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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2338%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

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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.

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TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ........ SETS erate ae
MM A AP PUCMRE TIES: , ccc ces cevcsvesevess ili
IDENTITY AND INTEREST
OF AMICUS CURIAE. bedike sees vesssvet es ines ]
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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

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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2338%3A3. Public record. Not legal advice.