Amicus Curiae Brief — Brace v. United States

/

No. 94-1669 / YUNG 1980]

Su the —

Supreme Court of the United States

OCTOBER TERM, 1994

ROBERT BRACE AND ROBERT BRACE FARMS, INC.,

a Pennsylvania corporation, Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

FARM BUREAU FEDERATION, NEW YORK

FARM BUREAU, INC., AND PENNSYLVANIA

FARM BUREAU IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER TIMOTHY S. BISHOP

General Counsel Counsel of Record

RICHARD L. KRAUSE MICHAEL F. ROSENBLUM

Assistant Counsel ROBERT M. Dow, Jr.

American Farm Bureau Mayer, Brown & Platt

Federation 190 South LaSalle Street

225 Touhy Avenue Chicago, Illinois 60603

Park Ridge, Illinois 60068 (312) 782-0600

(708) 399-5700

Counsel for Amici Curiae

{Additional counsel listed on signature page]

BEST AVAILABLE COPY

a»

bce aay

QUESTIONS PRESENTED

Amici will address the following questions:

1. Whether the court of appeals’ narrow construction

of the “normal farming” exemption set out in section

404(f) of the Clean Water Act, and its expansive con-

struction of that section’s “recapture” provision, fail to

comport with the statute or its implementing regulations.

2. Whether the court of appeals’ misconstruction of

section 404(f) imposes intolerable burdens on farmers

that Congress did not intend.

ll

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ....... ]

SUMMARY OF ARGUMENT ............ 3

ROT a a's Ke COREE 2

I. THE THIRD CIRCUIT’S CONSTRUCTION

OF SECTION 404(f) DOES NOT COMPORT

WITH THE TEXT OF THE STATUTE OR

ITS IMPLEMENTING REGULATIONS ... 5

A. Congress Specifically Amended Section

404 To Exempt Ordinary Farming Activi-

ties From The Burdensome CWA Permit

re ee re er ae 6

B. Application Of The Normal Farming Ex-

emption Requires A Contextual Analysis

Of The Total Activities Of A Farming

COO «<0 a ewe ee ee 8

Il. THE THIRD CIRCUIT’S MISCONSTRUC-

TION OF SECTION 404(f) IMPOSES INTOL-

ERABLE BURDENS ON FARMERS ..... 13

Il. THE THIRD CIRCUIT’S EVISCERATION

OF THE NORMAL FARMING EXEMPTION

HAS SERIOUS CONSTITUTIONAL TAK-

EIUGES SEP RAMAN EEE 6 5 theta ene eee 17

ep ee ee ees ee ee ee 18

LK

ill

TABLE OF AUTHORITIES

Cases: Page

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

8 ge oe | a 8

Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441 (D.C.

RR cai ial g wn ge bl e's bos @ va 3 18

E.I. du Pont de Nemours & Co. v. Train, 430 U.S.

ER CRA REE ris ee a eee a ee oe 12

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

ES haa s abou ware oe bw 6 Kk 18

Lucas v. South Carolina Coastal Council, 112 S.

i aa 17

Natural Resources Defense Council, Inc. v.

Callaway, 392 F. Supp. 685 (D.D.C. 1975) ... 6

Penn Central Transp. Co. v. New York City, 438

C8 SE eee 17

United States v. Akers, 785 F.2d 814 (9th Cir.),

cert. denied, 479 U.S. 828 (1986) ........ 11

United States v. Cumberland Farms of Connecticut,

Inc., 647 F. Supp. 1166 (D. Mass. 1986), aff'd,

826 F.2d 1151 (1st Cir. 1987), cert. denied, 484

id tea ae de bate 9

iV

TABLE OF AUTHORITIES—CONTINUED

Page

United States v. Huebner, 752 F.2d 1235 (7th Cir.),

cert. denied, 474 U.S. 817 (1985) ......... 7

United States v. Riverside Bayview Homes, Inc.,

See ata Wee Ce ce a ew RRS Ks 17

Statutes and Regulations:

ae Sees SEE i vie Sic Saka FORE Fas ee 3

ae Se ee oe sk owe ew h a ee 3, 7, 9-11

Se tee i ke ee PRs ee a ees 6

er a a es ok a ce sk ee 9-11

Miscellaneous:

A Legislative History of the Clean Water Act of 1977:

A Continuation of the Legislative History of the Water

Pollution Control Act (1978) ..... 6, 7, 8, 12, 13, 14

Albrecht & Goode, Wetland Regulation in the Real

World, Land Rights Letter, July/August 1994 ... 14

Clark, Wetlands: Compensation for “Taking” by

Denial of the Section 404 Permit, 29 Idaho L.

ee. 0 Ce oe ae ke eee aes 17

Vv

TABLE OF AUTHORITIES—CONTINUED

Page

Grant, Don’t Tread on Me, Beef Today, April

in Me CO Ee NT gee on ee aa

Gullickson, The War of the Wetlands, The Farm-

er/Dakota Farmer, December 1994 ........

Klock & Cook, The Condemning of America:

Regulatory “Takings” and the Purchase by the

United States of America’s Wetlands, 18 Seton

ide Ms CERT: hea ko Cee eee

Note, /t’s Not Easy Being Green: The Judicial View

of Government Takings of Private Wetlands, 2

Fordham Envtl. L. Rev. 155 (1991) .......

Property Rights: Public Access to Wetland Prompts

Lawsuit, 4 Greenwire 5 (December 20, 1994)

Walker, Wetlands Regulations Often Confuse, Anger

Many Farmers, Sioux Falls Argus Leader, August

a ok Od eee

15

17

17

Su the

Supreme Court of the Anited States

OCTOBER TERM, 1994

No. 94-1669

ROBERT BRACE AND ROBERT BRACE FARMS, INC.,

a Pennsylvania corporation, Petitioners,

v.

UNiITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

FARM BUREAU FEDERATION, NEW YORK

FARM BUREAU, INC., AND PENNSYLVANIA

FARM BUREAU IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE’

The American Farm Bureau Federation (AFBF) is a

voluntary general farm association organized in 1920

under the General Not-For-Profit Corporation Act of the

State of Illinois. AFBF was founded to protect, promote,

and represent the business, economic, social, and

educational interests of American farmers and ranchers.

AFBF has member organizations in all 50 states and

* Consents to the filing of this brief are on file with the

Clerk.

2

Puerto Rico representing more than 4.4 million member

families. Amici New York and Pennsylvania Farm

Bureaus are members of AFBF, representing the inter-

ests of farmers and ranchers in their respective states.

AFBEF and the state Farm Bureau amici have a direct

interest in the outcome of this case. Their farmer and

rancher members own or lease significant amounts of

property, on which they depend for their livelihoods and

upon which all Americans rely for food and other basic

necessities. Amici’s members’ use of their land is

severely restricted by the court of appeals’ crabbed

interpretation of section 404(f) of the Clean Water

Act—an interpretation that eviscerates the Congressional

exemption of normal farming activities from the burdens

of the CWA’s permit program. The Third Circuit’s

construction of the statute’s exemption and recapture

provisions expands the reach of the CWA far beyond

what Congress intended, at best creating uncertainties

about permissible conduct and at worst exposing farmers

pursuing routine farming activities to substantia! penal-

ties.

Although the court of appeals’ decision will have

nationwide impact, amicus Pennsylvania Farm Bureau,

which represents over 26,600 families in the Common-

wealth, notes that it is of special and immediate concern

to the approximately 5,800 farms located in northwestern

Pennsylvania. The topography and quality of the land

farmed by petitioner Brace is typical of that region,

where poor drainage that diminishes crop productivity

and yield is the norm. Similar conditions exist in por-

tions of New York State, where amicus New York Farm

Bureau represents over 25,000 member families. In the

southwestern portion of Chautauqua County, New York,

alone, hundreds of farms would be directly impacted by

ne

3

the court of appeals’ decision, as would thousands of

farms statewide. The Third Circuit’s misconstruction of

the CWA harshly limits the ability of Pennsylvania and

New York farmers to use historically proven soil

management practices, thereby jeopardizing their ability

to meet needed levels of feed crop production and

casting doubt on the economic viability of both the farms

themselves and the families who operate them.

