Petition for Writ of Certiorari — Mills v. United States

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Supreme Court, U.S.

FILED

94167 8 APR 13 1995,

No.

es 2

In the

Supreme Court of the United States

October Term, 1994

OCIE MILLS and CAREY C. MILLS,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondents.

LL...

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

>--

PETITION FOR WRIT OF CERTIORARI

Le...

ROBIN L. RIVETT

* JAMES S. BURLING

JENNIFER M. DEMING

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. Is the United States Army Corps of Engineers’

regulatory definition of "wetlands" under the Clean Water

Act unconstitutionally vague in a criminal case?

2. Is something more than an “intelligible principle"

required when Congress authorizes another branch to

promulgate regulations that contemplate criminal sanctions?

PARTIES TO THE PROCEEDING

The caption contains the names of all the parties to this

action.

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TABLE OF CONTENTS

Page

TABLES OF AUTHORITIES CITED .... 2... 200 e eee v

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CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE ............. 2

UMRUEMOETE GO SOS CCASE 2. wc cee 2

REASONS FOR GRANTING THE WRIT ............ 8

I. WHETHER THE CORPS’ DEFINITION

OF THE TERM "WETLANDS" IS

UNCONSTITUTIONALLY VAGUE IN A

CRIMINAL ENFORCEMENT CONTEXT IS

AN IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS NOT BEEN, BUT SHOULD

Be, Set tLED BY THIS COURT .......... 8

Il. WHETHER SOMETHING MORE THAN AN

"INTELLIGIBLE PRINCIPLE" IS REQUIRED

WHEN CONGRESS AUTHORIZES ANOTHER

BRANCH TO PROMULGATE REGULATIONS

THAT CONTEMPLATE CRIMINAL SANCTIONS

IS AN IMPORTANT QUESTION OF FEDERAL

LAW WHICH SHOULD BE DECIDED BY

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Page

THE ELEVENTH CIRCUIT’S DECISION IN

THIS CASE FAILS TO CONFORM WITH THIS

COURT’S PRIOR DECISION IN RIVERSIDE

BAY VIEW

TABLE OF AUTHORITIES CITED

Page

CASES

A.L.A. Schechter Poultry Corp. v. United States,

ee a ee ee ee ee ee 17

Crandon v. United States, 494 U.S. 152 (1990) ........ 11

Fahey v. Mallonee, 332 U.S. 245 (1947) ............ 20

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 11

Immigration and Naturalization Service v. Chadha,

el Glia twin 6k 0K bw, oA 15

J. W. Hampton, Jr. & Co. v. United States,

ee ee ee rc ee eS ee ee ed 17

Liparota v. United States, 471 U.S. 419 (1985) ........ 11

Mistretta v. United States, 488 U.S. 361 (1989 ........ 16

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ..... 17

Touby v. United States, 500 U.S. __,

(oe ee Pe 17-19,21

United States v. Riverside Bayview Homes, Inc.,

og 8 ed. EN eer ar ae 7,11-12,19-21

United States v. Robel, 389 U.S. 258 (1967) .......... 20

United States v. Womack, 654 F.2d 1034

EEG a a a 18

Yakus v. United States, 321 U.S. 414 (1944) ......... 16

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UNITED STATES CONSTITUTION

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RULES

United States Supreme Court

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REGULATIONS

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MISCELLANEOUS

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THE FEDERALIST No. 47 (James Madison)

i Me ee ee ehh ew nen 16

No.

In the

Supreme Court of the United States

October Term, 1994

OCIE MILLS and CAREY C. MILLS,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The decision of the United States Court of Appeals,

Eleventh Circuit is reported at 36 F.3d 1052 (11th Cir.

1994), and is reproduced as Appendix A. The decision of

the United States District Court is reported at 817 F. Supp.

1546 (N.D. Fla. 1993), and is reproduced as Appendix B.

Page references are to versions in the appendix.

JURISDICTION

The decision of the United States Court of Appeals,

Eleventh Circuit, review of which is sought in this petition,

was entered on October 27, 1994, and was filed that same

day. A timely petition for rehearing was denied on

January 13, 1995. This Court has jurisdiction over this

matter pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

At issue in this case are Article I, Section 1, and the

Fifth Amendment to the United States Constitution. Also

at issue are Sections 301(a) and 309(c) of the Clean Water

Act, Title 33 U.S.C. §§ 1311(a) and 1319(c). The full text

of the relevant provisions of the Act and the above-mentioned

constitutional provisions are set out in Appendix C.

STATEMENT OF THE CASE

As described by the District Court:

This case presents the disturbing implications of

the expansive jurisdiction which has _ been

assumed by the United States Army Corps of

Engineers under the Clean Water Act. In a

reversal of terms that is worthy of Alice in

Wonderland, the regulatory hydra which emerged

from the Clean Water Act mandates in this case

that a landowner who places clean fill dirt on a

plot of subdivided dry land may be imprisoned

for the statutory felony offense of "discharging

pollutants into the navigable waters of the United

States."

U.S. v. Mills, 817 F. Supp. at 1548, Appendix at B-1l

(emphasis in original).

Indeed, the facts of this case are astonishing. Ocie and

Carey Mills collectively spent almost four years in prison

because the Army Corps of Engineers (Corps) has deter-

mined that the act of placing unadulterated fill on arid land

constitutes a discharge of pollutants into waters of the United

States in violation of Sections 301(a) and 309(c) of the Clean

Water Act. 33 U.S.C. §§ 1311(a), 1319(c). RE:1.' Ocie

and Carey Mills were found guilty in a 1989 jury trial of five

counts of placing sand, which the Clean Water Act defines

as a “pollutant,” into a "wetland" which the Corps’ regula-

tory definition describes as

those areas that are inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated

soil conditions. Wetlands generally include

swamps, marshes, bogs, and similar areas.

33 C.F.R. § 328.3(b) (1986). Ocie and Carey Mills were

also convicted of a misdemeanor offense of unlawfully

excavating a drainage ditch between two lots in the

"navigable waters of the United States," in violation of

' The record below is referred to by its docket number

volume and the proceedings before the District Court. All

proceedings docketed prior to the filing of Ocie and Carey

Millses’ 28 U.S.C. § 2255 motion are referred to as RE and

those after as Rl. Thus, RE:84 at 73 refers to docket entry

84 at Page 73. R1:170 at 1 would refer to docket entry

170 (filed after the 28 U.S.C. § 2255 motion was filed)

at Page 1.

Sections 10 and 12 of the Rivers and Harbors Act,

33 U.S.C. §§ 403 and 406.

The facts which preceded their convictions are as

follows. In 1986, Ocie and Carey Mills purchased two

waterfront lots, Lots 20 and 21, on Escambia Bay, Florida,

for purposes of constructing residences. RE:84 at 80, 103,

142 and RE:31. Lot 21 was deemed by the Corps to be

—upland while a significant portion of Lot 20 was deemed by

the Corps to be "wetland." In contrast, the Florida

Department of Environmental Resources determined most of

the same portions of Lot 20 were not "wetland." As

described by the District Court:

Although Lot 20 (like Lot 21) is a waterfront lot,

it does not have the appearance of what most lay

people think of as a “wetland.” Prior to the

events in question here, it was originally mostly

wooded, with large pine, oak, gum, bay and

magnolia trees, as well as lots of smaller trees

and shrubs. Some of the these trees grow well in

saturated soil conditions, while others do not.

U.S. v. Mills, 817 F. Supp. at 1548, Appendix at B-3.

The alleged filling violation took place in the disputed area

of Lot 20 which included an historic drainage area.

In its natural state, Lot 20 had a dish-shaped drainage

area through the center that apparently carried rainwater

runoff from inland to the bay, but which actually stopped

several feet from the bay. RE:84 at 103-04. As such, this

drainage area contained no standing water, nor did it appear

to be a swamp, marsh, or bog. As part of the subdivision

development in 1978, the drainage area on Lot 20 was offset

about 45 feet by the construction of a ditch between Lots 19

and 20. Ultimately, the drainage area through Lot 20 was

blocked and partially filled by the subdivision developer. /d.

The diversion of the drain and some filling of Lot 20 was

apparently done prior to the effective date of the applicable

Clean Water Act regulations, and long before Ocie and

Carey Mills bought their lots in 1986. U.S. v. Mills,

817 F. Supp. at 1548, Appendix at B-4.

In this context the saga begins. In response to

observations in June, 1986, that some excavation had

occurred on Lot 20, the Corps sent a Cease and Desist letter

to Ocie and Carey Mills. RE:84 at 149, 152-54. Petitioners

responded with a letter to Colonel Charles Meyers, III, of the

Corps, dated June 24, 1986, outlining their belief that most

of Lot 20 was not a "wetland." Jd. Nevertheless, petitioners

suspended work on Lot 20 for over a year. RE:84 at 156-

57. The Corps never responded to petitioner’s letter. Ocie

and Carey Mills assumed, therefore, that the Corps agreed

with their assessment of the property and proceeded with

their work on Lot 20. RE:84 at 159. In August of 1987,

the Corps sent another Cease and Desist letter to petitioners.

RE:84 at 155; RE:85 at 220, 232. In that letter, as with the

prior letter, petitioners were advised to call a telephone

number if they had any questions. That number was the

telephone number for the Florida Department of

Environmental Resources. /d.

Petitioners contacted the Florida Department of

Environmental Resources, then wrote a letter to the Corps in

September of 1987 stating the department agreed with

petitioners that Lot 20 was mostly upland and that the

department approved of the work on the drainage ditch.

RE:84 at 165-68. In March of 1988, Ocie and Carey Mills

continued the work on Lot 20 until Corps representatives

entered the property with a search warrant and took various

soil samples from the site. RE:85 at 342-44, 351. In

iia a |

October of 1988, petitioners were charged with a six-count

criminal indictment. RE:1.

Thinking that the charges were ludicrous, and not

being eligible for appointed counsel which they had

requested, father and son represented themselves at trial.

