Amicus Curiae Brief — Heinrich v. United States (No. 06-1271)

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No. 06-1271

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In the

Supreme Court of the United States

PAUL A. HEINRICH,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

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On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

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BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

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M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200 —~

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae —

Pacific Legal Foundation

i

QUESTIONS 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 private wetlands which, by virtue of their location

above local headwaters and the high water mark of a

neighboring lake, have no. significant nexus with

navigable-in-fact waters.

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

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

lacked subject matter jurisdiction to enforce the Corps’ attempt

to prohibit a private property owner from developing a road

through private wetlands which have no significant nexus with

navigable-in-fact waters, and to sanction him for doing so.

3. | Whether the extension of jurisdiction under the Clean

Water Act to private wetlands 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 ofa regulatory obligation to obtain individual state water

quality certification before private wetlands can be altered, but

fails to do so, the imposition of sanctions and penalties against

a private developer who alters private wetlands without notice

of the certification obligation is prohibited by the Due Process

Clause of the Fifth Amendment.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........ SETS erate ae

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I. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI BECAUSE

THE REGULATORY DEFINITION OF

“WATERS OF THE UNITED STATES”

ON WHICH THE GOVERNMENT

RELIED WAS INVALIDATED BY

THIS COURT’S RAPANOS DECISION .......... 2

A. Rapanos invalidated the Regulatory

Definition of Jurisdictional Tributaries ........ :

B. Rapanos Invalidated the Regulatory

Definition of Jurisdictional Wetlands ......... 7

C. Rapanos Invalidated the Regulatory

ES eS, ne 8

D. Rapanos Invalidated the Requirement

for a State Water Quality Certification ....... 1]

ll. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE A CONFLICT

AMONG THE CIRCUITS ABOUT HOW TO

INTERPRET THIS COURT'S SPLIT

DECISIONS SUCH AS RAPANOS ............ 12

i eos C4 be 55 CaO N ea ee ee 45s 15

iii

TABLE OF AUTHORITIES

Page

Cases

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) .......... 2c eee 8

Gregg v. Georgia, 428 U.S. 153 (1976) .............. 12

In re Michael Francis Cook, 322 B.R. 336

CR AR SINR Bd sie pds eat ke os ha ae pees 12

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991)......... 14

Marks v. United States, 430 U.S. 188 (1977) .......... 12

Nichols v. United States, 511 U.S. 738 (1994) ......... 14

Pennsylvania v. Delaware Valley Citizens’ Council

Sor Clean Air, 433 US. 710 C967) cs oo oo in oes 14

Planned Parenthood v. Casey,

PET F.2e GUS Ee TIRES oe irk Sa habeas Nene 13

Rapanos v. United States,

O20 By CR De ee 5 io es os enon Seek 2-11

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

SOR Se Be GAOED eb Fae ek Oe tee 4

Student Public Interest Research Group of

New Jersey, Inc. v. AT & T Bell Labs,

BAZ F260 F656 CE Cie, HOGS) ao oe ee kv he i ueweses 14

Tyler v. Bethlehem Steel Corp.,

T5G Fe SCEPC CIRC, Coed ok ceo se ccc ieerens 13

United States v. Gerke Excavating, Inc.,

RGG TF O6 F253 C7 GE: DOES svc as eevee kde 5

IV

TABLE OF AUTHORITIES—Continued

Page

United States v. Johnson,

467 F536 SE Cit Coe, DOCG) onc vvin vi vcecceuss 3, 12-14

United States v. Riverside Bayview Homes, Inc.,

ee Bee EE bk RA che eeuns <heaewasas 9

United States v. Williams,

435 F.3d 1148 (90) Cir. 2006). 0... ccc ancien. 13

Regulations

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IDENTITY AND INTEREST

OF AMICUS CURIAE

Under Supreme Court Rule 37,' Pacific Legal Foundation

(PLF) respectfully submits this brief amicus curiae in support

of Petitioner Paul A. Heinrich. Written consent was granted by

counsel for all parties and lodged with the clerk of this Court.

PLF was founded over 30 years ago and is widely

recognized as the largest and most experienced nonprofit legal

foundation of its kind. PLF litigates matters affecting the

public interest at all levels of state and federal courts and

represents the views of thousands of supporters nationwide.

PLF advocates limited government, individual rights, and free

enterprise. PLF attorneys have litigated numerous cases

addressing a balanced approach to environmental regulation and

the scope of the Clean Water Act in this Court, including

Rapanos v. United States.