Amici urge this Court to grant certiorari to correct

the court of appeals’ unjustified narrowing of a legisla-

tive exemption expressly intended to shield farmers and

ranchers from excessive entanglement with bureaucratic

agencies. We believe that amici’s experiences with the

operation of the statute and regulations at issue will be

helpful to this Court in its disposition of this case.

SUMMARY OF ARGUMENT

1. In response to widespread concern that judicial

construction of the Clean Water Act (“CWA”), 33

U.S.C. § 1251 et seq., had expanded the reach of that

Statute into the everyday operations of the Nation’s

farmers and ranchers, Congress amended the Act to

exempt “normal farming, silviculture, and ranching

activities” from the general requirement that a permit be

obtained to discharge dredged or fill material into the

navigable waters of the United States. 33 U.S.C.

§ 1344(f)(1)(A). The language and structure of the

amendment, as well as of its implementing regulations,

indicate an intention to create a broad exemption. The

Third Circuit’s narrow construction of the exemption and

expansion of the recapture provisions of CWA section

404(f) does not comport with the relevant statutory or

regulatory language, the legislative history, or practical

realities.

4

Congress apparently intended that farmers run the

gauntlet of the permitting process when incorporating

new tracts of non-farm wetlands into the farming pro-

cess. However, Congress most certainly did not intend

that federal regulators would require a permit every time

a farmer wishes to change exactly which part of his

existing farmland is used as pasture and which part is

used for growing row crops. The court of appeals’

misconstruction of section 404(f) ignores the natural

reading of the statutory text, eviscerates the careful

balance struck by Congress between protecting wetlands

and sparing farmers the burdens of a bewildering

regulatory process, and extends the reach of the CWA

far beyond that envisioned by Congress.

2. By incorporating an exemption in the 1977

amendments to the CWA, Congress endeavored to

simplify the regulatory burdens on farmers by keeping

the Army Corps of Engineers (“Corps”) out of routine

decisions about the most productive and efficient uses of

their land. So long as farmers engaged in normal

preparatory, productive, and maintenance activities, they

were to be free from the regulatory process. The actions

of overzealous bureaucrats have undermined the imple-

mentation of Congress’ plan, imposing intolerable

demands on hard-working American farmers.

3. The CWA’s statutory and regulatory scheme

imposes restrictions on the beneficial use of land that

constitute takings for which just compensation must be

paid under the Fifth Amendment. The court of appeals’

decision, by narrowing section 404(f)’s normal farming

exemption, will lead to an increase in regulatory takings

and hence threatens to impose a significant additional

burden on the public fisc that Congress did not contem-

plate. This serious, yet unforeseen, constitutional

5

implication offers further evidence that the court of

appeals erroneously construed the scope of section 404(f)

in this case and presents a compelling reason for this

Court to grant certiorari.

ARGUMENT

I. THE THIRD CIRCUIT’S CONSTRUCTION OF

SECTION 404(f) DOES NOT COMPORT WITH

THE TEXT OF THE STATUTE OR ITS IMPLE-

MENTING REGULATIONS

This case squarely presents an important issue of

federal law with significant practical consequences. In

1977, Congress made a deliberate policy choice to

exempt the ordinary activities of farmers and ranchers

from the costly and burdensome requirements of the

Clean Water Act section 404 permit scheme. Now, the

court of appeals in this case has seriously narrowed the

scope of the exemption for “normal farming * * *

activities” while simultaneously expanding the reach of

the statute’s so-called “recapture” provision. In so

doing, it has extended the scope of the permit require-

ment far beyond that intended by Congress.

This overreaching has significant adverse conse-

quences for all American farmers. It interrupts long-

established farming practices, adding a new layer of

regulatory costs and compliance requirements. It pre-

vents farmers from enjoying the full entitlements of

property ownership. And, ironically, it spawns precisely

the regulatory nightmares from which Congress intended

to protect farmers when it amended the CWA in 1977.

