Brief for the United States — Banks v. United States

ites

DEC 5 1997

No. 97-602 |

RK

Supreme Court, U.s.

aa, 2a

In the Supreme Court of the Giuted States

OCTOBER TERM, 1997

PARKS B, BANKS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

ELLEN J. DURKEE

ELIZABETH ANN PETERSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1, Whether an action by the United States for

injunctive relief to remedy the illegal discharge of fill

materials into waters of the United States is subject

to the statute of limitations that applies to “an action,

suit or proceeding for the enforcement of any civil

fine, penalty, or forfeiture” (28 U.S.C. 2462).

2. Whether saturated lands that are hydrologically

connnected to navigable waters through groundwater

constitute wetlands within the regulatory scope of

the Clean Water Act.

(1)

TABLL OF CONTENTS

Page

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NINE Dibaba ssiacsiahhicsisdesicamsaoecse iss ciikkossecec. 8

GEER GRRE oN fee pmarol Oa SSOP REALE ORG Reg 12

TABLE OF AUTHORITIES

Cases:

Banks v. Page, 768 F. Supp. 809 (S.D. Fla. 1991),

rev'd in part, vacated in part, 963 F.2d 385 (11th

CA ARSE AN SNS RA TSly SETAE SRS Cr 5

Cope v. Anderson, 331 U.S. 461 (1947) ......cccccccceces. 8

Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.

SPEED: Gite thadntriccbbuini iscisapiniicierchcceasbwasikthdkoi chases canis: 10

Federal Election Commission v. Williams, 104 F.3d

237 (9th Cir. 1996), petition for cert. pending, No.

INE scale vue en eschceguabcammesiudeccidganmiptecniesetes uid boieisiccakss i)

Quivira Mining Co. v. United States Envtl. Protec-

tion Agency, 765 F.2d 126 (10th Cir. 1085), cert.

denied, 474 U.S. 1055 (1986) ............ccccccccossorscssseeees 10

Rogers v. Lodge, 458 U.S. 613 (1982) .0........ccccccceeee. 12

Tiffany Fine Arts, Inc. v. United States, 469 U.S.

TIE leah iinndiccd brabidideetds ubbaiibiisidie a igaedia bch anvesaanes 12

Town of Norfolk v. United States Army Corps of

Engineers, 968 F.2d 1438 (1st Cir. 1992) ................ 10

United States v. Riverside Bayview Homes, Inc.,

BP RE ee CLUE sisciets cacuicai cts busdenkbdsasnsisoveciasiais 2,11

United States v. Tilton, 705 F.2d 429 (11th Cir

UIE dibiieisnikneaiie kui iemdsitshiaabincnaensidictnadisiadion dcloanicetcee 11

Village of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 967 (7th Cir.), cert. denied, 513

SEM PE CRE ich ccridicctdcmisdcaannttccuctcdsditecclaesiclasess 10

(III)

Statutes and regulations: Page

Clean Water Act, 33 U.S.C. 1251 et seq. ...........:seeeeees 2

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33 C.F.R.:

Pt. 326:

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Pt. 328:

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RE TAC) os vckccuussindcndedeantencuscbevacsnnensaauaaeaa’ 11, 12

Miscellaneous:

U.S. Army Corps of Engineers, Wetlands Delineation

SES CADETS pondssinnisese cnarcksbiiossoctsmasasacsunmmintrtsens 6

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-602

PARKS B. BANKS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3-15)

is reported at 115 F.3d 916. The opinion of the district

court (Pet. App. 16-37) is reported at 873 F. Supp. 650.

JURISDICTION

The judgment of the court of appeals was entered on

June 24, 1997 (Pet. App. la-2a). On September 15,

1997, Justice Kennedy extended the time within

which to file a petition for a writ of certiorari to and

including October 2, 1997, and the petition was filed on

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. The Clean Water Act, 33 U.S.C. 1251 et seq., is

designed “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. 1251(a). The central mechanism

for meeting that objective is the prohibition against

the discharge of pollutants into navigable waters

without a permit. See 33 U.S.C. 1311(a), 1344(a). The

Act defines the term “navigable waters” compre-

hensively as “the waters of the United States.”