RE:32-35. Much to their surprise, they were found guilty

and each sentenced to 21 months in prison, followed by

1 year of supervised release. Jd. In addition, the court

imposed a $5,000 fine and a monetary assessment of $250

each. Ocie and Carey Mills were also required to comply

with a Site Restoration Plan. RE:51, 53. Following this

conviction, Ocie and Carey Mills filed a direct appeal.

RE:55. The convictions were summarily affirmed by the

Eleventh Circuit Court of Appeals. United States v. Mills,

904 F.2d 713 (11th Cir. 1990).

Ocie and Carey Mills served 19 of their 21-month

sentence at a federal prison camp and the last two months in

a halfway house. In a subsequent proceeding regarding the

Millses’ supervised release and their obligations under the

Site Restoration Plan, District Court Judge Roger Vinson

held an extended evidentiary hearing. By order dated

December 24, 1991, Judge Vinson determined Ocie and

Carey Mills had substantially complied with the Plan. He

also determined that at the time of the alleged criminal act,

"the subject land (Lot 20) was probably not a ‘wetland’

because the subdivision developer had diverted the drain on

Lot 20 in 1978, prior to the effective date of the applicable

Clean Water Act regulations and long before the petitioners

bought their lots in 1986." See U.S. v. Mills, 817 F. Supp.

at 1548, Appendix at B-1 to B-4 (discussing prior

proceedings).

In addition to this bizarre turn of events, after their

conviction Ocie and Carey Mills discovered through a

Freedom of Information Act request a letter dated

February 12, 1987, from Colonel Meyers to the United

States Attorney. In that letter, Colonel Meyers recom-

mended prosecution of petitioners in large part because of

Ocie Mills’ "highly publicized prior involvement with the

Corps ... beginning in 1976, [and] his documented furnishing

of advice to others." R1:156, Attachment 1 at 2.

Based on Judge Vinson’s determination that Lot 20 was

probably not a "wetland" and the revelation that prosecution

had been recommended, in part, because Ocie Mills was an

upstart, petitioners moved to vacate, set aside, or correct

their sentences, pursuant to 28 U.S.C. § 2255, or for a writ

of error coram nobis. R1:170. They raised four grounds in

support of their motion: (1) that their convictions under the

Clean Water Act are void because the Corps’ definition of

"wetlands" is an improper delegation of congressional

authority or unconstitutionally vague in a criminal case;

(2) that they were selectively prosecuted for exercising their

First Amendment rights; (3) that they were denied due

process when the trial court prevented them from presenting

to the jury the defense of equitable estoppel; and (4) there

was insufficient evidence that at the time they placed fill

material on their property, the property was a “wetland.”

R1:170.

The District Court rejected the second, third, and

fourth grounds due to procedural errors, namely, the Millses’

failure to raise these issues during the original trial. With

great reluctance, the court also rejected the first ground

issues Of delegation and vagueness. Although this case

involves a criminal conviction, Judge Vinson felt constrained

by this Court’s decision in the civil case of United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The

Eleventh Circuit Court of Appeals affirmed. Mills v. United

States, 36 F.3d 1052 (ilth Cir. 1994) (reproduced in

Appendix A). A timely petition for rehearing to the Court

of Appeals was denied on January 13, 1995. Ocie and Carey

Mills now seek justice from this final Court of review to

expunge their criminal records and prevent similar unjust

situations from occurring in the future.

REASONS FOR GRANTING THE WRIT

Supreme Court Rule 10. 1(a) lists among the considera-

tions governing review on writ of certiorari the circumstance

when a United States Court of Appeals has decided an

important question of federal law which has not been, but

should be, settled by this Court. This ground for review is

presented in this case.

WHETHER THE CORPS’ DEFINITION OF THE

TERM "WETLANDS" IS UNCONSTITUTIONALLY

VAGUE IN A CRIMINAL ENFORCEMENT

CONTEXT IS AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT

The Federal Water Pollution Prevention and Control

Act, 33 U.S.C. § 1251, et seg., commonly known as the

"Clean Water Act," was enacted "to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters." 33 U.S.C. § 1251(a). To achieve this purpose, the

Clean Water Act makes it unlawful to discharge any pollutant

into "navigable waters" without a permit from the Corps.

33 U.S.C. §§ 1311, 1344, 1362. The Act expansively

defines “navigable waters" as “the waters of the United

States, including the territorial seas." 33 U.S.C. § 1362(7).

“Pollutants” are also broadly defined to include “dredged

spoil, solid waste, incinerator residue, sewage, garbage,

sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into water. 33 U.S.C.

§ 1362(6) (emphasis added).

Obviously, the scope of the phrase “waters of the

United States" becomes crucial for purposes of enforcement

of the Act because it determines where one can and cannot

discharge a pollutant without a permit. It is also important

because violations of the Act carry severe criminal penalties.

Negligent discharges of pollutants without a permit into

navigable waters are punishable by a fine of between $2,500

and $25,000 per day of violation and imprisonment of not

more than one year. 33 U.S.C. § 1319(c)(1). Knowing

discharges of pollutants into the same waters can result in a

fine of between $5,000 and $50,000 per day of violation and

imprisonment for not more than three years. 33 U.S.C.

§ 1319(c)(2).

Despite the importance of the breadth of the phrase to

the Act’s enforcement, Congress did not define the term

"waters of the United States" in the Clean Water Act.

Absent congressional definition, the Corps and_ the

Environmental Protection Agency (EPA), the entities charged

with administering and enforcing the Act, were left to the

task of defining the term.

The Corps and EPA enacted identical regulations

defining “waters of the United States" as including what are

thought of as traditional types of "waters," such as rivers,

lakes, streams, and seas. 33 C.F.R. § 328.3(a) (Corps’

definition); 40 C.F.R. § 230.3(t) (1980) (EPA definition).

However, the regulations also extend the Clean Water Act’s

protection to “wetlands” which are adjacent to waters. The

regulations then make a quantum leap onto land when they

define “wetlands” as

those areas that are inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated

soil conditions. Wetlands generally include

swamps, marshes, bogs, and similar areas.

33 C.F.R. Section 328.3(b) (Corps’ definition); 40 C.F.R.

§ 230.3(t) (EPA definition).

The fundamental protection of due process contained in

the Fifth and Fourteenth Amendments to the United States

Constitution dictate that a legislative enactment is void for

vagueness if its prohibitions are not clearly defined. The

underlying purpose for this protection is the preservation of

the constitutionally safeguarded fundamental rights of life,

liberty, and property. As explained by this Court:

Vague laws offend several important values.

First, because we assume that man is free to steer

between lawful and unlawful conduct, we insist

that laws give the person of ordinary intelligence

a reasonable opportunity to know what is

prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented,

laws must provide explicit standards for those

who apply them. A vague law impermissibly

delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and

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subjective basis, with the attendant dangers of

arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

Since "due process is violated when men of ordinary intelli-

gence must guess at a statute’s meaning,” fundamental

fairness dictates that a statute set out the conduct which it

forbids in terms which people of ordinary intelligence can

readily understand. /d.

The fact that this Court affirmed the Corps’ definition

of “wetlands” in the civil case entitled United States v.

Riverside Bayview Homes, Inc, 474 U.S. at 132, is of no

consequence to these proceedings which are in the criminal

enforcement context. As a general principle, the criminal

laws are to be strictly construed. This rule of lenity "serves

to ensure both that there is fair warning of the boundaries of

criminal conduct and that legislatures, not courts, define

criminal liability." Crandon v. United States, 494 U.S. 152,

158 (1990). In fact, this Court reaffirmed lenity as the

interpretative rule of law in construing criminal statutes in

the case of Liparota v. United States, 471 U.S. 419 (1985),

which was decided the same year as Riverside Bayview. That

case dealt with knowing violations of a federal statute

relating to food stamp fraud. This Court stated:

In addition, requiring mens rea is in keeping with

our longstanding recognition of the principle that

“ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.” ...

Application of the rule of lenity ensures that

criminal statutes will provide fair warning

concerning conduct rendered illegal and strikes

the appropriate balance between the legislature,

the prosecutor, and the court in defining criminal

liability. ... Although the rule of lenity is not to

be applied where to do so would conflict with the

implied or expressed intent of Congress, it

provides a time-honored interpretative guideline

when the congressional purpose is unclear.

In the instant case, this rule of lenity directly supports

petitioners’ contention that the Corps’ definition of

“wetlands” is unconstitutionally vague in a criminal case.

For this reason, the District Court felt some discomfort in

relying on the civil case of Riverside Bayview. When it

applied the rule of lenity to the Corps’ "wetlands" definition, |

the District Court could not escape the following conclusion:

Statutory language must convey "sufficiently

definite warning as to the proscribed conduct

when measured by common understanding and

practices.” United States v. Mena, 863 F. 2d

1522,1527 (11th Cir.), cert. denied, 493 U.S.

834, 110 S. Ct. 109, 107 L.Ed.2d 72 (1989).

This is so that persons of common intelligence

will not be forced to guess at the potential

applicability of a criminal prohibition to their

conduct. Jd. The statutes enacted by Congress

define as criminal the discharge of pollutants into

the "waters of the United States." I am unable to

say that a person of common intelligence would

be able to ascertain that this statutory prohibition

applies to clean fill dirt placed onto a waterfront |

lot such as the one at issue here.

<P ROOT Pee

U.S. v. Mills, 817 F. Supp. at 1554, Appendix at B-20.

In fact, at the time petitioners committed the alleged

offenses there was no uniform definition of “wetlands”

among the federal agencies that enforce the Clean Water Act.

