backed expectations?

il

TABLE OF CONTENTS

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SAR I PEF Te as einciesivesgunsintttiavetienesniniaticeniawies iil

UI ENRAR YS COP ARTSUMIEING,. ...cccccussccecessssctcsevessevcnansansacee 10

ARGUMENT

I. THIS CASE INVOLVES AN IMPORTANT

CONSTITUTIONAL QUESTION THAT SHOULD

BE RESOLVED BY THIS COURT -- WHETHER

THE JUST COMPENSATION CLAUSE OF THE

FIFTH AMENDMENT REQUIRES THAT SEC-

TION 404(f) OF THE CLEAN WATER ACT BE

INTERPRETED AND ENFORCED IN A MANNER

THAT DOES NOT PROHIBIT NORMAL ACTIVI-

TIES BASIC TO THE BENEFICIAL AND PRO-

DUCTIVE USES OF PROPERTY AS PROTECTED

ee Ree SSO Fe ei icrneattsicacicnmnsnnbunticcionconnes 12

II. THIS COURT MUST ALSO DECIDE WHETHER

THE GOVERNMENT MAY UNILATERALLY

EXTINGUISH THE REASONABLE INVESTMENT-

BACKED EXPECTATIONS OF A WHOLE CLASS

FR? PRA RARE © AWW PUR accsccnencesesinnsssnaecsnansnsenssavas 16

aaa RAN chs titchlasinshcsscsinnsienlbinstansniandlactlinasqiineunidudssaasocseniamais 20

TORR TIENEN Nn GY ETS SORRENTO

ill

TABLE OF AUTHORITIES

CASES

Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994)................. 18

Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)... cece. 13,19

Florida Rock Indus., Inc. v. United States, 18 F.3d

1560 (Fed. Cir. 1994), cert. denied, 115 S. Ct. 898 (1995)............ 12

Loveladies Harbor, Inc. v. United States,

Be Toe COTE CP, BE, Bionic ioveesisinn ce 12, 18

Loretto v. TelePrompter Manhattan CATV Corp.,

SPE Ai Ge ai silins Gisernesciiellasisicnkba baaierdineghee declare tS > i2

Lucas v. South Carolina Coastal Council, 112 S. Ct.

Pic dacsieain gidiaiaciamg ce nt ie ere 13

Penn Central Transp. Co. v. New York City,

A GR. BA iatisteinsrnssstalnictinnnibienlghedgateaee ei tet er 11, 16

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922)......0....00... 16

Preseault v. Interstate Commerce Comm’n,

ke ME SARS Wraparae yen oe emir eon ee Ce NE 19

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)...c.ccccccceee. 16, 17

United Nuclear Corp. v. United States,

Pe ae PU Ae Smt Shadi dictissbivantavitteserabbiaeracc nstedice ca eais 17

United States v. General Motors Corp., 323 U.S.

Ber i ieisiiclsionisiibadeaiaciduiitniininbantas iad wage ert 13

iV

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

RR ERE I art SRS RI Stel ST ee ne pre 16

Yancey v. United States,

ee eG FRc cinceneusnvasneusinsbesceneonsennsecsddoussiaselbuntvel 18

UNITED STATES CONSTITUTION

Bs Es MEINE. Wessatvanseesncnsccinisiarsectinsrsbane saveninaniee passim

UNITED STATES STATUTES

Pe UE PIE BU A nicovtidanecirasividinwici vss esviiciebiobspiviadiihdantiaianaiaaiea i4

ence, AE aE 8 Ic Pnstaie.diesemsialaicickcermneshenanaceseiaeateisaivahanimeaiaiiniinieniniin i4

UNITED STATES LEGISLATIVE HISTORY

136 Cong. Rec. $5643 (daily ed. Apr. 18, 1990)

UE AU DUN: SEIU cninns:sccvenecounciiniasendcenioanseytniceimnstiombaaiaiibiin 15

MISCELLANEOUS

Economic Research Serv., U.S. Dep't of Agric., Pub. No.