PLF’s analysis of Rapanos and the relevant wetlands

regulations will provide a valuable and necessary viewpoint to

assist the Court in resolving this case.

INTRODUCTION

Nearly twelve months ago in Rapanos v. United States,

this Court invalidated the federal Clean Water Act regulations

the government seeks to enforce in this case. Although this

Court unanimously acknowledged the need for new regulations

defining federal jurisdiction over wetlands, in the past year the

Corps of Engineers and the Environmental Protection Agency

have failed to even propose, let alone adopt, regulations

implementing the Rapanos decision. In fact, these agencies

' Pursuant to Supreme Court Rule 37.6, Amicus Curiae affirms that

no counsel for any party authored any part of this brief and no person

or entity made a monetary contribution for the preparation or

submission of this brief.

2

have yet to provide internal interpretive guidelines to the district

offices to ensure consistent and valid jurisdictional

determinations. To the contrary, these agencies continue to

enforce their illegal regulations as if this Court had never

spoken. This is a breach of the public trust which must be

remedied. When ordinary citizens are subject to civil and

criminal penalties for the ordinary use of their property, they

deserve to know what the law is. Therefore, this Court should

grant the writ of certiorari and fulfill its primary purpose—to

determine what the law is.

ARGUMENT

I

THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI BECAUSE THE

REGULATORY DEFINITION OF “WATERS

OF THE UNITED STATES” ON WHICH THE

GOVERNMENT RELIED WAS INVALIDATED

BY THIS COURT’S RAPANOS DECISION

A five-justice majority in Rapanos held that something

more than amere “hydrological connection” between a wetland

and a traditional (or navigable-in-fact) waterway is required to

establish federal jurisdiction under the Clean Water Act. But,

no single rationale garnered a majority vote. Four Justices,

forming a plurality on the Court, determined the Act required

limiting federal authority to those “relatively permanent,

standing or continuously flowing bodies of water” generally

recognized as “streams[,].. . oceans, rivers [and] lakes” that are

connected to traditional waters. Rapanos, 126 S. Ct. 2208,

2225 (2006) (Scalia, J.). These Justices would also authorize

federal regulation of wetlands abutting these water bodies, but

only if they contain a continuous surface water connection such

that the wetland and the covered water are “indistinguishable.”

Id. at 2234. Ephemeral and insubstantial connections would not

suffice. Jd. at 2225. Justice Kennedy concurred in the

3

judgment but proposed a broad and undefined “significant

nexus” test for determining federal Clean Water Act

jurisdiction. /d. at 2236 (Kennedy, J., concurring in the result).

Under this test, any wetland would be subject to federal

regulation if it is deemed to “significantly affect” a traditional

navigable waterway. /d. at 2248.

As Petitioner notes, there is now a direct conflict between

the Seventh Circuit decision in United States v. Gerke

Excavating, Inc., 464 F.3d 723 (7th Cir. 2006), and the First

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

Cir. 2006), as to which of these two jurisdictional tests is

controlling in Rapanos. The Seventh Circuit in Gerke held that

federal wetland jurisdiction under the Clean Water Act may

only be established based on Justice Kennedy’s “significant

nexus” test, whereas the First Circuit in Johnson held that

federal wetland jurisdiction could be established under either

the plurality approach or the Kennedy approach. A petition to

resolve this conflict is now pending before this Court in Gerke ©

v. United States (06-1331). That conflict alone warrants review

of this case, along with Gerke. But, under either test, the

federal regulations applied to Heinrich are unlawful. Therefore,

the decision below cannot stand.

The relevant regulations interpret the statutory term

“waters of the United States” to include, in addition to

traditional interstate navigable waters, 33 C.F.R. § 328.3(a)(1)

(2004), “[a]il interstate waters including interstate wetlands,”

§ 328.3(a)(2); “[a]ll 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,” § 328.3(a)(3);

“(t}ributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands

adjacent to [such] waters [and tributaries] (other than waters

that are themselves wetlands),” § 328.3(a)(7). The regulations

define “adjacent” wetlands as those “bordering, contiguous [to],

>

or neighboring” waters of the United States. § 328.3(c). They

specifically provide that “[w]etlands 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.’” Jd.

In opposition to Heinrich’s petition, it is likely the

government will argue that this Court’s decision in Rapanos

did not strike down any part of these regulations, as it has

argued in similar cases. But that argument is insupportable.

