Amicus Curiae Brief — Krilich v. United States

OPERGY

No. 02-915 meme ee

In The

Supreme Court of the United States

ROBERT R. KRILICH, KRILICH COMPANIES, INC.,

RIVERWOODS DEVELOPMENT CorpP., ET AL.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF OF DEFENDERS OF PROPERTY RIGHTS AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

Nancie G. Marzulla*

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770

January 15,2003 *Counsel of Record for Amicus Curiae

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QUESTION PRESENTED

Amicus curiae will address the following issue

presented for review:

Does the federal government have the constitutional

and statutory authority to regulate isolated wetlands that lack

a surface connection to the nearest stream or nearest

navigable body of water?

TABLE OF CONTENTS

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STATEMENT OF ‘THEE CAGB.....6.sssscvessseensnesecesesenessessn 2

SUMMARY OF ARGUMENT ....:0s:ccsesscmescsscsevesesssenens 4

REASON FOR GRANTING THE PETITION................. 9

Guidance Is Needed By This Court To Ensure That

the States’ Role in Environmental Protection Is

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TABLE OF AUTHORITIES

Cases Page

Federal Energy Regulatory Commission v. Mississippi, 456

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Headwaters, Inc., v. Talent Irrigation District, 243 F.3d 526

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Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169 (D.

slo as sii Sicegcaduapucean aedsibinaveseucende 7

Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir.

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159

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United States v. Interstate General Co., 39 Fed. Appx. 870

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United States v. Krilich, 303 F.3d 784 (7" Cir. 2002)......... 5

United States v. Lamplight Equestrian Center, 2002 U.S.

Dist. LEXIS 3694 (N.D. Ill. Mar. 8, 2002)..............:... ec eee 7

United States v Rapanos, 190 F. Supp. 2d 1011 (E.D. Mich.

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United States v. Rueth Developers, 189 F. Supp. 2d 874

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Statutes, Regulations, and Rules

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Secondary Sources

Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of

Mr. Wilson: Commerce Clause Jurisprudence and the Limits

of Federal Wetland Regulation, 29 ENVTL. L. 1

Ric sniceenssenskccsedsabaaneanbenetbadiabimeniaiela 10, 11, 12, 13

Jon Kusler, The SWANCC Decision and State Regulation of

Wetlands (Association of State Wetland Managers, Berne,

NY) (May 31, 2001)

<http://www.aswm.org/fwp/swancc/aswm-int.pdf>.....10, 11

Debra Alise Spungin, Note, Troubled Waters: Florida's

Isolated Wetlands in the Aftermath of Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers, 26 NOVA L. REV. 371 (2001).................005. 1]

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0 EN OR ws ERT,

Defenders of Property Rights, amicus curiae, submits

this brief in support of petitioner.’ See Rule 37.3 of the Rules

of this Court. Both parties have consented to the filing of

this brief.

IDENTITY AND INTEREST OF AMICUS CURIAE

Defenders of Property Rights is a non-profit, public

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered essential by the

framers of the Constitution and to promote the exercise of

governmental power consistent with the constitutional

limitations upon the exercise of that power. Defenders’ goal

of the vigorous protection of property rights recognizes the

special role of federal courts in protecting those rights. Since

its founding in 1991, Defenders has participated in every

significant property rights case in this Court including Solid

Waste Agency of Northern Cook County v. United States

'No counsel for either party authored this brief amicus curiae, either in

whole or in part. Furthermore, no one other than amicus curiae

Army Corps of Engineers, 531 U.S. 159 (2001); City of

Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Phillips v. Washington Legal Found.,

524 U.S. 156 (1998); Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725 (1997); Bennett v. Spear, 520 U.S. 154

(1997); Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995); Dolan v. City of Tigard,

512 U.S. 374 (1994); Keene Corp. v. United States, 508 U.S.

200 (1993); and Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992).

STATEMENT OF THE CASE

In 1992, Petitioners Robert Krilich et al. and the

Respondent United States Environmental Protection Agency

entered into a Consent Decree to settle an enforcement action

that respondent had brought against petitioners alleging an

unlawful discharge of fill material without a permit into an

isolated wetland. As part of this settlement, petitioners

agreed to perform certain mitigation activities, including

contributed financially to the preparation of this brief.

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removal of spoil piles, installation of flood control structures,

and creation of an off-site replacement wetland. In 1995,

respondent alleged that petitioners failed to create this

replacement wetland by the deadline established in the

Consent Decree. The district court imposed civil penalties on

Krilich for his failure to perform this remediation, see United

States v. Krilich, 948 F. Supp. 719, 728 (N.D. Ill. 1996).

Petitioners moved to vacate the district court’s

original judgment in 1998, arguing that the district court

lacked subject matter jurisdiction because the wetlands were

“isolated intrastate wetlands” beyond the limits of the

government’s commerce power to regulate. The district

court and the Seventh Circuit Court of Appeals rejected

Krilich’s argument. See United States v. Krilich, 1999 U.S.