A brief review of the tortured history of the definition of a

———————

“wetland” reveals just how unintelligible the term "wetland"

is. Four federal agencies are responsible for identifying

wetlands in their regulatory programs: the Corps, EPA, the

Soil Conservation Service (SCS), and the United States Fish

and Wildlife Service (USFWS). Throughout the 1980s and

early 1990s, disagreements among these agencies over how

to delineate wetlands in the field led to the development of

four quite different delineation manuals: (1) The Corps’

1987 Wetlands Delineation Manual (1987 Manual);

(2) EPA’s 1988 Wetlands Identification and Delineation

Manual (Interim Manual); (3) the interagency (Corps, EPA,

USFWS, and SCS) 1989 Federal Manual for Identifying and

Delineating Jurisdictional Wetlands (1989 Manual); and

(4) joint Corps/EPA 1991 proposed revisions to the 1989

Manual (1991 Manual). Virginia S. Albrecht, Federal

Regulation of Wetlands, C930 ALI-ABA 111, 141 (1994).

The 1989 Manual was criticized as expanding federal

jurisdiction over areas that had not previously been

considered jurisdictional wetlands. Carol E. Dinkins,

Regulatory Obstacles to Development and Redevelopment in

the U.S.: Wetlands and Other Essential Issues, C945 ALI-

ABA 491, 502 (1994). The methodology for determining

wetlands hydrology was also criticized because, under the

1989 Manual, wetlands hydrology can be established if for

seven consecutive days during the growing season saturated

soil exists as deep as 18 inches below the surface--meaning

the top one and one-half feet can be dry all year long in the

"wetland." Id. The Corps’ 1987 Manual resembles the 1989

Manual, but would require that inundation or saturation of

the surface be demonstrated for 5% to 12.5% of the growing

season. In many cases, this will exceed the seven days of

saturation required under the 1989 Manual. /d. at 504. As

proposed, the 1991 Manual would require inundation for

15 or more consecutive days or saturation to the surface for

21 or more consecutive days during the growing season. /d.

at 503. Alternatively, an area may have wetland hydrology

under the 1991 Manual if it is periodically flooded by tidal

waters in most years. Id.

Due to the criticism of the 1989 Manual, in August,

1991, Congress passed legislation that prohibited the Corps

from using the 1989 Manual or any subsequent manual |

adopted without the notice-and-comment rulemaking |

procedures required by the Administrative Procedures Act.

Virginia §. Albrecht, Federal Regulation of Wetlands,

C930 ALI-ABA at 141. Consequently, in 1991, the Corps

began using the 1987 Manual, as interpreted by guidance

documents issued by the Corps headquarters in October,

1991, and March, 1992. In 1993, EPA announced that it

will use the 1987 Manual to identify wetlands. /d. (citing

58 Fed. Reg. 4995 (1993)). Interestingly, in its legislation

prohibiting the use of the 1989 Manual, Congress did not

specify which agency, the Corps or EPA, has authority to

make jurisdictional determinations, nor did Congress define

how agencies should proceed when they disagree whether a

particular site is subject to regulation. Jd. at 142. In 1992,

Congress directed the National Academy of Sciences to

conduct a study on wetlands presumably to clear the mess up

once and for all. Pub. L. No. 102-389 (1992).

Obviously, this sequence of regulatory events admits to |

the uncertainty of the Corps’ “wetlands” definition. If the

"wetland/upland” boundary is not clear-cut, it is ambiguous.

If the Corps cannot describe “wetlands” with certainty, how

are persons of ordinary intelligence to know when they have

run afoul of the law? It is a gross miscarriage of justice that

two men were deprived of their liberty when Executive

Branch agencies cannot agree generally on what constitutes

a “wetland” and specifically on whether petitioners’ property

really was a “wetland.” (Nor, as evidenced by the con-

flicting District Court opinions in the Millses’ litigation, can

the judiciary branch agree.)

The rule of lenity dictates the Corps’ definition of

"wetlands" be voided for vagueness in criminal matters. The

Eleventh Circuit refused to void it. This Court should now

seize upon this opportunity to do it.

WHETHER SOMETHING MORE THAN AN

"INTELLIGIBLE PRINCIPLE" IS REQUIRED WHEN

CONGRESS AUTHORIZES ANOTHER BRANCH TO

PROMULGATE REGULATIONS THAT

CONTEMPLATE CRIMINAL SANCTIONS IS AN

IMPORTANT QUESTION OF FEDERAL LAW

WHICH SHOULD BE DECIDED BY THIS COURT

Our nation was founded on the tripartite system of

government. The three branches of government--legislative,

executive, and judicial--are specifically designed to operate

under a system of checks and balances to guard against the

undue concentration of government power in one branch of

government. As described by this Court:

The Constitution sought to divide the

delegated powers ... to assure, as nearly as

possible, that each branch of government would

confine itself to its assigned responsibility.

The hydraulic pressure inherent within each of

the separate Branches to exceed the outer limits

of its power, even to accomplish desirable

objectives, must be resisted.

Immigration and Naturalization Service v. Chadha, 462 U.S.

919, 951 (1983).

The principle focus of the separation of powers doctrine

is the avoidance of tyranny. As stated by Madison in the

Federalist Papers No. 47:

The accumulation of all powers, legislative,

executive, and judiciary, in the same hands,

whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly

be pronounced the very definition of tyranny.

THE FEDERALIST No. 47, at 301 (James Madison)

(Clinton Rossiter ed., 1961).

The Constitution provides that "[a]ll legislative Powers

herein granted shall be vested in a Congress of the United

States." U.S. Const. Art. I, § 1. Under the separation of

powers principle, Congress alone can exercise the essentials

of the legislative function, which are the determination of

legislative policy and its formulation and promulgation as a

defined and binding rule of conduct. Yakus v. United States,

321 U.S. 414, 426-27 (1944). Under the nondelegation

doctrine which emanates from this specific constitutional

grant of authority, Congress may not constitutionally delegate

its legislative power to another branch of government. See

Mistretta v. United States, 488 U.S. 361, 371 (1989) ("The

nondelegation doctrine is rooted in the principle of separation

of powers that underlies our tripartite system of

Government.").

Nonetheless, Congress may seek assistance, within

proper limits, from its coordinate branches. However, ;

before the delegation is made, Congress must first "lay down

by legislative act an intelligible principle to which the person

or body authorized to [act] is directed to conform."

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394,

409 (1928).?

In its most recent case on point, Touby v. United

States, 500 U.S. __, 114 L. Ed. 2d 219, 227 (1991), this

Court considered whether Congress’ delegation of authority

to the Attorney General to schedule controlled substances on

a temporary basis constituted an unlawful delegation of

Congressional authority to actors in the Executive Branch

who already wielded the power of prosecution. Petitioners

argued that "something more than an ‘intelligible principle’

is required when Congress authorizes another Branch to

promulgate regulations that contemplate criminal sanctions

[because] ... [such] regulations ... pose a heightened risk to

individual liberty." Touby, 114 L. Ed. 2d at 227. This

Court did not have occasion to reach this issue, however,

because it found the labeling statute met constitutional

"muster even if greater congressional specificity is required

2 See Panama Refining Co. v. Ryan, 293 U.S. 388, 430

(1935) (striking down provision of the National Industrial

Recovery Act of 1933, which authorizes the President to

issue executive orders for hot oil and established criminal

penalties for violations thereof on the ground that Congress

has "declared no policy, ha[{d] established no standard, ha({d]

laid down no rule. There is no requirement, no definition of

circumstances and conditions in which the transportation is

to be allowed or prohibited"); A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 541-42 (1935)

(striking down section of National Industrial Recovery Act

which authorized the President to establish codes for trades

or industries because Congress had set forth no principles to

guide the President in developing such codes).

a it |

in the criminal context." Id.’ See also United States v.

Womack, 654 F.2d 1034, 1038 (11th Cir. 1981) (holding

Organized Crime Control Act provided Secretary of Treasury

with adequate standards or safeguards to control the listing

of explosives). The Court is now asked to reach the issue of

whether something more than an "intelligible principle” is

necessary in the instant case (assuming that such an

intelligible principle has been laid down in the Clean Water

Act).‘

Assuming arguendo that Congress did provide the

Corps with an intelligible principle, more specificity should

be required when Congress delegates authority to an entity

such as the Army Corps of Engineers to pass regulations that

contemplate felony criminal sanctions, because there is a vast

difference between the power to administratively regulate and

the power to set felony crimes. As explained by

Judge Vinson below:

A jurisprudence which allows Congress to

impliedly delegate its criminal lawmaking

authority to a regulatory agency such as the Army

3 Specifically, the Court found that the definite and

mandatory provisions which accompanied Congress’ grant of

labeling authority “meaningfully constrained" the Attorney

General’s potential for abuse of delegated authority. Touby,

114 L. Ed. 2d at 227.

——ee

* When it enacted the Clean Water Act, Congress arguably

failed to set forth an "intelligibie principle” upon which the

Corps could base its regulatory definition of "waters of the

United States" for enforcement purposes. Congress’ failure

to provide articulate standards which are sufficiently definite

in light of the complexity of the area at which the Act is

directed, has resulted in the most vague of regulations.

Corps--so long as Congress provides an

"intelligible principle” to guide that agency--is

enough to make any judge pause and question

what has happened. Deferent and minimal

judicial review of Congress’ transfer of its

criminal lawmaking function to other bodies, in

other branches, calls into question the vitality of

the tripartite system established by our

Constitution. It also calls into question the nexus

that must exist between the law so applied and

simple logic and common sense. Yet that seems

to be the state of the law. Since this court must

apply the law as it exists, and cannot change it,

there is nothing further that can be done at this

level.

U.S. v. Mills, 817 F. Supp. at 1555, Appendix at B-21.

The issue of whether more specificity is required when

Congress delegates authority to an entity such as the Army

Corps of Engineers to pass regulations that contemplate

felony criminal sanctions was expressly left unresolved by

this Court in its most recent delegation case, Touby v. United

States, 114 L. Ed. 2d at 227. This Court should take this

opportunity to resolve that issue once and for all.