These results are not what Congress had in mind, and

this Court should now intervene to reinstate the intended

breadth of the normal farming exemption.

6

A. Congress Specifically Amended Section 404 To

Exempt Ordinary Farming Activities From

The Burdensome CWA Permit Scheme

When water collects “at a frequency and duration

sufficient to support * * * a prevalence of vegetation

typically adapted for life in saturated soil conditions,” it

may be classified as “wetlands,” even if the water sits

on private property. 33 C.F.R. § 328.3(b) (1994).

However, controlling surface and subsurface water to

ensure a sufficient though not overly abundant supply is

critical to successful farming. Thus, it is not surprising

that the wetlands protection program enacted in section

404 of the Clean Water Act of 1972 engendered consid-

erable controversy between the government and the

agricultural community when a district court ruled that

the jurisdiction of the Act extended to waters far beyond

“the traditional tests of navigability” and could reach

ordinary farmland. See Natural Resources Defense

Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C.

1975).

The expansive reach of the Act threatened to impose

a permit requirement on enormous numbers of farmers

whose land occasionally contained standing water.

Section 404 became “a symbol to many Americans of

how a well-intentioned legislative initiative can turn into

a quagmire of disruption, frustration, and bureaucratic

entanglement for the ranchers, farmers, foresters, and

average citizens of this country.” 4 A Legislative History

of the Clean Water Act of 1977: A Continuation of the

Legislative History of the Water Pollution Control Act

(“Legislative History”) 902 (1978) (statement of Sen.

Bentsen). As the chairman of the Senate Committee on

Environment and Public Works observed, the complaints

7

of farmers and ranchers evinced “widespread concern

that many activities that are normally considered routine

would be made extremely difficult because of the

complex regulatory procedures.” Jd. at 897 (statement of

Sen. Randolph).

These concerns led in 1977 to amendments to the

Act that provided “for the first time statutory recognition

that normal farming, ranching, and silviculture activities

do not belong in this permit program.” 3 Legislative

History at 351 (statement of Rep. Hammerschmidt).

Congress provided that no permit is required for “the

discharge of dredged or fill material” either “from

normal farming, silviculture, and ranching activities such

as plowing, seeding, cultivating, minor drainage,

harvesting * * * or upland soil and water conservation

practices,” or “for the purpose of construction or

maintenance of * * * irrigation ditches, or the mainte-

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

(C). On the other hand, a “recapture” provision stipulat-

ed that a permit was required for discharges of dredged

or fill material “incidental to any activity having as its

purpose bringing an area of the navigable waters into a

use to which it was not previously subject.” Jd.

§ 1344(f)(2).

These amendments, as the Seventh Circuit has ob-

served, created “a delicate balance of exceptions that

protected wetlands while permitting routine activities to

go on unimpeded.” United States v. Huebner, 752 F.2d

1235, 1241 (7th Cir.), cert. denied, 474 U.S. 817

(1985). Congress thus made a deliberate policy choice

that “[t]he upland farming, forestry and normal develop-

ment activity carried out primarily by individuals and as

a part of a family business or family farming activity

8

need not bear the burden of an effort directed primarily

at regulating the kinds of activities which interfere with

the overall ecological integrity of the Nation’s waters.”

Senate Report No. 370, quoted in 4 Legislative History

at 644. As Senator Muskie, one of the principal Senate

sponsors, explained, “[t]he drainages exemption is very

clearly intended to put to rest, once and for all, the fears

that permits are required for draining poorly drained

farm or forest land of which millions of acres exist. No

permits are required for such drainages.” Id. at 1042

(emphasis added). In this case, the court of appeals has

required a permit for precisely the “draining [of] poorly

drained farm[land]” that Senator Muskie explained was

to be exempt.

