Petition for Writ of Certiorari — Heinrich v. United States (No. 06-1271)

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061271 M2 16 2007

No. OFFICE OF THE CLERK

In the

Supreme Court of the Hnited States

PAUL A. HEINRICH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT L. GRAHAM.

BARRY SULLIVAN

KATHERINE M. RAHILL

JENNER & BLOCK LLP

330 N. Wabash Ave.

Chicago, Illinois 6061 1

(312) 222-9350

“Counsel of Record

Attorneys for Petitioner

QUESTION PRESENTED

1. Whether, in light of this Court’s decision in Rapanos

v. United States, 126 S. Ct. 2208 (2006), the United States

Army Corps of Engineers (the “Corps”) was legally

authorized to regulate a private property owner’s

development of a road through a private wetland, where the

road had minimal environmental impact, and the wetland, by

virtue of its location above local headwaters and the high

water mark of a neighboring lake, has no_ substantial

connection with, or impact upon, navigable waters.

2. Whether, in light of this Court’s decision in Rapanos,

the federal courts lacked subject matter jurisdiction to

enforce the Corps’ attempt to prohibit a private property

owner from developing a road through a private wetland,

where the road had minimal environmental impact and the

wetland had no substantial connection with, or impact upon,

navigable waters, and to sanction the property owner for

using his property in this way.

3. Whether the extension of jurisdiction under the Clean

Water Act to a private wetland adjacent to a water, deemed

by Congress to be “non-navigable” for purposes of shipping

and other maritime laws, exceeds the power of Congress

under the Commerce Clause, Article I, Section 8.

4. Whether, when the Corps is legally required to notify

the public of a regulatory obligation to obtain individual state

water quality certification before a private wetland can be

altered, but fails to do so, the imposition of sanctions and

penalties against a private developer who alters a private

wetland without notice of the certification obligation is

prohibited by the Due Process Clause of the Fifth

Amendment.

PARTIES TO THE PROCEEDING

Petitioner is Paul A. Heinrich. Respondent is the United

States of America.

iil —

TABLE OF CONTENTS

QUESTION PRESENTED .....-..ccccccesscccvsscssssssescsssscessssseesesssess

PARTIES TO THE PROCEEDING .......cscssscsccssssesscssscecesseve ii

TAME OP AUT v

PETITION FOR A WRIT OF CERTIORARI .cccsscccsssseesssseees

I l

ONE i ei 2

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED ......cccssss+-- 2

STATEMENT OF THE CASE. ...22-.-.cosssscosccccosecccossecocceeesrsves 8

WEI iii as 8

ay Se RETIRES Rae aN ba tcwa tie hin, Neyo seam et s 9

REASONS FOR GRANTING THE WRIT.....ccsssscesssseeeesee 16

I. THIS COURT SHOULD GRANT CERTIORARI TO

RESOLVE A PERSISTENT CONFLICT AMONG

THE LOWER FEDERAL COURTS AS TO THE

APPROPRIATE STANDARD FOR

DETERMINING WHETHER PROPERTY FALLS

WITHIN THE JURISDICTION OF THE CLEAN.

rR REG HUE Es biniscosonsiccinstniasteladaaaneayiedaintpldaenat 17

II. THIS COURT SHOULD GRANT CERTIORARI TO

DECIDE WHETHER “WATERS OF THE UNITED

STATES” IS JURISDICTIONAL OR MERELY AN

ELEMENT OF A CLEAN WATER ACT

VE ae inci tinvientniipiceconienintaanbianmebaichigntanaditie 21

Ili. THIS COURT SHOULD GRANT CERTIORARI TO

DECIDE WHETHER THE EXTENSION OF

CLEAN WATER ACT JURISDICTION TO

PRIVATE WETLANDS BASED ON MERE

~ ADJACENCY, AND IN THE ABSENCE OF ANY

SUBSTANTIAL CONNECTION WITH, OR

IMPACT UPON, NAVIGABLE WATERS,

EXCEEDS THE POWER OF CONGRESS UNDER

De Ge CE vv occcncevtvnresaceresverentvecssoves 23

IV. THIS COURT SHOULD GR..NT CERTIORARI TO

MAKE CLEAR THAT, EVEN IN_ THE

ADMITTEDLY COMPLEX AREA OF

ENVIRONMENTAL REGULATION, THE DUE

PROCESS CLAUSE REQUIRES NOTICE OF

RELEVANT REQUIREMENTS AND FORBIDS

PUNISHMENT BASED ON SECRET LAW............... 25

San APE scien ilsinaihiacisns ccdasinsiieieinsiiaesiiienceboscuneusaniaadiicagis 28

APPENDICES

Appendix A

: Order, United States v. Heinrich, No. 05-3199 (7th

Ey REA ea nee Os Ree TON EER PTR HTC CoN T Ree Tet la

Appendix B

Judgment, United States v. Heinrich, No. 03-C-

FI CAD. WM. FUME, 17, TOS) cececcntesponstencivacindentensccends 7a

Appendix C

Memorandum Opinion and Order, United States v.

Heinrich, No. 03-C-075-S (E.D. Wis. Sept. 18,

| EERE OEE IMCL GE oR al LL OR ERPS EE 25a

Appendix D

Order, United States v. Heinrich, No. 05-3199 (7th

Ra Se ns cihaiies sisson secsendictdatncuiemensiadatiaaas 43a

TABLE OF AUTHORITIES

FEDERAL CASES

BMW of North America, Inc. v. Gore, 517

Eis PE FEE cintseennicvennioiniteddachiccmniilesiatien 25

Baccarat Fremont Developers, LLC v. U.S.

Army Corps of Engineers, 425 F.3d 1150

(9th Cir. 2005), cert. denied, 2007 WL

PT CEE iikiinsersispntesibinioressdciniuaiaibinctecie 17

Bouie v. City of Columbia, 378 U.S. 347

CN iisindivcciinii A daciinasidceceeahvans ademas 25

Carlson v. Green, 446 U.S. 1417 (1980)............... 18

General Electric Co. v. United States

Environmental Protection Agency, 53

FO S26 GAC. Cie, FOGGY wevenieccsicdgntenresss 25,47

Hartsell vy. Eidson, 127 F.3d 343 (4th Cir.

1997) cert. denied, 523 U.S. 1030 (1998),

rehearing denied, 523 U.S. 1113 (1998) ........ 22

_ Kontrick v. Ryan, 540 U.S. 443 (2004)......... 18, 21

Marbury v. Madison, 5 U.S. (1 Cranch) 137

RD aisvaiii' since. conhis basdessnesadbnaiitasidelsusidaadkacbe Saceedwiccks 21

Marks v. United States, 430 U.S. 188 (1977) ....... 19

In re Needham, 354 F.3d 340 (Sth Cir. 2003)....... 18

Northern California River Watch y. City of

Healdsburg, 457 F.3d 1023 (9th Cir.

SUT ssisbibiniscidessdoaeidhpsmiohianaiaunia aici tokanaiismoaaiiceiiea 19

Patterson Farm, Inc. v. City of Britton, 22

F.Supp.2d 1085 (D.S.D. 1998)... eee 22

Rapanos v. United States, 126 $.Ct. 2208

SED iiidadtaistaesininnncnceitpehaatibcoedbesieia’ 8, 18, 19, 20

Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers,

SE Ses BO CIE crciertnkicsseguiintnisitiataiaieien 23,24

Treacy v. Newdunn Associates, LLP, 344 F.3d

407 (4th Cir. 2003), cert. denied, 541

5 Rr ge) RAR aomhewe "ea nesrenenco rte mnn te 17

Trinity Broadcasting of Florida, Inc. v.

Federal Communications Commission,

211 P36 GES CIC. Cah, ZOD) occseciescnvccencnserecs 27

United States v. Chevron Pipe Line Co., 437

F.Supp.2d 605 (N.D. Tex. 2006).................04 19

United States v. Chrysler Corp., 158 F.3d

Ee a eee, FI wicecncinasdnteniapisnictebanitite 27

United States v. Evans, 2006 WL 2221629

CED. Fit. Ate: 2; BOOB). cccsccsencessseicecveswsiceness 19

United States v. Gerke Excavating, 464 F.3d

723 (7th Cir. 2006), rehearing and

rehearing en banc denied (Dec. 1, 2006)........ 19

Vii

United States v. Interstate General Co., 152

F.Supp.2d 843 (D.Md. 2001), aff'd 39

Fed. Appx. 870 (4th Cir. 2002) 0.0.0... 22

United States v. Johnson, 467 F.3d 56 (1st

SiG UU vssheessceschesbd ansibiccinbtnesgunceshibieiccietcoledendacapnteest 19

United States v. Krilich, 209 F.3d 968 (7th

Cir. 2000) cert. denied, 531 U.S. 992

SSR EA NOES Be PRED ICED Rohs DL HRN eI 22

United States v. Lanier, 520 U.S. 259 (1997)....... 25

United States v. Lopez, 514 U.S. 549 (1995)... 23, 24

United States v. Morrison, 529 U.S. 598

Ee csc stcicselbsiacisidascotsauiniaindauibicedinasdinadéaudbiciinaan iat 23, 24

United States v. Riverside Bayview Homes,

TS POM... ct 18

United States v. Rueth Development Co., 335

F.3d 598 (7th Cir. 2003), cert. denied, 540

Fae WE CAPES. <ssssiihicchoubivaiuntiioninnandgitad tannins 18

Virginia Bankshares, Inc. v. Sandberg, 501

BAe SIS SEP cccsscredhdicdeeienaicabinenbhanasiiancaies 18

Youakim v. Miller, 425 U.S. 231 (1976)............... 18

Vili

STATE CASES

State v. Trudeau, 408 N.W.2d 337 (Wis.

FW FF okiineccsutissnnnntssecchiabacaassensashicadionedaiacatannaae 10

Wisconsin y. Kelly, 629 N.W.2d 601 (Wis.

BTA D visrstinliiviinethappinsnaslapitnesialciiiadamamaecctaioas: 10

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

Do CF Wee 9 AIOE Wiscccivcciecemnsseceonunsians 6, 13, 15, 27

33 VBE FFE btiminacidniiicnbanm aaa

De Rs BB e TO wcciesicivintiowicdndetecnieann Camas, 2

Fo Nl Me UE Fale sins sicdicisaancospsiticobiniibegeshialaaiaiaans 4

Fo CCP es © Fee vhemsscecitaenecnntinnanibuaedsatedion 5, 6

SF Sin BF SIE irscatticieieenaioaedmeaaadl 2

OS UB he, 6 ISR Oi hcicticciutuiaienda 3, 15

Us COE, AIUIE. FV viecisicesiectintaxecuberssiebigadinnuaien 2

US. Coat, 0 198 Ue BD cctcimienimiel 2

MISCELLANEOUS

61 Fed.Reg. 65,874 (Dec. 13, 1996) .............sccerees 12

Note, Extension of Federal Jurisdiction over

State Canals, 37 Am.L.Rev. 911, 916

(1903)

In the

Supreme Court of the United States

PAUL A. HEINRICH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner Paul A. Heinrich respectfully petitions for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The panel opinion of the United States Court of Appeals

for the Seventh Circuit (Pet. App. la—6a) is unofficially

reported at 184 Fed. Appx. 542 (7th Cir. 2006). The order

denying Mr. Heinrich’s petition for rehearing and suggestion

of rehearing en banc (Pet. App. 43a—44a) is unreported. The

memorandum opinion of the United States District Court for

the Western District of Wisconsin (Pet. App. 25a—42a) is also

unreported.

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on June 6, 2006. (Pet. App.

la—6a.) A timely petition for rehearing and suggestion of

rehearing en banc was denied on December 18, 2006.

(Pet. App. 43a—44a.) This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

U.S. Const., art. I, § 8, cl. 3 provides in pertinent part:

The Congress shall have the power...To regulate

commerce...among the several states....

U.S. Const. Amend. V provides in relevant part:

No person shall be.. — of life, liberty, or property,

without due process of the law.. iene

Section 59aa of Title 33 of the United States Code, provides

in pertinent part:

The portion of the Wisconsin River above the

hydroelectric dam at Prairie du Sac, Wisconsin, is hereby

declared to be a nonnavigable waterway of the United

States for purposes of Title 46, including but not limited

to the provisions of such title relating to vessel inspection

and vessel licensure, and the other maritime laws of the

United States.

Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a),

provides in pertinent part:

Except as in compliance with this section and

section[]...1344 of this title, the discharge of any

pollutant by any person shall be unlawful.

Section 404 of the Clean Water Act, 33 U.S.C. § 1344,

provides in pertinent part:

(a) The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material in to the navigable waters at

specific disposal areas.

(e)(1) In carrying out his functions relating to the

discharge of dredged or fill material under this section,

the Secretary may, after notice and opportunity for public

hearing, issue general permits on a State, regional, or

nationwide basis for any category of activities involving

discharges of dredged or fill material if the Secretary

determines that the activities in such category are similar

in nature, will cause only minimal adverse environmental

effects when performed separately, and will have only

minimal cumulative adverse effect on the environment.

Any general permit issued under this subsection shall (A)

be based on the guidelines described in subsection (b)(1)

of this section, and (B) set forth the requirements and

standards which shall apply to any activity authorized by

such general permit.

Section 502 of the Clean Water Act, 33 U.S.C. § 1362 (5)

(7), provides in pertinent part:

(5) The term “person” means an individual, corporation,

partnership, association, State, municipality, commission,

or political subdivision of a State, or any interstate body.

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded

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

municipal, and agricultural waste discharged into water...