33 U.S.C. 1362(7). The breadth of this definition re-

flects the intention of Congress

to repudiate limits that had been placed on federal

regulation by earlier water pollution control

statutes and to exercise its powers under the

Commerce Clause to regulate at least some

waters that would not be deemed “navigable”

under the classical understanding of that term.

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

U.S. 121, 133 (1985).

Section 404(a) of the Act authorizes the Secretary

of the Army, acting through the Corps of Engineers,

to issue permits for the discharge of “dredged or

fill material” into “waters of the United States.” 33

U.S.C. 1344(a). The regulations issued under this

statute have consistently defined the term “waters of

the United States” to encompass a broad range of

“wetlands.” The “wetlands” within the “waters of

! The term “wetlands” encompasses “areas that are inun-

dated or saturated by surface or ground water at a frequency

and duration sufficient to support, and that under normal cir-

cumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions[,} [which] generally

3

the United States” include (i) isolated wetlands that

may affect interstate commerce, (ii) interstate wet-

lands and (iii) wetlands that are adjacent to navigable

waters or their tributaries. See 33 C.F.R. 328.3(a).

The Corps of Engineers has authority to issue indi-

vidual permits for specific projects or general regula-

tory permits for discharges into waters of the United

States. Individual permits may be issued only after

an opportunity for public comment and only upon an

evidentiary record that discloses the nature of the

proposed discharges and their anticipated effects. See

33 U.S.C. 1344(a); 33 C.F.R. Pts. 320, 325. A “regula-

tory” or “nationwide” permit may be issued by the

Corps to provide streamlined approval for categories

of discharges that (83 U.S.C. 1344(e)(1))

will cause only minimal adverse environmental

effects when performed separately, and will have

only minimal cumulative adverse effect on the

environment.

2. Petitioner owns five tracts of land on Big Pine

Key in Monroe County, Florida. He purchased three

of the lots in 1980 and the remaining two in 1988. He

acknowledges that, beginning in 1980 and continuing

into 1983, he destroyed existing vegetation on the

three lots he then owned, placed fill on them and

planted coconut trees in the fill (Pet. App. 4-5). He

also poured a concrete slab and built his winter res-

idence on one of the lots (ibid.).

On March 30, 1982, a biologist from the Corps of

Engineers informed petitioner that portions of two of

the tracts he had filled were wetlands subject to the

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

328.3(b).

Clean Water Act and that discharges onto those areas

were unlawful in the absence of a valid permit. On

April 7, 1983, the Corps issued a cease and desist

order, stating that enforcement action would be taken

against petitioner if he continued to make unpermit-

ted discharges. The order also invited petitioner to

apply for an individual permit for filling the wetlands

areas (Pet. App. 5).

On April 16, 1983, petitioner applied for an individ-

ual permit that would have authorized his discharges

retroactively (see 33 C.F.R. 326.3(c) (1983)). Several

government agencies and interested members of the

public submitted comments opposing that request.

The U.S. Fish and Wildlife Service opposed the per-

mit because freshwater wetlands on Big Pine Key

provide scarce habitat for the endangered Key Deer,

migratory birds and other wildlife. GX 16, at 66. The

South Florida Water Management District informed

the Corps that state law prohibited the discharges

without a “Surface Water Management Permit.”

Monroe County, which had already taken enforcement

action against petitioner for filling one of his lots in

violation of a County ordinance, also opposed the

application. Jd. at 72.

On April 5, 1984, the Corps denied the application.

In doing so, the Corps stated that petitioner’s dis-

charges had “resulted in significant localized adverse

impacts to fish and wildlife resources, vegetated wet-

lands, and water quality.” GX 16, at 81. The Corps

also found that “less damaging alternatives” to the

filling of wetlands were available, such as expansion

of petitioner’s coconut tree nursery on upland areas

(ibid). The letter advised petitioner that, unless

he contacted the Corps to negotiate restoration

5

measures, an enforcement action would be commenced

(ibid.).