B. Application Of The Normal Farming Exemp-

tion Requires A Contextual Analysis Of The

Total Activities Of A Farming Operation

The court of appeals, rubber-stamping the interpreta-

tion of overzealous regulators, construed the statutory

exemption and its implementing regulations very narrow-

ly. It ruled that a farmer who converted to crop-bearing

use a wetland part of his farm that had long been used

as pasture is not entitled to the exemption for “normal

farming * * * activity.” To reach this surprising result,

the court had to subdivide the farmer’s parcel and

operations, focussing on the change in use of the affect-

ed wetland pasture rather than on the continuing agricul-

tural use of the farm as a whole.

Other courts, in contrast, have undertaken a contex- |

tual review of the total activities of a farming operation |

to determine whether the exemption for “normal farming

* * * activity” is applicable. See e.g., Avoyelles Sports-

men’s League, Inc. v. Marsh, 715 F.2d 897, 926 (Sth

a

9

Cir. 1983); United States v. Cumberland Farms of

Connecticut, Inc., 647 F. Supp. 1166, 1175 (D. Mass.

1986), aff'd, 826 F.2d 1151 (1st Cir. 1987), cert.

denied, 484 U.S. 1061 (1988).

This contextual approach best reflects the language

chosen by Congress, which broadly exempts “normal

farming, silviculture, and ranching activities.” 33

U.S.C. § 1344(f)(1)(A). It is consistent, moreover, with

regulations amplifying the activities that are exempt from

the permit requirement, which do not narrow the exemp-

tion but rather mirror the breadth of the statutory text.

See 33 C.F.R. § 323.4(a)(1)(i) (exempting “[nJormal

farming, silviculture and ranching activities”); id.

§ 323.4(a)(1)(ii) (the exemption reaches “established

(i.e., on-going) farming, silviculture, or ranching

operation[s]” and excludes “[a]ctivities which bring an

area into farming, silviculture, or ranching use”); id.

§ 323.4(a)(1)(iii)(C)(2) (noting that “minor drainage”

does not include drainage associated with the conversion

from one wetland use to another and giving as an

example conversion from “silviculture to farming”).

Neither the statutory nor the regulatory language gives

any indication that there are subclasses of a farming

operation to which courts should look in delineating the

scope of the exemption.

An examination of the examples of normal farming

activities enumerated in section 404(f) lends further

support to the view that Congress did not intend courts

applying the exemption to manufacture artificial distinc-

tions in land usage (such as between pasturing and

growing row crops) within the same integrated farming

operation. The listed activities include land preparation

(plowing, seeding), production (cultivating, harvesting),

10

and maintenance (drainage and conservation). 33 U.S.C.

§ 1344(f)(1)(A). Contrary to the Third Circuit’s holding,

there is absolutely no indication that Congress regarded

the precise nature of a farmer’s actions within this wide

range of conduct as determinative of the exemption’s

applicability.

Congress understood the frequency with which

farmers can (and often must) diversify their operations

to achieve maximum output and efficiency. For example,

it is common—and indeed very efficient—to combine

pasturing with raising row crops that produce feed for

the farm’s livestock. It also is common for farmers to

alter the mix of planting and pasturing as their needs

develop, as soil fertility and nutrient levels change as a

consequence of current and past use, as markets evolve,

and as personal resources expand or contract.'

Planting and pasturing—the two activities for which

petitioner Brace used the land in issue—are simply

subsets of the myriad activities that comprise “normal

farming,” and they often occur in tandem or in succes-

sion on the same farm. Acknowledging this reality, the

statute and regulations give farmers flexibility to operate

within the broad categories of activities (farming,

silviculture, and ranching) to which the section 404

' The transition from one farming use to another (for

example, from pasturing to growing crops) often occurs over

a period of years. Preparatory activities, which may include

draining and plowing, still constitute normal farming activi-

ties and indicate that the area in transition has neither “been

converted to another [non-farming] use” nor “lain idle” so as

to deprive a farmer of the exemption. See 33 C.F.R.

§ 323.4(a)(1)(i1).