Dist. LEXIS 4191 (N.D. Ill. Mar. 24, 1999), aff'd, 209 F.3d

968 (7th Cir. 2000).

In 2001, this Court issued the decision in Solid Waste

Agency of Northern Cook County v. United States Army

Corps of Engineers (“SWANCC’”), 531 U.S. 159 (2001),

holding that the Congressional intent of the Clean Water Act

(CWA) forbade the Corps from asserting regulatory

jurisdiction under Section 404(a) of the Act (13 U.S.C. §

1344 (a)) over intrastate, isolated wetlands based upon the

Migratory Bird Rule. See SWANCC, 531 U.S. at 174.

Petitioners moved to vacate the Consent Decree in light of

SWANCC, arguing that the waters affected by the Consent

Decree were not subject to the EPA’s authority under the

CWA. The district court and the Seventh Circuit both denied

petitioners’ motion. See United States v. Krilich, 152 F.

Supp. 2d 983 (N.D. Ill. 2001), aff’d, 303 F.3d 784 (7 Cir.

2002). Petitioners now seek review from this Court.

SUMMARY OF ARGUMENT

In SWANCC, this Court struck down the Corps’

assertion of CWA jurisdiction over isolated, intrastate, non-

navigable wetlands, finding “nothing approaching a clear

statement from Congress that it intended Section 404(a) [of

the CWA] to reach” such wetlands. See SWANCC, 531 U.S.

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at 174. The Corps had based its jurisdiction on the fact that

the wetlands at issue served as a habitat for migratory birds.

This Court held that “permitting [the Corps] to claim...

jurisdiction over [such wetlands] falling within the

‘Migratory Bird Rule’ would result in a significant

impingement of the States' traditional and primary power

over land and water use.” See id. This Court explicitly

avoided the “significant constitutional and federalism

questions raised by [the Corps’] interpretation [of its own

authority under the CWA].” See id.

Lower courts are uncertain as to what SWANCC

means for the CWA authority of the federal government over

isolated wetlands. The court below and other lower courts

interpreted SWANCC narrowly, permitting the federal

government to assert regulatory authority over non-

navigable, isolated wetlands with no surface connection to

“waters of the United States” as long as it does not explicitly

ground its authority in the Migratory Bird Rule. See United

States v. Krilich, 303 F.3d 784, 791 (7" Cir. 2002) (“[Krilich]

argues that, in SWANCC, the Supreme Court removed from

the Corps' regulatory authority all waters that are not adjacent

to bodies of open water . . . But the precise holding of

SWANCC was not so broad”); see also United States v.

Interstate General Co., 39 Fed. Appx. 870 (4" Cir. July 2,

2002). Such a narrow construction of SWANCC leaves the

federal government ample room to assert jurisdiction over

isolated wetlands, ignoring this Court’s concern for the

traditional role of states in land and water use regulation.

The Fifth Circuit and some district courts, in keeping

with SWANCC’s proper regard for state authority over land

and water use, have interpreted the decision to create a

bright-line rule limiting federal CWA authority to waters that

“are actually navigable or . . . adjacent to an open body of

navigable water.” Rice v. Harken Exploration Co., 250 F.3d

264, 265, 268-271 (Sth Cir. 2001). See also United States v

Rapanos, 190 F. Supp. 2d 1011, 1012 (E.D. Mich. 2002)

(excluding wetlands “not directly adjacent to navigable

waters” from the scope of the federal government’s CWA

jurisdiction); United States v. RMG Corp., 222 F. Supp. 2d

780, 788-89 (E.D. Va. 2002) (wetlands not adjacent to

closest navigable waterway lay outside federal government’s

jurisdictional reach under CWA).

The Ninth Circuit and various district courts chart a

course distinct from these two approaches, relying instead on

a vague “effects” test that asks whether the wetland in

question has a significant connection to, or effect upon, a

navigable body of water. See Headwaters, Inc., v. Talent

Irrigation District, 243 F.3d 526 (9th Cir. 2001) (certain

irrigation canals were not “isolated” under SWANCC because

introduction of pollutants into canals had adverse effect on

waters of the United States). See also United States v.

Lamplight Equestrian Center, 2002 U.S. Dist. LEXIS 3694,

at *6 (N.D. Ill. Mar. 8, 2002) (there must be “a significant

nexus” between the isolated wetlands and a navigable water

to sustain federal CWA jurisdiction over the former); United

States v. Rueth Developers, 189 F. Supp. 2d 874, 877-78

(N.D. Ind. 2002) (same); Idaho Rural Council v. Bosma, 143

F. Supp. 2d 1169, 1179 (D. Idaho 2001) (“sufficient

[connection]” between isolated wetland and navigable water

rendered the isolated wetland subject to federal CWA

jurisdiction). This interpretation of SWANCC, like that of the

court below, also leaves the federal government ample room

to assert CWA jurisdiction over isolated wetlands,

disregarding the role of the states in regulating land and

water use.

