# Petition for Writ of Certiorari — Mills v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1112

## Text

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,
v.
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...
vv

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

i
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?

il

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
ES CEE CEE l
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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
nak 6b a-9 6 ew ee ee a ew 15

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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

Vv

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

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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)
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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.

y%
bh

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
4

PETITION FOR WRIT OF CERTIORARI
a

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.

2

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."

3

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.

4

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

5

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 |

6

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

7

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

8

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.

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, 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,

ee

9

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

10

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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11

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

12

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.

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.

On

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

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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

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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).

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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

C-1

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
(c) Criminal penalties
(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

C-2

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1568%3A1. Public record. Not legal advice.