(7) The term “navigable waters” means the waters of the

United States, including the territorial seas.

Section 328.3 of Title 33 of the Code of Federal Regulations,

33 C.F.R. § 328.3, provides the following definitions in

pertinent part:

(a) 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

(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;

' The definitions of “waters of the United States” found at 40 C.F.R.

§ 230.3(s) and 40 C.F.R. § 232.2 are substantively the same.

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

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

through (6) of this section.

(8) Waters of the United States do not include prior

converted cropland. Notwithstanding the determination of

an area's status as prior converted cropland by any other

Federal agency, for the purposes of the Clean Water Act,

the final authority regarding Clean Water Act jurisdiction

remains with EPA.

(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.

neighboring. Wetlands separated from other waters of the

United States by man-made dikes or barriers, natural river

berms, beach dunes and the like are “adjacent wetlands.”

(e) The term ordinary high water mark means that line on

the shore established by the fluctuations of water and

indicated by physical characteristics such as clear, natural

line impressed on the bank, shelving, changes in the

character of soil, destruction of terrestrial vegetation, the

presence of litter and debris, or other appropriate means

that consider the characteristics of the surrounding areas.

Section 330.2 of Title 33 of the Code of Federal Regulations,

33 C.F.R. § 330.2, provides in pertinent part:

qualify for an NWP may proceed, provided that the terms

and conditions of the NWP are met. After determining

that the activity complies with all applicable terms and

conditions, the prospective permittee may assume an

authorization under an NWP. This assumption is subject

to the DE's authority to determine if an activity complies

with the terms and conditions of an NWP. If requested by

the permittee in writing, the DE will verify in writing that

the permittee's proposed activity complies with the terms

and conditions of the NWP. A written verification may

contain activity-specific conditions and_ regional

conditions which a permittee must satisfy for the

authorization to be valid.

(d) Headwaters means non-tidal rivers, streams, and their

lakes and impoundments, including adjacent wetlands,

that are part of a surface tributary system to an interstate

or navigable water of the United States upstream of the

point on the river or stream at which the average annual

flow is less than five cubic feet per second....

Section 330.4(c) of Title 33 of the Code of Federal

Regulations, 33 C.F.R. § 330.2(c), provides in pertinent part:

State 401 water quality certification.

(1) State 401 water quality certification pursuant to

section 401 of the Clean Water Act, or waiver thereof, is

required prior to the issuance or reissuance of NWPs

authorizing activities which may result in a discharge into

waters of the United States.

(3) If a state denies a required 401 water quality

certification for an activity otherwise meeting the terms

and conditions of a particular NWP, that NWP's

authorization for all such activities within that state is

denied without prejudice until the state issues an

individual 401 water quality certification or waives its

right to do so. State denial of 401 water quality

certification for any specific NWP affects only those

activities which may result in a discharge. That NWP

continues to authorize activities which could not

reasonably be expected to result in discharges into waters

of the United States. (footnote omitted)

(4) DEs will take appropriate measures to inform the

public of which activities, waterbodies, or regions require

an individual 401 water quality certification before

authorization by NWP.

(5) The DE will not require or process an individual

permit application for an activity which may result in a

discharge and otherwise qualifies for an NWP solely on

the basis that the 401 water quality certification has been

denied for that NWP. However, the district or division

engineer may consider water quality, among other

appropriate factors, in determining whether to exercise

his discretionary authority and require a regional general

permit or an individual permit.

(6) In instances where a state has denied the 401 water

quality certification for discharges under a particular

NWP, permittees must furnish the DE with an individual

401 water quality certification or a copy of the

application to the state for such certification. For NWPs

for which a state has denied the 401 water quality

certification, the DE will determine a reasonable period

of time after receipt of the request for an activity-specific

401 water quality certification (generally 60 days), upon

the expiration of which the DE will presume state waiver

of the certification for the individual activity covered by

the NWP's. However, the DE and the state may negotiate

for additional time for the 401 water quality certification, _

but in no event shall the period exceed one (1) year (see

33 CFR 325.2(b)(1)(ii)). Upon receipt of an individual

401 water quality certification, or if the prospective

permittee demonstrates to the DE state waiver of such

certification, the proposed work can be authorized under

the NWP....

STATEMENT OF THE CASE

INTRODUCTION

This case concerns the application of the Clean Water

Act, 33 U.S.C. §1251 et seg, and its implementing

regulations to a private property owner’s development of a

road through a private wetland located above local

headwaters and the high water mark of a neighboring lake.

In a ruling made thirteen days before this Court’s

decision in Rapanos vy. United States, 126 S.Ct. 2208 (2006),

the United States Court of Appeals for the Seventh Circuit

held that Petitioner Paul Heinrich violated the Clean Water

Act, and regulations promulgated thereunder, by building a

grass-covered road through his private wetland. In that

ruling, the Seventh Circuit also affirmed the penalty imposed

by the District Court, which required Mr. Heinrich to pay a

$75,000 civil penalty as well as the costs of restoring the

affected wetland. (Pet. App. 6a.) In a petition for rehearing,

Mr. Heinrich asked that the Court of Appeals consider the

impact of Rapanos upon this case. Without comment, the

Seventh Circuit declined to do so. (Pet. App. 43a—44a.)

Prior to this Court’s decision in Rapanos, the lower

federal courts were split with respect to the jurisdictional

sweep of the Clean Water Act. The Court’s treatment of the

issue in Rapanos has not put an end to that conflict. If

anything, Rapanos has exacerbated the confusion. This case

therefore affords an opportunity for this Court (i) to clarify

whether the Corps has any authority to regulate private

wetlands which have no substantial connection with, or

impact upon, traditional navigable waterways, and (ii) to

clarify the subject matter jurisdiction of the federal courts,

when the Corps has improperly sought to prohibit a private

property owner from developing a private wetland, and has

invoked the power of the federal courts to punish him for

doing so.

This case also presents the Court with the opportunity to

address the Due Process implications of the Corps’ efforts to

punish a private party for utilizing his wetland in accordance

with the Corps’ Nationwide Permit 26 (“NWP 26”), but

without also securing a state certificate -- when no published

state or federal regulation gave notice that such a certificate

was required. Notwithstanding this lack of notice, the Corps

sought (and the lower courts allowed) the imposition of

sanctions and penalties against Mr. Heinrich for failing to

obtain that state certificate. Given the complexity of this area

of the law, and the opportunity which that complexity affords

for arbitrary treatment of citizens who seek to follow the law,

it is important for this Court to clarify, for both the Corps and

the lower courts, that meaningful notice is still required by

the Due Process Clause.

In this petition, Mr. Heinrich respectfully asks that the

Court grant certiorari and set this case down for plenary

consideration. Alternatively, the judgment should be vacated

and the case remanded for further consideration in light of

Rapanos.

FACTS

Mr. Heinrich’s Property. Mr. Heinrich owns 9.5 acres of

lakefront property in Star Lake, Wisconsin. (Pet. App. 2a.)

Eight of those acres are forested wetland. (Pet. App. 26a.)

Mr. Heinrich’s forested wetland is white cedar swamp; it

is above the ordinary high water mark of Little Star Lake and

above the headwaters of the Wisconsin River watershed.

(Dkt. 34 (Affidavit of B. D. Simon), $23; Dkt. 104

(Deposition of M. O’Keefe), p. 14, Ins. 9-15.)

Mr. Heinrich’s wetland abuts the Little Star Lake, which is a

natural lake with about 100 acres of surface water and a

maximum depth of nine feet. (Pet. App. 26a.) Portions of

Little Star Lake are themselves wetlands and are so identified

by the Wisconsin Wetlands Inventory Map. (Dkt. 21 (Motion

for Summary Judgment by Heinrich), Exh. 4.) The portions

of Little Star Lake abutting Mr. Heinrich’s wetland are

among the wetlands identified on the map. Jd.

Congress has specifically determined that the waters with

which Mr. Heinrich’s wetland is contiguous are not

“navigable _-waters.”’ Furthermore, by virtue of

Mr. Heinrich’s_ wetland’s location upstream from the

headwaters, above the ordinary high water mark,’ and the

minimal amount of water flow involved, Mr. Heinrich’s

wetland is distinct from neighboring water bodies. (Dkt. 34

(Affidavit of B. D. Simon), J 33-38.)

Little Star Lake drains into Star Lake, which, through a

series of tributaries, drains into the Wisconsin River and then

eventually into the Mississippi River. (Pet. App. 26a; Dkt. 34

(Affidavit of B.D. Simon); {J 33-38.)

? All citations to the docket, unless otherwise noted, are to the U.S.

District Court for the Western District of Wisconsin Docket for Case No.

03-C-0075-S.

* In 1990, Congress declared all waters of the Wisconsin River watershed

above the hydroelectric dam at Prairie du Sac to be non-navigable for

purposes of shipping and other maritime laws. 33 U.S.C. § 59aa (1990).

Mr. Heinrich’s private wetland is upstream from this dam and non-

navigable.

* In Wisconsin, Mr. Heinrich‘s wetland is deemed to be “upland,”

because it is above the ordinary high water mark of the neighboring lake.

Wisconsin v. Kelly, 629 N.W.2d 601, 608, n. 13 (Wis. 2001); State v.

Trudeau, 408 N.W.2d 337, 342, n. 5 (Wis. 1987).

Mr. Heinrich’s Construction of the Private Road. {n

August 1997, Mr. Heinrich engaged a contractor to build a

grass-covered road through his forested wetland. (Pet.

App. 27a; Dkt. 26 (Brief in Support of Government’s Motion

for Partial Summary Judgment), Exh. 1 Nos. 9-12, Exh. 57-

8.) The purpose of the road was two-fold: to provide access

for logging and to provide access for Mr. Heinrich’s

seaplane. (Pet. App. 26a—27a.)° Other than the roadbed itself,

all areas of the site remained a forested wetland, and there

was no wetland disturbance outside the roadbed. (Dkt. 57

(Response to Proposed Summary Judgment Findings and

Conclusions by Heinrich), p. 8, no. 12; Dkt 78 (Deposition of

J. Olson), p. 40, In. 20, p. 41, In. 10.)

The activities undertaken by Mr. Heinrich were

sufficiently minor as to fall within the Corps’ NWP 26, as the

Seventh Circuit acknowledged:

“{Mr. Heinrich’s] seaplane access road met the

criteria of a Corps nationwide permit that was in

° The Seventh Circuit expressed concern as to whether Mr. Heinrich

accurately and consistently described the road’s purpose. (Pet. App. 2a.)

This is a point on which the parties disagree. Although Mr. Heinrich

respectfully submits that he consistently stated that the purpose of his

road was necessary for both logging and transporting his seaplane (Dkts.

23 (Brief in Support of Heinrich’s Motion for Summary Judgment on

Forestry and Res Judicata Issues), 56 (Brief in Opposition by Government

to Heinrich Motion for Summary Judgment), 69 (Brief in Reply in

Support of Heinrich’s Motion for Summary Judgment on Forestry and

Res Judicata Issues)), the issue has no bearing on this Court’s

consideration of this petition. The questions presented do not turn on the

purpose or purposes of Mr. Heinrich’s road, but on (i) whether the

extension of federal jurisdiction over Mr. Heinrich’s wetland is consistent

with the Commerce Clause, the Clean Water Act, and relevant

regulations, and (ii) whether Mr. Heinrich was denied Due Process, when

the Corps decided, without notice to him, that an individual state water

certification was required, and that he should be punished for not

acquiring one.

effect at the time, known as ‘NWP 26’, which ~

allowed small projects like his with minimal

environmental impact to proceed without advance

federal approval. See 33 U.S.C. § 1344(e).” (Pet. App.

2a—3a.)

Thus, the Seventh Circuit specifically recognized that

Mr. Heinrich’s road had “minimal environmental impact,”

and there is no record evidence to show that the road had any

significant effect on navigable waters or upon the nearby lake

or downstream.

Mr. Heinrich’s Communications with the Regulators.

Mr. Heinrich is a lawyer, but he does not normally practice in

federal court. Nor does he practice environmental law._

Nonetheless, he attempted to represent himself in this matter

from its inception through the filing of the petition for

rehearing in the Seventh Circuit. At various times beginning

in late 1996, Mr. Heinrich met with representatives of both

the Wisconsin Department of Natural Resources and the

Corps to discuss what regulations might apply to his project.

(Pet. App. 26a—27a.)

During the relevant time period, federal and state wetland

regulations were in flux. The Corps was in the process of

issuing and re-issuing a series of Nationwide Permits, which,

among other things, allow for fill activities in wetlands that

cause little or no environmental harm. It was not until

February 11, 1997 that the 1997 nationwide permits

(including NWP 26) went into effect. 61 Fed.Reg. 65,874

(Dec. 13, 1996). As the Seventh Circuit determined below,

Mr. Heinrich’s road project complied with the requirements

of NWP 26. (Pet. App. 2a.)

At the same time, however, relevant state water quality

certification requirements also were in flux. As the Seventh

Circuit explained in its ruling, federal regulations require that

a state evaluate an NWP to determine whether it complies

with the state’s own water quality standards. If it does, the

state grants blanket water quality certification for the NWP.

(Pet. App. 3a; 33 C.F.R. § 330.4(c).) If a state denies

certification for a particular NWP, or if the Corps deems the

conditions imposed by a state to be the equivalent of a denial,

individuals seeking to proceed under an NWP must obtain

individual water quality certifications. (/d.)