ECIFS- 13-1, Economic Indicators of the Farm Sector,

National Financial Summary (1993)................cccceceescseeseneceeseeeeees 14

U.S. Census Bureau, Statistical Abstract of the United States,

Industries of the Total Food and Fiber System

fe, A RR Ra RRR RRO INRA TEN Pu EOE Ea 14

Roger Marzulla, Presumed Guilty: Wetlands Criminal Pros-

ecutions, in Farmers, Ranchers and Environmental Law,

re NE Ne OEE, Fe Risentinscincinscnnrasevmnensimnaneiann 13

No. 94-1669

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

ROBERT BRACE AND ROBERT BRACE FARMS, INC.,

a Pennsylvania corporation,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF THE

ADIRONDACK BLUELINE CONFEDERATION,

ADIRONDACK SOLIDARITY ALLIANCE,

ALLEGHENY HARDWOOD UTILIZATION GROUP,

ALLIANCE FOR AMERICA,

AMERICAN ENVIRONMENTAL FOUNDATION,

AMERICAN HOMEOWNERS FOUNDATION,

AMERICANS FOR TAX REFORM,

CITIZENS AGAINST REPRESSIVE ZONING,

CITIZENS FOR CONSTITUTIONAL PROPERTY RIGHTS,

CITIZENS FOR PRIVATE PROPERTY RIGHTS,

CITIZENS FOR RESPONSIBLE ZONING AND

LANDOWNERS RIGHTS, INC.,

?

oo

GORGE RESOURCE COALITION,

HARDWOOD LUMBER MANUFACTURING ASSOCIATION

OF PENNSYLVANIA,

HILL COUNTY LANDOWNERS ASSOCIATION,

ILLINOIS AGRI-WOMEN,

MAINE RIGHTS LEGAL FOUNDATION,

MOBILE COUNTY LANDOWNERS ASSOCIATION,

MOLALLA TIMBER ACTION COMMITTEE,

NEW HAMPSHIRE LANDOWNERSASSOCIATION,

OREGONIANS IN ACTION LEGAL CENTER,

PENNSYLVANIA AGGREGATES AND

CONCRETE ASSOCIATION,

PENNSYLVANIA ASSOCIATION OF REALTORS,

PENNSYLVANIA COAL ASSOCIATION,

PENNSYLVANIA INDEPENDENT PETROLEUM PRODUCERS,

PENNSYLVANIA LANDOWNERS ASSOCIATION,

PENNSYLVANIA MINING PROFESSIONALS,

PEOPLE FOR THE WEST! ACCORD CHAPTER,

PUTTING PEOPLE FIRST,

RIVERSIDE AND LANDOWNERS PROTECTION

COALITION, INC.,

RURAL LANDOWNERS MUTUAL ASSISTANCE

ASSOCIATION,

STOP TAKING OUR PROPERTY,

UNIFIED SPORTSMEN OF PENNSYLVANIA,

WESTERN MINING COUNCIL,

WESTERN TRADITIONS COALITION,

WINNING AMERICA’S RIGHTS, and

DEFENDERS OF PROPERTY RIGHTS.

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

IDENTITIES AND INTERESTS OF AMICI CURIAE

Adirondack Blueline Confederation (Gloversville, NY) is a

citizens’ group working for the preservation of property

rights, especially in the Adirondack Park of New York.

Adirondack Solidarity Alliance (Crown Point, NY) was

created to respond to state legislation that would further

regulate private property in the Adirondack region. Its four

chapters educate the community about the importance of

property rights, and offer assistance to residents who are

having trouble complying with the Adirondack Planning Act.

Allegheny Hardwood Utilization Group, Inc. (Kane, PA) is

a coalition of loggers, foresters, sawmills, related forest

industries, allied organizations, businesses, and government

agencies working together to educate and inform individuals

in the promotion of the forestry industry within Pennsylvania.

AHUG initiates and supports programs, discussion, and

legislation to protect the hardwoods industry.

Alliance for America (Gloversville, NY) is a fifty-state

network of over 500 independent, grassroots property rights

organizations whose collective membership represents

millions of individual property owners across the country.

Alliance groups cover the full spectrum of property rights

interests including farming, grazing, forestry, fishing, mining,

recreation, energy, and animal welfare.

American Environmental Foundation, Inc. (Navarre, FL)

believes that the environment can be protected without

compromising constitutional protections of property rights.