III

THE ELEVENTH CIRCUIT’S DECISION IN THIS

CASE FAILS TO CONFORM WITH THIS COURT’S

PRIOR DECISION IN RIVERSIDE BAY VIEW

The Eleventh Circuit’s decision in this case is simply

not in harmony with either the written word or this Court's

thinking in Riverside Bayview. The lower court has unneces-

sarily and unjustifiably extrapolated the holding in Riverside

Bayview to fit an entirely different case. It is the proverbial

round peg in the square hole. At best, the Eleventh Circuit

ignored petitioners’ arguments respecting the unique

character of this case as a criminal matter. At worst, the

lower court mischaracterized petitioners’ arguments so as to

bring this case under the purview of Riverside Bayview. In

either event, Riverside Bayview was misapplied.

In a long line of other cases, this Court has held broad

delegations which result in vague regulations are more

suspect in cases involving criminal sanctions. See United

States v. Robel, 389 U.S. 258, 275 (1967) ("the numerous

deficiencies connected with vague legislative directives ... are

far more serious when liberty and the exercise of funda-

mental rights are at stake"); Fahey v. Mallonee, 332 U.S.

245, 250 (1947) ("discretion to make regulations ... might

not be allowable to authorize creation of new crimes in

unchartered fields"). The lower court decision in the present

case is in direct conflict with these precedents.

The Eleventh Circuit should not be allowed to turn this

Court’s decisions upside down so it can evade review. As

noted above, this Court has established a heightened standard

of review, with respect to delegation and vagueness, in

criminal cases. This Court has not created an exception to

this rule under the Clean Water Act. However, the Eleventh

Circuit has done so while claiming to rely on Supreme Court

precedent. The lower court’s decision in this case is

incorrect and does not follow from the decision of this Court

in Riverside Bayview and is inconsistent with that line of

Supreme Court cases which requires heightened scrutiny of

criminal statutes. The lower court decision shouid be

overturned.

CONCLUSION

The importance of the federal question raised by this

petition is clear and unmistakable. Congress has abdicated

its power to define the elements of a criminal action in favor

of the Army Corps of Engineers, an unelected administrative

agency. The Corps’ resulting definition of "wetlands" for

purposes of enforcing the criminal provisions of the Clean

Water Act cannot be understood by persons of ordinary

intelligence. The vague definition lacks explicit standards

and is, therefore, subject to arbitrary and discriminatory

enforcement. Moreover, the lower court decision, that

upholds the constitutionality of the Corps’ amorphous

definition of “wetlands,” misapplies the civil case of

Riverside Bayview and stands in open conflict with this

Court’s rulings that require heightened scrutiny of criminal

provisions.

Review by this Court is necessary to settle the

important question of law left unanswered in Touby v. United

States. Review is also necessary to resolve the conflict

created by the Eleventh Circuit decision in this case relative

to criminal matters. Petitioners respectfully urge this Court

to grant this petition for writ of certiorari and reverse the

judgment of the Eleventh Circuit Court of Appeals.

DATED: April, 1995.

Respectfully submitted,

ROBIN L. RIVETT

* JAMES S. BURLING

JENNIFER M. DEMING

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Petitioners

A-1

APPENDIX A

Ocie MILLS; Carey Mills,

Petitioners-Appellants,

UNITED STATES of America,

Respondent-Appellee.

No. 93-2757

United States Court of Appeals,

Eleventh Circuit

Oct. 27, 1994

Appeal from the United States District Court for the

Northern District of Florida.

Before KRAVITCH, Circuit Judge, FAY and

HENDERSON, Senior Circuit Judges.

PER CURIAM:

This is an appeal from an order entered in the United

States District Court for the Northern District of Florida

denying the appellants’ motion to vacate or set aside their

sentences brought pursuant to 28 U.S.C. § 2255, or in the

alternative, for a writ of error coram nobis. See United

States v. Mills, 817 F.Supp. 1546 (N.D. Fla. 1993). For the

reasons stated below, we affirm.

I. BACKGROUND

The appellants, Ocie and Carey C. Mills, jointly

owned two parcels of property located in the Spanish

Landing Subdivision in Santa Rosa County, Florida, adjacent

to the East Bay, an arm of the Gulf of Mexico. Earlier, in

1985, the United States Army Corps of Engineers (the

"Corps") determined that a major portion of one of the lots

was a wetland. At that time the land was owned by

Lewis W. Jenkins. Jenkins, who planned to build a

retirement home on the property, had placed some red clay

fill on the site in preparation to build a driveway. Upon

discovery of this activity, the Corps issued a cease and desist

order to Jenkins, which informed him that it would be

necessary to obtain authorization from the Corps prior to

placing fill material on real estate designated as wetlands.’

The order instructed him to either restore the area to its

former state or to obtain an after-the-fact permit from the

Corps. The unrestored property was later acquired by the

appellants, with full knowledge of the problems surrounding

its partial designation as wetlands. They continued to deposit

dirt and sand fill on the wetlands area without a permit

despite receiving two additional cease and desist letters.

' The Clean Water Act prohibits the discharge of dredged or

fill materials into “navigable waters,” defined in the Act as

"waters of the United States," without permission from the

Corps. By regulation, the Corps has construed "waters of

the United States," to encompass a broad category of

"wetlands." See 33 U.S.C. §§ 1311, 1344, 1362; 33 C.F.R.

§§ 323.2(a), 328.3; see also United States v. Riverside

Bayview Homes, Inc. , 474 U.S. 121, 123-24, 106 S.Ct. 455,

457-58, 88 L.Ed.2d 419, 424 (1985).

, ,

A-3

They also impermissibly enlarged an existing drainage ditch

causing it to become subject to the ebb and flow of the tide.

The appellants were eventually charged with and

found criminally liable of violating the Clean Water Act,

33 U.S.C. §§ 1311(a), 1319(c) (Counts I, I, II, ['V and VI),

and the Rivers and Harbors Act, 33 U.S.C. §§ 403, 406

(County V). They were each sentenced to concurrent terms

of imprisonment totaling twenty-one months and to one year

of supervised release. In addition, they were both ordered to

pay fines of $5,000.00 and $250.00 in special assessments.

As a condition of supervised release, they were required to

comply with a site restoration plan prepared by the Corps

and the Environmental Protection Agency. This court, in an

unpublished decision, summarily affirmed their convictions

and sentences on direct appeal. United States v. Mills,

904 F.2d 713 (11th Cir. 1990).?

After the appellants were discharged from

incarceration to supervised release, the government, through

the United States Probation Office, petitioned the district

court to enforce the conditions of supervised release because

2 The pleadings filed in the direct criminal appeal were not

made a part of the record in the present appeal. According

to the district court’s order denying § 2255 relief, the

appellants maintained on direct appeal that (1) § 1311 is

unconstitutionally vague and overly broad; (2) the district

court erroneously prevented them from asserting an equitable

estoppel defense; and (3) there was insufficient evidence to

establish that, at the time they placed fill material on the

property in issue, it was a wetland. See Mills, 817 F.Supp.

at 1549 & n. 2, 1555-56, 1558. The appellants do not take

issue with the district court’s account of their assignments of

error on direct appeal. We, therefore, accept it as accurate.

A-4

of the alleged failure of the appellants to comply with the

restoration plan. After holding extensive hearings and

personally inspecting the site, Judge Roger Vinson, who did

not preside over the criminal trial, rejected the government’s

contention that an additional ten inches of soil needed to be

removed from the wetlands portion of the property (Lot 20)

to achieve restoration. Specifically, Judge Vinson found that

the elevation of Lot 20 is now at, or in some

instances, below, the elevation as it existed in

December of 1985. The Government’s

contention that ten more inches of soil need to

be removed from Lot 20 would result in

turning Lot 20 into a pond, an undesirable

condition. The lot is now totally denuded and

ugly, in stark contrast to the beautiful lot that

existed prior to 1986. Although there are

detectable amounts of clay remaining on the

lot, I find that the defendants have met the

requirements of the site restoration plan

insofar as it applies to elevation.

(R1-154-7).

At some point during the pendency of the enforcement

proceedings, the Millses filed the § 2255 petition, the subject

of this appeal, which was also assigned to Judge Vinson for

consideration and disposition. In it, the appellants asserted {

four grounds for relief--first, that their convictions under the

Clean Water Act are void because Congress unconsti-

tutionally delegated its legislative authority to the Corps to

define “waters of the United States" to include an expansive

view of what constitutes "wetlands"; second, that they were

selectively prosecuted for exercising their First Amendment

rights; third, that they were denied due process when the

A-5

district court prevented them from pursing a defense of

equitable estoppel at their criminal trial; and fourth, that

evidence presented in the supervised release hearing

established that the property had ceased to be a wetlands at

the time they added the soil fill.

Judge Vinson found that the second claim was

procedurally barred because the Millses failed to raise it on

direct appeal. He concluded, conversely, that the third and

fourth grounds had already been rejected by this court and,

therefore, were not subject to further review.’ He observed

> In support of the appellants’ claim that the property no

longer constituted a wetlands at the time of their ownership

they relied on testimony presented at the supervised release

hearing and on Judge Vinson’s finding that the elevation of

Lot 20 was at, or in some places below, its elevation in

1985. They argued that,

if the lot is presently an upland, and the

Defendants in some instances have gone below

the elevation as it existed in December of

1985, then the property was obviously an

upland in 1985. If the property was obviously

an upland in 1985, the Corps did not have

jurisdiction. The Mills’ [sic] have been

convicted and punished for conduct which was

not criminal.

(R1-159-8). In the order denying § 2255 relief, Judge

Vinson stated that a significant factual development from the

supervised release hearing “was a determination that, at the

time in question, the subject land (Lot 20) was probably not

a ‘wetland’ for purposes of the Clean Water Act.” Mills,

(continued...)

A-6

that the appellants also should have, but failed, to present

earlier their constitutional argument concerning the delegation

of authority to define "waters of the United States" to include

"wetlands." Because this claim of error challenged the

validity of the statute under which they were convicted,

however, he reviewed its merits to determine whether this

lapse could be excused under the fundamental miscarriage of

justice exception to the procedural default doctrine. See

Mills, 817 F.Supp. at 1549-50. After thoroughly analyzing

the Clean Water Act, its legislative history and the context in

which the statute was enacted, and in light of the Supreme

Court’s decision in United States v. Riverside Bayview

Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419

(1985), Judge Vinson found no unconstitutional delegation of

legislative power. See id. at 1552-55. He therefore denied

relief and this appeal followed.