Indeed, every faction on this Court—including the

dissent—acknowledged that the Rapanos majority did override

the existing regulations and called for the adoption of new

regulations.

Justice Breyer was quite clear on the matter. In response

to the Rapanos majority, he stated unequivocally: “In the

absence of updated regulations, courts will have to make ad hoc

determinations that run the risk of transforming scientific

questions into matters of law.” Rapanos, 126 S. Ct. at 2266

(Breyer, J., dissenting). That, he said, was not what Congress

intended. /d. Therefore, he concluded, the Court’s “opinions,

taken together, call for the Army Corps of Engineers to write

new regulations, and speedily so.” Jd. This, of course, would

not be necessary if the Rapanos decision had not invalidated the

existing regulatory definition of “waters of the United States.”

Chief Justice Roberts, who joined the plurality decision,

was equally clear. He first observed that this Court’s prior

decision in Solid Waste Agency of Northern Cook County

(SWANCC) v. United States Army Corps of Engineers, 531 U.S.

159 (2001), had already invalidated agency interpretation of

Clean Water Act authority, but new rule-making “went

nowhere.” Rapanos, 126 S. Ct. at 2235-2236 (Roberts; C.J.,

concurring). The Chief Justice castigated the government for

failing to adopt regulations that defined federal authority in

accordance with the language of the statute and that took

5

advantage of the Chevron deference standard. Jd According to

Justice Roberts, “[r]ather than refining its view of its authority

in light of [this Court’s] decision in SWANCC, and providing

guidance meriting deference under [this Court’s] generous

standards, the Corps chose to adhere to its essentially boundless

view of the scope of its power.” Jd. at 2236.

The “essentially boundless view of the scope of its power”

to which the Corps chose to adhere, and to which Chief Justice

Roberts refers, is embodied in the existing regulations which

the Rapanos decision overruled, and which the Corps continues

to enforce today. Because “[a]gencies delegated rulemaking

authority under a statute such as the Clean Water Act are

afforded generous leeway by the courts in interpreting the

statute they are entrusted to administer,” Chief Justice Roberts

believed it was all the more lamentable that the agencies did not

adopt regulations, different from the existing regulations, that

recognized the “clearly limiting terms Congress employed in

the Clean Water Act” and codified “some notion of an outer

bound to the reach of theirauthority.” Jd. at 2235-2236.

The extent to which Rapanos invalidated the existing

regulations defining “waters of the United States” can be

discerned by comparing the jurisdictional standards expressed

in the decision with the regulations’ contradictory text. This

comparison shows that Rapanos invalidated the existing

regulations as to jurisdictional “tributaries” and “wetlands” and

the meaning of “adjacent.”

A. Rapanos invalidated the Regulatory

Definition of Jurisdictional Tributaries

In his plurality opinion, Justice Scalia observed, as did

Chief Justice Roberts, that following SWANCC, “the Corps did

not significantly revise its theory of federal jurisdiction.”

Rapanos, 126 S. Ct. at 2217. Instead, the Corps relied on its

existing regulations, which include “tributaries” as “waters of

the United States,” without defining the term, and continued to

6

employ “sweeping assertions of jurisdiction over ephemeral

channels and drains as ‘tributaries.’” Jd. By way of example,

Justice Scalia cited Corps claims of jurisdiction over remote

roadside ditches, irrigation ditches and drains with intermittent

flows, dry land features such as “arroyos, coulees, and washes,”

and occasionally flowing “drain tiles, storm drain systems, and

culverts.” Jd. at 2218. And, “most implausibly of all,” an arid

development site “located in the middle of the desert, through

which ‘water courses . . . during periods of heavy rain.” Jd.

The plurality forcefully rejected this expansive regulatory

construction of “tributaries” and concluded that “on its only

plausible interpretation, the phrase ‘the waters of the United

States’ includes only those relatively permanent, standing or

continuously flowing bodies of water ‘forming geographic

_ features’ that are described in ordinary parlance as ‘streams[,]

... oceans, rivers [, and] lakes.’” Jd. at 2225. But that was not

all; the plurality added an additional jurisdictional limitation:

“The phrase [‘waters of the United States’] does not include

channels through which water flows intermittently or

ephemerally, or channels that periodically provide drainage for

rainfall.” Jd. The plurality concluded, therefore, that “[t]he

Corps’ expansive interpretation of [‘the waters of the United

States’] is thus not ‘based on a permissible construction of the

statute,’”, which otherwise requires broad deference to federal

regulatory interpretations. Jd. (citing Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).