Petitioner therafter made no effort to arrange for

restoration of the two lots. Instead, he placed addi-

tional fill on these areas without a permit (Pet. App.

25). In addition, in March 1988, he acquired two addi-

tional lots adjacent to those for which an “after-the-

fact” permit had been sought and denied. He pro-

ceeded to clear and fill the additional lots between

1988 and 1991 (id. at 5).

In 1990, the Corps issued four cease and desist

orders to petitioner. Each order stated that peti-

tioner, with notice that his conduct was unlawful, had

discharged fill into waters of the United States

without a permit. Petitioner responded by filing suit

against the Corps. He sought a declaration that his

activities did not require a permit and an injunction

barring further enforcement actions. The district

court dismissed that suit on ripeness grounds. Banks

v. Page, 768 F. Supp. 809 (S.D. Fla. 1991), rev’d in part,

vacated in part, 963 F.2d 385 (11th Cir. 1992) (Table)

(No. 91-5632).

3. a. On December 19, 1991, the United States filed

suit against petitioner, alleging that he had unlaw-

fully discharged fill into waters of the United States.

The United States sought an order directing peti-

tioner to remove the unlawful fill and to restore the

degraded wetlands or create new wetlands for areas

that could not be restored. The government also

sought an award of civil penalties against petitioner.

Petitioner moved to dismiss the government’s ac-

tion. He asserted that his discharges were author-

ized by Nationwide Permit No. 26 (N.P. 26), a regula-

tory permit issued in 1984 to authorize discharges

into certain headwaters and isolated waters, subject

6

to various protective conditions. Petitioner also as-

serted that the United States was barred by the

statute of limitations from seeking civil penalties for

vioiations of the Clean Water Act that occurred more

than five years before the filing of this suit. The

statute -on which petitioner relies, 28 U.S.C. 2462,

provides that “an action, suit or proceeding for the

enforcement of any civil fine, penalty, or forfeiture,

pecuniary or otherwise, shall not be entertained un-

less commenced within five years from the date when

the claim first accrued” (ibid.).

The district court denied petitioner’s motion. The

court held that N.P. 26 does not authorize the filling

of “adjacent” wetlands. The court also rejected the

limitations defense under 28 U.S.C. 2462 because (i)

the United States did not seek any civil penalty for

violations that occurred more than five years before

the filing of the suit and (ii) the limitations period for

actions to enforce civil penalties does not apply to

claims by the United States for injunctive relief.

b. The district court then conducted a trial on the

merits of the government’s claims. Four scientific

experts testified that petitioner’s lots constituted

wetlands under the criteria set forth in the Wetlands

Delineation Manual issued by the Corps in 1987 (GX

24). These experts also testified that the lots are part

of a larger wetlands system, a freshwater slough that

spans Big Pine Key from Pine Channel on the west to

Bogie Channel on the east. Petitioner called one

witness, who testified that only small portions of his

lots were wetlands and that none of these areas

should be considered adjacent to Pine or Bogie

Channels (Pet. App. 23-25).

On this evidentiary record, the district court de-

termined that petitioner’s lots constituted wetlands

7

within the regulatory jurisdiction of the Clean Water

Act. The court found that, prior to petitioner’s activi-

ties, the lots had been dominated by hydrophytic vege-

tation (Pet. App. 19-21), had been inundated or satu-

rated “for at least five per cent of the growing sea-

son” (id. at 24) and were covered, over “more than

fifty per cent of [their] surfaces,” by hydric soils (id.

at 23). The court further ruled that a “meandering

wetland slough” spans Big Pine Key between Pine

and Bogie Channels, forming a “band of wetlands

[that] is continuous from [petitioner’s] Lots to the

navigable waters” (id. at 18-19). The court reasoned

that petitioner’s lots, which were a part of this

meandering wetlands slough adjacent to the channels,

were therefore also adjacent freshwater wetlands,

subject to the regulatory jurisdiction of the Clean

Water Act (id. at 25, 33-34). The district court fur-

ther determined that N.P. 26 had not authorized dis-

charges into wetlands—such as the freshwater

slough that encompasses petitioner’s lots—that are

adjacent to tidal, navigable waters (id. at 36).