AEF’s founder Ocie Mills and his son were imprisoned for

twenty-one months for allegedly disturbing a wetland. A

federal judge later ruled that the parcel of dry land may have

been improperly designated as a wetland.

4

American Homeowners Foundation (Arlington, VA) is an

education and research organization serving the nation’s

sixty-five million homeowners and millions of future

homeowners. AHF is dedicated to making home ownership

possible for non-owners, helping homeowners in need,

protecting home values and ownership tax incentives, and

helping home purchasers make informed decisions.

American Loggers Solidarity (Forks, WA) is a broad-based

organization comprised of individuals, small businesses,

corporations, and elected officials at the city, county, and

State levels in seven states. ALS believes that the sanctity of

individual rights as provided in the United States Constitu-

tion must be protected by elected officials, bureaucracies, and

the judicial system.

Americans for Tax Reform (Washington, DC) is a coalition

of individuals, taxpayer groups, and businesses dedicated to

the principle of a limited government. They are concerned

with federal tax policy and oppose increased taxation.

Citizens Against Repressive Zoning (Haslett, MI) works to

curb abuses of zoning practices in counties, cities, villages,

towns, townships, and parishes.

Citizens for Constitutional Property Rights, Inc.

(Crestview, FL) is a statewide organization purposed to

secure private property guarantees provided in the Bill of

Rights. CCPR engages in public advocacy projects that

foster an awareness of governmental programs that violate

the United States Constitution by eroding private property

rights.

Citizens for Private Property Rights, Inc. (Sullivan, MO)

is a nonprofit, grassroots organization dedicated to the de-

fense and preservation of property rights and constitutional

rights in general.

5

Citizens for Responsible Zoning and Landowner Rights,

Inc. (Maiden Rock, WI) is comprised of farmers, landowners

and businesspeople. The organization provides a forum to

educate and inform the government of its responsibility to

protect both ile environment and the constitutional rights of

its citizens.

Environmental Conservation Organization (Hollow Rock,

TN) is a national organization of landowners and landowner

associations working to balance environmental protection

with economic vitality. Its membership includes individuals,

businesses, and over 600 local, regional, state, and national

organizations that work at the grassroots level.

Gorge Resource Coalition (Odell, OR) is a coalition of over

100 organizations. Primarily concerned with regulations

affecting the Columbia River Gorge area, it is active at the

local, state, and national levels to support private property

rights, environmental stewardship, and less regulation.

Hardwood Lumber Manufacturing Association of Penn-

sylvania (Lebanon, PA) is committed to ensuring the viabil-

ity of the timber resource and timber and forest products

industry of Pennsylvania in the interest of achieving a healthy

environment, sustainable forest base, and strong economy.

Hill Country Landowners Association (Georgetown, TX)

was formed in response to plans to designate a 30,000-acre

endangered species habitat in the State of Texas. The Coali-

tion opposes enlarging of the authority of unelected officials

because they are not subject to voter approval and their

decisions can be remedied only through litigation.

Nliinois Agri- Women (LaMoille, IL) is an organization of

farm and agri-businesswomen promoting a better understand-

ing of agriculture and the family farm system. They promote

agriculture for the benefit of the American people.

6

Maine Rights Legal Foundation (Lubec, ME) engages in

litigation in support of the broad public interest of the citi-

zens of Maine and across the nation in the support of the

continuation of private property rights as guaranteed under

the United States and Maine Constitutions.

Mobile County Landowners Association (Mobile, AL) is a

volunteer-staffed organization representing the interests of

private property owners in the county on issues ranging from

local zoning to the Endangered Species Act. Members attend

county Commission meetings, monitor state legislation, and

maintain ties with national property rights organizations.

Molalla Timber Action Committee (Molalla, OR) was

organized to counter efforts to halt natural resource produc-

tion on federal lands. MTAC believes that forests can be

managed without destroying the ecosystem or the economy.

New Hampshire Landowners Association (Campton, NH)

is a statewide organization founded to foster the conservation

of natural resources in a manner consistent with constitution-

ally-guaranteed property rights. NHLA participates in legal

action that affects the direct interest of its approximately

2,000 members or that broadly affects public policy.