Here, Wisconsin attempted to partially grant water

quality certification for a number of nationwide permits,

including NWP 26. (Dkt. 25 (Partial Motion Summary

Judgment by Government), Exh. DS2.) However, as the

Seventh Circuit noted, the Corps determined on April 30,

1997, that Wisconsin’s position was inconsistent with the

Corps’ regulations and therefore interpreted Wisconsin’s

position as a constructive rejection of NWP 26. (Pet. App.

4a.) This determination was not published in the Federal

communicated by letter from the Corps to the State.

Significantly, most of Mr. Heinrich’s meetings with the

regulators occurred before this time, and none included a

discussion of NWP 26. (Dkt. 104 (Deposition of M.

O’Keefe), p. 99, Ins. 6-9; pg. 104, Ins 12-17.)

As a result of the Corps’ April 30, 1997 determination, an

applicant seeking to use NWP 26 — like Mr. Heinrich -

would also have to obtain an individual state water quality

certification. But no official public notice was given to Mr.

Heinrich (or to anyone else) that the Corps had interpreted

Wisconsin’s decision as a denial of blanket certification, or

that Wisconsin landowners therefore could not-proceed with

their projects by relying on NWP 26, but would also have to

obtain an individual state water quality certification.

Because of the flux in permitting requirements, and the

Corps’ failure to give notice that an individual water quality

certification would also be required, Mr. Heinrich did not

obtain an individual state water quality certification. The

absence of such a certification provided the United States

Environmental Protection Agency (“U.S. EPA”) with the

basis for its enforcement action against Mr. Heinrich in the

District Court.

The Initiation of the District Court Litigation. On

November 20, 2000, the U.S. EPA issued an administrative

compliance order under the Clean Water Act, 33 U.S.C.

§ 1319(a), requiring Mr. Heinrich to “restore” his private

wetland. (Pet. App. 28a.) That administrative compliance

order was later amended on February 9, 2001. (Dkt. 39

(Affidavit of G.T. Carlson), § 10.)

On February 7, 2003, Mr. Heinrich filed a quiet title

action seeking to resolve his legal status. (Dkt. 2 (Complaint)

of Case No. 03-C-0071-S in the U.S. District Court for the

Western District of Wisconsin.) On February 11, 2003, the

United States filed its Clean Water Act enforcement action

against Mr. Heinrich in the United States District Court for

the Western District of Wisconsin. (Dkt. 2 (Complaint).) The

two actions were consolidated on April 24, 2003. (Dkt. 14

(Order consolidating action with Case No. 03-C-0071-S.)

The Decision of the District Court. In the District Court,

Mr. Heinrich and the Corps both moved for summary

judgment on the government’s complaint.° Among the issues

considered by the District Court was whether Mr. Heinrich’s

wetland constituted “waters of the United States” under the

Clean Water Act. (Pet. App. 31a—33a.)

The District Court granted summary judgment for the

government, imposed a monetary penalty of $75,000, and

ordered Mr. Heinrich to implement a restoration plan for the

° Mr. Heinrich’s quiet title action was dismissed prior to the summary

judgment briefing.

property. (Pet. App. 7a—9a, 42a.) Among other things, the

District Court held that Mr. Heinrich’s deposit of fill material

to create a roadbed in his private wetland constituted an

unpermitted discharge into “waters of the United States”

under 33 U.S.C. § 1362(7). (Pet. App. 29a—39a.) In reaching

this result, the District Court concluded, in pertinent part, that

Little Star Lake is a tributary of the Wisconsin and

Mississippi Rivers, and that Mr. Heinrich’s wetland is

“adjacent to” Little Star Lake. (Pet. App. 32a—33a.)

The Seventh Circuit’s Decision. On appeal, Mr. Heinrich

argued that a state water quality certification could not be

required for NWP 26 projects in Wisconsin, such as his,

because (a) Wisconsin had not met applicable deadlines for

submitting its state water quality certification to the Corps,

and (b) proper public notice of this requirement had not been

given. (Pet. App. 3a.) In addition, among other things,

Mr. Heinrich argued that the District Court abused its

discretion by imposing the penalty it did. The Seventh

Circuit rejected these arguments. (Pet. App. la—6a.) In

particular, the Seventh Circuit stated that although the Court

“might agree” with Mr. Heinrich “that Corps officials should

have done more to let those potentially affected ... know that

they had to get individual certifications” (Pet. App. 5a), the

Corps’ failure to do more did not violate any statute or

regulation regarding notice by publication. (/d.)’

” The Seventh Circuit also acknowledged that applicable regulations

require Corps district engineers to “take appropriate measures to inform

the public of which authorities, water bodies, or regions require an

individual ... water quality certification before authorization by NWP.”

(33 C.F.R. § 330.4(c)(4); Pet. App. 4a—-Sa). Despite this requirement,

- Mr. Heinrich was never notified of the actions by the Corps which

established the basis for his alleged obligation to obtain an individual

water quality certification. Nonetheless, the Seventh Circuit faulted

Mr. Heinrich for not inquiring further as to the requirements of a program

about which he was never given notice. (Pet. App. Sa.)

Shortly after the Seventh Circuit issued its ruling in this

case, this Court decided Rapanos. Thereafter, Mr. Heinrich

filed a petition for rehearing and suggestion of rehearing en

banc. Mr. Heinrich asked the Seventh Circuit to remand this

case to the District Court to determine whether the Corps had

jurisdiction over his property under Rapanos. In raising this

question, Mr. Heinrich argued that this issue went beyond the

Corps’ jurisdiction under the Clean Water Act and extended

to whether the District Court had subject matter jurisdiction

in this case. Mr. Heinrich further argued that rehearing was

warranted because the Seventh Circuit failed to consider the

due process implications of the Corps’ failure to notify him

that an individual water quality certification would be

required for his project. The Seventh Circuit denied

Mr. Heinrich’s petition for rehearing without comment. (Pet.

App. 43-44a.)

REASONS FOR GRANTING THE WRIT

The Seventh Circuit decided this case a matier of days

before this Court decided Rapanos. When Mr. Heinrich

sought rehearing based on Rapanos, the Seventh Circuit

denied his petition without comment.

In Rapanos, the Court granted certiorari to determine the

proper sweep of the Clean Water Act, and to put to rest a

persistent conflict among the lower federal courts on that

issue. This Court’s decision in Rapanos failed to achieve that

objective, and the case law since Rapanos is no more

coherent than was the case law that preceded it. Moreover, if

the Seventh Circuit’s understanding is correct as to

Congress’s intent and the proper construction of the relevant

regulation, a serious question is presented as to the power of

Congress to enact this scheme under the Commerce Clause.

This case affords another opportunity for this Court to

resolve these important issues of federal law.

In addition, Mr. Heinrich has raised an important due

process claim in this case, based on the Corps’ decision to

sanction him (and the District Court’s-affirmance of that

sanction), founded on a determination that, notwithstanding

his satisfaction of the requirements of the Corps’ NWP 26, he

violated the law by failing to secure a state permit, which

requirement was neither published generally nor conveyed to

him personally. Indeed, neither Mr. Heinrich nor anyone else

could have known unless they had access to the

correspondence or files of state and federal officials, which

obviously was not the case.

Compliance with the complex mosaic of state and federal

statutes and regulations which govern this area of the law is

challenging enough without attempting to impose

unconstitutional penalties for noncompliance with secret law,

as the Corps and the District Court did here.

The petition for a writ of certiorari should be granted and

the case set down for plenary consideration. In the

alternative, the Court may wish to grant the petition, vacate

the judgment, and remand to the Seventh Circuit for further

consideration in light of Rapanos.

I. THIS COURT SHOULD GRANT CERTIORARI TO

RESOLVE A PERSISTENT CONFLICT AMONG

THE LOWER FEDERAL COURTS AS TO THE

APPROPRIATE STANDARD FOR DETERMINING

WHETHER PROPERTY FALLS WITHIN THE

JURISDICTION OF THE CLEAN WATER ACT.

Prior to this Court’s decision in Rapanos, the lower

federal courts were split as to the proper construction of the

term “waters of the United States,” as it applies to wetlands.

See, e.g., Baccarat Fremont Developers, LLC v. U.S. Army

Corps of Engi.wers, 425 F.3d 1150, 1154-57 (9th Cir. 2005),

cert. denied, 2007 WL 506046 (2007); Treacy v. Newdunn

Associates, LLP, 344 F.3d 407, 417 (4th Cir. 2003), cert.

denied, 541 U.S. 972 (2004); United States v. Rueth

Development Co., 335 F.3d 598, 604 (7th Cir. 2003), cert.

denied, 540 U.S. 1050 (2003); and In re Needham, 354 F.3d

340, 345-6 (Sth Cir. 2003).* In Rapanos, this Court attempted

to reach agreement on that issue, but failed to do so. As the

Chief Justice noted in his concurrence in Rapanos, the

Court’s failure to resolve the issue in that case was not likely

to ease the conflict or ameliorate the confusion already

existing in the lower federal courts. 126 S.Ct. at 2236

(Roberts, C. J., concurring). Specifically, the Chief Justice

predicted that “[l]ower courts and regulated entities will now

have to feel their way on a case-by-case basis.” Jd: That,

indeed, has proved to be the case.

The question that now divides the federal courts is

whether (1) to apply the test endorsed by the plurality in

Rapanos, that is, a mere surface water connection

* When it rejected Mr. Heinrich’s jurisdictional argument, the District

Court held, based on a strict reading of the regulatory definition of

“waters of the United States,” and this Court's decision in United States v.

Riverside Bayview Homes, 474 U.S. 121, 135 (1985), that Mr. Heinrich's

wetland constituted "waters of the United States.” But the regulatory

definition of “waters of the United States” and the decision in Riverside

lack vitality after Rapanos. Although Mr. Heinrich raised this issue in the

District Court, he admittedly failed to raise it in the Seventh Circuit until

he filed his petition for rehearing, following the announcement of this

Court's decision in Rapanos. Mr. Heinrich recognizes that an argument

could be made that the issue was waived for this reason. Mr. Heinrich

respectfully submits that this waiver argument lacks merit, however,

because the issue is jurisdictional (see pages 21-22, infra), and one that

may therefore be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 455

(2004). Even if the issue were not jurisdictional in the strictest sense,

however, the Court would nonetheless have the power to grant certiorari

and would be fully justified in doing so in this case. See, e.g., Virginia

Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n. 8 (1991); Carlson

v. Green, 446 U.S. 1417 n. 2 (1980); and Youakim v. Miller, 425 U.S.

231, 234 (1976). The same is true with respect to the arguments set forth

in Part III of this Petition. See pages 23-24, infra.

requirement (126 S.Ct. at 2226-27); (2) to apply Justice

Kennedy’s “significant nexus” test (126 S.Ct. at 2448

(Kennedy, J., concurring)); (3)to accept the dissenting

Justices’ invitation to choose either the surface water

connection or significant nexus test, as the case may be (126

S.Ct. at 2265 (Stevens, J., dissenting); or, alternatively, (4) to

accept Chief Justice Roberts’ case-by-case approach (126

S.Ct. at 2236 (Roberts, C. J., concurring).

In Northern California River Watch v. City of

Healdsburg, 457 F.3d 1023, 1025 (9th Cir. 2006), the Ninth

Circuit chose to follow Justice Kennedy’s significant nexus

test. The Seventh Circuit, in United States v. Gerke

Excavating, 464 F.3d 723, 724-5 (7th Cir. 2006), rehearing

- and rehearing en banc denied (Dec. 1, 2006), also adopted

Justice Kennedy’s test, finding it to be the narrowest

common ground under Marks v. United States, 430 U.S. 188

(1977). On the other hand, the First Circuit has chosen to

follow the approach of the dissenting Justices, stating that

“the United States may assert jurisdiction over the target sites

if it meets either Justice Kennedy’s legal standard or that of

the plurality.” United States v. Johnson, 467 F.3d 56, 60 (ist

Cir. 2006).

The district courts also have split on how to decide this

issue. As the First Circuit has noted (see United States v.

Johnson, 467 F.3d at 60-61), the Middle District of Florida

also has adopted the dissenting Justices’ approach in United

States v. Evans, 2006 WL 2221629 (M.D. Fla. Aug. 2, 2006).

On the other hand, the Northern District of Texas indicated,

in United States v. Chevron Pipe Line Co., 437 F. Supp. 2d

605, 613 (N.D. Tex. 2006), that it saw no alternative to

following the “case-by-case” approach anticipated by the

Chief Justice’s concurring opinion in Rapanos.

This case presents the Court with an opportunity to

resolve this conflict, inasmuch as the outcome could well

depend on the test to be applied. For example, if this Court

were to apply the test articulated by Justice Kennedy, it

would need to determine whether Mr. Heinrich’s wetlands:

[Ejither alone or in combination with similarly

situated lands in the region, significantly affect the

chemical, physical, and biological integrity of other

covered waters more readily understood as

“navigable.”

Rapanos, 126 S.Ct. at 2248 (Kennedy, J., concurring). In

clarifying this standard, Justice Kennedy added that “[wjhen,

in contrast, wetlands’ effects on water quality are speculative

or insubstantial, they fall outside the zone fairly encompassed

by the statutory term ‘navigable waters.’” Jd.

Under the test articulated byJustice Scalia, two factors

are relevant:

First, that the adjacent channel contains a “wate[r] of the

United States,” (i.e., a relatively permanent body of water

connected to traditional interstate navigable waters); and

second, that the wetland has a continuous surface

connection with that water, making it difficult ‘o

determine where the “water” ends and the “wetland”

begins.