II. DISCUSSION

Generally speaking, an available challenge to a

criminal conviction or sentence must be advanced on direct

appeal or else it will be considered procedurally barred in a

§ 2255 proceeding. See Greene v. United States, 880 F.2d

1299, 1305 (11th Cir.1989) (and the cases cited therein),

cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d

498 (1990). A ground of error is usually “available” on

> (...continued)

817 F.Supp. at 1548. He nevertheless concluded that the

sufficiency of the evidence with respect to whether the

property was a wetlands was “fully disposed of on direct

appeal and, therefore, [was] not cognizable under Section

2255." Id. at 1549.

A-7

direct appeal when its merits can be reviewed without further

factual development. Compare United States v. Arango,

853 F.2d 818, 823 (llth Cir.1988) (an allegation of

ineffective assistance of counsel must be raised by collateral

attack as opposed to direct appeal because of the necessity to

develop a factual basis for its validity through a hearing),

with United States v. Andrews, 953 F.2d 1312, 1327 (11th

Cir.) (claims of ineffective assistance may be considered on

direct appeal where there is sufficient evidence on the record

to resolve the issue), cert. denied, 3.

112 S.Ct. 3008, 3048, 120 L.Ed.2d 882, 915 (1992). When

a defendant fails to pursue an available claim on direct

appeal, it will not be considered a motion for § 2255 relief

unless he can establish cause for the default and actual

prejudice resulting from the alleged error. Cross v. United

States, 893 F.2d 1287, 1289 (llth Cir.), cert. denied,

498 U.S. 849 111 S.Ct. 138, 112 L.Ed.2d 105 (1990).

Alternatively, under the fundamental miscarriage of justice

exception, "in an extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who

is actually innocent, a federal habeas court may grant the

writ even in the absence of a showing of cause for the

procedural default." Murray v. Carrier, 477 U.S. 478, 496,

106 S.Ct. 2639, 2649, 91 L.Ed.2d 397, 413 (1986). On the

other hand, prior disposition of a ground of error on direct

appeal, in most cases, precludes further review in a

subsequent collateral proceeding. See United States v.

Hobson, 825 F.2d 364, 366 (11th Cir.1987), vacated on

other grounds, 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d

581 (1989).

The appellants’ first ground for relief, that Congress

unconstitutionally delegated its duty to define "waters of the

United States" to the Corps, should have been asserted on

direct appeal. The district court correctly concluded

sii ima iN

A-8

nevertheless that, if this delegation of authority rendered the

statute void, the appellants’ procedural default could be

excused under the fundamental miscarriage of justice

exception because a defendant is actually innocent of a crime

where the underlying statute is without force or effect.* See

Gonzales v. Abbott, 967 F.2d 1499, 1504 (11th Cir.1992).

We also agree with the district court, however, that this

constitutional argument lacks merit. In Riverside Bayview

Homes, Inc., the Supreme Court held that the Corps’

interpretation of “waters of the United States" to include

wetlands adjacent to navigable waters is reasonable and in

keeping with the expressed intent of Congress.‘ See

Riverside Bayview Homes, Inc., 474 U.S. at 131-39,

106 S.Ct. at 461-65, 88 L.Ed.2d at 429-34. Further, we

concur with the district court that, considering the purpose of

the Clean Water Act, the context in which it was enacted and

its legislative history, Congress provided sufficiently precise

standards by which to judge the delegation in issue such that

the appellants’ challenge must fail. See id.; United States v.

Sans, 731 F.2d 1521, 1527-28 (11th Cir.1984) (legislation

which prescribes essential parameters and basic legislative

policy and delegates to an administer authority for

promulgation of rules and regulations is constitutionally

permissible so long as the criteria are sufficiently clear to

* The appellants did not attempt to show cause for their

procedural default.

> The question of whether the Corps’ authority properly

extends to regulating the discharge of fill material onto

wetlands not adjacent to bodies of open water was not before

the Supreme Court, nor is it before us. See Riverside

Bayview Homes, Inc., 474 U.S. at 131 n. 8., 106 S.Ct. at

461 n. 8, 88 L.Ed.2d at 429 n. 8; Mills, 817 F.Supp. at

1551 n.5.

A-9

enable Congress, the courts and the public to ascertain

whether the administrator has conformed to those standards),

cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785

(1985).

The district court properly refused to substantively

address the appellants’ remaining contentions. This court has

already rejected the equitable estoppel argument as well as an

assertion that the evidence at trial failed to establish that Lot

20 was a wetland at the time of the offenses. In support of

the latter ground, the appellants rely on evidence adduced at

the subsequently held supervised release hearing. Even if

this evidence could support a finding that the property had

lost its wetlands character prior to the appellants’ ownership,

a finding upon which we voice no opinion, the time to

present this proof was at the trial on the merits.° We find

no error in the district court’s refusal to revisit the

sufficiency of the evidence. See Hobson, 825 F.2d at 366.

Finally, the record reveals that, even assuming that the

selective prosecution ground was not procedurally barred, it

is without substance.’

° The appellants, who represented themselves at trial,

contend they were not competent in the ways of introducing

expert opinion testimony on such matters. They do not state,

however, that their election to proceed pro se was the result

of an unknowing or involuntary waiver of their right to

courisel.

’ This allegation is based upon a letter to the United States

Attorney, dated February 12, 1987, written by a District

Engineer with the Corp recommending that Ocie Mills be

criminally prosecuted. (The letter does not mention Carey

Mills). The appellants contend they learned of the existence

(continued...)

A - 10

Il. CONCLUSION

In keeping with the foregoing analysis, the district

court’s judgment denying the appellants’ motion for § 2255

relief, or in the alternative, for a writ of error coram nobis,

is AFFIRMED.

7 (...continued)

of this letter pursuant to a Freedom of Information Act

request which they made during their incarceration.

Establishing cause for a procedural default ordinarily turns

on whether a claim could not have been asserted in a timely

manner due to some objective factor external to the defense.

Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir.1993). The

appellants offer no explanation for their delay in discovering

this letter.

B- 1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA PCR: 88-03100-RV

v. PCR: 91-30428-RV

OCIE MILLS and CAREY C. MILLS.

ORDER

This cause comes on for consideration upon the

magistrate judge’s report and recommendation dated June 26,

1992. All parties have been furnished copies of the report

and recommendation and have been afforded an opportunity

to file objections, pursuant to Title 28, United States Code,

Section 636(b)(1). Subject to the following discussion, the

report and recommendation is adopted, incorporated into, and

made a part of this order.

I. BACKGROUND

This case presents the disturbing implications of the

expansive jurisdiction which has been assumed by the United

States Army Corps of Engineers under the Clean Water Act.

In a reversal of terms that is worthy of Alice in Wonderland,

the regulatory hydra which emerged from the Clean Water

Act mandates in this case that a landowner who places clean

fill dirt on a plot of subdivided dry land may be imprisoned

for the statutory felony offense of “discharging pollutants into

the navigable waters of the United States."

B-2

The movants, Ocie Mills and Carey C. Mills, father

and son, were found guilty in a 1989 jury trial of five counts

of discharging pollutants into the waters of the United States

without a permit, in violation of Sections 301(a) and 309(c)

the Clean Water Act, Title 33, United States Code, Sections

1311(a) and 1319(c).' The two Millses were also found

guilty of a misdemeanor offense of unlawfully excavating a

canal (the drainage ditch between Lots 19 and 20) in the

navigable waters of the United States, in violation of Sections

10 and 12 of the Rivers and Harbors Act, Title 33, United

States Code, Sections 403 and 406. Their prosecution and

conviction stemmed from their attempt to prepare for

building on two waterfront lots (Lots 20 and 21) on

Escambia Bay which they purchased in 1986. One lot (Lot

' There have been relatively few criminal prosecutions for

violations of the Clean Water Act, and even fewer sentences

of incarceration have been imposed. See, e.g., United States

v. Ellen, 961 F.2d 462 (4th Cir.), cert. denied, ___ US.

__, 113 S. Ct. 217, 121 L. Ed. 2d 155 (1992) (defendant

sentenced to six months imprisonment; United States v.

Holland, 874 F.2d 1470 (11th Cir.1989)) (defendant

sentenced to five years probation; probation revoked and six |

months imprisonment imposed when defendant violated

conditions of probation); United States v. Hoflin, 880 F.2d

1033 (9th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.

Ct. 1143, 107 L. Ed. 2d 1047 (1990) (sentence suspended;

defendant placed on two years probation); United States v.

Frezzo Bros., Inc., 602 F.2d 1123 (3d Cir. 1979), cert.

denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756

(1980) (corporate defendant fined; individual defendants

fined and sentenced to thirty days in jail); United States v.

Pozsqai, 757 F.Supp. 21 (E.D.Pa.1991) (defendant fined and

sentenced to three years imprisonment).

lita i

B-3

21) was deemed to be upland, but a significant portion of the

other lot (Lot 20) was deemed by the Corps to be a

"wetland." Although Lot 20 (like Lot 21) is a waterfront lot,

it does not have the appearance of what most lay people think

of as a "wetland." Prior to the events in question here, it

was Originally mostly wooded, with large pine, oak, gum,

bay, and magnolia trees, as well as lots of smaller trees and

shrubs. Some of these trees grow well in saturated soil

conditions, while others do not. A relatively narrow strip of

marsh grass along the bay beachline was not directly affected

by the Millses’ action in question. In its original natural

state, the lot had a dish-shaped drain through the center that

apparently carried rainwater runoff from inland to the bay,

but it had no standing water on it, nor did it appear to be a

marsh, swamp, or bog.