Oregonians In Action Legal Center (Tigard, OR) is a

nonpartisan, nonprofit public interest organization involved

in litigation to protect the constitutional rights of landowners

and counter excessive uses of regulation. OIA-LC success-

fully represented the plaintiff in the United States Supreme

Court case of Dolan v. Tigard, 114 S. Ct. 2309 (1994).

Pennsylvania Aggregates and Concrete Association (Har-

risburg, PA) is a trade association with over 250 member

companies. PACA represents the sand, gravel, quarry,

cement, slag ready-mix and concrete industries in the state.

7

Pennsylvania Association of REALTORS (Harrisburg, PA)

is a nonprofit association representing over 25,000 members.

The vast majority of its members are licensed independent

real estate brokers and salespeople. One of the association's

objectives is to protect the right to own and use private

property.

Pennsylvania Coal Association (Harrisburg, PA) represents

forty-six major producers of bituminous coal and nearly 100

companies in allied industries. The primary goals of the PCA

are to offer common sense alternatives to legislative and

regulatory decisions that affect coal operations and to com-

municate the continuing value of the coal industry.

Pennsylvania Independent Petroleum Producers Associa-

tion, Inc. (Seneca, PA) is a nonprofit corporation founded to

influence current and future oil and gas regulation within

Pennsylvania that erodes property nights.

Pennsylvania Landowners’ Association (Waterford, PA)

was formed to educate property owners about the threat to

their property rights and personal freedom posed by increas-

ingly intrusive regulations on land use, to generate public

debate, and to develop and implement a strategy to restore

reason and balance in environmental regulation.

Pennsylvania Mining Professionals (Harrisburg, PA) is a

commonwealth-wide group of engineers, surveyors, chem-

ists, hydrogeologists, biologists, chemists, soil scientists, and

technicians dedicated to applying science and technology to

resource recovery and environmental protection.

People for the West! ACCORD Chapter (Phoenix, AZ) is a

grassroots organization created to support western communi-

ties against overreaching government. Its membership

believes that people who own and depend on the land make

the best stewards of the environment and that mankind has

the ability to solve environmental problems through scientific

means.

8

Putting People First (Hélena, MT) is a nonprofit organiza-

tion of citizens who believe in Western Civilization and

support a return to common sense in man’s relationship with

nature and to his fellow man; and believe that public policy

should be based on science and rationality.

Riverside and Landowners Protection Coalition, Inc.

(Boerne, TX) represents Texas citizens who own and operate

ranches and farms. The Coalition is committed to educating

the general public about the importance of respecting consti-

tutional guarantees of the right to own and make reasonable

use of private property. They also work with Texas legisla-

tors and state agencies to further protect these rights.

Rural Landowners Mutual Assistance Association

(Davisville, MO) is an organization of landowners in the

Missouri Ozarks region who are opposed to the intrusion of

federal and state agencies on their constitutional property

rights through the application of rules and regulations.

Stop Taking Our Property (Chesterton, IN) is comprised of

300 farm families who live along the Salt Creek and Little

Calumet Rivers in Porter County, Indiana. These families

have been adversely affected for years by applications of

Section 404 of the Clean Water Act. Members of STOP

believe that government should be bound by constitutional

protections of private property when it regulates land use.

Unified Sportsmen of Pennsylvania (Harrisburg, PA) is a

Statewide, grassroots organization dedicated to the promotion

of safe and sensible hunting, fishing, trapping, and shooting

sports. It is active in state government and supports a bal-

anced approach to wildlife management taking both the

needs of animals and humans into consideration.

Western Mining Council (Los Angeles, CA) seeks to protect

the property interests and constitutional rights of small

business miners. WMC strongly supports reversing the trend

of government taking private property without just compen-

sation.

9

Western Traditions Coalition (Denver, CO) is dedicated to

preserving the rights and heritage of citizens who believe in

the wise use of animals for human benefit. WTC endorses

the philosophy of ownership and protection of private

propert, and that the multiple use of private lands provides a

balanced economic and ecologic benefit for everyone.

Winning America’s Rights (Reno, NV) is an umbrella

organization that acts as a sounding board for issues and

ideas affecting federal legislation. The goal of the organiza-

tion is to raise public awareness of issues like property rights,

overregulation, and unfunded federal mandates.