126 S.Ct. at 2226.

In the present case, Mr. Heinrich’s wetland lies above the

headwaters, meaning that the flow of water is minimal, and it

is connected to navigable-in-fact waters only through a series

of waterways many miles long. (Dkt. 34 (Affidavit of B. D.

Simon), § 23; Dkt. 104 (Deposition of M. O’Keefe), p. 14,

Ins. 9-15.)- Moreover, there exists a clear demarcation

between Mr. Heinrich’s wetland and Little Star Lake as the

wetland lies above the ordinary high water mark of the lake.

(/d.) As a result, it is unlikely this Court would find that

Mr. Heinrich’s wetland has any significant impact, or any

impact whatsoever, sufficient to bring these wetlands into the

realm of “navigable waters” under Justice Kennedy’s test.

Nor is it likely that this wetland could satisfy the two factors

required under the plurality’s test. Without clarification by

this Court, however, there is no way for regulators, let alone

landowners, to know which is the applicable test, or what is

the proper result.

In sum, the conflict that motivated this Court to grant

certiorari in Rapanos was real; it still exists; and it will

continue to exist until this Court. once and for all, settles this .

important issue by fulfilling the Court’s historic obligation

“to say what the law is.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137 (1803). This Court should therefore grant

certiorari in this case. |

Ii. THIS COURT SHOULD GRANT CERTIORARI TO

DECIDE WHETHER “WATERS OF THE UNITED

STATES” IS JURISDICTIONAL OR MERELY AN

ELEMENT OF A CLEAN WATER ACT

VIOLATION.

The Seventh Circuit, without comment, denied the

petition for rehearing and suggestion of rehearing en banc

that Mr. Heinrich filed shortly after this Court announced its

decision in Rapanos. In his rehearing petition, Mr. Heinrich

raised the issue of subject matter jurisdiction, which may, of

course, be raised by any party or court at any time. Kontrick

v. Ryan, 540 U.S. 443, 455 (2004).

In its response to the petition for rehearing, the

government argued that the issue was not jurisdictional; but

that, too, is an issue on which the lower federal courts are

divided. Whether the “waters of the United States”

requirement is jurisdictional, or simply an element of a Clean

Water Act claim, is an important question of federal law to

which this Court has not yet spoken.

In United States v. Krilich, 209 F.3d 968, 973 (7th Cir.

2000) cert. denied, 531 U.S. 992 (2000), the Seventh Circuit

held that the “waters of the United States” requirement is not

jurisdictional. In Hartsell v. Eidson, 127 F.3d 343, 349 (4th

Cir. 1997) cert. denied, 523 U.S. 1030 (1998), rehearing

denied, 523 U.S. 1113 (1998), however, the Fourth Circuit

analyzed whether sewer systems were “waters of the United

States” under the Clean Water Act to determine whether the

district court had subject matter jurisdiction.

The district courts have likewise split on this important

issue. See, e.g., United States v. Interstate General Co., 152

F, Supp. 2d 843, 849 (D.Md. 2001), aff'd. 39 Fed. Appx. 870

(4th Cir. 2002) (whether property was “navigable waters” or

abutted “navigable waters” is not a matter of subject matter

jurisdiction); and Patterson Farm, Inc. v. City of Britton, 22

F. Supp. 2d 1085, 1091 (D.S.D. 1998) (no subject matter

jurisdiction where the water at issue did not constitute

“navigable waters.”).

Particularly given the lack of clarity concerning the

proper definition of “waters of the United States” that persists

in the wake of Rapanos, the question whether that term sets a

jurisdictional requirement for federal administrative or

judicial action, or simply is an element of a Clean Water Act

violation, is an important and unsettled question of federal

law warranting resolution by this Court.

II. THIS COURT SHOULD GRANT CERTIORARI TO

DECIDE WHETHER THE EXTENSION OF

CLEAN ‘WATER ACT JURISDICTION TO

PRIVATE WETLANDS BASED ON MERE

ADJACENCY, AND IN THE ABSENCE OF ANY

SUBSTANTIAL CONNECTION WITH, OR

IMPACT UPON, NAVIGABLE WATERS,

EXCEEDS THE POWER OF CONGRESS UNDER

THE COMMERCE CLAUSE

Mr. Heinrich’s attempt to build a grass-covered private

road across his private wetland was deemed by the Seventh

Circuit to have minimal impact on the environment, and thus

to be permissible under NWP 26 itself. In addition, the

wetland, by virtue of its location above local headwaters and

the high water mark of a neighboring lake, has no substantial

connection with, or impact upon, navigable waters. The

wetland in this case is not navigable water, nor does it abut

traditionally navigable waters. Congress already has made

that determination with respect to the waters in this area. 33

U.S.C. § 59aa (1990). Moreover, even the non-navigable

waters the wetland abuts are separated from “navigable-in-

fact” waterways by miles of non-navigable waterways which

eventually reach the Wisconsin River. (Dkt. 34 (Affidavit of

B.D. Simon); #9 33-38.) .

In Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC’), this Court invalidated the migratory bird rule.

Although the Court did not reach the Commerce Clause issue

in SWANCC, the Court acknowledged the “significant

constitutional issues” raised by the Corps’ extension of

jurisdiction, and the Court referred to its earlier decisions in

United States v. Morrison, 529 U.S. 598 (2000), and United

States v. Lopez, 514 U.S. 549 (1995), noting that “[t]wice in

the past six years we have reaffirmed the proposition that the

grant of authority to Congress under the Commerce Clause,

though broad, is not unlimited.” Jd. at 173.

Congress may legislate under the Commerce Clause only

with respect to channels and instrumentalities of interstate

commerce and to activities that “substantially affect”

interstate commerce. See United States v. Lopez, 514 U.S. at

558-9. Moreover, federal regulation of intrastate activity

based on the activity’s substantial effects on interstate

commerce requires (the only conceivable basis for regulation

here) “some sort of economic endeavor.” United States v.

Morrison, 529 U.S. at 611. The discharge of fill material into

remote wetlands does not satisfy the “economic endeavor”

test.

Nor does the statutory and regulatory scheme provide for

any case-by-case inquiry as to a potential interstate effect of

the prohibited activity. If it did, that might save its

constitutionality; but no such mechanism exists here. See

United States v. Lopez, 514 U.S. at 560 (providing an

exception to the test where the statute “ensure[s], through

case-by-case inquiry, that the [activity] affects interstate

commerce.”).

The lack of substantial connection to, or impact upon,

interstate commerce in this case is extreme. Indeed, to

contend that Mr. Heinrich’s grass-covered road.“substantially

affects” interstate commerce (the only Commerce Clause test

arguably implicated here) is not far short of the time-worn

witticism that Justice Story’s view of admiralty jurisdiction

was So extensive as to be satisfied by a corn cob floating in a

bucket of water. See Note, Extension of Federal Jurisdiction

over State Canals, 37 Am.L.Rev. 911, 916 (1903).

In sum, the extension of jurisdiction over remote

wetlands such as Mr. Heinrich’s is improper under the

Commerce Clause, and this case warrants review for that

reason as well.

IV. THIS COURT SHOULD GRANT CERTIORARI TO

MAKE CLEAR THAT, EVEN IN’ THE

ADMITTEDLY COMPLEX AREA OF

ENVIRONMENTAL REGULATION,. THE DUE

PROCESS CLAUSE REQUIRES NOTICE OF

RELEVANT REQUIREMENTS AND FORBIDS

PUNISHMENT BASED ON SECRET LAW.

At a minimum, the Due Process Clause of the Fifth

Amendment requires that citizens be given notice as to what

the law requires them to do, or refrain from doing, before

they may be punished for any such acts or omissions. See,

e.g., United States v. Lanier, 520 U.S. 259, 265-267 (1997);

Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). See

also BMW of North America, Inc. v. Gore, 517 U.S. 559

(1996) (applying concept of fair notice as a tenet of due

process to civil matters); General Electric Co. v. United

States Environmental Protection Agency, 53 F.3d 1324 (D.C.

Cir. 1995) (same). What the due process clause prohibits,

above all else, is the meting out of punishment for violations

of secret law. But that is precisely what the record in this case

shows. Here, Mr. Heinrich did not receive notice of the

requirement that he obtain an individual state water quality

certification prior to acting under NWP 26, but he was

punished for failing to do so.”

° The government undoubtedly will argue that Mr. Heinrich failed to raise

a due process argument below. However, Mr. Heinrich has consistently

challenged the adequacy of the notice he received with respect to the

alleged illegality of his actions and omissions. See, e.g., Dkt. 55

(Response to Proposed Summary Judgment Findings and Conclusions by

Heinrich); Dkt. 98 (Motion by Heinrich to Reconsider Ruling on

Government Motion for Partial Summary Judgment); Dkt. 124 (Brief in

Opposition by Heinrich to Motion in Limine Regarding Options);

Appellant’s Initial Brief on Appeal, p. 24-31; and Appellant’s Reply Brief

on Appeal, p. 10-12.

As the Seventh Circuit acknowledged, Mr. Heinrich’s

activities were sufficiently minor to fall within the range of

activities allowed under NWP 26. (Pet. App. 2a—3a.)

However, the Seventh Circuit ruled against Mr. Heinrich

because it accepted the government’s argument that

Mr. Heinrich was also required to obtain an individual water

quality certification from the State of Wisconsin. But there

was no such published requirement, and Mr. Heinrich was

not given notice of any such requirement in any form, before

he was punished for failing to comply with it.

At the time Mr. Heinrich planned and built his road, the

regulatory framework surrounding wetlands and the legality

of activities associated with wetlands was unclear. The Corps

was in the midst of issuing and re-issuing nationwide

permits, and the State of Wisconsin was in the midst of

making similar determinations concerning state water quality

certifications.

When NWP 26 was finally promulgated, it was not clear

whether Wisconsin would accept it. Wisconsin did not reject

it, but purported to accept it with exceptions. While the

Corps eventually chose to treat Wisconsin’s action as a

constructive rejection (which thus triggered the state

certificate requirement), the Corps announced _ that

determination only in a letter to the State; the decision was

not published, and the public was not otherwise notified. In

short, whether Mr. Heinrich (or anyone else in Wisconsin)

would be required to do something more than simply satisfy

the requirements of NWP 26 (that is, also secure a state

certificate) depended on the result of non-public interactions

between the state and federal governments, but public notice

as to the results of those interactions was never given. (DKt.

103 (Deposition of R. Augustin), p. 36, In. 19; p. 37, In.

20.)

In the regulatory context, due process requires that parties

have fair notice of what is required of them. Absent fair

notice, citizens cannot be penalized for non-compliance. See,

e.g., Trinity Broadcasting of Florida, Inc. v. Federal

Communications Commission, 211 F.3d 618, 628 (D.C. Cir.

2000); United States v. Chrysler Corp., 158 F.3d 1350, 1354-

57 (D.C. Cir. 1998); General Electric Co. v.-United States

Environmental Protection Agency, 53 F.3d 1324.

The key inquiry is “whether the regulated party received,

or should have received, notice of the agency’s interpretation

in the most obvious way of all: by reading the regulations. If,

by reviewing the regulations and-other public statements

issued by the agency, a regulated party acting in good faith

would be able to identify, with ‘ascertainable certainty,’ the

standards with which the agency expects parties to conform,

then the agency has fairly notified a petitioner of the

agency’s interpretation.” General Electric Co. v. United

States Environmental Protection Agency, 53 F.3d at 1329.

The Corps’ regulations also require that it take

“appropriate measures” to inform the public as to whether an

individual water quality certification is required to take

advantage of a nationwide permit. 33 C.F.R. § 330.4(c)(4).

While the Seventh Circuit stated that “[w]e might agree with

Heinrich that Corps officials should have done more to let

those potentially affected by the Wisconsin decision know

that they had to get individual certifications,” the court

erroneously concluded that the Corps’ failure to do so was

not a legal or constitutional violation.

‘° State water quality certification is central to the question whether an

individual water quality certification is required prior to engaging in an

activity under the nationwide permit program. 33 C.F.R. § 330.4(c).

The Seventh Circuit gave short shrift to due process,

apparently choosing to find fault with Mr. Heinrich for not

reading the regulations. But Mr. Heinrich did read the

regulations. The problem is that the regulations did not put

him on notice that an individual water quality certification

was required.'' The only thing that would have put Mr.

Heinrich on notice of that requirement was the Corps’ letter

determination, which was sent to the State of Wisconsin, but

neither published nor made publicly available. That is why

Mr. Heinrich’s punishment is predicated upon secret law.

The government also has suggested that the Corps’

failure to comply with the Constitution, as well as its own

regulations, is immaterial, because Mr. Heinrich’s

conversations with regulators provided an appropriate

substitute. There is no evidence to show that those

conversations involved any discussion about the intersection

of NWP 26 and any individual water quality certification

requirements. Indeed, it is undisputed that the NWP 26 was

simply never discussed. (Dkt. 104 (Deposition of M.

O’Keefe), p. 99, Ins. 6-9, pg. 104, Ins 12-17.)

When a citizen cannot rely on the notice requirements

stated in the applicable regulations, he is left in the dark as to

what is required of him. That is what happened here, and it

cannot, consistent with due process, provide a basis for

punishment.