After their jury trial, the Millses were each sentenced

by Senior Judge Winston E. Arnow of this Court to

twenty-one months incarceration, followed by one year of

supervised release. In addition, the court imposed a $5000

fine and a special monetary assessment of $250 on each

defendant and required the defendants to comply with a Site

Restoration Plan. Following their convictions, the Millses

filed a direct appeal. The convictions were summarily

affirmed by the Eleventh Circuit Court of Appeals. United

States v. Mills, 904 F.2d 713 (11th Cir.1990) (table).

In a separate subsequent proceeding regarding the

Millses’ Supervised Release and their obligations under the

Site Restoration Plan, I held an extended evidentiary hearing.

By order entered herein on December 24, 1991, I determined

that the Millses had substantially complied with the Plan, and

specifically, that the elevation requirements had all been met.

One significant factual development from that proceeding was

a determination that, at the time in question, the subject land

B-4

(Lot 20) was probably not a "wetland" for purposes of the

Clean Water Act. This was because, as a part of the

subdivision development in 1978, a drainage that formerly

ran through Lot 20 was offset about 45 feet by constructing

a ditch between Lots 19 and 20, and the old drain through

Lot 20 was blocked and partially filled by the developer.

Thus, the diversion of the drain and some filling on Lot 20

was apparently done before the effective date of the

applicable Clean Water Act Regulations, and long before the

Millses bought their lots in 1986. The Millses, who

represented themselves without an attorney at their criminal

trial, were not allowed to put on evidence about this,

however. Although they challenged this on direct appeal, the

Eleventh Circuit affirmed.

The two Millses have now moved to vacate, set aside,

or correct their sentences, pursuant to Title 28, United States

Code, Section 2255, and/or for a writ of error coram nobis.

They have raised four grounds in support of the motion: (1)

their convictions for violations of the Clean Water Act are

void because Congress has unconstitutionally delegated its

legislative authority to the United States Army Corps of

Engineers; (2) they were selectively prosecuted; (3) they

were denied due process when the trial court prevented them

from presenting to the jury the defense of equitable estoppel;

(4) there was insufficient evidence to establish that, at the

time they placed fill and spoil material on their property, the

property was a "wetland."

Il. DISCUSSION

Having considered the magistrate judge’s report and

recommendation and all objections thereto timely filed by the

parties, I have determined that the recommendation should be

adopted in part. Specifically, I adopt the recommendation of

eee Sam

B-5

the magistrate judge that (1) the Millses have procedurally

defaulted on the selective prosecution claim, and (2) the

defenses of equitable estoppel and sufficiency of the evidence

were fully disposed of on direct appeal and, therefore, are

not cognizable under Section 2255. As questionable as it

now may be, the factual basis of their convictions and the

sufficiency of the evidence at their trial were previously

affirmed by the Eleventh Circuit, and are not subject to

further review by this Court. However, the Millses’

contention that the Clean Water Act unconstitutionally

delegates power to the United States Army Corps of

Engineers (the "Army Corps") merits additional discussion.

As a threshold matter, I note that the Millses failed to

raise this constitutional challenge to the Clean Water Act

earlier, both in the proceedings before the trial court and on

direct appeal. Thus, they procedurally defaulted on the

delegation challenge. Generally, the failure to raise a

constitutional issue on direct appeal bars a movant from

raising the same issue in a Section 2255 proceeding. Greene

v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989), cert.

denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498

(1990); Parks v. United States, 832 F.2d 1244, 1245 (11th

Cir.1987). Movants can avoid this procedural bar only by

showing cause for the failure to raise the claim on direct

2 On direct appeal, the Millses raised vagueness and

overbreadth challenges to the constitutionality of 33 U.S.C.

§ 1311, which prohibits the discharge of pollutants except in

compliance with the Clean Water Act. The Mills argued that

Section 1311 is "so vague and broad that it encompasses

legal conduct which subjects its enforcement to arbitrary and

discriminatory enforcement. It is so vague that a person of

ordinary intelligence cannot determine what is prohibited."

(Doc. 113, Appellant’s Br. at 42-43).

B- 6

appeal and actual prejudice resulting from the failure. United

States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584,

1594-95, 71 L. Ed. 2d 816, 830 (1982); Greene v. United

States, supra, 880 F.2d at 1305.

The Millses make no attempt to show cause for not

raising this constitutional challenge earlier. Instead, they

argue that to be incarcerated for violating a criminal

provision which is void results in a fundamental miscarriage

of justice. According to the Millses, such exceptional

circumstances excuse their procedural default.

The Millses are correct that, in certain exceptional

circumstances, procedural default may be excused in order to

avoid a "fundamental miscarriage of justice." Gonzalez v.

Abbott, 967 F.2d 1499, 1504 (11th Cir.1992). In Gonzalez

v. Abbott, supra, a challenge to a conviction was raised in a

habeas petition which had not been raised at trial or on direct

appeal. The petitioner in that case was incarcerated pursuant

to a conviction for conspiracy to traffic in cocaine. Id.,

967 F.2d at 1500. The petitioner challenged his conviction

on the grounds that, prior to the conviction becoming final,

the state legislature had repealed the statute creating the

substantive offense--trafficking in cocaine--upon which the

conspiracy conviction was based. Thus, according to the

petitioner, the conspiracy conviction was void.

The district court held that the petitioner had

procedurally defaulted on this claim by not raising it earlier,

either at trial or on direct appeal. Reversing, the Court of

Appeals held that “this claim, if legally founded, establishes

that [the] ... conviction ... is void and cannot be a legal

cause of imprisonment--notwithstanding any procedural

default." Jd., 967 F.2d at 1504.

Aner senieasnreenases

B-7

The Millses argue that the same principle excuses

their procedural default. According to them, the provisions

of the Corps’ Regulations which they were convicted of

violating are void, because Congress has unconstitutionally

delegated its legislative power to the Army Corps of

Engineers, an agency of the Executive Branch of

government. Thus, the argument goes, a criminal conviction

for violating those provisions would itself be void and could

not be a legal cause of imprisonment. While I find merit in

this argument, I need not decide whether the Millses’

procedural default should be excused in order to avoid a

fundamental miscarriage of justice. This is because even if

I consider the merits of the Millses’ delegation challenge, I

am constrained by Supreme Court precedent to conclude that

the Clean Water Act does not impermissibly delegate

legislative power to the Corps of Engineers.

A. Clean Water Act

The Clean Water Act was enacted "to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters." 33 U.S.C. § 1251(a). Under Sections

301, 404, and 502 of the Clean Water Act [33 U.S.C.

§§ 1311, 1344, 1362], it is unlawful to discharge dredged or

waste materials into "the navigable waters" without a permit

from the Army Corps of Engineers.? Most important for

> The prohibition is not stated that succinctly in the Clean

Water Act, but is derived from reading the three referenced

sections in tandem. Section 301 of the Clean Water Act lays

down the general rule of prohibited discharges: “Except in

compliance with this section and sections 1312, 1316, 1317,

1328, 1342, and 1344 of this title, the discharge of any

(continued...)

B-8

present purposes, violations of the Act carry criminal

penalties. The negligent discharge of pollutants, without a

permit, into the "navigable waters" is punishable by a fine of

between $2500 and $25,000 per day of violation, and

imprisonment for not more than one year. 33 U.S.C. §

1319(c)(1). The knowing discharge of pollutants, without a

permit, into the "navigable waters” is punishable by a fine of

between $5,000 and $50,000, and imprisonment for not more

than three years. 33 U.S.C. § 1319(c)(2). As defined in the

Act, “sand” is included as a “pollutant.”

The key to these sections is the term "navigable

waters," for that term determines the very scope of the

> (...continued)

pollutant by any person shall be unlawful." 33 U.S.C.

§ 1311.

Section 404 of the Act authorizes the Secretary of the

Army, acting through the Chief of Engineers, to “issue

permits, ... for the discharge of dredged or fill material into

the navigable waters.” 33 U.S.C. § 1344(a).

Definitions are found in Section 502 of the Act,

33 U.S.C. § 1362. "Discharge of a pollutant" is defined, as

"any addition of any pollutant to navigable waters from any

point source." 33 U.S.C. § 1362(12). “Pollutant” is defined

broadly to mean "dredged spoil, solid waste, ... rock, sand,

... discharged into water." 33 U.S.C. § 1362(6). "Navigable

waters" is defined as “the waters of the United States,

including the territorial seas." 33 U.S.C. § 1362(7).

Thus, the Act prohibits the “discharge” of "sand" into

the navigable waters--defined as the waters of the United

States--without a permit issued by the Corps.

040 ERD i

B-9

prohibition. Yet, the Act defines "navigable waters" with the

utterly non-definitive statement: " ‘navigable waters’ means

the waters of the United States, including the territorial

seas." 33 U.S.C. s 1362(7).

Therefore, the term “waters of the United States”

becomes crucial, for it determines where one can and cannot

discharge pollutants--such as sand fill dirt--without a permit.

A person who knowingly or willfully discharges such fill

dirt, without a permit, into the “waters of the United States"

may be imprisoned for up to three years. The term "waters

of the United States," however, is defined nowhere in the

Act. It is possible that Congress initially assumed that the

term would be applied in the traditional manner utilized for

such purposes as ascertaining admiralty jurisdiction or the

application of the Commerce Clause. But the absence of a

definition by Congress left the task of defining "waters of the

United States” to the entities charged with administering and

enforcing the Act, the Army Corps of Engineers and the

Environmental Protection Agency ("EPA").4

* The responsibility for administering and enforcing the

Clean Water Act is shared by the Corps and the EPA. The

EPA has the authority to seek penalties for discharge of

pollutants into waters of the United States without a permit.

The EPA can issue an order requiring compliance with the

Act, bring a civil action for an injunction and penalties, and

seek administrative penalties. 33 U.S.C. § 1319.

The Corps has authority to issue permits to discharge

dredged or fill materials into waters of the United States.

33 U.S.C. § 1344(a). In issuing such permits, the Corps is

to apply guidelines developed by the EPA, in conjunction

with the Corps. 33 U.S.C. § 1344(b). The Corps has the

: (continued...)