In other words, the regulations themselves were invalid.

Although Justice Kennedy did not define jurisdictional

tributaries in his concurrence, he did conclude, as did the

plurality, that the existing regulations went too far. “The

Corps’ existing standard for tributaries,” he stated, provided no

assurance that they (or adjacent wetlands) would significantly

affect downstream navigable-in-fact waters. Rapanos, 126 S.

Ct. at 2248. “Yet,” he concluded, “the breadth of this

standard—which seems to leave wide room for regulation of

j

drains, ditches, and streams remote from any navigable-in-fact

water and carrying only minor water-volumes towards

it—precludes its adoption as the determinative measure of

whether adjacent wetlands are likely to play” an important role

in the aquatic system. Jd. at 2249. According to

Justice Kennedy, “in many cases wetlands adjacent to

tributaries covered by this standard might appear little more

related to navigable-in-fact waters than the isolated ponds held

to fall beyond the Act’s scope in SWANCC.” Id.

Thus, under both the Scalia plurality and the Kennedy

concurrence, the existing regulations—enforced against

Heinrich in this case—are invalid.

B. Rapanos invalidated the Regulatory

Definition of Jurisdictional Wetlands

Another point of conflict between the Rapanos decision

and the existing regulations relates to wetlands. Whereas the

regulations include any wetland adjacent to any “tributary” or

so-called other waters, 33 C.F.R. § 328.3(a)(5), neither the

plurality nor Justice Kennedy accepted this interpretation of

jurisdictional wetlands. To the contrary, both the plurality’s

and Justice Kennedy’s definitions of jurisdictional wetlands are

irreconcilable with the regulatory text.

Under the plurality opinion. “on/y those wetlands with a

continuous surface connection to bodies that are ‘waters of the

United States’ [i.e., continuously flowing rivers, lakes and

streams] in their own night, so that there is no clear demarcation

between ‘waters’ and ‘wetlands,’ ” are covered by the Act.

Rapanos, 126 S. Ct. at 2226. “Wetlands with only an

intermittent, physically remote hydrological connection to

‘waters of the United States’ do not implicate the boundary-

drawing problem of Riverside Bayview, and thus lack the

necessary connection to covered waters” described in

SWANCC, Id. at 2226. Put another way, according to the

plurality, wetlands are “waters of the United States” only if they

<<"

are “as a practical matter indistinguishable from waters of the

United States.” Jd. at 2234. In contrast, the existing

regulations, by their terms, include any wetland adjacent to any

tributary without regard to a continuous surface connection, or

any connection whatsoever.

The definition of jurisdictional wetlands provided by

Justice Kennedy is equally at odds with the regulations. Under

Justice Kennedy’s “significant nexus” approach, “wetlands

possess the requisite nexus, and thus come within the statutory

phrase ‘navigable waters,’ if the wetlands, either 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.’ ” Jd. at 2248. “When, 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. But the existing regulations have no

such nexus requirement. Therefore, they cannot be reconciled

with the Rapanos decision.

C. Rapanos Invalidated the

Regulatory Definition of Adjacent

As noted above, the existing regulations define “adjacent” —

wetlands as those “bordering, contiguous [to], or neighboring”

waters of the United States. 33 C.F.R. § 328.3(c). They

specifically provide that “[w]etlands 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.” Jd. However, both the plurality and Justice

Kennedy rejected this definition of “adjacent.”

Justice Scalia expressed incredulity at the breadth the

Corps had given the plain term “adjacent” in the regulations.

For example, he noted the Corps had concluded that wetlands

are “adjacent” to covered waters under the existing regulations,

and are jurisdictional, if they are hydrologically connected

9

“through directional sheet flow during storm events” to

navigable waters; or, they lie within a 100-year floodplain that

is connected to navigable waters. Rapanos, 126 S. Ct. at 2218.

The Corps had also concluded that presence within 200 feet of

a tributary automatically renders a wetland “adjacent” and

jurisdictional as well as wetlands separated from flood control

channels by 70-foot-wide berms. Jd.

The plurality roundly rejected this extravagant definition

of “ adjacent” and offered a definition more consistent with this

Court’s decisions in SWANCC and United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985). As Justice Scalia

observed, SVANCC “confirmed that Riverside Bayview rested

upon the inherent ambiguity i. defining where water ends and

abutting (adjacent) wetlands begin, permitting the Corps’

reliance on ecological considerations only to resolve that

ambiguity in favor of treating all abutting wetlands as waters.”