Defenders of Property Rights (Washington, DC) is the

nation’s only legal defense foundation devoted exclusively to

protecting private property rights. Its mission is to protect

rights considered essential by the framers of the United States

Constitution and to promote a better understanding of the

integral relationship between private property rights and

individual rights and liberties. Defenders engages in litiga-

tion across the nation aff>cting the public interest and the

private property rights of its membership. Defenders has

devoted a significant portion of its resources to the issue of

regulatory takings and has participated in Lucas v. South

Carolina Coastal Council, 112 S. Ct. 2886 (1992), Dolan v.

City of Tigard, 114 S. Ct. 2309 (1994) and Babbitt v. Sweet

Home Chapter of Communities for a Great Oregon, No. 94-

859 (U.S. argued April 17, 1995) when these cases were

before this Court.

10

SUMMARY OF ARGUMENT

This case presents a classic example of a federal regula-

tory program operating wholly outside the demands of the

Constitution and as a result often destroying the historic and

productive uses of private property. The facts of this case tell

a compelling story of hardship and inequities foisted upon an

individual property owner, the Petitioner. The larger picture is

of countless individual property owners all across the country

in a variety of contexts being singled out to bear the cost of

achieving a wetland policy requiring the setting aside of

millions of acres of private land as wetland reserves, often

without payment of compensation to the property owner.

What makes this case particularly egregious is that the

use of the property engaged in by the Petitioner and now

forbidden by the Army Corps of Engineers (Army Corps) is

an activity that Congress expressly exempted from regulation

in the Clean Water Act, Section 404(f). Moreover, the land

delineated as wetland by the government has been histori-

cally used, since at least the 1930’s by the Brace family, for

pasture and crop production. The Petitioner purchased the

farmland from his father in 1975 with the intention of con-

tinuing the historic, productive use of that land and keeping

the farming operation within the Brace family. When he

purchased the property, the Petitioner was aware that the

existing drainage system, which integrated the now-regulated

thirty-acre parcel with other portions of the farm, needed

upgrading. Moreover, due to the clogged drainage system,

the regulated parcel was in poor condition and thus by then

only partially utilized for crop production.

So in 1976 and 1977, Petitioner cleared clogged drains

and replaced old and broken tiling in order to make the

drainage system fully functional for the entire farm. The

United States Agricultural Stabilization and Conservation

1]

Service (ASCS) drew up the original plan for the drainage

System and Petitioner continued to work Closely with that

agency for the next eight years, from 1977 to 1985. In 1986

and 1987, the Petitioner continued improvements to the

drainage system, cleared the parcel of existing vegetation and

prepared it for crop production. In 1987 and 1988, both the

Environmental Protection Agency (EPA) and the Army Corps

ordered the Petitioner to cease all activity and to allow

indigenous vegetation to grow on the parcel, arguing that the

activity he was conducting on his property was beyond the

scope of “normal farming activity” allowed under Section

404(f) of the Clean Water Act.

Specifically, the Petitioner was told that he can no longer

grow crops on the thirty acres which his family has farmed

for decades. Nor can he continue to maintain the decades-old

drainage system which services the entire 137-acre farm. As

a result, the Petitioner’s farming operations are jeopardized.

The court below clearly erred when it concluded that the

Petitioner’s farming activities were outside the scope of

Section 404(f). In so ruling, the court below patently vio-

lated the language of the provision which on its face exempts

“normal farming activity.” Applied elsewhere, the ruling

below could result in the regulatory shutting down of mil-

lions of productive and historic uses of agricultural property.

All across the United States there are farmers, just like the

Petitioner in this case, who are making reasonable, invest-

inent-backed decisions regarding the use of their land in

reliance on Section 404(f) which purports to exempt “normal

farming activity.” Destruction of these investment-backed

expectations directly implicates the duty of the government

to compensate the property owner. Penn Central Transp. Co.

v. New York City, 438 U.S. 104 (1978).

Therefore, it is clear that the court below did not consider

the Fifth Amendment ramifications of its decision which

12

could potentially require the federal government to compen-

sate thousands of similarly situated farmers across the United

States. See, e.g., Florida Rock Indus., Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 115 S. Ct. 898

(1995)(government to compensate property owner for the

denial of wetlands permit to mine limestone) and Loveladies

Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir.