B- 10

The Army Corps and the EPA enacted identical

regulations defining “waters of the United States", and

thereby delineated the jurisdictional limits of the Act.* The

* (...continued)

authority to enforce violations of these permits, by issuing

orders requiring compliance with the permits, and by

bringing civil actions for "appropriate relief, including a

permanent or temporary injunction" for violation of a

compliance order. 33 U.S.C. § 1344(c).

> Both the Army Corps of Engineers and the EPA define

“waters of the United States" as follows:

The term "waters of the United States" means:

(1) All waters which are currently used, or were used

in the past, or may be susceptible to use in interstate or

foreign commerce, including all waters which are subject to

the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation or destruction

of which could affect interstate or foreign commerce

including any such waters:

(i) Which are or could be used by interstate or foreign

travelers for recreational or other purposes; or

(continued...)

9 renee epee ee

B- 11

regulatory definition includes rivers, lakes, streams,

territorial seas, all of which are "waters" in the

everyday-sense of the word.

The regulation goes much further, however, and

defines “waters of the United States" to include something

called "wetlands" which are adjacent to traditional!

“waters"--rivers, lakes, streams, and territorial seas. The

regulation then makes a quantum leap onto land. "Wetlands"

> (...continued)

(ii) From which fish or shellfish are or could be taken

and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial

purpose by industries in interstate commerce;

(4) All impoundments of waters otherwise defined as

waters of the United States under the definition;

(5) Tributaries of waters identified in paragraphs

(a)(1) through (4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that

are themselves wetlands) identified in paragraphs (a)(1)

through (6) of this section. Waste treatment systems,

including treatment ponds or lagoons designed to meet the

requirements of CWA (other than cooling ponds as defined

in 40 CFR 123.11(m) which also meet the criteria of this

definition) are not waters of the United States. 33 C.F.R.

§ 328.3(a) (1986) (Army Corps’ definition); 40 C.F.R.

§ 230.3(s) (1980) (EPA definition). Only paragraph (7) has

any application here.

B- 12

are defined as "those areas that are inundated or saturated by

surface or ground water at a frequency and duration

sufficient to support, and that under normal circumstances do

support, a prevalence of vegetation typically adapted for life

in saturated soil conditions. Wetlands generally include

swamps, marshes, bogs and similar areas." 33 C.F.R.

§ 328.3(b) (Army Corps definition); 40 C.F.R. § 230.3(t)

(EPA definition).

The Millses argue that Congress unconstitutionally

delegated its legislative authority to the Army Corps by

allowing the Corps to define "waters of the United States" to

include "wetlands" in the broad manner it has. According to

the Millses, Congress has never defined “waters of the

United States" to include wet land, and Congress has never

defined "wetlands" in a manner sufficient to meet criminal

Statute scrutiny. Nor is there an expressed intent of

Congress to so delegate that power to the Corps. In short,

they point out that there is no statute that makes it a federal

crime to place clean, unpolluted sand on dry appearing land,

as the Millses were convicted of and for which they each

served 21-months federal prison terms. Thus, their argument

goes, it is unconstitutional for the Corps to usurp the

legislative task of defining "waters of the United States" to

include land that may have wetland vegetation growing on it.

B. Delegation

The Constitution provides that "[a]ll legislative

Powers herein shall be vested in a Congress of the United

States." U.S. Const., Art. I, § 1. From this provision is

derived the delegation doctrine: Congress may not

constitutionally delegate its legislative power to another

branch of government. Touby v. United States, 500 U.S.

_ ,.__ , 411 S. Ce. 1752, T7598, 114-1. Ba. 2d 219; 227

B - 13

(1991). This doctrine is “rooted in the principle of

separation of powers that underlies our tripartite system of

Government." Mistretta v. United States, 488 U.S. 361,

371, 109 S. Ct. 647, 654, 102 L. Ed. 2d 714, 730 (1989).

Yet, the principle that the Constitution prohibits

Congress from delegating its legislative authority is

essentially nugatory, for little is required of Congress when

it wants to obtain the assistance of its coordinate branches.°

° Only twice in history has the Supreme Court declared

unconstitutional a Congressional delegation of authority to a

governmental body. Mistretta v. United States, 488 U.S.

361, 373, 109 S. Ct. 647, 655, 102 L. Ed. 2d 714, 731

(1989). In 1935 the Supreme Court, in two separate cases,

invalidated provisions of the National Industrial Recovery

Act of 1933 (the "NIRA"). First, in Panama Refining Co. v.

Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 (1935),

the Court invalidated the section of the NIRA which

authorized the President to issue executive orders to prohibit

the transportation of petroleum products in excess of state

quotas (so called “hot oil") in interstate commerce, and

established criminal penalties for violations of these executive

orders.

After examining the NIRA as a whole, the Court

concluded that this delegation of authority was

unconstitutional. "As to the transportation of [hot oil], the

Congress has declared no policy, has established no standard,

has laid down no rule. There is no requirement, no

definition of circumstances and conditions in which the

transportation is to be allowed or prohibited." 293 U.S.

at 430, 55 S. Ct. at 252. Second, in A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L.

(continued...)

P- 14

° (...continued)

Ed. 1570 (1935), the Court invalidated the section of the

NIRA which authorized the President to establish “codes of

fair competition" for trades or industries. According to the

Court, Congress had set forth no principles to guide the

President in developing codes of fair competition. Such a

delegation was unprecedented: [This provision] supplies no

standards for any trade, industry or activity. It does not

undertake to prescribe rules of conduct to be applied to

particular states of fact determined by appropriate

administrative procedure. Instead of prescribing rules of

conduct, it authorizes the making of codes to prescribe them.

For that legislative undertaking, [the section] sets up no

standards, aside from the statement of general aims of

rehabilitation, correction, and expansion described in section

one.... We think that the code-making authority thus

conferred is an unconstitutional delegation of legislative

power. 295 U.S. at 541-42, 55 S. Ct. at 848. Since these

two cases, however, the Supreme Court has upheld, without

deviation, Congress’ ability to delegate power to

governmental bodies under broad standards. See, e.g., Nat’l

Broadcasting Co. v. United States, 319 U.S. 190, 63 S. Ct.

997, 87 L. Ed. 1344 (1943) (upholding delegation to FCC to

regulate radio broadcasting “as public convenience, interest

Or necessity requires"); FPC v. Hope Natural Gas Co.,

320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944)

(upholding delegation of authority to set "just and

reasonable” natural gas rates); Yakus v. United States,

321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944)

(upholding delegation to set maximum prices for agricultural

commodities which are "generally fair and equitable");

American Power & Light Co. v. SEC, 329 U.S. 90, 67 S. Ct.

133, 91 L. Ed. 103 (1946) (upholding delegation of authority

(continued...)

B - 15

"So long as Congress ‘lay[s] down by legislative act

an intelligible principle to which the person or body

authorized to [act] is directed to conform, such legislative

action is not a forbidden delegation of legislative power.’ "

Touby v. United States, supra, __ U.S. at__, 111 S.. Ct.

at 1759, 114 L.Ed.2d at 227 (quoting J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409, 48 S. Ct. 348, 352,

72 L. Ed. 624 (1928)); Mistretta v. United States, supra,

488 U.S. at 373, 109 S. Ct. at 655, 102 L. Ed. 2d

at 730-31.

It is the law of this Circuit that delegation challenges

are judged according to the following standard:

"Congressional legislation which

prescribes essential standards an_ basic

legislative policy and delegates to an

administrator authority for promulgation of

Tules and regulations is constitutionally

permissible, provided the standards are

® (...continued)

to Securities and Exchange Commission to prevent "unfair or

inequitable" distribution of voting power among

stockholders); Lichter v. United States, 334 U.S. 742, 68 S.

Ct. 1294, 92 L. Ed. 1694 (1948) (upholding delegation of

authority to recover “excessive profits” earned on war

contracts). The Court’s treatment of the delegation doctrine

since the two 1935 cases led one Justice to conclude that

"[the] doctrine is surely as moribund as the substantive due

process approach of the same [1930s] era." Nat’l Cable

Television v. United States, 415 U.S. 336, 353, 94 S. Ct.

1146, 1156, 39 L. Ed. 2d 370, 378 (1974) (Marshall, J.,

concurring in part, dissenting in part).

B - 16

sufficiently definite and precise to enable

Congress, the courts and the public to

ascertain whether the [a]dministrator ... has

conformed to those standards."

United States v. Sans, 731 F.2d 1521, 1527-28 (11th Cir.

1984), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L.

Ed. 2d 785 (1985) (quoting United States v. Womack,

654 F.2d 1034, 1037 (Sth Cir. Unit B 1981), cert. denied,

454 U.S. 1156, 102 S. Ct. 1029, 71 L. Ed. 2d 314 (1982)

(citations omitted)). See also United States v. Gordon,

580 F.2d 827 (Sth Cir. 1978), cert. denied, 439 U.S. 1079,

99 S. Ct. 860, 59 L. Ed. 2d 49 (1979).

In judging the constitutionality of a statutory

delegation of authority, a court looks not only to the statute

itself, but to the legislative history and the context in which

the statute was enacted. "The standards of the statute are not

to be tested in isolation but must derive meaningful context

from the purpose of the statute and its factual background

and the statutory context in which the standards appear."

United States v. Sans, supra, 731 F.2d at 1528; United

States v. Womack, supra, 654 F.2d at 1037.

With these considerations in mind, I turn to the issue

of whether the Clean Water Act unconstitutionally delegates

to the Army Corps of Engineers the authority to define

“navigable waters of the United States" in the manner that

the Corps has done. The opinion of the Supreme Court of

the United States in United States v. Riverside Bayview

Homes, 474 U.S. 121, 106 S. Ct. 455, 88 L. Ed. 2d 419

(1985), constrains me to conclude that it does not.