1]

exemption applies, without worrying that the choice

between one sort of farming activity and another on a

given piece of land may result in a CWA violation. The

Third Circuit’s ruling that it is the particular existing use

of a portion of a farm that counts in determining if the

normal farming exemption applies, not the fact that the

land is part of a continuing farming operation, destroys

this very necessary flexibility and for practical purposes

destroys the exemption.

The Third Circuit also wrongly construed the

recapture provision of section 404(f) to extend the reach

of the CWA into normal farming activities that Congress

intended to leave alone.” That provision requires permit-

ting for activity that “bring[s] an area of the navigable

waters into a use to which it was not previously sub-

ject.” 33 U S.C. § 1344(f)(2). The statute provides no

further elaboration on the meaning of “use,” and the

conflicting provisions of the implementing regulations

simply confuse matters.

On the one hand, the regulations appear to adopt a

broad and flexible approach to farming “uses” and

“activities” by specifying that “a permit will be required

for the conversion of a cypress swamp to some other use

or the conversion of a wetland from silvicultural to

agricultural use.” 33 C.F.R. § 323.4(c) (emphasis

added). This provision implies that a conversion from

one agricultural use to another—for example, from

? As Petitioner notes, only one other court of appeals has

applied the recapture provision to previously farmed land

being converted from a wetland farming use to a non-wetland

farming use. United States v. Akers, 785 F.2d 814, 820 (9th

Cir.), cert. denied, 479 U.S. 828 (1986).

12

pasturing to growing row crops—would avoid the

recapture provision. On the other hand, the regulation

also states categorically that “[a] conversion of a section

404 wetland to a non-wetland is a change in use of an

area of waters of the United States.” Ibid.

This latter provision lacks textual or structural

support in the CWA, is inconsistent with related regula-

tory provisions, and, more importantly, conflicts with

the intent of Congress. See E.J. du Pont de Nemours &

Co. v. Train, 430 U.S. 112, 138 (1977) (“ “ae question

* * * is not what a court thinks is generally appropriate

to the regulatory process; it is what Congress intended

for these regulations”). Every indication in the statute

and regulations, save this one, points to “farming,

silviculture, or ranching”—not to “wetlands or non-

wetlands”—as the relevant frames of reference for the

application of the recapture provision.

Moreover, the legislative history makes clear that

Congress did not mean to interfere with the integrated

operations of family farms by requiring a permit every

time a farmer reconfigures the mix between pasturing

and row crops. Congress, as Senator Muskie pointed

out, well understood that “draining poorly drained

farm[land]” would affect a substantial hydrological alter-

ation to “millions of acres” nationwide. 4 Legislative

History at 1042. Yet, as the Senator stated, the 1977

amendments established “once and for all” that no

permits are required for such activities. Jbid. Accord-

ingly, the Third Circuit’s contrary ruling notwithstand-

ing, the recapture provision of section 404(f)(2) does not

remove active and ongoing farming operations from

within the ambit of the normal farming exemption

13

merely because there occurs a change from one farming

use to another.

Il. THE THIRD CIRCUIT’S MISCONSTRUCTION

OF SECTION 404(f) IMPOSES INTOLERABLE

BURDENS ON FARMERS

The court of appeals’ construction of section 404(f)

to require farmers to obtain a permit to convert wetland

pasture into crop-bearing fields imposes significant

financial and administrative burdens: loss of time com-

pleting bureaucratic paperwork, legal fees, delay and

uncertainty, potential fines, and loss of productive land—

all costs that will either make farming less profitable and

thus less desirable as a livelihood and investment, or will

drive up the prices charged to consumers for food and

other basic necessities. The administrative nightmare

associated with the CWA’s permit scheme often deters

farmers from even applying for a permit and discourages

all but the most determined from challenging a permit

denial in the court system.

Congress envisaged no such consequences when it

amended the CWA. The legislative history is replete

with statements showing Congress intended that the

exemption scheme would give farmers real protection.

As of 1977, section 404 “ha[d] become synonymous

with Federal overregulation, overcontrol, cumbersome

bureaucratic procedures, and a general lack of realism.”