1994)(government to compensate property owner for the

denial of a wetlands permit to develop property).

Accordingly, this Court should grant the Petition re-

quested in this case and reverse the decision of the court

below as being inconsistent with the intent of Congress in

adopting the Section 404(f) agriculture exemption and with

the Fifth Amendment which requires that property owners be

compensated for the taking of their property.

ARGUMENT

I. THIS CASE INVOLVES AN IMPORTANT

CONSTITUTIONAL QUESTION THAT SHOULD

BE RESOLVED BY THIS COURT — WHETHER

THE JUST COMPENSATION CLAUSE OF THE

FIFTH AMENDMENT REQUIRES THAT SECTION

404(f) OF THE CLEAN WATER ACT BE

INTERPRETED AND ENFORCED IN A MANNER

THAT DOES NOT PROHIBIT NORMAL

ACTIVITIES BASIC TO THE BENEFICIAL AND

PRODUCTIVE USES OF PROPERTY AS

PROTECTED BY THE CONSTITUTION.

The property rights protections of the Fifth Amendment

include the rights “to possess, use & dispose” of private

13

property. Loretto v. TelePrompter Manhattan CATV Corp.,

458 U.S. 419, 435 (1982): United States v General Motors

Corp., 323 U.S. 373, 378 (1945). Where government at-

tempts to prohibit normal, well-established uses of private

property, without providing compensation to the property

Owner, it risks running afoul of these important constitutional

guarantees. In Lucas v. South Carolina Coastal C ouncil, 112

S. Ct. 2886, 2901 (1992), this Court held that regulatory

prohibitions of such ordinary uses as farming must be consid-

ered in the context of the historic use of the property and

Surrounding area, stating that “the fact that a particular use

has long been engaged in by similarly situated owners ordi-

narily imports a lack of any common-law prohibition. .. .”

See Dolan v. City of Tigard, 114 S. Ct. 2309 (1994). Farming

in general is a common and historic use of private property,

and is specifically a historic use of the regulated land at issue

in this case, and as such, that use cannot be infringed or

destroyed by government with impunity. See Lucas, 112 S.

Ct. 2886 (1992). Nevertheless, the Respondent interpreted its

authority to regulate the use of private property under Section

404 of the Clean Water Act in blatant disregard of the prop-

erty Owner's constitutional right to continue the farming

Operations in place for decades.

In applying a twisted reading of the phrase “normal

farming activity,” the court below has sanctioned the

Petitioner’s loss of all right to make reasonable, beneficial,

and productive use of his property as guaranteed by the Fifth

Amendment.! Petitioner cannot utilize the drainage system

| It should be further noted that the interpretation by the court below of

Section 404(f) makes criminal activity out of the only economically

viable use of the Petitioner's property and, likewise, of thousands of other

farmers similarly situated. See Roger Marzulla, Presumed Guilty:

Wetlands Criminal Prosecutions, in Farmers, Ranchers and Environmen-

tal Law, 39-76 (Roger Clegg ed., 1995). Mr Brace now faces the

possibility of hundreds of thousands of dollars in penalties, which may be

assessed upon remand to the district court.

14

installed by his grandfather which he painstakingly refur-

bished and maintained over a period of more than ten years

and which is necessary for crop production on the parcel and

is integrated with the entire farm. Without proper drainage,

the property cannot be used for agricultural production — the

sole historic use of the property.

As Section 404(f) reflects, Congress never intended to

interrupt the nation’s agricultural production when it adopted

the Clean Water Act. The language of the provision could

not be clearer: “normal farming activity” is allowable under

the Act.2 Under this exemption, a farmer should be allowed

to continue farming his property regardless of the hydrology,

soil characteristics and vegetation of the property and the

potential that in fact the land could be designated as “wet-

land.” Clearly Congress recognized the importance of the

agricultural industry to our nation’s well-being. Farmers are

responsible for the production of food and fiber for the

citizens of this country. Production agriculture (the output of

goods and services by farms and ranches) totaled $188 billion

in 1993, approximately three percent of the gross domestic

product. Economic Research Serv., U.S. Dep’t of Agric., Pub.