Because petitioner’s actions violated Section 301(a)

of the Clean Water Act, the court enjoined him from

discharging additional fill into the lots. After a fur-

ther hearing on remedies, the district court ordered

petitioner to restore the wetlands and to pay $10,000

in civil penalties (Pet. App. 40-46).

4. The court of appeals affirmed (Pet. App. 3-15).

On the statute of limitations issue, the court held

that the plain language of 28 U.S.C. 2462 applies only

to actions to enforce “any civil fine, penalty, or for-

feiture” and thus “does not apply to equitable reme-

dies” (Pet. App. 7). The court of appeals rejected peti-

tioner’s reliance upon the “concurrent remedy rule,”

under which an equity court exercising “concurrent

8

jurisdiction” to enforce a legal obligation “will

withhold its relief * * * where the applicable statute

of limitations would bar the concurrent legal remedy”

(id. at 7-8, quoting Cope v. Anderson, 331 U.S. 461,

464 (1947)). The court of appeals stated that applica-

tion of the concurrent remedy rule to the equitable

remedies established under federal law for the United

States would be improper because, in the absence of

“a clear expression of Congress to the contrary[,] a

statute of limitation does not apply to claims brought

by the federal government in its sovereign capacity”

(Pet. App. 8).

The court of appeals upheld the judgment of the

district court on the merits. The court held (i) that

the factual determination that petitioner’s lands

“have the hydrological connection needed to qualify

as adjacent wetlands” was not clearly erroneous (Pet.

App. 13) and (ii) that petitioner had failed to establish

that his activities were permitted by N.P. 26 (id. at

13-15).

DISCUSSION

There is a conflict among the courts of appeals on

the question whether an action by the United States

for equitable relief is governed by the statute of

limitations that applies to actions “for the enforce-

ment of any civil fine, penalty, or forfeiture” (28

U.S.C. 2462). For the reasons explained in the peti-

tion filed by the government in Federal Election

Commission v. Williams, No. 97-601, review by this

Court to resolve that conflict is warranted.”

2 We are providing herewith to petitioner a copy of the

government’s petition in No. 97-601.

9

There is, however, no conflict among the circuits

on any of the remaining questions presented in this

ease. Nor do those questions concern matters of re-

curring importance. Further review of those ques-

tions is thus not warranted.

1. This case presents the same question presented

in Federal Election Commission v. Williams, No. 97-

601. In that case, the United States sought an injunc-

tion barring future violations by an individual of the

substantive prohibitions of the Federal Election Cam-

paign Act of 1971. The Ninth Circuit held in Wil-

liams that 28 U.S.C. 2462 governs claims for equita-

ble relief by the United States for violations of federal

law because, when the “claim for injunctive relief is

connected to the claim for legal relief, the statute of

limitations applies to both.” 104 F.3d 287, 240 (1996).

That holding in Williams conflicts with the conclu-

sion of the court of appeals in this case that “sec-

tion 2462 does not apply to equitable remedies” (Pet.

App. 7).

The petition in the present case should therefore be

held and disposed of as appropriate in light of the

Court’s disposition of the petition in Williams.

2. The petition in the present case raises three

additional questions that do not warrant review by

this Court. Because petitioner concedes that two of

these additional questions lack sufficient importance

to warrant further review (Pet. 18-19), we will

address only the remaining question.’ That question

’ The petition states that the third and fourth questions

presented, whether caprock limestone can be jurisdictional wet-

lands and whether N.P. 26 exempts all activities on land that is

“non-tidal” and “not part of a surface tributary system” from

regulation pursuant to the Clean Water Act (Pet. i), do not

independently warrant review, but are included “in the event

10

is whether the record of this case supports the

conclusion that the lots owned by petitioner consti-

tute wetlands subject to regulation under the Clean

Water Act.