CONCLUSION

Mr. Heinrich has presented four issues, all of which

warrant plenary review by this Court. First, there are few

'' Indeed, what Mr. Heinrich (but not the Corps) did learn from those

regulations is that the Corps is affirmatively required to inform the public

as to when an individual water quality certification is necessary. That, of

course, it did not do.

issues of greater practical importance to our federal system

than ascertaining the proper standard for determining whether

wetlands constitute “waters of the United States.” Depending

on the standard chosen, vast amounts of land previously

subject to state control may become subject to pervasive

federal regulation. Second, the proper characterization of the

“waters of the United States” requirement— whether

jurisdictional or merely an element of the claim— is an

equally important question, and one as to which the lower

courts are also divided. Third, whether the broad extension

of the Clean Water Act championed by the government

would exceed the power of Congress under the Commerce

Clause is also an important question warranting review.

Finally, whether, in this decidedly complex area of the law,

the government may impose punishment for “violations” of

unannounced requirements, is an important question worthy

of review by this Court.

Mr. Heinrich respectfully submits that each of these

issues warrants plenary review by this Court. In the

alternative, Mr. Heinrich respectfully suggests that, in view

of the Seventh Circuit's failure to consider the relevance to

this case of the Court's decision in Rapanos, the Court may

wish to vacate the judgment and remand the case for further

consideration in light of Rapanos.

Respectfully submitted,

ROBERT L. GRAHAM’

BARRY SULLIVAN

KATHERINE M. RAHILL

JENNER & BLOCK LLP

330 N. Wabash Ave.

Chicago, Illinois 60611

(312) 222-9350

Attorneys for Petitioner

March 16, 2007 * Counsel of Record

APPENDIX

Appendix A

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Argued April 14, 2006

Decided June 6, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. LANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 05-3199

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

Vv.

PAUL A. HEINRICH,

Defendant-Appellant.

Appeal from the United

States District Court for the

Western District of

Wisconsin

No. 03 C 75

John C. Shabaz,

Judge.

ORDER

Paul Heinrich owns nine and a half acres of land on Little

Star Lake in northern Wisconsin. A licensed pilot, Heinrich

uses the property to operate a business offering “scenic

seaplane rides.” Most of his land is a white cedar swamp

wetland subject to state and federal regulations.

Heinrich’s problems began when he decided he wanted to

build a road from the lake upland to an aircraft hangar on his

property. Starting in 1996, he began making inquiries of

various officials with the Wisconsin Department of Natural

Resources (WDNR) and the Army Corps of Engineers. At

first he was honest about needing to build the road to move

his seaplane. When he was told he would be unlikely to get

the necessary permits, Heinrich changed his story and said he

planned to build a “logging road,” which is subject to fewer

restrictions. But a Corps officia! who visited the property in

May 1997 told Heinrich that idea also was unlikely to fly.

In August 1997, Heinrich chose to go ahead and build the

road anyway, misrepresenting to his contractor that he had

the necessary approvals. Two years later, officials received a

complaint, and the federal EPA began investigating.

Heinrich continued to characterize the project as a “logging

road” on his “silviculture hobby farm.” The EPA ordered

Heinrich to restore the wetlands, and when he didn’t, the

agency issued a notice of violation. The government

eventually filed suit to enforce the order. The district court,

after granting summary judgment for the government,

imposed a monetary penalty and issued a remedial order.

Heinrich appeals, and we review the statutory interpretation

behind the district court’s summary judgment decision de

novo. United States v. B & W Inv. Props., 38 F.3d 362, 366

(7th Cir. 1994).

Heinrich’s seaplane access road met the criteria of a

Corps nationwide permit that was in effect at the time,

known as “NWP 26,” which allowed small projects like his

with minimal environmental impacts to proceed without

advance federal approval. See 33 U.S.C. § 1344(e).

However, under NWP 26, projects like Heinrich’s still

needed a state water-quality certification. See 33 C.F.R.

§ 330.4(c).

Heinrich’s defense boils down to two arguments: that

Wisconsin waived its right to require water quality

certification for NWP 26 projects, or that because of

bureaucratic snafus between the Corps and the WDNR, he

did not get proper notice that certification was required. We

must reject both arguments.

Federal regulations require that a state evaluate a Corps

nationwide permit for compliance with its water quality

standards. 33 C.F.R. § 330.4(c)(1). If a state denies blanket

water quality certification for a particular NWP, or if the

Corps deems the conditions imposed by a state to be the

equivalent of a denial, then individuals seeking to proceed

under a NWP must obtain individual water quality

certifications.

Heinrich contends that Wisconsin waived its right to

require individual water quality certifications because it did

not submit valid paperwork to the Corps in time for a

February 11, 1997, deadline applicable to NWPs in effect for

the year 1997. The record indicates that the Corps received a

FAXed copy of Wisconsin’s water quality decision on the

deadline, though Heinrich disputes whether the state properly

followed its own procedures to make the decision legally

effective by that date. At the latest, it appears the decision

would have become effective on March 29, 1997, after the

state commend period closed. The Corps did not reject the

state’s submission as untimely.

Heinrich did not raise his state procedural arguments in

the district court, and 30 we decline to address them on

appeal. See Republic Tobacco Co. v. N. Atl. Trading Co.,

381 F.3d 717, 728 (7th Cir. 2004) (“We have long refused to

consider arguments that were not presented to the district

court in response to summary judgment motions. Appellate

review is not designed to serve as an unsuccessful party’s

second bite at the apple -- an opportunity to raise issues and

arguments that were not brought forth below.” (Internal

citations and quotation marks omitted.)). Suffice it to say

that while Wisconsin may or may not have blown a deadline

set by the Corps, the Clean Water Act, which is the

controlling statute here, imposes a penalty of waiver only if a

state fails to act “within a reasonable period of time (which

shall not exceed one year).” 33 U.S.C. § 1341(a)(1). Since

the Corps issued its request for state certifications on

December 13, 1996, and Wisconsin’s certification was

effective at the latest on March 29, 1997, the state was within

the one-year statutory time frame. Heinrich cannot escape

liability for his wetlands violation by arguing in retrospect

that the State waived certification.

Although the Corps accepted the state’s decision as

timely, it determined on April 30, 1997, that the substance of

Wisconsin’s decision was inconsistent with the Corps’

regulations, and the decision was thus interpreted as a denial

of NWP certification. This meant that each applicant seeking

to use NWP 26 in the state would have to obtain an

individual state water quality certification. Heinrich believes

the requirement should not have been applied to him because

there was no Official public notice, to him or anyone else,

that the Corps had interpreted the state’s decision as a denial

of blanket certification and thus that individual water quality

certifications would be needed.

The relevant regulation says only (and rather vaguely)

that Corps district engineers “will take appropriate measures

to inform the public of which activities, waterbodies, or

regions require an individual ... water quality certification

before authorization by NWP.” 33 C.F.R. § 330.4(c)(4). We

might agree with Heinrich that Corps officials should have

done more to let those potentially affected by the Wisconsin

decision know that they had to get individual certifications.

But we cannot find that the Corps’ failure to do so violated

any statute or regulation requiring notice by publication.

By contrast, the regulations are clear that an individual

water quality certification is required where a state has

denied blanket certification under a particular NWP. 33

C.F.R. § 330.4(c)(6). Nowhere do the regulations indicate

that landowners are entitled to assume that blanket

certification is in effect unless they’re specifically told

otherwise. Yet Heinrich, who has reminded us throughout

his brief and oral argument that he is a practicing attorney,

seems to assume that he had a legal right to go forward with

his access road simply because no one ever told him he

couldn’t. Rather than looking in vain for post-hoc

justifications, he should have read the appropriate regulations

more carefully and inquired about the status of state water

quality certification requirements before he cavalierly moved

forward with his project. The record indicates that Heinrich

had contacts with various officials who probably could have

steered him in the right direction and saved him an expensive

violation -- if he hadn’t created confusion by trying to

flimflam them into believing that his seaplane access road

was actually a “logging road,” the requirements for which are

covered by different policies.

Heinrich also seeks to have the government’s suit against

him dismissed because he was not personally served with the

EPA compliance order. (He got it by certified mail.) As

legal authority, he cites cases dealing with statutory

requirements concerning notice of a eitizen’s intent to sue to

enforce a government regulation, see Hallstrom v. Tillamook

County, 493 U.S. 20 (1989), or over a government official’s

failure to perform some act or duty, see Greene v. Reilly, 956

F.2d 593 (6th Cir. 1992). But these cases have nothing to do

with the mode by which an EPA administrative order is

served. While the Clean Water Act specifies that such orders

“shall be by personal service,” 33 U.S.C. § 1319(a)(5), the

record shows that Heinrich received the order, responded to it

without objecting to the mode of service, and was not

prejudiced by the absence of personal service. The district

court did not err in finding that Heinrich thus waived strict

compliance with the personal service requirement. See

United States v. Myslajek, 568 F.2d 55, 57 (8th Cir. 1977).

Finally, Heinrich argues that the $75,000 penalty he was

assessed, along with an order to restore his wetlands to their

previous condition, were “draconian and an abuse of

discretion.” Our own review of the record satisfies us that

the district court properly considered the relief requested by

the government and Heinrich’s objections to it.

The judgment of the district court is AFFIRMED.

Ta -

Appendix B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF

AMERICA,

SECOND AMENDED

Plaintiff, JUDGMENT IN A CIVIL

CASE

Case No.: 03-C-075-S

PAUL A. HEINRICH,

Defendant.

This action came for consideration before the court with

DISTRICT JUDGE JOHN C. SHABAZ presiding. The

issues have been considered and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS ENTERED IN FAVOR OF

PLAINTIFF AGAINST DEFENDANT WITH COSTS

RESTRAINING AND ENJOINING DEFENDANT FROM

FURTHER VIOLATIONS OF THE CLEAN WATER ACT

IN THE AREA DESCRIBED AS FOLLOWS: A SITE

SITUATED IN THE NORTHWEST 1/4, SECTION 10,

TOWNSHIP 41 NORTH, RANGE 8 EAST, STAR LAKE,

VILAS COUNTY, WISCONSIN CONTAINING

WETLANDS CONSISTING OF WHITE CEDAR SWAMP;

AND THAT DEFENDANT FULLY RESTORE SAID

WETLANDS TO THEIR PRE CLEAN WATER ACT

VIOLATION CONDITION IN ACCORDANCE WITH

THE COURT’S APPROVED RESTORATION PLAN

ATTACHED HERETO AS EXHIBIT A.

THAT IN THE EVENT ANY RESTORATION

REQUIREMENT IS NOT COMPLETED BY

DEFENDANT BEFORE THE DATES SET FORTH IN

THE COURT’S APPROVED RESTORATION PLAN

DEFENDANT SHALL BE LIABLE FOR PAYMENT OF

NOT MORE THAN $1,000.00 PER DAY AS

DETERMINED BY THE COURT FOR EACH DAY THE

RESTORATION PLAN REQUIREMENT IS NOT

COMPLETED AFTER SAID DATE;

THAT DEFENDANT PAY THE BALANCE

OUTSTANDING OF THE $75,000 CIVIL PENALTY

PREVIOUSLY ORDERED IN THIS MATTER AS

FOLLOWS:

$16,250 NOT LATER THAN JANUARY 5, 2006

$16,250 NOT LATER THAN JANUARY 5, 2007

$16,000 NOT LATER THAN JANUARY 5, 2008

FOR A BALANCE OF $48,500

Case No.: 03-C-075-S

Page 2

IT IS FURTHER ORDERED THAT JUDGMENT IS

ENTERED IN FAVOR OF PLAINTIFF UNITED STATES

OF AMERICA AGAINST DEFENDANT PAUL A.

HEINRICH DISMISSING ALL COUNTERCLAIMS WITH

PREJUDICE AND COSTS.

Approved as to form this 17th day of June, 2005.

s/ John C. Shabaz

JOHN C. SHABAZ

DISTRICT JUDGE

s/ Theresa M. Owens

Theresa M. Owens, Clerk

s/ L. Jensen June 17, 2005

By Deputy Clerk

10a

03-C-75-S

EXHIBIT A

COURT APPROVED RESTORATION PLAN FOR

DEFENDANT HEINRICH’S WHITE CEDAR SWAMP

The Court has ordered full restoration of Defendant’s

property on Little Star Lake, Wisconsin (the “site”) to its pre-

violation conditions consistent with EPA’s Restoration

Guidelines. Pre-violation conditions were a White Cedar and

Black Spruce dominated forested wetland system. Therefore,

once fill removal is completed, trees must be planted.

Wetland restoration of the site will consist of removal of

fill material, reconstruction or relayering of the natural soil

horizons, best management practices prior to, during and

after construction (e.g., erosion control), seeding and planting

of native wetland plant species, including trees and

herbaceous plants, and a period of monitoring and corrective

action to ensure successful establishment of pre-violation

conditions. The goal of restoration is to reestablish a forested

wetland system that mimics the elevation, soil layering and

plant community of the surrounding undisturbed white cedar

swamp. A detailed restoration plan follows consistent with

the Restoration Guidelines.

I, Existing Physical Conditions

A. Surveyed Site Plan. No later than ten days after the

Court approves this Restoration Plan Defendant Heinrich

shall provide to EPA a surveyed site plan showing property

boundaries, buildings, water bodies, wetlands, areas of

unpermitted fill, elevation contours and other ground surface

features at a scale of | inch = 25 feet.

Prior to commencement of earth moving Defendant

Heinrich shall take spot elevations in undisturbed soil

lla

conditions on either side of the road fill. Spot elevations are

necessary to guide earthmoving work so the finished grade

approximates the pre-violation ground surface by mirroring

the elevations of the adjacent undisturbed wetland. The spot

elevations shall total at least 20 (10 on either side of the road

fill) beginning at the lakeshore and proceeding on either side

of the road fill at about 30 foot intervals. The spot elevations

data shall be added to the surveyed site plan prior to the

commencement of earth moving and provided EPA.