No. ECIFS- 13-1, Economic Indicators of the Farm Sector,

National Financial Summary (1993). From farm to table,

farm products in 1993 were responsible for sixteen percent of

the gross domestic product and twenty-two million jobs,

eighteen percent of the workforce. U.S. Census Bureau,

Statistical Abstract of the United States, Industries of the

Total Food and Fiber System (115th ed. 1995).

Over the life of the wetlands regulatory program, Con-

gress has often reiterated its intent that the Act be construed

in a manner that would not prohibit America’s farmers from

2 The exemptions applicable to the present case, which preclude the

necessity of asking permission of the government to conduct enumerated

activities, include “normal farming” and the “maintenance of drainage

ditches.” 33 U.S.C. § 1344(f(1)(A),(C).

15

earning a living. 3

One vital aspect of farm production is proper drainage of

agricultural land, which is allowed as part of the agriculture

exemption of the Clean Water Act. Drainage and irrigation

are an integral part of a long range program to balance

production with conservation of resources so that the land is

productive for generations to come. The decision of the court

below, which disallows drainage of the Petitioner’s property,

flies in the face of the clear congressional scheme by separat-

ing out this inseparable aspect of farming.

In the same way that Congress did not intend that farmers

be precluded from engaging in normal agricultural activities,

surely the framers of our Constitution did not intend that

there be wholesale destruction of beneficial and productive

uses of land. When such uses of private property are prohib-

ited, the fundamental principle ungerlying the protection of

property rights is nullified merely to realize some momentary

regulatory goal. Regulatory programs that result in the

wholesale elimination of private property rights, no matter

how laudable, cannot be countenanced. As Justice Marshall

observed in the landmark decision of this Court in Loretto v.

TelePrompter Manhattan CATV C orp., 458 U.S. 419, 439

(1982): “[T]he government does not have unlimited power to

redefine property rights.”

3 For example, Representative Breaux stated that:

it is important that our farmers, many of whom have never

previously been affected by the complex regulatory program

under Section 404, be well-informed and be assured that

continuing their normal farming practices will not require new

burdens or subject them to potential violations of federal law

136 Cong. Rec. $5643, 5648 (daily ed. Apr. 18, 1990) (statement of Rep.

Breaux).

16

Il. THIS COURT MUST ALSO DECIDE WHETHER

THE GOVERNMENT MAY UNILATERALLY

EXTINGUISH THE REASONABLE INVESTMENT-

BACKED EXPECTATIONS OF A WHOLE CLASS

OF PROPERTY OWNERS.

This Court has long recognized that frustration of distinct,

investment-backed expectations by government regulation is

a critical component of the regulatory takings compensation

analysis. In Penn Central Transportation Co. v. New York

City, 438 U.S. 104, 127 (1978), Justice Brennan stated that

“Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) is the

leading case for the proposition that a state statute that sub-

stantially furthers important public policies may so frustrate

distinct investment-backed expectations as to amount to a

‘taking.’” In Penn Central, Justice Brennan further upheld

the concept of interference with investment-backed expecta-

tions as a critical factor in the takings analysis. This focus on

the reasonable investment-backed expectations of the prop-

erty owner has later determined the outcome in several of this

Court’s leading takings cases.

In Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), for

example, the plaintiff alleged that EPA’s public disclosure of

confidential material gave away valuable trade secrets. The

information had been submitted by Monsanto to EPA in order

to register a pesticide under the Federal Insecticide, Fungi-

cide, and Rodenticide Act (FIFRA). In assessing whether

plaintiff had an expectation that this information would be

kept secret, the Court wrote that “|a] ‘reasonable investment-

backed expectation’ must be more than a ‘unilateral expecta-

tion or an abstract need.’”” /d. at 1005-06 (quoting Webb's

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161

(1980)). Under this definition, this Court found that between

17

the years 1972 and 1978, “the Federal Government had

explicitly guaranteed to Monsanto and other registration

applicants an extensive measure of confidentiality and exclu-

sive use. This explicit governmental guarantee formed the

basis of a reasonable investment-backed expectation.” /d. at

1011. On these grounds, the Monsanto Court found a taking.

Government interference with investment-backed expec-

tations also resulted in a taking in United Nuclear C Orp. V.

United States, 912 F.2d 1432 (Fed. Cir. 1990). Plaintiffs

there signed a lease to mine uranium on the Navajo Indian

reservation and then spent more than $5 million on explora-

tion. This led to the knowledge that a sizable amount of

uranium lay in the leased area. United then applied for the

necessary permits. Although United met the technical re-

quirements, the United States withheld the permits to mine

on the grounds that the Navajo tribe had not approved the

mining plan. The permit delay caused the lease to lapse and

the Navajos kept all lease bonuses, rents and royalties.

The federal circuit found that the government’s new

policy of allowing the tribe to veto ratified leases “seriously

interfered with United’s investment-backed expectations by

destroying them.” /d. at 1437. The court recognized that

expectations may be frustrated by future regulations but that:

The fact that United agreed that the leases would be

subject to future regulations does not indicate that

United fairly can be said to have anticipated that the

Secretary would apply a new policy requiring tribal

approval of mining plans to leases entered into almost

six years earlier, in reliance on which United had

expended some $5 million.

18

Id. at 1436. See also Yancey v. United States, 915 F.2d 1534,

1539-40 (Fed. Cir. 1990)(government-mandated quarantine

of turkeys interfered with plaintiff's investment-backed

expectations to sell the flock out of state).

The federal circuit has also held that destruction of

reasonable investment-backed expectations in the context of

wetlands regulations can violate the Fifth Amendment. In

Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994),

landowners designed and began a land reclamation project

under the approval of the Army Corps of Engineers. The

EPA then modified the plan, which “eliminated the landown-

ers’ expectation of land reclamation, causing the property’s

value to plummet.” /d. at 632. As a result, the court con-

cluded that a taking had occurred. In another recent case,

Loveladies Harbor, Inc. y. United States, 28 F.3d 1171 (Fed.

Cir. 1994), property owners were awarded compensation for

the taking of their property, which became subject to wet-

lands regulation after they purchased it for development.

Assessing the expectations of the property owners, the court

pointed out:

It is important to note that Loveladies purchased the

property with the intent to develop it long before

these particular state and federal regulatory programs

came into effect. Furthermore, the state did not

include in its original conditions for development of

the property any restrictions on the filling of the 12.5

acres at issue here. The fill restrictions did not arise

until long after the development project was under-

taken.

Id. at 1183.

Ai se ena a ie

19

In the instant case, Petitioner had likewise reasonably

relied on the government’s explicitly exempting from the

Section 404 permitting program “normal farming activities”

including “drainage” of his farm land. Because of the clear

wording of Section 404(f) and the government's consistent

interpretation of that provision and approval of his activities,

Brace had no reason to anticipate that the federal government

would suddenly render his activities unlawful, thereby wip-

ing out his long-term and costly expenditures. However, not

only has the decision of the court below frustrated

Petitioner’s reasonable investment-backed expectations,

applied elsewhere, the decision may potentially destroy the

expectations of farmers all across the country. In short, the

implications of the decision below are staggering.

And while this Court has often stated that the Fifth

Amendment does not bar the government from taking private

property rights, Preseault v. Interstate Commerce Comm'n,

494 U.S. 1 (1990), surely the framers of our Constitution

could not have envisioned that the government would engage

with impunity in wholesale destruction of private property

rights resulting in the potential payment of millions of dollars

as Compensation for the takings. Indeed, the Fifth Amend-

ment, unless it is to forever “be relegated to the status of a

poor relation” vis-a-vis other constitutionally-protected

rights, Dolan y. City of Tigard, 114 S. Ct. 2309, 2313 (1994),

must at a minimum, require the government to consider the

property rights at stake before it adopts a policy involving a

sweeping disregard of those rights.

20

CONCLUSION

In order to ensure that the Respondent's interpretation of

Section 404(f) not be applied in a manner which continues to

“redefine” private property rights out of existence, it is

—~_....._ important that this regulatory provision be construed in a

manner consistent with the Fifth Amendment. Accordingly,

these amici urge this Court to grant the requested Petition and

issue the Writ of Certiorari.

Respectfully submitted,

Nancie G. Marzulla*

Lisa M. Jaeger

DEFENDERS OF

PROPERTY RIGHTS

6235 33rd Street, N.W.

Washington, D.C. 20015

202-686-4197

*Counsel of Record

June 6, 1995