Like this case, at issue in Riverside Bayview Homes

was the authority of the Corps to regulate "wetlands" under

So re ee

B- 17

the Clean Water Act. Specifically, the Court considered the

question of whether the Act authorized the Corps to require

landowners to obtain a permit from the Corps before

discharging fill material into wetlands adjacent to navigable

bodies of water. Id., 474 U.S. at 123, 106 S. Ct. at 457,

88 L. Ed. 2d at 424. The Court examined the language,

policies, and legislative history of the Act, and concluded

that the Act did authorize the Corps to regulate wetlands

adjacent to navigable bodies of water. “We are thus

persuaded that language, policies, and history of the Clean

Water Act compel a finding that the Corps has acted

reasonably in interpreting the Act to require permits for the

discharge of fill material into wetlands adjacent to the ’ waters

of the United States.’ " Jd., 474 U.S. at 139, 106 S. Ct. at

465, 88 L. Ed. 2d at 434.

A review of these same sources--the language,

policies, and legislative history--in light of Riverside

Bayview Homes, leads me to conclude that the Act did not

impermissibly delegate authority to the Army Corps of

Engineers by allowing the Corps to define "waters of the

United States" as including "wetlands," and to define

"wetlands" as encompassing land that is not “wet" in the

ordinary sense of the word. First, the legislative history

indicates that Congress intended “waters of the United

States" to be interpreted to extend as far as was permissible

under the Commerce Clause. "The conferees fully intend

that the term ‘navigable waters’ be given the broadest

possible constitutional interpretation." See H.R. Rep.

No. 92-911, 92d Cong., p. 131 (1972), reprinted in 1972

U.S.C.C.A.N. 3668, 3776, 3822; 118 Cong. Rec. 33692,

33699 (1972) (statement of Senator Muskie); 118 Cong.

Rec. 33756-57 (1972) (statement of Rep. Dingell). This has

led numerous courts to conclude that Congress intended the

"waters of the United States" to reach the full extent

B- 18

permissible under the Constitution. United States v. Tilton,

705 F.2d 429, 431 (llth Cir. 1983); United States v.

Lambert, 695 F.2d 536, 538 (11th Cir.1983); United States

v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979); Leslie Salt

Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir. 1978);

United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,

1324-25 (6th Cir. 1974).

Second, the Supreme Court concluded that the

interpretation of the term "waters of the United States” to

include wetlands adjacent to what are conventionally thought

of as “waters” is consistent with the broad purposes of the

Clean Water Act. Riverside Bayview Homes, supra,

474 U.S. at 132-33, 106 S. Ct. at 462-63, 88 L. Ed. 2d

at 430. The broad purpose of the Clean Water Act is to

"restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters." 33 U.S.C. § 1251. In

Riverside Bayview Homes, the Supreme Court stated that this

objective "incorporated a broad, systemic view of the goal of

maintaining and improving water quality." 474 U.S. at 132,

106 S. Ct. at 462, 88 L. Ed. 2d at 430.

[A]s the House Report on the legislation put

it, “the word ‘integrity’ ... refers to a

condition in which the natural structure and

function of ecosystems is maintained."

Protection of aquatic ecosystems, Congress

recognized, demanded broad federal authority

to control pollution, for "[w]ater moves in

hydrologic cycles and it essential that

discharge of pollutants be controlled at the

source."

Id., 474 U.S. at 132-33, 106 S. Ct. at 462-63, 88 L. Ed. 2d

at 430 (citations omitted).

B - 19

Thus, the broad purpose of the Act was to protect

water quality and aquatic ecosystems. It was this broad

purpose which guided the Army Corps when it defined

“waters of the United States” to include wetlands adjacent to

what are commonly thought of as waters--bays, lakes, rivers,

etc. The Corps’ definition was judged reasonable in

Riverside Bayview Homes, supra. The Supreme Court

concluded that “in defining the waters covered by the Act to

include wetlands, the Corps is implementing congressional

policy rather than embarking on a frolic of its own.’ " Zd.,

474 U.S. at 139, 106 S. Ct. at 465, 88 L. Ed. 2d at 434.

The Supreme Court’s opinion in Riverside Bayview

Homes has definitively established that the Corps conformed

to Congress’ “intelligible principle" when it defined "waters

of the United States" to include adjacent wetlands. Of

course, to a layman, a "wetland" is land that is often, if not

mostly, under standing water or so saturated that it is, in

fact, wet. That type of wetland is a logical extension of the

adjacent body of water. Despite its blanket approval of the

Corps’ regulatory authority over "wetlands," it is doubtful

that the Supreme Court realized that the Corps’ definition

extends to land that appears to be dry, but which may have

some saturated-soil vegetation, as is the situation here, or

that it would define the elements of a felony offense.

The Millses contend that more specificity is required

when Congress delegates authority to an entity such as the

Army Corps of Engineers to pass regulations that

contemplate felony criminal sanctions. This issue was

expressly left unresolved by the Supreme Court in its most

recent delegation case, Touby v. United States, 500 U.S.

ein» ban ws SA. 2 fae, C0a9, 114 L. Ed. 2d 219, 227

(1991). It is certainly true that there is a considerable

B - 20

difference between the power to administratively regulate and

the power to set felony crimes.

As a general principle, the criminal laws are to be

strictly construed. This rule of lenity “serves to ensure both

that there is fair warning of the boundaries of criminal

conduct and that legislatures, not courts, define criminal

liability." Crandon v. United States, 494 U.S. 152, 158,

110 S. Ct. 997, 1001, 108 L. Ed. 2d 132, 140 (1990).

Statutory language must convey “sufficiently definite warning

as to the proscribed conduct when measured by common

understanding and practices." United States v. Mena,

863 F.2d 1522, 1527 (11th Cir.), cert. denied, 493 U.S.

834, 110 S. Ct. 109, 107 L. Ed. 2d 72 (1989). This is so

that persons of common intelligence will not be forced to

guess at the potential applicability of a criminal prohibition

to their conduct. Jd. The statutes enacted by Congress

define as criminal the discharge of pollutants into the "waters

of the United States." I am unable to say that a person of

common intelligence would be able to ascertain that this

statutory prohibition applies to clean fill dirt placed onto a

waterfront lot such as the one at issue here. Yet the Corps’

regulatory power to flesh out the statute to cover wetlands

has been specifically approved by the Supreme Court, and it

leaves little leeway.

Civil penalties are inherent within a regulatory

scheme, but there is a serious question about whether the

grant of the power to define certain terms for regulatory

purposes rises to the power within the Corps of Engineers to

define the elements of a felony offense. "The definition of

the elements of a criminal offense is entrusted to the

legislature, particularly in the case of federal crimes, which

are solely creatures of statute." Liparota v. United States,

471 U.S. 419, 424, 105 S. Ct. 2084, 2087, 85 L. Ed. 2d

B - 21

434, 439 (1985). Yet a delegation doctrine which essentially

allows Congress to abdicate its power to define the elements

of a criminal offense, in favor of an un-elected administrative

agency such as the Corps of Engineers, does violence to this

time-honored principle.

The law of this Circuit appears to be that such

delegations of authority are not scrutinized more rigorously.

"That the Secretary [of the Treasury] ... could have imposed

[reporting requirements] enforceable by criminal penalties did

not make the delegation less valid, for ’it is well established

that a delegatee may formulate rule for violation of which the

statute itself provides penalties imposable by judicial

process.’ " United States v. Sans, supra, 731 F.2d at 1528

(quoting United States v. Gordon, supra, 580 F.2d at 840).

If. NCLUSION

A jurisprudence which allows Congress to impliedly

delegate its criminal lawmaking authority to a regulatory

agency such as the Army Corps--so long as Congress

provides an "intelligible principle" to guide that agency--is

enough to make any judge pause and question what has

happened. Deferent and minimal judicial review of

Congress’ transfer of its criminal lawmaking function to

other bodies, in other branches, calls into question the

vitality of the tripartite system established by our

Constitution. It also calls into question the nexus that must

exist between the law so applied and simple logic and

common sense. Yet that seems to be the state of the law.

Since this court must apply the law as it exists, and cannot

change it, there is nothing further that can be done at this

level.

B - 22

For the reasons discussed herein and in the magistrate

judge’s report and recommendation, the motion to vacate, set

aside, or correct sentence, and/or for a writ of error coram

nobis, must be, and is, DENIED.

DONE AND ORDERED this __ day of March, 1993.

/s/ ROGER VINSON

ROGER VINSON

United States District Judge

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APPENDIX C

33 U.S.C. §§ 1311(a) and 1319(c)

§ 1311. Effluent limitations

(a) Mllegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.

§ 1319. Enforcement

(1) Negligent violations

Any person who--

(A) negligently violates section 1311, 1312,

1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or

any permit condition or limitation implementing any of such

sections in a permit issued under section 1342 of this title by

the Administrator or by a State, or any requirement imposed

in a pretreatment program approved under section 1342(a)(3)

or (b)(8) of this title or in a permit issued under section 1344

of this title by the Secretary of the Army or by a State; or

(B) negligently introduces into a sewer system

or into a publicly owned treatment works any pollutant or

hazardous substance which such person knew or reasonably

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should have known could cause personal injury or property

damage or, other than in compliance with all applicable

Federal, State, or local requirements or permits, which

Causes such treatment works to violate any effluent limitation

or condition in any permit issued to the treatment works

under section 1342 of this title by the Administrator or a

State; shall be punished by a fine of not less than $2,500 nor

more than $25,000 per day of violation, or by imprisonment

for not more than 1 year, or by both. If a conviction of a

person is for a violation committed after a first conviction of

such a person under this paragraph, punishment shall be by

a fine of not more than $50,000 per day of violation, or by

imprisonment of not more than 2 years, or by both.

33 C.F.R. § 328.3

(b) The term wetlands means those areas that are

inundated or saturated by surface or ground water at a

frequency and duration sufficient to support, and that under

normal circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs, and

similar areas.

THE UNITED STATES CONSTITUTION

Article I

Section 1. All legislative Powers herein granted shall

be vested in a Congress of the United States, which shall

consist of a Senate and House of Representatives.

Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb, nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use without just compensation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.