B. (1) Size and Type of Unpermitted Fill. The

approximate length of the unpermitted road fill is 375.5 feet.

Most of the unpermitted road fill is approximately 20 feet

wide with the exception of a 61 foot long upland island. At

its upper end the unpermitted road fill flares to 52 feet wide.

The unpermitted road fill has a variable depth ranging from 2

1/2 inches to 5 feet. The average depth of the unpermitted

road fill is 22 inches. The unpermitted road fill includes a

section covered by an 82 foot long boardwalk from the lake.

The remainder of the road is grass covered. Most of the fill

underneath the boardwalk consists of a layer of organic soils

and debris. The fill in the grass-covered section of the

seaplane access road consists of a 3 to 5 inch layer of organic

soils over a thicker layer of sand fill.

(2) Description of the Wetland. Little Star Lake in

Vilas County, Wisconsin, is a drainage lake approximately

93 acres in size with a maximum depth of 9 feet. An outlet

drains the lake to the south to Star Lake. Little Star Lake, a

navigable water body, drains into the Wisconsin and

Mississippi Rivers which are both interstate water bodies.

The site is located on Defendant Heinrich’s 9.5 acres of

private property, NE 1/4, Section 10, Township 41 North,

Range East, Star Lake, Vilas County, WI. The western edge

of Little Star Lake consists of muck soils of the Seelyeville

series and sandy soils of the Rubicon series. Seelyeville.

12a

mucks are very poorly drained soils, with moderately rapid

permeability that formed on outwash plains and glacial lake

plains.

These black mucks are made of herbaceous organic

matter, are subject to ponding and the water table is at or near

the surface throughout the year. Rubicon sands are

excessively drained soils that formed on glacial outwash

plains. The subject wetland is identified on the Wisconsin

DNR Wetland [nventory as Forested-Needle Leaved Wet

soil, Palustrine. This coniferous wetland is dominated by

black spruce (Picea mariana) and northern white cedar (Thuja

occidentalis). A more complete list of native herbaceous

plant and tree species appears in Section II.

II. Proposed Physical Conditions

A. Surveyed Site Plan of Proposed Physical

Conditions. No later than ten days after the Court approves

this Restoration Plan Defendant Heinrich shall, using the site

plan described in I.A as a base, show the areas where he will

do the removal and restoration. These areas shall include all

areas of unpermitted fill consistent with the description in

Section I.B. In addition, Heinrich shall show proposed

finished grades, the location of proposed planting or seeding

and the location of all silt fences.

B. Description of Removal and Restoration Work. All

unpermitted fill shall be removed and restored. To the

maximum extent possible excavated areas shall be restored

with the original organic soils removed or used during road

construction as fill. If there is a deficit of organic soils for

full restoration after best efforts have been made to use all

original organic soil, then organic soils for restoration shall

be purchased commercially.

(1) Methods and Equipment. Heavy equipment

must be tracked. Tracked rather than wheeled vehicles

13a

minimize soil disturbance during work_and are less likely to

fail. Equipment shall access the site from the Defendant’s

upland area near his hangar building and be stored there

when not in use. Equipment shall remain on the fill pad

when working to the maximum extent possible. Mats may be

necessary for equipment access to the restored area once the

fill removal is complete and soil reconstruction and soil

ripping commence.

Survey equipment, used by licensed and professional land

surveyors, will establish the spot elevations on either side of

the roadway fill. Twenty locations equally spaced on either

side of the roadway fill will be marked with lath and

elevations marked thereon.

An on-site construction supervisor, with experience in

soil science and wetland restoration, will be present

periodically to assist equipment operators to reestablish -sett—

profiles and grades.

(2) Schedule of How Work Will Progress Across

the Site. Work wili occur in phases. The first phase will be

restoration of the section of ground between the shoreline

and the upland island. The second phase of restoration will

be in the area between the upland island and the staging area.

Phased work will allow a determination of whether initial

methods of fill removal and reconstruction of soil profiles

and grades are successful or need adjustment.

Work will progress as follows:

1. Place erosion control barrier at the lake shoreline

and maintain throughout the restoration process

until vegetation is sufficiently established to

eliminate sheet or gully erosion from rain or melt

events.

2. Scrape the thin top layer of organic fill from the

roadway and stockpile at the upland island.

l4a

Remove the boardwalk and properly dispose of the

lumber.

Working off the sand fill at the lanc ward edge of

where the boardwalk was, use excavator bucket to

scrape organic fill from this area and stockpile at

the upland island. Remove and properly dispose of

the sand fill from beneath the boardwalk.

Continue removing sand fill from the area between

the landward edge of the boardwalk and the upland

island - properly disposing of the sand fill material.

Determine the amount of organic soil that must be

replaced, if any, within the area of fill removal.

This determination must account for soil ripping.

Accordingly, in this area of fill removal, soil

ripping may need to occur at this time.

if necessary, place organic soil previously removed

back into fill removal area to reconstruct soil

profiles and to meet the grade of the adjacent

undisturbed wetland areas. Survey equipment to

match grades will be necessary on-site at this time.

If fill removal is complete and soil profiles and

grades are sufficient then organic erosion control

mats shall be immediately placed, secured and

maintained.

Continue the process of fill removal, soil

reconstruction and grade matching while moving

landward towards the hangar upland area. If it

appears prudent, soil ripping may occur in smaller

segments and organic erosion control mats can be

placed assuming soil profile reconstruction and

grades are sufficient. Whatever soil is stockpiled on

the upland island may need to be moved and

temporarily stockpiled further along the roadway or

10.

11.

12.

13.

15a

moved completely to the hasgar upland area or

some combination thereof.

The placement of additional eresion control barriers

across the roadway while the work is ongoing is

dependent on the work phasing. If smaller

segments of the restored roadway are not covered

by organic mats and the raw earth will be exposed

to the elements for greater than two days, then an

erosion contro! barrier will be placed at 75 and 150

feet landward of the upland island. This wil!

prevent erosion events in the interim time period

between initiation and completion of fill removal

and soil profile reconstruction. ;

When fill removal work is nearing 95% complete

U.S. EPA will be contacted for a restoration plan

compliance inspection to ensure soil profiles,

grades, and fill removal are adequate. A surveyor

will be on-site to assist in documenting grades.

U.S. EPA or their representatives are encouraged to

inspect the site as early and as often as possible to

prevent redoing work.

After completion of fill removal and soil profile

reconstruction a final erosion control barrier will be

placed at the interface between the restored wetland

area and the hangar upland area.

Within 15 days of completion of earth moving

activities an as-built plan will be prepared that

depicts the spot elevation grades of 10 points within

the restored area that match with the twenty spot

elevation controls in the adjacent undisturbed areas.

EPA, within 20 days of receipt of the as-built plan,

will notify the Defendant in writing that earthwork

is complete. At receipt of this letter Defendant shall

14.

15.

16.

17.

16a

begin seeding and planting according to the

following time frames.

Trees are to be planted on seven (7) foot centers -

meaning one tree per 49 square feet of restored

area. Trees seven (7) feet or taller are preferred

because they will lead to quicker and more

successful restoration. The tree species to be

planted are identified in Section II.B(3). Since

Black Spruce and Northern White Cedar are the

dominant species of trees, they should comprise

50% to 75% of the total percentage of trees planted.

The remaining percentage should include a

representative mix of the other listed tree species.

Of every five (5) dominant trees planted three

should be Northern White Cedar trees and two

should be Black Spruce trees.

Alternatively, if small trees (less than seven feet

tall) are planted, they shall be protected from deer

browse by fencing and commercially available

products such as tree tubes. Fencing and tree tubes

must be maintained. Tree tubes may initially

exceed the height of the small trees.

Trees will be mulched around their bases to a

diameter of three (3) feet and a thickness of five (5)

inches. The planting plan shall be illustrated on the

surveyed site plan.

Herbaceous seeding will occur at a rate of 11

pounds per acre and will be hand broadcasted and

raked into the soil surface to ensure good seed - soil

contact. Seed type is limited to those species

identified in the surrounding natural forested

wetland areas and listed in Section II.B(3).

17a

18. Herbaceous plant seeds will not be sown into the

mulched tree areas. Local area nurseries and

commercial seed sources shall be contacted

immediately by Defendant upon the Court’s

approval of the restoration plan to ensure tree and

seed availability. If availability is limited, then

changes to the plant lists may be made only upon

the prior written approval of EPA.

(3) List of Plant Species To Be Seeded or Planted.

Herbaceous plant species:

Tag Alder (Alnus incana)

Flat-Top Aster (Aster umbellatus)

Two-Seeded Bog Sedge (Carex disperma)

Greater Bladder Sedge (Carex intumescens)

Three-Seeded Bog Sedge (Carex trisperma)

Bunchberry (Cornus canadensis)

Oak Fern (Gymnocarpiurn dryopteris)

Canada Mayflower (Maianthenum canadensis)

Cinnamon Fern (Osmunda cinnamomea)

10.‘ Royal Fern (Osmunda regalis)

11. Broad Beech-Fern (Phegopteris onnectilis)

12. Star Flower (Trientalis borealis)

Pen aAwrern =

Tree species:

Balsam Fir (Abies balsamea)

Black Ash (Fraxinus nigra)

Black Spruce (Picea mariana)

Northern White Cedar (Thuja occidentalis)

Yellow Birch (Betula alleghansis)

ae we

C. Outer Boundary of Construction Activities. No later

than ten days after the Court approves this Restoration Plan

Defendant Heinrich shall show, using the surveyed site plan

as a base, the outer boundaries of construction activities

18a

which includes the areas to be restored and silt fences. This

boundary shall be marked with flags prior to commencement

of earth moving work. No work shall occur beyond this

boundary.

III. Actual Restored Physical Conditions After-Grading

After grading is complete spot elevations will be taken

and recorded every 30 feet along the restored area of the road

to verify the actual finished grade. Photographs of the

finished restoration shall be taken to provide a record of the

finished grade.

In addition to the spot elevations to verify the actual

finished grade Defendant shall submit to EPA an as-built

plan at the same scale as the base map, comparing not only

the spot elevations inside and outside the restored area, but

also the reconstructed soil profiles inside and outside the

restoration area. The as-built plan shall demonstrate that the

spot elevation grades of 10 points within the restored area

match with the 20 spot elevations previously taken in the

adjacent undisturbed areas. The as-built plan shall be

prepared and submitted 15 days after the completion of earth

moving work and prior to planting/seeding activities to allow

for corrective earth work if necessary.

IV. Monitoring/Measures of Success

A. Measures of Success. The site must comply with

-the following performance standards for measuring the

success of revegetation:

l. If the restoration area does not achieve 75% relative

ground coverage of vegetation after three growing

seasons; and/or 85% relative ground coverage of

vegetation after five growing seasons; then

a. the Site shall receive supplemental seeding or

planting of plant plugs during each subsequent

19a

spring planting season until the 75% or 85%

relative ground coverage of vegetation standard is

met;

2. If the restoration area does not achieve a 2% or less

standard for the relative ground coverage of non

native or invasive vegetation; then

a. herbicide, mowing or hand pulling methods of

invasive species plant control must be

implemented immediately. Non native or

invasive plant species are defined by Plants of the

Chicago Region, (1994, Floyd Swink & Gerould

Wilhelm) and include, but are not limited to

Phragmites australis, Lythrum salicaria, Phalaris

arundinacea, Typha X glauca and Typha

angustifalia;

3. If the restoration area does not have at least 50% of

the trees survive after the inspections are conducted

in years three (3) or five (5), then replanting of tree

species will occur in the dormant season of year

three (3) and year five (5S) until the numeric

standard is obtained;

and

4. If performance standards are not met after the end of

the five (5) year monitoring period, then corrective

action necessary to achieve these performance

standards and the monitoring to track performance

will continue annually until the performance

standards are met.

B. Monitoring Schedule. Monitoring inspections will

begin in 2006 as described. The restoration areas shall be

inspected twice annually for two growing seasons (on or

about June 15 and September 15), and once annually for the

successive three growing seasons (on or about August 1) to

20a

assess the relative success or failure of the wetland plant

community. Random sampling will be used to establish a

permanent 300 foot transect within- the restoration area.

Vegetation sampling will be conducted every 10 feet

(beginning at 0) using a square meter quadrat. Information

collected within the quadrats will include species presence

(i.e., genus and species is identified) and relative ground

coverage of each identified species.

C. Monitoring Reports. Monitoring __ reports,

documenting the previous growing season site inspection

results, shall be submitted annually by October 1” (or the

next business day if October | falls on a weekend or federal

holiday) and include:

1. Written narrative characterizing general site

conditions, including revegetation, soil stability and

hydrology (i.e., the level of surface inundation or

soil saturation to 20 inches below the ground

surface);

2. Vegetation sampling results identifying species and

relative ground coverage and a determination of

compliance with performance standards; and

3. A permanent photographic record of the restoration

area from each of its four corners. The monitoring

reports shall be submitted to the following:

Gregory Carlson (WW-16J)

United States Environmental Protection Agency

77 West Jackson Boulevard

Chicago, IL 60604-3590

21a

Leslie K. Herje

Assistant U.S. Attorney

Chief, Civil Division

U.S. Department of Justice

Suite 303, City Station

660 W. Washington Avenue

Madison, Wisconsin 53701-1585

After EPA has received and reviewed the Defendant’s

final monitoring report and has determined that all measures

of success contained in the Restoration Plan have been

attained and maintained, EPA shall issue a letter verifying

that the monitoring portion of the Wetland Restoration

project has been completed.

If at any time during the monitoring period EPA

determines that any measures of success contained in the

Restoration Plan are not being attained and/or maintained,

EPA or Defendant may propose modifications to the

Restoration Plan to correct the problem. The parties shall

adopt and incorporate into the Restoration Plan whatever

modification(s) EPA deems necessary to attain or maintain

the measures of success. EPA or Defendant may propose

modifications to the Restoration Plan. Modifications shali be

incorporated into the Restoration Plan upon agreement of the

parties and shall become effective without further action by

the parties or the Court. The parties shall first attempt to

resolve all disputes informally. After first conducting good

faith efforts to resolve any dispute informally, either EPA or

the Defendant may seek review from the Court.

V. Inspections

EPA may inspect the site at reasonable times upon notice

to Defendant for the duration of the restoration work and

monitoring period. Given the distance to the site from EPA’s

regional office in Chicago, EPA may designate another

22a

person, agency or contractor to conduct site inspections upon

reasonable notice to Defendant.

VI. Schedule

Earth moving work shall begin as soon as possible,

weather permitting, but no later than July 19, 2005 and shall

be completed by August 5, 2005. Seeding and planting shall

begin not later than October 1, 2005 and be completed not

later than October 15, 2005.

23a

Improper Service

Finally, defendant suggests that the second claim of the

complaint should be dismissed because he was not personally

served with the compliance order plaintiff now seeks to

enforce in accordance with 33 U.S.C. § 1319(a) (5)(A).

Under the circumstances presented here, a failure of personal

service is not fatal to plaintiff's claim. It is undisputed that

defendant actually received the administrative compliance

order and an amendment to it. It is also undisputed that he

responded to the order without raising an objection to the

mode of service. Pursuant to 33 U.S.C. 1319(a)(4) the order

could not take effect until defendant had an opportunity to

consult with plaintiff. As a result of these circumstances there

is no possibility of prejudice to defendant from the absence

of personal service.

Had defendant objected to the form of service at the time

it could have been easily and inexpensively corrected.

Having chosen not to do so and fully litigating the matter on

its merits under circumstances where there is no evidence of

bad faith on the part of plaintiff or prejudice to defendant, he

has waived strict compliance with the personal service

requirement. United States v. Myslajek, 568 F.2d 55, 57 (8th

Cir. 1977).

24a

ORDER

IT IS ORDERED that defendant's motion for summary

judgment is DENIED.

IT IS FURTHER ORDERED that plaintiff's motion for

partial summary judgment is GRANTED.

IT IS FURTHER. ORDERED that the parties submit

proposed findings of fact and conclusions of law concerning

that relief to be awarded by October 1, 2003.

Entered this 18th day of September, 2003.

BY THE COURT

s/ John C. Shabaz

JOHN C. SHABAZ

District Judge

25a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF

AMERICA,

Plaintiff, Case # 03-C-75-S

Vv. Memorandum and Order

PAUL A. HEINRICH,

Defendant.

Plaintiff United States of America commenced this

Compliance Order enforcement action pursuant to § 309(a)

of the Clean Water Act, 33 U.S.C. S 1319(a), seeking to

recover civil penalties and compel defendant Paul Heinrich to

restore a wetland through which he constructed a road.

Defendant seeks a determination that his construction of the

road was not in violation, or was exempt from or permitted

by the CWA and further asserts various defenses to CWA

enforcement. Jurisdiction is provided by 28 U.S.C. § 1331,

1345, 1355 and the CWA. The matter is presently before the

Court on cross motions for summary judgment on all claims

and defenses. The following facts are not disputed for

purposes of the pending motions.

26a

FACTS

Plaintiff Heinrich owns real property in Vilas County,

Wisconsin consisting of 9.5 acres and 480 feet of frontage on

Little Star Lake. The non-wetland portion of the defendant's

property includes a house, garage and shed. It also includes a

60 x 68 foot storage building constructed by defendant. Eight

of the 9.5 acres, including the lake frontage, are a white cedar

swamp wetland. The cedar swamp slopes toward and is

hydrologically connected to Little Star Lake. Little Star Lake

has 100 surface acres and a maximum depth of nine feet. It is

connected by surface water and drains into Star Lake and

ultimately into the Wisconsin and Mississippi rivers.

Little Star lake is used for recreational purposes including

fishing and boating. Errington's Resort, which offers cabins

and a motel to interstate guests, has operated on Little Star

Lake since 1950, The resort is open all year and its guests

swim, boat, snowmobile and hunt on the lake.

Defendant Heinrich is a commercial pilot who owns a sea

plane and operates a business called "Scenic SeaPlane Rides"

which offers seaplane rides to customers. He stores his

seaplane in the storage building on the property and takes off

and lands the plane on Little StarLake.

In December 1996 defendant contacted both the

Wisconsin Department of Natural Resources (WDNR) and

the Regulatory Project Manager for the United States Army

Corps of Engineers (Corps) to inquire about constructing a

road through the wetland for the purpose of moving his

seaplane between the storage building on his property and

Little Star Lake. Both the WDNR and the Corps advised

defendant that he required permits to construct the road and

the Corps agent advised defendant that he was unlikely to

receive the necessary permits.

27a

On January 16, 1997 defendant filed a permit application

with the Corps to construct a "permanent logging road." The

application showed that fill would be placed to construct a

fifteen foot wide road and a twenty foot strip on either side of

the road would be logged. A copy of the application was also

received by the WDNR. On February 10, 1997 the Corps and

WDNR inspected defendant's property. The Corps agent

advised defendant to apply for an access path with a dual

purpose. The WDNR agent advised defendant that WDNR

would probably deny a request for certification pursuant to

§ 401 of the CWA.

On May 20, 1997 federal, state and county officials

inspected defendant's property, The WDNR's agent advised

plaintiff that in his opinion construction of the access road

would involve the discharge of fill material into the wetland

and would require a State Water Quality Certification

pursuant to section 401 of the CWA. He further advised

defendant that it was his opinion that the project would be

unlikely to receive such a certification.

In 1997 defendant hired Vogel Enterprises, Inc (Vogel) to

construct a road through the wetland, advising Vogel that he

had obtained all necessary permits and that the road was

exempt from permit requirements because it was a logging

road. Using a backhoe, a bulldozer and a Posi Track with a

bucket Vogel built the road by leveling the top of an existing

ridge and pushing muck between the ridge and the area that

had been leveled for the storage building and topping the

road with topsoil taken from the property. The road extended

through the wetland to approximately 100 feet from the lake

shore, at which point the land became too wet to continue

construction in that manner. In October 1998 Vogel installed

two culverts beneath the road. In spring 1999 defendant

installed a wooden boardwalk extending the road an

28a

additional 100 feet to the lake using logs, wooden planks and

Spancrete blocks.

On November 20, 2000 plaintiff issued an administrative

compliance order requiring defendant to cease all discharges

of fill and to submit a plan to restore the wetlands. The

compliance order and a subsequent amendment were sent to

defendant by certified mail and were actually received by

defendant on or about December 7 and March 23, 2001,

respectively. Defendant denied that any permit was required

and refused to restore the property. to its former state.

Plaintiff commenced this action to enforce the compliance

order.

MEMORANDUM

: Plaintiff moves for summary judgment arguing that the

undisputed facts establish that by constructing the wetland

road defendant discharged a pollutant into navigable waters

without a permit in violation of 33 U.S.C. 1311(a) and

1362(12). Defendant contends that he is entitled to summary

judgment because he did not add fill to the wetland, forest

road construction does not constitute pollution from a point

source, the road was not constructed on or in waters of the

United States and the construction of the road fell within an

exemptior or was permitted by a nationwide permit which

required no application. Alternatively, defendant contends

that factual disputes preclude resolution of the issues on

summary judgment. Defendant also argues that plaintiff's

second claim, enforcement of the administrative compliance

order, is procedurally improper because he was not properly

served with the compliance order which plaintiff seeks to

enforce. Finally, defendant seeks summary judgment on the

basis that plaintiff's actions are unconstitutional.

29a

Summary judgment is appropriate when, after both

parties have the opportunity to submit evidence in support of

their respective positions and the Court has reviewed such

evidence in the light most favorable to the nonmovant, there

remains no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Rule 56(c),

Federal Rules of Civil Procedure.

A fact is material only if it might affect the outcome of

the suit under the governing law. Disputes over unnecessary

or irrelevant facts will not preclude summary judgment. A

factual issue is genuine only if the evidence is such that a

reasonable factfinder, applying the appropriate evidentiary

standard of proof, could return a verdict for the nonmoving

party. Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 254

(1986). Under Rule 56(e) it is the obligation of the

nonmoving party to set forth specific facts showing that there

is a genuine issue for trial.

CWA Violation

CWA makes the "discharge of any pollutant" unlawful

unless the discharge is authorized by a statutory exemption or

a permit. 33 U.S.C. 1311(a). The "discharge of any pollutant"

means “any addition of any pollutant to navigable waters

from any point source." 33 U.S.C. § 1362(12). Accordingly,

in order to prevail on its claim plaintiff must demonstrate that

defendant (1) discharged a pollutant (2) from a point source

(3) into navigable waters. Were all three elements established

it must be determined whether the discharge was authorized

by permit or exemption. Each of the three elements and the

existence of a permit or exemption are the subject of dispute

in these cross motions.

30a

Discharge of a Pollutant

The term "pollutant" includes "dredged spoil,... biological

materials, . . . rock, sand [and] cellar dirt." 33 U.S.C.

§ 1362(6). it is undisputed that defendant, either by

redepositing material from the surrounding wetland or

depositing material from dry land, placed dirt, sand, logs and

leaves into the wetland to build the road and boardwalk, all

of which satisfy the definition of pollutant.

Plaintiffs discussion concerning whether the materials

constitute "fill" within the meaning of federal regulations is

irrelevant to the issue of whether there has been a discharge

of a pollutant. Status of a pollutant as "fill" does not affect

whether a pollutant has been discharged but is relevant in the

application of 33 U.S.C. § 1344 and the regulations enacted

pursuant to it (see, e.g., 33 CFR § 323; 40 CFR § 232) which

address permits (and exemptions) for dredged or fill material.

This issue is addressed separately in the context of

defendant's forest road exemption defense.

From a Point Source

"Point source means any discernable, confined and

discrete conveyance." 33 U.S.C. § 1362(14). Backhoes and

bulldozers used to deposit materials in wetlands are point

sources. Avoyelles Sportsmen's League, Inc. v. Marsh, 715

F.2d 897, 922 (Sth Cir. 1983); Borden Ranch Partnership v.

United States Army Corps of Engineers, 261 F.3d 810, 815

(9th Cir. 2001); see also United States v. Huebner 752 F.2d

1235, 1242-43 (7th Cir. 1985). The machines used by

defendant and Vogel to place materials into the wetland on

the road bed were point sources within the meaning of the

CWA.

3la

Defendant argues that the road was for forestry activities

that such activities are generally regulated as non-point

source activities and, therefore, his road construction

activities were a non-point source activity. Accepting for

purposes of this element that defendant's activities were for

silviculture the argument fails. It is neither logically sound

nor supported by the regulations he cites. It is true that the

primary pollutant discharge from forestry activities is non-

point source runoff caused by the clearing of vegetation,

construction- of roads, and other activities which affect

surface drainage. See 40 CFR 122.27. However, this certainly

does not contradict the fact that forest roads constructed

through wetlands constitute point source discharges. The

applicable regulation, 40 CFR § 122.27, explicitly states as

much:

{Silviculture Point Source] does not include

non-point source silvicultural activities such

as . . . road construction and maintenance

from which there is natural runoff. However,

some of these activities (such as stream

crossings for roads) may involve point source

discharges of dredged or fill material which

may require a CWA section 404 permit.

A forestry purpose does not convert an obvious point source

discharge of fill material into a wetland into a non-point

source discharge.

Into Navigable Waters

"Navigable waters" means waters of the United States. 33

U.S.C. § 1362. The term "waters of the United States” is

defined at 33 CFR § 328.3(a) to mean:

32a

(1) All waters which are currently used, or

were used in the past, or may be susceptible to

use in interstate or foreign commerce....

(2) All interstate waters including

interstate wetlands;

(3) All other waters such as intra-state

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;

(5) Tributaries of waters identified in

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

(7) Wetlands adjacent to waters (other

than waters that are themselves wetlands)

identified in paragraphs (a) (1) through (6) of

this section.

Little Star Lake is an intra-state lake used by interstate

travelers for recreational purposes, § 328.3 (a) (3), and a

tributary of the Wisconsin river (a water used in interstate

commerce) and the Mississippi river (an interstate water),

§ 328.3(a)(5).

Defendant's only argument in opposition to this element

is that his wetlands are not “adjacent” to Little Star Lake

within the meaning of § 328.3(a)(7) because there are lily

pads in the lake at the point where the cedar swamp meets the

lake. His argument fails as a matter of fact, statutory

interpretation and common sense. "Adjacent" means

"bordering, contiguous or neighboring.” Under any

33a

reasonable interpretation defendant's cedar swamp, which

ends at the open water of Little Star Lake, is adjacent to the

lake. The parenthetical reference in § 328.3(a)(7) which

excludes from coverage wetlands adjacent to "waters that are

themselves wetlands" is a reference to wetlands which are

themselves waters of the United States without regard to

adjacency, that is wetlands identified in § 328.3(a)(1)-(6)

which qualify for waters status independent of their

relationship to lakes, rivers and streams. A wetland such as

defendant's which adjoins a lake which affects interstate

commerce and is a tributary to navigable and interstate

waters is not affected by the exception.

Were defendant's non-sensical interpretation accepted

virtually all adjacent wetlands would be excluded from

coverage beyond the first foot because the balance would be

adjacent to other wetlands. As the Supreme Court recognized

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

U.S. 121, 135 (1985) the basis for jurisdiction over wetlands

adjacent to open waters is their function as "integral parts of

the aquatic environment." To arbitrarily exclude wetlands

from coverage because there are lily pads at the lake

shoreline would be to ignore the fundamental basis for their

inclusion. Not surprisimg)y, the only court to have expressly

considered defendart’s argument characterized it as absurd.

North Carolina Shellfish Growers Ass'n v. Holly Ridge

Assoc., LLC., 2003 W.L. 21995171, *16 at n. 5.

Permit or Exemption

All elements of a CWA _ violation having been

established, defendant is liable unless his actions in building

the road through the wetland was exempted from coverage or

was performed pursuant to a permit. Defendant argues that

his actions were exempt from coverage by the forest road

exemption, 33 U.S.C. 1344 (f) (1) (E) and, alternatively, that

34a

his actions were permitted pursuant to Nationwide Permit 26

(NWP 26).

Forest Road Exemption.

The discharge of fill material is not prohibited under the

CWA if it is

for the purpose of construction or maintenance

of farm roads or forest roads ... where such

roads are constructed and maintained, in

accordance with best management practices,

to assure that flow and circulation patterns and

chemical and biological characteristics of the

navigable waters are not impaired, that the

reach of the navigable waters is not reduced,

and that any adverse effect on the aquatic

environment will be otherwise minimized.

33 U.S.C. § 1344 (f) (1) (E) . Defendant maintains that his

road satisfies all requirements for the exemption.

Plaintiff contends that the exemption, does not apply

because the defendant's road is not a "forest road" within the

meaning of the Act and because, were it a forest road, its

construction was not in accordance with best management

practices as required by the Act. The evidence is

overwhelming that the construction of the road was not for

forestry ‘purposes and that its construction was not in

accordance with best management practices. Accordingly,

there is no genuine issue of fact and plaintiff is entitled to

summary judgment in its favor.

The only reasonable conclusion from a review of the

undisputed evidence is that the road through -defendant's

wetland was constructed primarily for the purpose of

35a

transporting his seaplane to and from Little Star Lake and not

for the purpose of forestry. Prior to construction of the road

defendant contacted several government agencies making it

clear that he intended to build an access road for his seaplane

through the wetland. Only after he was advised that the

activity was not permitted did he advance a forestry purpose.

He constructed a boardwalk extending the road to the lake

which serves no forestry purpose but, instead serves the

obvious purpose of seaplane access. He uses the road to

transport his plane and operate his scenic rides business.

Virtually all the logging performed on the property preceded

the road and was for the purpose of clearing the land to build

the road and provide sufficient width for the plane wings.

Logging companies deemed the property not worth

commercial harvesting because of its size and hydrology. At

most defendant has established that he has made some

incidental use of the logs he removed to build and maintain

the road. A reasonable fact finder could only conclude that

the primary purpose of the road is lake access for the plane

and that the purported forestry purpose was a pretext to

attempt to establish an exemption from CWA requirements.

Had defendant raised a fact issue on the forestry purpose

of the road the exemption would not apply because the road

would not constitute best management practices as required

by the Act. Under prescribed best management practices such

roads are held to the minimum feasible number width and

total length consistent with the purpose of specific farming,

silvicultural or mining operations, and local topographic and

climactic conditions.” 33 CFR 323.4(a)(6)(i). Furthermore,

all roads are required to be located sufficiently far from water

bodies to minimize discharges, § 323.4(a)(6)(ii), vegetative

disturbance is to be kept to a minimum, 323.4(a)(6)(vi) and

construction of roads in wetlands is to be avoided entirely if

practical alternatives exist, § 323.4(a)(6)(x).

36a

Defendant's very limited “silvicultural operations" would

probably not require a road. They certainly would not require

one the length and width of that constructed, would not

require extension to the lake edge and would not require a

fifty foot wide clear cut to the lake. All these features are

contrary to best management practices because they impose

far greater impact on the wetland than would be required for

the type of timber harvesting defendant suggests he might

perform. All these features are unnecessary to any

"silvicultural operation” but exist only to facilitate use of the

road as a seaplane taxiway. The forest road exemption does

not apply.

Nationwide Permit 26

Pursuant to 33 U.S.C. 1344(e) plaintiff may issue

discharge permits on a general rather than individual basis

for certain activities determined to have minimal

environmental impact. Once such a general permit is in place

activities which qualify with its terms and conditions may

proceed without individual authorization. 33 CFR 330.2(c).

At the time of defendant's activities a nationwide general

permit, NWP 26, was in effect, 61 Fed. Reg. 65874, 65916-

17 (Dec. 13, 1996). NWP 26 covered

Discharges of dredged or fill material into

headwaters and isolated waters provided that

the activity meets all of the following criteria:

a. The discharge does not cause the loss of

more than 3 acres of waters of the United

States nor cause the loss of waters of the

United States for a distance greater than 500

linear feet of the stream bed;

37a

b. For discharges causing the loss of greater

than 1/3 acre of waters of the United States,

the permittee notifies the District Engineer in

accordance with the "Notification" general

condition;

¢. For discharges causing a loss of 1/3 acre or

less of waters of the United States. the

permittee must submit a report within 30 days

of completion of the work, containing the

information listed below;

d. For discharges in special aquatic sites,

including wetlands, the notification must also

include a delineation of affected special

aquatic sites, including wetlands.

Regardless of the applicability of NWP 26, an applicant was

required to comply with applicable state water quality

certification requirements before a permit could be obtained.

33 U.S.C. § 1341(a)(1).

Plaintiff concedes that defendant's project met the criteria

for NWP 26 except for requirement c, defendant having

failed to submit the requisite report within thirty days after

completion of the work. Plaintiff does not contend that the

failure to file the report would have voided the permit.

However, plaintiff argues that defendant failed to obtain (and

in any event would have been denied) a section 401 water

quality certification which is a. prerequisite to a permit under

NWP 26. Defendant argues that Wisconsin either waived its

right to issue section 401 permits generally or its right to

deny defendant's specific request for certification by failing

to act on it. 33 U.S.C. § 1341(a) (1). There is no factual

support for either of defendant's arguments.

38a

Wisconsin has not waived its right to require water

quality certifications. Wisconsin timely submitted its water

quality certification conditions to plaintiff on February 11,

1997 pursuant to 33 CFR § 330.4(c) (1) as demonstrated by

defendant's exhibits 16 and 18. As a result of the denial of

‘those conditions, noted in defendant's exhibit 16 and

provided by 33 CFR § 330.4(c) (3), all subsequent NWP 26

applications including those of defendant were denied

without prejudice until Wisconsin issued an individual 401

certification or waived its right to do so.

Defendant concedes that Wisconsin did not issue him an

individual 401 certification for his road. In fact, it is

undisputed that its agents advised him that they would

probably deny any such request. Rather, he asserts that he

filed a request for certification to which he received no

response within 60 days giving rise to a presumption of

waiver of the certification requirement for his project in

accordance with § 330.4(c)(6). In support of this argument

defendant contends that an "Application for Water

Regulatory Permits" filed with the Corps on January 16,

1997, a copy of which was provided to WDNR, constituted

an application for state section 401 certification. That

document identified the proposed activity as "construction of

a permanent logging road in accordance w/33 CFR 323 .4 (a)

(6)" and identified the purpose, need and intended use of the

project as "logging and other forestry related activities."

Given the stated purpose of the project to construct a

forestry road which was exempt from the requirement of a

permit, WDNR did not consider it a request for state

certification and did not process it as a request for

certification. On February 6, 1997, plaintiff send a letter to

defendant advising him that his project would not qualify for

exemption and instructed him to amend his application to

seek a permit. On February 10, 1997 representatives of

39a

plaintiff and WDNR met with defendant at his property and

advised him to apply for a permit. Clearly at that time neither

defendant, plaintiff nor WDNR believed that the January 16,

1997 document was a request for the issuance of a permit or

for state certification for the issuance of a_ permit.

Defendant's unequivocal position was that he did not require

a permit. No subsequent application was filed. Accordingly,

Wisconsin did not waive its right to deny certification.

Additional Defenses

Defendant raises three additional defenses to plaintiff's

claims: First, that the doctrine of res judicata bars claims

relative to the placement of the boardwalk and boat ramp;

second, that the administrative compliance order which. is

the basis for the second claim of the complaint was not

properly served; third, that the regulation of plaintiff's

activities on his property is unconstitutional.

Res Judicata

On August 1, 2000 a WDNR agent issued defendant

citations for placing a seaplane ramp and concrete blocks

onto the bed of Little Star Lake in violation of Wis. Stat

§ 30.12 which prohibits the placement of material or

structures on the bed of a navigable water. Defendant was

ultimately found guilty of the violation involving the

concrete blocks and not guilty of the alleged violation

involving the ramp. Defendant has removed the blocks.

Defendant now argues that the WDNR prosecution of these

state law violations precludes the present CWA enforcement

action. Since neither the claims nor the parties were the same

in the two actions, the defense is inapplicable.

Res Judicata (claim preclusion) precludes parties from

raising claims which were previously adjudicated, or which

40a

could have been raised in a prior action between them, Allen

v. McCurry, 449 U.S. 90, 94 (1980). An action for violation

of a Wisconsin statute barring placement of structures on

Wisconsin lake beds is plainly distinct from an action for

improper discharge of pollutants in violation of the CWA.

Furthermore, it is undisputed that the State of Wisconsin had

no authority to bring a CWA action in state court.

Accordingly, the. CWA claim presently before the Court was

not and’ could not have been litigated in the state action.

Collateral estoppel (issue preclusion) precludes

relitigation of an issue of fact or law necessary to a judgment

in a prior action involving the same party. Jd. Assuming that

some common factual issues might exist between the state

prosecution and the present CWA action (though this has not

been established) it is clear that the United States and the

State of Wisconsin are not the same party for purposes of

collateral estoppel. The doctrine could only apply against the

United States in this action if it exercised control over and

carried the "laboring oar" in the previous action. Montana y.

United States, 440 U.S. 147, 155 (1979). There is no

evidence that the United States had any significant

involvement in the state proceeding. Accordingly, there is no

legal or factual basis for a res judicata defense.

Unconstitutionality

Defendant contends that defendant's attempted regulation

of his wetlands exceeds congressional Commerce Clause

authority because the connection between his wetland and

interstate commerce is too tenuous and femote. Specifically,

that it is unconstitutional to regulate headwaters distant from

rivers used in commercial navigation because such bodies of

water have an insufficient impact on interstate commerce.

The Supreme Court expressly addressed and rejected

challenges to Corps authority to regulate wetlands adjacent to

4la

all waters of the United States for purpose of protecting the

aquatic ecosystem as a whole. Riverside Bayview Homes, 474

U.S. at 133-34. In so doing the Court affirmed. not only

congressional power under the Commerce Clause to regulate

defendant's wetland but also the reasonableness of the Corps

interpretation of the CWA in imposing such regulations.

Defendant's argument that the regulation is unconstitutional

must be rejected.

Improper Service

Finally, defendant suggests that the second claim of the

complaint should be dismissed because he was not personally

served with the compliance order plaintiff now seeks to

enforce in accordance with 33 U.S.C. § 1319(a) (5)(A).

Under the circumstances presented here, a failure of personal

service is not fatal to plaintiff's claim. It is undisputed that

defendant actually received the administrative compliance

order and an amendment to it. It is also undisputed that he

responded to the order without raising an objection to the

mode of service. Pursuant to 33 U.S.C. 1319(a)(4) the order

could not take effect until defendant had an opportunity to

consult with plaintiff. As a result of these circumstances there

is no possibility of prejudice to defendant from the absence

of personal service.

Had defendant objected to the form of service at the time

it could have been easily and inexpensively corrected.

Having chosen not to do so and fully litigating the matter on

its merits under circumstances where there is no evidence of

bad faith on the part of plaintiff or prejudice to defendant, he

has waived strict compliance with the personal service

requirement. United States v. Myslajek, 568 F.2d 55, 57 (8th

Cir. 1977).

42a

ORDER

IT IS ORDERED that defendant's motion for summary

judgment is DENIED.

IT IS FURTHER ORDERED that plaintiffs motion for

partial summary judgment is GRANTED.

IT IS FURTHER ORDERED that the parties submit

proposed findings of fact and conclusions of law concerning

that relief to be awarded by October 1, 2003.

Entered this 18th day of September, 2003.

BY THE COURT

s/ John C. Shabaz

JOHN C. SHABAZ

District Judge

43a

Appendix D

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 18, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 05-3199

UNITED STATES OF Appeal from the United

AMERICA, States District Court for the

Plaintiff-Appellee, Western District of

Wisconsin

v. No. 03 C 75

PAUL A. HEINRICH, John C. Shabaz,

Defendant-Appellant. Judge.

ORDER

On September 21, 2006, the defendant-appellant filed a

petition for rehearing and petition for rehearing en banc. All

the judges on the original panel have voted to deny a

rehearing, and none of the judges in active service have

+4a

requested a vote on the petition for rehearing en banc. The

petitions for rehearing and rehearing en banc are therefore

DENIED.

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