The uncertain bounds of federal jurisdiction over

isolated, intrastate wetlands impose a burden on state and

local governments, who retain primary authority over land

and water use. State and local governments cannot pick up

the slack for wetlands protection without knowing the limits

of what the EPA and Corps can do. Property owners would

also benefit from a clearer division of regulatory authority

over isolated wetlands so they do not face redundant or

inconsistent restrictions on private economic activity they

conduct on their property.

REASON FOR GRANTING THE PETITION

Guidance Is Needed By This Court To Ensure That the

States’ Role in Environmental Protection Is Protected.

This Court has declared that land use regulation,

including wetland regulation, is traditionally a function of

state and local governments. See Federal Energy Regulatory

Commission v. Mississippi, 456 U.S. 742, 768 n. 30 (1980)

(“regulation of land use is perhaps the quintessential state

activity”); see also SWANCC, 531 U.S. at 174 (“Regulation

of land use [is] a function traditionally performed by local

governments") (quoting Hess v. Port Authority Trans-

Hudson Corporation, 513 U.S. 30, 44 (1994)). The court

below read no meaningful limits on the federal government’s

CWA authority over isolated wetlands, ignoring the primary

role that states and local governments play in regulating land

and water use.

Although many critics express concerns about the

competency of states to protect wetlands, many

commentators argue that states are in fact better suited to this

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task than the federal government. See Jonathan H. Adler,

Wetlands, Waterfowl, and the Menace of Mr. Wilson:

Commerce Clause Jurisprudence and the Limits of Federal

Wetland Regulation, 29 ENVTL. L. 1, 23-24 (1999) (“The

ecological value of a wetland is largely a function of its

characteristics and its location. This is... why it can be

argued that state governments are better situated to conserve

wetlands than federal agencies”). A clearer delineation of the

limits of the federal government’s CWA authority over

wetlands will encourage states to further develop this

competency.

Fifteen states have already enacted comprehensive

wetland protection legislative schemes in order to fill the

jurisdictional gap left by SWANCC. See, e.g., Adler, supra,

at 49; Jon Kusler, The SWANCC Decision and State

Regulation of Wetlands (Association of State Wetland

Managers, Berne, NY) (May 31, 2001),

<http://www.aswm.org/fwp/swancc/aswm-int.pdf>. Some

state wetland programs are broad in reach, regulating

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virtually all wetlands within the state (New Hampshire, New

Jersey, Maine, and Pennsylvania). See Kusler, supra.

For example, Florida has enacted substantial

legislation to protect isolated wetlands. See Debra Alise

Spungin, Note, Troubled Waters: F lorida’s Isolated

Wetlands in the Aftermath of Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers, 26

Nova L. REV. 371, 383-84 (2001) (“Florida affords

considerable protection to its isolated wetlands. . . [T]he

statutory definition [of ‘wetland’ ] is thus unique to Florida’s

local characteristics and inclusive of isolated wetlands”).

State efforts to protect wetlands have borne fruit,

demonstrating their competitive advantage in protecting

wetlands. Under Virginia’s wetland protection program

begun in 1972, “alteration of wetlands dropped dramatically .

__ from over 600 to 20 acres per year.” See Adler, supra, at

51 (quoting Norman E. Larsen, Wetlands Protection in

Virginia—The Local Option Approach, in WETLAND

PROTECTION: STRENGTHENING THE ROLE OF THE STATES 251

11

(1985)). Maryland has had similar success with its wetland

regulatory scheme, having reduced its annual wetlands losses

significantly and “prevented far more wetland destruction

than would occur under Section 404 alone.” See id. (quoting

Stephen R. Rubin, Note, An Analysis of Nontidal Wetland

Regulation in Maryland, 16 VA. ENVTL. L.J. 459, 495-96

(1997)).

States like Maryland and Virginia cannot further

improve their already successful wetland protection programs

without knowing the limits of the federal government’s

authority to regulate wetlands. Only by knowing where the

federal government’s job ends can states know where their

own jobs begin in the realm of wetland regulation. Once

clear limits are established, more and better wetland

protection regulatory schemes can be expected from the

states.

Property owners would also benefit from this Court’s

guidance on these issues. Isolated wetlands account for

almost two million acres out of the 100 million acres of

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wetlands in the United States. See Adler, supra, at 40. Most

wetland regulations, both state and federal, restrict land use,

increasing the costs of corporations of siting and modifying

facilities. See id. at 41. Without a clear demarcation of

jurisdiction, state and federal authorities can cripple private

economic activity on isolated wetlands by simultaneously

imposing overlapping and redundant regulations. A clear

dividing line would allow state and federal authorities to

better divide regulatory responsibilities over isolated

wetlands, while also reducing the costs of property use to

property owners.

Accordingly, amicus curiae urges this Court to grant

review of this case to determine if the court below erred in

concluding that SWANCC did not affect the Corps’

jurisdictional boundaries.

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CONCLUSION

For the foregoing reasons, amicus curiae urges this

Court to grant the Petition for Writ of Certiorari.

Respectfully submitted,

Nancie G. Marzulla*

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

202-822-6770

January 15,2003 *Counsel of Record for Amicus Curiae

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