Petitioner errs in contending (Pet. 6-14) that the

determination that the saturated lands at issue in

this case constitute wetlands because they are hydro-

logically connected to neighboring navigable waters

through groundwater conflicts with case authority

interpreting the jurisdictional reach of the Clean

Water Act. Petitioner incorrectly asserts (Pet. 7-10)

that several courts of appeals have held that ground-

water connections with navigable waters are not

sufficient to establish Clean Water Act jurisdiction

over wetlands. The cases cited by petitioner, how-

ever, do not address the delineation of adjacent wet-

lands.* Instead, these cases address the question

whether groundwater is itself subject to regulation

pursuant to the Clean Water Act. That question is

not presented in this case.

The question here is, instead, whether the exis-

tence of a groundwater connection between wetlands

and other waters of the United States is an appropri-

ate basis for a determination whether wetlands are

“adjacent” to other regulated waters (Pet. App. 12-13).

The ruling of the court of appeals in this case that the

this Court considers them important enough to be considered in

the context of the balance of the case” (Pet. 19).

4 Village of Oconomowoc Lake v. Dayton Hudson Corp., 24

F.2d 962 (7th Cir.); cert. denied, 513 U.S. 930 (1994); Town of

Norfolk v. United States Army Corps of Engineers, 968 F.2d

1438 (1st Cir. 1992); Quivira Mining Co. v. United States Envil.

Protection Agency, 765 F.2d 126 (10th Cir. 1985), cert. denied,

474 U.S. 1055 (1986); and Exxon Corp. v. Train, 554 F.2d 1310

(5th Cir. 1977).

11

filled lands are “wetlands” is consistent with the

regulatory definition of wetlands as “those areas that

are inundated or saturated by surface or ground

water at a frequency and duration sufficient to sup-

port * * * vegetation typically adapted for life in

saturated soil conditions.” 33 C.F.R. 328.3(b) (empha-

sis added). As this Court observed in United States

v. Riverside Bayview Homes, Inc., 474 U.S. 121, 129

(1985), this definition “could hardly state more clearly

that saturation by either surface or ground water is

sufficient to bring an area within the category of

wetlands.”

In a holding consistent with United States v.

Tilton, 705 F.2d 429 (11th Cir. 1983), the court of

. appeals further concluded in this case that peti-

tioner’s lands fell within the regulatory definition of

“adjacent wetlands.” That term is defined to include

“wetlands separated from other waters of the United

States by man-made dikes or barriers, natural river

berms, beach dunes and the like.” 33 C.F.R. 328.3(c).

The district court found that petitioner’s lands were

part of a continuous “meandering wetland slough”

that traverses Big Pine Key from Pine Channel to

Bogie Channel (Pet. App. 18-19). Evidence in the rec-

ord supported the finding that this slough, consisting

of lands saturated and connected by groundwater,

falls within the regulatory definition of “adjacent

wetlands” due to its proximity and connection to both

channels (id. at 25, 33-34). The court of appeals

correctly concluded that neither the location of

petitioner’s lands at a point within the slough that is

one-half mile distant from the channels nor the

separation of those lands from the remainder of the

wetlands by Watson Boulevard affects the determina-

tion that the lands are “adjacent wetlands” as defined

12

by 33 C.F.R. 328.3(c)—for all of the lands within the

slough are hydrologically connected with navigable,

tidal waters (Pet. App. 12-13). Further review of the

factual determinations “concurred in by two lower

courts” (Rogers v. Lodge, 458 U.S. 613, 623 (1982)) is

not warranted. Tiffany Fine Arts, Inc. v. United

States, 469 U.S. 310, 317-318 n.5 (1985).

CONCLUSION

With respect to the statute of limitations question,

the petition for a writ of certiorari should be held and

disposed of in light of the disposition of the petition in

Federal Election Commission v. Williams, No. 97-

601. With respect to the remaining questions, the

petition should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

ELLEN J. DURKEE

ELIZABETH ANN PETERSON

Attorneys

DECEMBER 1997