Rapanos, 126 S. Ct. at 2226. The sige thus equated the

term “adjacent” with “abutting.”

Under the plurality test for jurisdiction, two findings must

be made:

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 to determine where the “water”

ends and the “wetland” begins.

Id, at 2227. The regulatory definition of “adjacent” as

“bordering, contiguous, or neighboring” is clearly inconsistent

with the plurality opinion. As Justice Scalia took pains to point

out: =

The phrase “adjacent wetlands” is not part of the

statutory definition that the Corps is authorized to

10

interpret, which refers only to “the waters of the

United States.” In expounding the term “adjacent”

as used in Riverside Bayview, we are explaining our

own prior use of that word to interpret the

definitional phrase “the waters of the United States.”

However ambiguous the term may be in the abstract,

as we have explained earlier, “adjacent” as used in

Riverside Bayview is not ambiguous between

“physically abutting” and merely “nearby.”

Id. at 2229-2230.

The only conclusion that can be drawn from this

inconsistency is that the regulatory definition is invalid and of

no effect under the plurality approach. And, the same

conclusion must be drawn from the Kennedy approach as well.

Although Justice Kennedy was more nuanced in his assessment

of the adjacency standard, Justice Kennedy expressly

acknowledged the invalidity of the existing regulations.

Justice Kennedy’s attack on the existing regulations

started with his rejection of the Corps’ assertion that the

reasoning in Riverside Bayview, authorizing federal regulation

of wetlands physically abutting navigable-in-fact waterways,

could apply equally to all wetlands with a mere connection to

navigable-in-fact waterways. Jd. at 2248. Justice Kennedy

remarked: “This, though, seems incorrect.” Jd. “The Corps’

theory of jurisdiction in these consolidated cases—adjacency to

tributaries, however remote and insubstantial—raises concerns

that go beyond the holding of Riverside Bayview; and so the

Corps’ assertion of jurisdiction cannot rest on that case.” /d.

From this, Justice Kennedy reasoned that if the Corps

wished to regulate wetlands adjacent to tributaries categorically,

like the physically abutting wetlands in Riverside Bayview, it

would need to determine whether, due to volume of flow,

proximity to navigable waters, or other relevant considerations,

the tributaries perform important functions for an aquatic

11

system incorporating navigable waters. Jd. Justice Kennedy

concluded, as he must, that the Corps’ existing standard for

tributaries, however, provides no such assurance. Jd. That is to

say, neither the current case law nor the existing regulations

were legally adequate to support federal regulation of wetlands,

based on their “adjacency” to tributaries, as jurisdictional

waters.

D. Rapanos Invalidated the Requirement

for a State Water Quality Certification

In the decision below, the Seventh Circuit concluded that

because of the minimal environmental impacts Heinrich’s

project would have on his wetlands, he could have proceeded,

without prior federal approval, under Nationwide Permit 26,

had he obtained a state water quality certification in accordance

with the federal regulations. See Petition Appendix at 3a. But

that requirement became void when this Court invalidated the

federal regulations in Rapanos as shown above. Therefore, to

find Heinrich liable for violating the Clean Water Act, either

the enforcing agency or a reviewing court would have had to

apply the jurisdictional test(s) set forth in Rapanos. That was

never done.

At no time has the agency made a finding under Rapanos

that the wetlands on Heinrich’s property are jurisdictional. Nor

has any court addressed the jurisdictional issue in this case in

light of Rapanos. The Seventh Circuit ruling preceded the

Rapanos decision and that court refused to rehear the case after

the Rapanos decision. Accordingly, no valid jurisdictional

aetermination has ever been made in this case. Therefore, the

Seventh Circuit decision should be vacated and remanded in

light of Rapanos.

12

II

THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

A CONFLICT AMONG THE CIRCUITS

ABOUT HOW TO INTERPRET THIS COURT’S

SPLIT DECISIONS SUCH AS RAPANOS

Before this Court determines whether to remand any case

in light of Rapanos, as is warranted in this case, this Court

should first resolve a conflict among the circuits as to how to

interpret this Court’s split decisions. The inability of the circuit

courts to agree on the controlling opinion in Rapanos and the

lack of any valid federal Clean Water Act regulations, has made

enforcement of the Clean Water Act contradictory and

unpredictable, The rule of law calls for a uniform jurisdictional

standard that only this Court can give.