4 Legislative History at 903 (statement of Sen. Bentsen).

Congress undertook to amend the CWA to reflect “the

fact that we never intended under Section 404 that the

Corps of Engineers be involved in the daily lives of our

farmers, realtors, [and] people involved in forestry.” Jd.

at 924 (statement of Sen. Domenici). The resulting

exemption of normal farming activities from the permit

14

requirement, Congress hoped, would “greatly simplify

the administrative process and reduce the potential

redtape burden.” Jd. at 897 (statement of Sen.

Randolph).

Implementation of the exemption has not proceeded

as Congress intended, as this case perfectly illustrates.

As the Corps has put a stranglehold on what heretofore

have been regarded as ordinary farming activities,

farmers have been left “angry, afraid, confused and

amazed because of the things that government is doing

to them.” Grant, Don’t Tread on Me, Beef Today, April

1994, at 20.

To begin with, the Corps’ inefficiency in processing

permit applications is legendary. A February 1994 study

found that in 93 percent of the cases the Corps took far

longer than the 60 days allowed to evaluate individual

permit applications—indeed, took on average 373 days.

In large part because of these delays and permit-related

expenses, over half the applications submitted between

1988 and 1993 were withdrawn. In one particularly

stunning example, an application involving just 26

square feet of wetland was withdrawn after 450 days

without a disposition. The study concluded that “those

who criticize the 404 program for excessive delays in the

permitting process are not just crying wolf; it takes the

average applicant with a wetlands project a long time to

get a permit decision.” Albrecht & Goode, Wetland

Regulation in the Real World, Land Rights Letter,

July/August 1994, at 13.

Other horror stories about the Corps’ excesses

abound:

@ A California family purchased property to plant

grapes for their winery. To help pay property taxes,

dN neem Bonet a oe

15

they planted hay on the remaining acres of their

parcel. Some of the property was wetland An

attorney advised them that they were exempt from

the CWA permit requirement because their land had

been used for growing hay since the 1930s and more

recently for grazing cattle. Aerial photographs and

an affidavit from the farmer who had planted the

field for over 40 years were insufficient to deter the

Corps, which continued to insist that the family had

violated the CWA. Letter from Edward R. Bunting

to Rep. Lynn Woolsey, reprinted in Land Rights

Letter, July/August 1994, at 5.

In the Dakotas and Minnesota the tightening grip of

federal regulators has caused farmers to stop drain-

ing the “potholes” that dot farms in the region. Now

known as “farmed wetlands,” these areas no longer

can be altered to maximize the utility of the land,

even though they tend to be dry in many years.

Gullickson, The War of the Wetlands, The Farm-

er/Dakota Farmer, December 1994, at 5.

Farmers in the Upper Midwest “have found that

government red tape is rampant in appealing wetland

designations,” and are still more stunned by the

steep penalties for noncompliance with regulations,

even for good-faith violations. Jbid.

Brian Odden, a South Dakota farmer, learned that

something as minor as plowing a furrow across one

of his fields could cost thousands of dollars in

penalties through reduced federal farm payments.

Mr. Odden believed that he was merely turning

under weeds that accumulated after heavy rains in

1993, but federal wetlands regulators cited him

because the furrow allegedly allowed water to drain

16

from a nearby wetland. Walker, Wetlands Regula-

tions Often Confuse, Anger Many Farmers, Sioux

Falls Argus Leader, August 4, 1994, at Al.

@ State authorities designated 75% of John and Jose-

phine Bronczyk’s 160-acre Minnesota farm as a

“public water wetland.” This designation imperiled

their property rights, limiting their use of their land

and giving the public, including hunters, a right to

walk within 200 yards of their home. Property

Rights: Public Access to Wetland Prompts Lawsuit,

4 Greenwire 5 (December 20, 1994).

These examples—and we could multiply them

hundreds of times over—demonstrate that current

interpretation and administration of the section 404

exemption, permit, and review processes have not

fulfilled Congress’ aim of minimizing the interference of

federal regulators in the routine decisions of family

farmers. They provide a glimpse into the havoc wreaked

by bureaucrats and acquiesced in by the court of appeals

in this case. These are not stories about individuals and

corporations indiscriminately filiing in wetlands, or

about farmers seeking to incorporate new tracts of non-

farm wetlands into the agricultural process. In those

situations, Congress meant for the permitting process to

apply. Rather, these vignettes simply detail the plight of

hard-working American farmers trying to work their

existing farm operations as efficiently as they can.

Congress cannot have intended that such routine farming

be swept into the labyrinth of CWA permitting.

17

Ii]. THE THIRD CIRCUIT’S EVISCERATION OF

THE NORMAL FARMING EXEMPTION HAS

SERIOUS CONSTITUTIONAL TAKINGS

IMPLICATIONS

The court of appeals’ cramped construction of the

normal farming exemption threatens wholesale takings of

farmland for which just compensation must be paid

under the Fifth Amendment of the Constitution. See

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

U.S. 121, 129 n.6 (1985) (noting that where the Corps

“denie[s] respondent a permit to fill its property, respon-

dent may well have a ripe claim that a taking has

occurred”); Clark, Wetlands: Compensation for “Taking”

by Denial of the Section 404 Permit, 29 Idaho L. Rev.

41 (1992/1993); Klock & Cook, The Condemning of

America: Regulatory “Takings” and the Purchase by the

United States of America’s Wetlands, 18 Seton H.L.

Rev. 330 (1988); Note, It’s Not Easy Being Green: The

Judicial View of Government Ti akings of Private Wet-

lands, 2 Fordham Envtl. L. Rev. 155 (1991).

The harsh economic impact of not being able to

work sections of one’s farm hardly needs elaboration,

particularly in the context of a long-established and

ongoing farming operation like Mr. Brace’s, where

significant investment-backed expectations are frustrated.

See Penn Central Transp. Co. v. New York City, 438

U.S. 104, 124, 127 (1978). And certainly most farmers

had no reason to expect, when they began farming their

land, that the government later would tell them that they

could not convert a pasture into a field of row crops.

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

Ct. 2886, 2894 n.7 (1992) (observing that farmers’

18

reasonable expectations have “a rich tradition of protec-

tion at common law”).

Given the potential for a plethora of Fifth Amend-

ment takings claims by farmers denied the beneficial use

of their property for something as routine as converting

a pasture into a field of row crops, it is appropriate for

this Court strictly to scrutinize judicial and regulatory

interpretations of the exemption and recapture provisions

of CWA section 404(f). See Edward J. DeBartolo Corp.

v. Florida Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 577 (1988) (narrowing agency’s construc-

tion of statute that gives rise to “serious constitutional

concerns”); Bell Atlantic Tel. Cos. v. FCC, 24 F.3d

1441, 1445 (D.C. Cir. 1994) (construing statute to

defeat administrative order that would give rise to

takings). As we have demonstrated, the Third Circuit’s

ruling cannot survive such scrutiny. We urge this Court

to grant certiorari to correct the court of appeals’ error

and to restore to the normal farming exemption the

broad scope originally intended by Congress.

CONCLUSION

The petition fcr writ of certiorari should be granted.

(lah Carri hi lied Me virmitaihin VAS nit Seapinaba

ee ROT See ee AO :

19

Respectfully submitted.

JOHN J. RADEMACHER

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

American Farm Bureau

Federation

225 Touhy Avenue

Park Ridge, IL 60068

(708) 399-5700

JOHN J. BELL

Counsel, Government

Affairs

Pennsylvania Farm

Bureau

P.O. Box 8736

Camp Hill, PA 17001

(717) 761-2740

JUNE 1995

TIMOTHY S. BISHOP

Counsel of Record

MICHAEL F. ROSENBLUM

ROBERT M. Dow, JR.

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

JEFFERY H. KIRBY

General Counsel

New York Farm Bureau, Inc.

Route 9W, Box 992

Glenmont, NY 12077

(518) 436-1529

Counsel for Amici Curiae