In United States v. Johnson, 467 F.3d 56 (1st Cir. 2006),

the First Circuit expressly rejected the conclusion of the

Seventh Circuit in Gerke (06-1331, petition pending) that

Justice Kennedy’s “significant nexus” test in Rapanos is the

“narrowest grounds” and the controlling opinion under Marks

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

In Marks, this Court stated that “[w]hen a fragmented

Court decides a case and no single rationale explaining the

- result enjoys the assent of five Justices, ‘the holding of the

Court may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest grounds.’”

430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169

n.15 (1976) (emphasis added)). This test has been recognized

as the only approach sanctioned by this Court for interpreting its

split decisions. Jn re Michael Francis Cook, 322 B.R. 336, 341

(N.D. Ohio 2005) (“The only approach approved by the

Supreme Court is the ‘narrowest grounds’ approach.”).

13

However, the Johnson court points out that a number of

circuits have abandoned this Court’s Marks approach to split

opinions or applied Marks selectively. Instead, they have

sought to divine the controlling opinion in this Court’s

fragmented decisions, like Rapanos, by adopting a “pragmatic”

approach to the situation. This approach involves assessing

which grounds would “command a majority of the Court.”

Johnson, 467 F.3d at 64. In Tyler v. Bethlehem Steel Corp., 958

F.2d 1176, 1182 (2d Cir. 1992), for example, the court

concluded: “In essence, what we must do is find common

ground shared by five or more justices.” See also United States

v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (“We need not

find a legal opinion which a majority joined, but merely ‘a legal

standard which, when applied, will necessarily produce results

with which a majority of the Court from that case would

agree.’”’) (quoting Planned Parenthood v. Casey, 947 F.2d 682,

693 (3d Cir. 1991)).

The courts that have adopted this approach are not

particular as to the Justices that may be joined in a “majority.”

In contrast to the directive in Marks, that the controlling

opinion must be found among those Justices who concurred in

the judgments, some circuits give equal weight to the dissenting

Justices. The Seventh Circuit in Gerke, which purported to

apply Marks, relied on the fact that “any conclusion that Justice

Kennedy reaches in favor of federal authority over wetlands in

a future case will command the support of five Justices (himself

plus the four dissenters).” Gerke, 464 F.3d at 725. The

Johnson court used similar logic to justify its determination that

federal jurisdiction over wetlands could be established under

either the plurality standard in Rapanos or the Kennedy

standard:

If Justice Kennedy’s test is satisfied, then at least

Justice Kennedy plus the four dissenters would

support jurisdiction. If the plurality’s test is

14

satisfied, then at least the four plurality members

plus the four dissenters would support jurisdiction.

Johnson, 467 F.3d at 64.

In Student Public Interest Research Group of New Jersey,

Inc. v. AT & T Bell Labs, 842 F.2d 1436 (3d Cir. 1988), the

Third Circuit examined Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 483 U.S. 711 (1987), to

determine the controlling opinion. In Pennsylvania, this Court

was asked to address the availability of contingency fees under

federal fee-shifting statutes. This Court split along the lines of

Rapanos with four Justices in the plurality, four Justices in the

dissent, and Justice O’Connor’s lone concurrence in the

judgments. The Third Circuit determined that “[b]ecause the

four dissenters would allow contingency multipliers in all cases

in which Justice O’Connor would allow them, her position

commands a majority of the Court” and is controlling. Student,

842 F.2d at 1451.

In King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991), the

D.C. Circuit took a different approach. According to Johnson,

the D.C. Circuit “refused to examine the points of commonality

among Justice O’Connor’s opinion and that of the dissent,

relying mainly on a literal reading of Marks’s [sic] language

that the holding is the position of the Justices ‘who concurred

in the judgments on the narrowest grounds.’” Johnson, 467

F.3d at 65. The D.C. Circuit relied as well on the fact that this

Court “had not explicitly applied Marks to situations where

concurring and dissenting votes would be combined.” Jd.

This widespread circuit conflict has not gone unnoticed by

this Court. This Court has remarked on how the Mark’s inquiry

has “so obviously baffled and divided the lower courts that have

considered it.” Nichols v. United States, 511 U.S. 738, 745-746.

(1994). It is time, therefore, for this Court to address this

conflict.

15

CONCLUSION

In the absence of valid regulations defining federal

jurisdiction under the Clean Water Act, and in the face of the

circuit conflict over how to interpret the Rapanos decision, this

Court should grant the writ of certiorari and set forth a uniform

standard for the exercise of federal authority over inland

wetlands.

DATED: May, 2007.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation