Petition for Writ of Certiorari — Gerke Excavating, Inc. v. United States (No. 06-1331)

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C) 06133 1APR 92 2007

No. ___ OFFICE OF THE CLE

In the

Supreme Court of the United States

GERKE EXCAVATING, INCORPORATED,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

—"

eae

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

—"*

vv

DAMIEN M. SCHIFF M. REED HOPPER

Of Counsel Counsel of Record

Pacific Legal Foundation ROBIN L. RIVETT

3900 Lennane Drive, Suite 200 Pacific Legal Foundation

Sacramento, California 95834 3900 Lennane Drive, Suite 200

Telephone: (916) 419-7111 Sacramento, California 95834

Facsimile: (916) 419-7747 Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner

i

QUESTION PRESENTED

May the lower courts prohibit the United States Army

Corps of Engineers from relying on the plurality opinion in

Rapanos v. United States, 126 S. Ct. 2208 (2006), to determine

federal jurisdiction over wetlands under the Clean Water Act.

il

LIST OF ALL PARTIES

Petitioner: Gerke Excavating, Incorporated

Respondents: United States of America

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Petitioner Gerke Excavating,

Incorporated, hereby states that it has no parent companies,

subsidiaries, or affiliates that have issued shares to the public.

iil

TABLE OF CONTENTS

Page

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CORPORATE DISCLOSURE STATEMENT .............. il

RE EE REED ikon Cea seve este eed neregess Vv

PETITION, FOR WRIT OF CERTIORARI .............+.. l

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PE rie a ho Fob skews vole een eee twt ¥0eee es l

STATUTORY AND REGULATORY

BOTY ETE PRE POU 6 ives ccc teerswocvscwduses 1

kt EGU IR ae ge re een are 3

PE ATS OE BO ve wcrc eecssosecetevarerss 5

REASONS FOR GRANTING THE

WEE Gr TTI ooo ceeeestucceeccecsevews 7

I. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

A CONFLICT AMONG THE CIRCUITS

ABOUT WHETHER FEDERAL JURISDICTION

OVER WETLANDS UNDER THE CLEAN

WATER ACT MUST BE BASED ON A LONE

CONCURRENCE IN RAPANOS ............--.005- 8

fl. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE A CONFLICT

AMONG THE CIRCUITS ABOUT WHETHER

MARKS APPLIES TO THIS COURT’S SPLIT

DECISIONS SUCH AS RAPANOS ................ 13

Il. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI BECAUSE THE

UNDEFINED “SIGNIFICANT NEXUS”

STANDARD IMPOSED BY THE COURT

BELOW RAISES DUE PROCESS CONCERNS ...... 16

iv

TABLE OF CONTENTS—Continued

RAAF RN 5 ova kone den bas Ce RR ER beh peesaees 19

V

TABLE OF AUTHORITIES

Page

Cases

A Book Named “John Cleland’s Memoirs of a Woman of

Pleasure” v. Attorney General of the Commonwealth

of Massachusetts, 383 U.S. 413 (1966)............. 11

Borden Ranch Partnership v. United States Army Corps

of Engineers, 261 F.3d 810 (9th Cir. 2001) ......... 17

Furman v. Georgia, 408 U.S. 238 (1972) ...........54- 9

Gregg v. Georgia, 428 U.S. 153 (1976) ............... 9

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

EE eh yn ei cas Kea pew edee ¥'e'Ceaihe 9

Johnson v. Board of Regents of the University of Georgia,

Re ee RE EO le BOE) wo ob Side peered ewes 11

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991)...... 11,15

Marks v. United States,

Se SE SEUSS obo kde cekacnewavabes 4,7, 9-10

Nichols v. United States, 511 U.S. 738 (1994) ......... 15

Northern California River Watch v. City of Healdsburg,

ROT Woe TRS Ce CH, DOOD inns kag ds iwecenecses 13

Pennsylvania v. Delaware Valley Citizens’ Council

jor Clean Air, 483 U.S. 711 (1987)... ccc cece 15

Rapanos v. United States,

EO Dy, We AO OOD See ee cke cee eas 3, 6-8, 13, 18

Student Public Interest Research Group of New

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

Oe Fe PAPO CECE, PFGE) one. ccc ec ceveeeces 15

Tyler v. Bethlehem Steel Corp.,

Pee Fae TATOO, COORD ocx cc ccsene duces die 14

vl

TABLE OF AUTHORITIES—Continued

Page

United States v. Chevron Pipe Line Company,

437 F. Supp. 2d 605 (N.D. Texas 2006) ......... 18-19

United States v. Gerke Excavating, Inc.,

RTD F5E GOS EF CH. 2008) voce vcccvivccnses 5-6

United States v. Gradwell, 243 U.S. 476 (1917) ........ 18

United States v. Johnson,

467 F306 S6 (ist Cir. 2006) . 0c cece 4,8, 9-15, 19

United States v. Lanier, 520 U.S. 259 (1997) .......... 18

United States v. Mills,

817 F. Supp. 1546 (N.D. Fla. 1993). ............ 17-18

United States v. Williams,

S55: P50 TIGR Oy Cw: BOG) oo kc cee reece cep as 14

Statutes

33 USA. © UST ICWA SSCA) gc ccc ccccvesveus 1

S 196N OWA BOOM)... oo oo cc cc ccc cece 2

§ 1362(5)-(7) (CWA § 502(S)-(7)) ... 2.2... ee eee eee 2

Regulations

Fe Wiel eh POE NED hv cee hh da ceveiecuuseann 2-3

EE HKG ee eras ok Lekdeeawkuansceeen 17

DE Secs cocaine Cowen Rid etvb eke 3

Miscellaneous

Brown, Gordon M., Comment,

Regulatory Takings and Wetlands: Comments

on Public Benefits and Landowner Cost,

EG EAD. Bs BU. SET Ceo sc vibe cbt cnvenes 17

Vii

TABLE OF AUTHORITIES—Continued

Page

Conserving America’s Wetlands 2006: Two Years of

, Progress Implementing the President's Goal,

Council on Environmental Quality (2006) ........... 7

Kimura, Ken, Note, A Legitimacy Model For The

Interpretation Of Plurality Decisions,

77 Cocmell L. Rev. 1593 (1992) cece ce cicccccues 12

Thurmon, Mark Alan, Note, When the Court

Divides: Reconsidering the Precedential

Value of Supreme Court Plurality Decisions,

MS EME Sid AUP CET Sek co bach ce hae cicicses 11

U.S. General Accounting Office, Waters and

Wetlands: Corps of Engineers Needs to Evaluate

Its District Office Practices In Determining

Jurisdiction (Feb. 2004), available at

http://www.gao.gov/new.items/d04297.pdf

Camt Vigne Fe. 15, OOTY 5. as oc ike eases sen 16

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Gerke Excavating, Inc. (Gerke), respectfully

petitions this Court for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the Seventh

Circuit.

OPINIONS BELOW

The challenged remand order of the Court of Appeals for

the Seventh Circuit is reported as United States v. Gerke

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

as Appendix (App.) A.

JURISDICTION

The remand order of the Court of Appeals for the Seventh

Circuit was entered on September 22, 2006. That court’s denial

of the Petition for Rehearing and Suggestion for Rehearing En

Banc was entered on December 1, 2006. App. B. On February

12, 2007, this Court granted an extension of time in which to

file this petition for writ of certiorari to and including April 2,

2007. App. C. This Court has jurisdiction under 28 U.S.C.

§ 1254(1). .

7"

7

TATUTORY AND REGULATORY

PROVISIONS AT ISSUE

The Clean Water Act (CWA) 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.

33 U.S.C. § 1311(a) (CWA § 301(a)).

2

The Secretary may issue permits, after notice and

opportunity for public hearings, for the discharge of

dredged or fill materials into the navigable waters at

specified disposal sites.

33 U.S.C. § 1344(a) (CWA § 404(a)).

(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.

33 U.S.C. § 1362(5)-(7) (CWA § 502(5)-(7)).

Federal regulations define “waters of the United States” to

mean:

(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

3

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

(ti) 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

industzial 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)-(4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than

waters that are themselves wetlands) identified in

paragraphs (a)(1)-(6) of this section.

33 C.F.R § 328.3(a) (2005).

Federal regulations define “adjacent” as “bordering,

contiguous, or neighboring.” 33 C.F.R. § 328.3(c).

INTRODUCTION

In Rapanos v. United States, 126 S. Ct. 2208 (2006), a five

Justice majority of this Court overruled the Sixth Circuit

determination that federal jurisdiction under the Clean Water

4

Act extended to inland wetlands solely because they were

connected to down stream navigable waters. But this Court

split on the basis for federal wetland jurisdiction. A single

Justice, concurring in the result, interpreted the Clean Water

Act broadly so as to reach any wetland with an undefined

“significant nexus” with navigable-in-fact waters, whereas a

four Justice plurality interpreted the Clean Water Act more

narrowly, concluding the Act only covered traditional rivers,

lakes, and streams connected to navigable-in-fact waters, and

those wetlands indistinguishable from these covered waters.

Subsequently, this Court granted certiorari in this case,

vacated the Seventh Circuit decision, and remanded the case in

light of Rapanos. On remand, the Seventh Circuit determined

the lone concurrence in Rapanos was controlling and that

federal jurisdiction under the Clean Water Act must be based on

the “significant nexus” standard thereby prohibiting the Corps

of Engineers from relying on the Rapanos plurality on remand.

However, the First Circuit expressly rejected the Seventh

Circuit’s reading of Rapanos in this case establishing a clear

conflict between the circuits. In United States v. Johnson, 467

F.3d 56 (1st Cir. 2006), the First Circuit held that Clean Water

Act jurisdiction could be established in reliance on either the

plurality standard or the “significant nexus” standard.

Moreover, the First and Seventh Circuit rulings conflict with

this Court’s decision in Marks y. United States, 430 U.S. 188,

193 (1977), wherein this Court declared that in fragmented

decisions “ ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds.’” Indeed, there is general

disagreement among the Circuits as to whether and how Marks

applies to this Court’s split decisions.

Under a literal reading of Marks, the “narrowest grounds”

in Rapanos is the plurality opinion. When Clean Water Act

jurisdiction is established under the plurality standard, all five

5

Justices who concurred in the judgments would agree on the

outcome. However, when jurisdiction is established under the

undefined “significant nexus” standard, only one Justice who

concurred in the judgments would support the outcome.

Therefore, the plurality opinion is the “narrowest grounds” and

the controlling opinion in Rapanos.

Also, because the jurisdictional boundaries established by

the plurality opinion are more readily discernible than with the

“significant nexus” standard, the plurality standard is the only

viable standard for securing -he constitutional safeguards of

fairness and predictability.

STATEMENT OF THE CASE

The subject wetlands are located on an undeveloped 5.8-

acre tract of land in Tomah, Wisconsin, that the owner wished

to develop. United States v. Gerke Excavating, Inc., 412 F.3d

804, 805 (7th Cir. 2005). The wetlands are drained by a ditch

that runs into a nonnavigable creek that flows into the

Lemonweir River, also nonnavigable. Jd. The Lemonweir runs

to the Wisconsin River, a navigable waterway, which empties

into the Mississippi River. Jd.

At the direction of the owner, Gerke Excavating, Inc.,

removed stumps and topsoil and filled in and graded part of the

property using a bulldozer and trucks. Jd. Subsequently Gerke

was charged with filling wetlands without a federal permit

under the Clean Water Act and fined $55,000. Jd. In defense,

Gerke argued that the wetlands did not qualify as “waters of the

United States” within the meaning of the Clean Water Act. Jd.

at 806. The district court granted summary judgment to the

United States on the issue of federal jurisdiction. /d. at 805.

On appeal, the Seventh Circuit affirmed finding a hydrological

connection between the subject wetlands and down stream

6

navigable waters was a sufficient jurisdictional basis for federal

regulation of the subject wetlands. Jd. at 807-808.

After the Seventh Circuit decision, this Court decided

Rapanos. A five-justice majority in Rapanos adjudged that

something more than a “hydrological connection” between a

wetland and a traditional navigable water was 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” traditionally

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

connected to traditional (or navigable-in-fact) waters. Rapanos,

126 S. Ct. at 2225 (Scalia, J.). The plurality 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.” Jd. at 2234. Ephemeral and insubstantial

connections would not suffice. /d. at 2225.

Justice Kennedy concurred in the judgment but proposed

a broad and undefined “significant nexus” test for determining

federal Clean Water Act jurisdiction. Jd. 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. Jd. at 2248.

The four Justices in the dissent supported the

government’s view that the agencies could choose to regulate

essentially any water body to advance the statutory goal of

maintaining the “chemical, physical, and biological integrity of

the Nation’s waters,” id. at 2252, et seq. (Stevens J.,

dissenting), but added that they would uphold federal

jurisdiction in any case “in which either the plurality’s or

Justice Kennedy's test is satisfied. .. .” Jd. at 2265.

7

Based on that ruling, this Court granted a writ of certiorari

in this case, vacated the Seventh Circuit judgment, and

remanded the case in light of Rapanos. On remand, the

Seventh Circuit acknowledged this Court’s interpretative rule

for split decisions as set out in Marks and concluded Justice

Kennedy’s opinion was decided on the “narrowest grounds”

and, therefore, controlling. App. at A-3. The Seventh Circuit

reasoned that Justice Kennedy’s “significant nexus” test was

“narrower” than the plurality test for wetland jurisdiction

because Justice Kennedy’s approach is less restrictive of federal

authority. Jd. The Seventh Circuit thus concluded the

“significant nexus” standard “must govern the further stages of

this litigation.” App. at A-4.

s

Ww

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

In Rapanos v. United States, 126 S. Ct. 2208, all factions

on this Court lamented the lack of certainty that prevails with

respect to federal authority under the Clean Water Act. As

Justice Scalia noted in the plurality opinion, the “burden of

federal regulation on those who would deposit fill material in

locations denominated ‘waters of the United States’ is not

trivial.” Jd. at 2214. “The average applicant for an individual

permit spends 788 days and $271,596 in completing the

process, and the average applicant for a nationwide permit

spends 313 days and $28,91 5—not counting costs of mitigation

or design changes.” /d. The Corps of Engineers processes over

85,000 wetland permit applications each year, and the number

is growing. See Conserving America's Wetlands 2006: Two

Years of Progress Implementing the President's Goal, Council

on Environmental Quality, 22 (2006). More than $1.7 billion

is spent annually by private and public applicants to obtain

wetland permits. Rapanos, 126 S. Ct. at 2214.

8

Of equal importance, “[t]hese costs cannot be avoided,

because the Clean Water Act ‘impose[s] criminal liability,’ as

well as steep civil fines, ‘on a broad range of ordinary industrial

and commercial activities.”” Jd. “In the last three decades, the

Corps and the Envircnmental Protection Agency (EPA) have

interpreted their jurisdiction over ‘waters of the United States’

to cover 270-to-300 million acres of swampy lands in the

United States—including half of Alaska and an area the size of

California in the lower 48 states.” Jd. at-2215.

Regrettably, this Court was unable to provide the needed

certainty in defining the reach of federal authority under the

Clean Water Act in Rapanos. Instead, this Court produced a

split decision with no clear controlling opinion or jurisdictional

rationale to guide either public enforcers or private citizens.

But the lower courts have exacerbated an already untenable

situation by adopting conflicting interpretations of this Court’s

Rapanos decision. More than ever, this Court’s intervention is

required to set the limits of federal authority under the Clean

Water Act. It is not enough to defer this matter to Congress for

additional legislation or to the implementing agencies for

additional regulation. It would not be prudent for them to act

in the face of the current Circuit Court split with competing

jurisdictional standards. Therefore, this Court should grant the

writ and resolve the conflict.

I

THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

A CONFLICT AMONG THE CIRCUITS

ABOUT WHETHER FEDERAL JURISDICTION

OVER WETLANDS UNDER THE CLEAN

WATER ACT MUST BE BASED ON A LONE

CONCURRENCE IN RAPANOS

In United States v. Johnson, 467 F.3d 56, the First Circuit

expressly rejected the conclusion of the Seventh Circuit in this

9

case that Justice Kennedy’s “significant nexus” standard in

Rapanos is the “narrowest grounds” and the controlling opinion

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

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 (emphasis added). This test has been

recognized as the only approach sanctioned by this Court for

interpreting its split decisions. In 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.”).

The language of Marks was not unique to that case. It

derived from this Court’s decision in Gregg v. Georgia, 428

U.S. 153 (1976). In Gregg, this Court examined Furman v.

Georgia, 408 U.S. 238 (1972), which involved a challenge to

the constitutionality of a Georgia death penalty statute. In

Furman, as in Rapanos, five Justices agreed in the judgments,

but the Court was split on the legal standard that should be

applied to death penalty cases. Two Justices who concurred in

the judgments felt that capital punishment was unconstitutional

in all cases whereas the other three Justices believed that capital

punishment was unconstitutional only in the circumstances

presented in that case. Thus in Gregg, this Court held: “Since

five Justices wrote separately in support of the judgments in

Furman, the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds... .” 428 U.S. at 169

n.15.

The Seventh Circuit putatively relied on this interpretive

rule in this case, but it changed the wording, and therefore the

10

test. In its opinion below, the court cited Marks for the

proposition that

[w]hen a majority of the Supreme Court agrees only

on the outcome of a case and not on the ground for

that outcome, lower-court judges are to follow the

narrowest ground to which a majority of the Justices

would have assented if forced to choose. In

Rapanos, that is Justice Kennedy’s ground.

App. at A-2-3.

This adulterated version of the Marks rule allowed the

Seventh Circuit in this case to aggregate the four dissenters in

Rapanos with Justice Kennedy to find five Justices that would

support Justice Kennedy’s “significant nexus” standard for

establishing federal jurisdiction over wetlands under the Clean

Water Act. However, the court ignored the more persuasive

argument that when the plurality standard is applied to find

federal jurisdiction, the result would have the support of all nine

Justices. But under Marks, finding the support of five Justices

is not the test, especially in a case like Rapanos where five or

more Justices would support more than one opinion. Rather,

under Marks, lower-court judges are to look at the “narrowest

grounds.”

The First Circuit in Johnson found it curious that the

Seventh Circuit in this case equated “narrowest grounds” with

the opinion “least restrictive of federal authority.” Johnson,

467 F.3d at 61. Although the cases on which Marks relied

involved situations in which the “narrowest grounds” was the

least restrictive of federal jurisdiction, the Johnson court

observed that this was mere coincidence and that it “does not

necessarily mean that the Supreme Court in Marks equated the

‘narrowest grounds’ of decision in a case with fragmented

decisions to the grounds least restrictive of the assertion of

federal authority.” Jd. at 63. “Such an equation,” the court

stated, “leaves unanswered the question of how one would

11

determine which opinion is controlling in a case where the

government is not a party.” Jd. Given the constitutional issue

raised, the court found it “just as plausible to conclude that the

narrowest ground of decision in Rapanos is the ground most

restrictive of government authority (the position of the

plurality),” because, the court concluded, “that ground avoids

the constitutional issue of how far Congress can go in asserting

jurisdiction under the Commerce Clause.” /d.

In contrast to the Seventh Circuit’s reading of Marks in

this case, the First Circuit offered an alternative. The court

opined that the “narrowest grounds” might sensibly be

interpreted to mean the “less far-reaching-common ground,” id.

(citing Johnson v. Board of Regents of the University of

Georgia, 263 F.3d 1234, 1247 (11th Cir. 2001)), or the opinion

“most clearly tailored to the specific fact situation before the

Court and thus applicable to the fewest cases,” (citing Mark

Alan Thurmon, Note, When the Court Divides: Reconsidering

the Precedential Value of Supreme Court Plurality Decisions,

42 Duke L.J. 419, 420-21 (1992)). Johnson, 467 F.3d at 63.

Relying on King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.

1991), the Johnson court noted the D.C. Circuit found “Marks

is workable—one opinion can be meaningfully regarded as

‘narrower’ than another—only when one opinion is a logical

subset of other, broader opinions.” Johnson, 467 F.3d at 63-64.

“In other words,” the First Circuit explained, “the ‘narrowest

grounds’ approach makes the most sense when two opinions

reach the same result in a given case, but one opinion reaches

that result for less sweeping reasons than the other.” Jd. at 64.

According to Johnson, Marks followed this approach. In

Marks this Court examined A Book Named “John Cleland’s

Memoirs of a Woman of Pleasure” v. Attorney General of the

Commonwealth of Massachusetts, 383 U.S. 413 (1966), in

which a majority of this Court held that a lower court

incorrectly concluded a book was obscene and did not have

First Amendment protection. Three Justices decided that only

12

non-obscene materials should receive First Amendment

protection while two other Justices concluded that the First

Amendment provided an absolute shield against government

action. Asa logical subset of the other, this Court concluded in

Marks that the former opinion, providing non-obscene

materials First Amendment protections, was the “narrowest

grounds” for the judgment and the controlling opinion in the

case,

Put another way:

The Justices supporting the broader legal rule must

necessarily recognize the validity of the narrower

legal rule. That is, if a statute is found to be

constitutionally permissible pursuant to a strict

scrutiny standard of review, then it is necessarily

permissible pursuant to a rational basis standard of

review. From the text of the alternative concurring

opinions, it is possible to determine that if all of the

Justices apply the narrower rule, the outcome would

have been the same.

Ken Kimura, Note, A Legitimacy Model For The

Interpretation Of Plurality Decisions, 77 Cornell L. Rev. 1593,

1603-1604 (1992).

In Johnson, the court noted that the Kennedy “significant

nexus” standard in Rapanos is not a “logical subset” of the

plurality standard for federal jurisdiction over wetlands: “The

cases in which Justice Kennedy would limit federal jurisdiction

are not a subset of the cases in which the plurality would limit

jurisdiction.”' Johnson, 467 F.3d at 64.

' Remarkably, however, the First Circuit failed to consider the

obvious possibility that the plurality standard in Rapanos is a

“logical subset” of the Kennedy standard. It is apparent that the

plurality test is comparable to the narrower strict scrutiny standard,

. (continued...)

13

For this reason, the First Circuit rejected the Seventh

Circuit’s conclusion in this case that under Marks Justice

Kennedy’s lone concurrence is controlling in Rapanos. Instead,

the First Circuit held that “Marks does not translate easily to

the present situation,” id. at 64, and that the “federal

government can establish jurisdiction over the target sites if it

can meet either the plurality’s or Justice Kennedy’s standard as

laid out in Rapanos.” Id. at 66. This conflict creates a

substantial disparity between these Circuits in the enforcement

of the Clean Water Act which requires reconciliation by this

Court.

Il

THIS COURT SHOULD GRANT

THE WRIT OF CERTIORARI TO

RESOLVE A CONFLICT AMONG

THE CIRCUITS ABOUT WHETHER

MARKS APPLIES TO THIS COURT’S

SPLIT DECISIONS SUCH AS RAPANOS

The Johnson court points out that a number of Circuits

have abandoned this Court’s Marks approach to split opinions

' (...continued)

mentioned in the analogy above, whereas the Kennedy “significant

nexus” test is comparable to the broader rational basis standard. As

Justice Stevens observed, Justice Kennedy’s approach “treats more

of the Nation’s waters as within the Corps’ jurisdiction” and it would

be an “unlikely event that the plurality’s test is met but Justice

Kennedy’s is not.” Rapanos, 126 S. Ct. at 2265 n.14 (Stevens, J.,

dissenting).

? In addition to the Seventh Circuit in this case, the Ninth Circuit has

also concluded, without explanation, that Justice Kennedy’s

“significant nexus” standard is controlling in Rapanos under the

Marks rule thus creating an additional conflict among the Circuits.

See Northern California River Watch v. City of Healdsburg, 457 F.3d

1023, 1029 (9th Cir. 2006) (currently on petition for rehearing).

14

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.’”

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 this case, 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).”

App. at A-4. 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

satisfied, then at least the four plurality members

plus the four dissenters would support jurisdiction.

Johnson, 467 F.3d at 64.

15

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, supra, 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.” /d.

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 in the context of this case.

16

iil

THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI BECAUSE THE

UNDEFINED “SIGNIFICANT NEXUS”

STANDARD IMPOSED BY THE COURT

BELOW RAISES DUE PROCESS CONCERNS

In more than 30 years, the Corps and EPA have failed to

follow a consistent jurisdictional test under the Clean Water

Act. A report from the General Accounting Office confirms

that the Army Corps of Engineers’ local districts “differ in how

they interpret and apply the federal regulations when

determining what wetlands and other waters fall within the

[Act’s] jurisdiction.” U.S. General Accounting Office, Waters

and Wetlands: Corps of Engineers Needs to Evaluate Its

District Office Practices In Determining Jurisdiction 3 (Feb.

2004), available at http://www.gao.gov/new.items/d04297.pdf

(last visited Feb. 15, 2007) (GAO Report).

In addition to the inter-district inconsistences, the GAO

Report concludes that even Corps staff working in the same

office cannot agree on the scope of the Clean Water Act and

that “three different district staff’ would likely make “three

different assessments” as to whether a particular water feature

is subject to the Clean Water Act. GAO Report at 22. This is

more than a theoretical concern. This degree of uncertainty

permeates the enforcement decisions of the Corps. In Rapanos,

those decisions became the basis for multimillion dollar fines

and criminal prosecution. And, in this case, Gerke was fined

$55,000 for filling inland wetlands without a federal permit.

The night of the people to know when they have violated

the law is deserving of greater safeguard than the convenience

of the enforcing agency. But the scope of federal jurisdiction

under the Clean Water Act is beyond the comprehension of

ordinary people. The very definition of “wetlands” defies

common sense. Federal regulations define “wetlands” as those

17

areas “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.”

33 C.F.R. § 328.3(b). Under this definition, an area need be

wet only “for one to two weeks per year” to qualify as a

“wetland.” Gordon M. Brown, Comment, Regulatory Takings

and Wetlands: Comments on Public Benefits and Landowner

Cost, 21 Ohio N.U. L. Rev. 527, 529 (1994). In other words,

a “wetland” may be mostly dry land.’

No reasonable person would conclude that mostly dry

land is subject to federal control as a jurisdictional wetland.

Ocie Mills and his son found this out the hard way. These two

were convicted for filling “wetlands” on their property without

a permit—an act a district court characterized as the innocuous

placing of clean fill on dry land:

This case presents the disturbing implications of the

expansive jurisdiction which has been assumed by

the United States Army Corps of Engineers under

the Clean Water Act. In a reversal of terms that is

worthy of Alice in Wonderland, the regulatory hydra

which emerged from the Clean Water Act mandates

in this case that a landowner who places clean fill

dirt on a plot of subdivided dry land may be

imprisoned for the statutory felony offense of

“discharging pollutants into the navigable waters of

the United States.”

United States v. Mills, 817 F. Supp. 1546, 1548 (N.D. Fla.

1993).

> The definition of “discharge” also defies common sense. The

Corps interprets that term to mean the mere movement of dirt in situ.

See Borden Ranch Partnership v. United States Army Corps of

Engineers, 26 ¥.3d 810 (9th Cir. 2001).

18

For this offense, Mills and his son served 21 months in

prison, one year in supervised release, paid $5,000 in fines, and

were required to restore the site to its original condition. Jd.

This Court has long held that “before a man can be

punished as a criminal under the Federal law his case must be

‘plainly and unmistakably’ within the provisions of some

statute.” United States v. Gradwell, 243 U.S. 476, 485 (1917).

See also United States v. Lanier, 520 U.S. 259, 267 (1997). But

the “significant nexus” test provides no such clarity. To the

contrary, as the Rapanos plurality points out, “Justice

Kennedy’s ‘significant nexus’ standard is perfectly opaque.

When, exactly, does a wetland ‘significantly affect’ covered

waters, and when are its effects ‘in contrast . . . speculative or

insubstantial?’” Rapanos, 126 S. Ct. at 2235 n.15.

Similar questions were raised by the district court in United

States v. Chevron Pipe Line Company, 437 F. Supp. 2d 605,

613 (N.D. Texas 2006), the first case to apply the Rapanos

decision. That case involved an accidental discharge of oil into

a dry, unnamed drainage ditch that flowed only during

significant storm events. /d. at 607. Although the oil was

cleaned up before it reached any water, as required by state law,

and the nearest navigable-in-fact waterway was connected to

the ditch by intermittent streams scores of miles away, the

Corps of Engineers sought fines from the company for

discharging into “navigable waters” without a federal permit.

Id. at 607-608. Therefore, the court looked to Rapanos for

guidance in determining the scope of federal jurisdiction.

The court was quick to dismiss the Kennedy approach as

an unworkable standard. The court observed that Justice

Kennedy “advanced an ambiguous test—whether a ‘significant

nexus’ exists to waters that are/were/might be navigable.” /d.

at 613. According to the court, “[t]his test leaves no guidance

on how to implement its vague, subjective centerpiece. That is,

exactly what is “significant” and how is a ‘nexus’ determined?”

19

Id. at 613 (citations omitted). Therefore, instead of relying on

the Kennedy opinion, the court based its decision on existing

Fifth Circuit precedent and “the Supreme Court’s plurality

opinion in Rapanos v. United States” and concluded there was

no federal jurisdiction. Jd. at 614. That decision underscores

the real world difficulties that are created for the enforcing

agencies and the trial courts when this Court does not provide

clear limits on federal authority.

Thus, the “significant nexus” standard imposed by the

court in this case, and offered alternatively in Johnson, is sure

to result in inconsistent and unpredictable applications of the

law. Only the plurality test, with its clearer lines of

demarcation, is likely to provide agency officials and the

regulated public with consistent and predictable jurisdictional

rules. As the dissent in Johnson observed, the “significant

nexus” approach “leaves the door open to continued federal

overreach” while the plurality’s restriction on federal

jurisdiction “strikes a constitutional balance” between federal

power and individual rights. Johnson, 467 F.3d at 66-67

(Torruella, Circuit Judge, dissenting).

CONCLUSION

The Seventh Circuit decision in this case directly conflicts

with a decision of the First Circuit and prohibits the Corps of

Engineers from relying on the plurality opinion in Rapanos that,

when applied to find federal jurisdiction over inland wetlands,

would have the support of all nine Justices on this Court.

Additionally, the circuits are split on the application of Mark's

generally. These conflicts require resolution by this Court.

Inaction by this Court will result in continuing uncertainty as to

20

Clean Water Act jurisdiction and undermine the Constitution’s

safeguards against arbitrary enforcement of the law.

DATED: April, 2007.

Respectfully submitted,

DAMIEN M. SCHIFF M. REED HOPPER

Of Counsel Counsel of Record

Pacific Legal Foundation ROBIN L. RIVETT

3900 Lennane Drive, Suite 200 Pacific Legal Foundation

Sacramento, California 95834 3900 Lennane Drive, Suite 200

Telephone: (916) 419-7111 Sacramento, California 95834

Facsimile: (916) 419-7747 _ Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner

Appendix A-1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 04-3941

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERKE EXCAVATING, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-C-0074-C—Barbara B. Crabb, Chief Judge.

On Remand From the

Supreme Court of the United States

SEPTEMBER 22, 2006

Before POSNER, EASTERBROOK, and EVANS, Circuit

Judges.

PER CURIAM. This suit charges that the defendant,

Gerke Excavating, violated the Clean Water Act by discharging

pollutants into “navigable waters” from “point sources” without

having obtained the permit from the Corps of Engineers that is

required if the pollutant consists of dredge or fill material.

33 U.S.C. §§ 1311(a), 1362(12). The district judge granted

Appendix A-2

summary judgment for the government and imposed a civil

penalty. We affirmed. 412 F.3d 804 (7th Cir. 2005). Gerke

filed a petition for certiorari. The Court granted the petition,

126 S. Ct. 2964 (2006), and remanded the case to us for further

consideration in light of Rapanos v. United States, 126 S. Ct.

2208 (2006), where the Court reversed two judgments by the

Sixth Circuit upholding federal authority over wetlands, as had

we.

There was, however, no majority opinion in Rapanos.

Four Justices, in an opinion supporting reversal, wanted to limit

federal authority over “navigable waters” to “those wet-lands

with a continuous surface connection to bodies that are ‘waters

of the United States’ in their own right, so that there is no clear

demarcation between ‘waters’ and wetlands, are ‘adjacent to’

such waters and covered by the [Clean Water Act]. Wetlands

with only an intermittent, physically remote hydrologic

connection to “waters of the United States’... thus lack the

necessary connection to covered waters that we described as a

‘significant nexus.” Thus, establishing that wetlands such as

those at the Rapanos and Carabell sites are covered by the Act

requires two findings: 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.” /d. at 1226-

27 (citations omitted),

Justice Kennedy concurred in the judgment to reverse but

not in the plurality opinion. The four dissenting Justices took

a much broader view of federal authority; Justice Kennedy

criticized them as well as criticizing the plurality.

When a majority of the Supreme Court agrees only on the

outcome of a case and not on the ground for that outcome,

Appendix A-3

lower-court judges are to follow the narrowest ground to which

a majority of the Justices would have assented if forced to

choose. Marks v. United States, 430 U.S. 188, 193 (1977). In

Rapanos, that is Justice Kennedy’s ground.

The plurality Justices thought that Justice Kennedy’s

ground for reversing was narrower than their own, because they

concluded their extensive and in places harsh criticism of the

concurrence by saying that “Justice KENNEDY tips a wink at

the agency [i.e., the Corps of Engineers], inviting it to try its

same expansive reading again.” 126 S. Ct. at 2234 n.15.

Justice Kennedy expressly rejected two “limitations” imposed

by the plurality on federal authority over wetlands under the

Clean Water Act, one being the requirement of a “continuous

surface connection” between the wetland and the conventional

waterway that it abuts. /d. at 2242 (concurring opinion). He

accused the majority of being “unduly dismissive of the

interests asserted by the United States in these cases. Important

public interests are served by the Clean Water Act in general

and by the protection of wetlands in particular.” Jd. at 2246.

The test he proposed is that “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.’ 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. at 2248. This test is

narrower (so far as reining in federal authority is concerned)

than the plurality’s in most cases, though not in ail because

Justice Kennedy also said that “by saying the Act covers

wetlands (however remote) possessing a surface-water

connection with a continuously flowing stream (however

small), the plurality’s reading would permit applications of the

Appendix A-4

statute as far from traditional federal authority as are the waters

it deems beyond the statute’s reach.” Jd. at 2246.

Thus, 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), and in most cases in which he concludes that there

is no federal authority he will command five votes (himself plus

the four Justices in the Rapanos plurality), the exception being

a case in which he would vote against federal authority only to

be outvoted 8-to-1 (the four dissenting Justices plus the

members of the Rapanos plurality) because there was a slight

surface hydrological connection. The plurality’s insistence that

the issue of federal authority be governed by strict rules will on

occasion align the Justices in the plurality with the Rapanos

dissenters when the balancing approach of Justice Kennedy

favors the landowner. But that will be a rare case, so as a

practical matter the Kennedy concurrence is the least common

denominator (always, when his view favors federal authority).

Justice Kennedy’s proposed standard, which we conclude

must govern the further stages of this litigation, requires

factfinding not yet undertaken by the district court. We

therefore remand the case to that court for such further

proceedings as may be necessary to apply the standard.

REMANDED WITH DIRECTIONS.

No. 04-3941

A true Copy:

Teste:

Clerk of the United States Court

of Appeals for the Seventh Circuit

Appendix B-1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 1, 2006

Before

Hon. Frank H. Easterbrook, Chief Judge

Honorable Richard A. Posner, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

No. 04-3941

UNITED STATES OF AMERICA, Appeal from the United

Plaintiff-Appellee, States District Court for

the Western District of

V. Wisconsin.

GERKE EXCAVATING, INC., No. 03-C-0074-C

Defendant-Appellant.

Barbara B. Crabb,

Chief Judge.

ORDER

On September 29, 2006, plaintiff-appellee filed a

motion to clarify the opinion of this court dated September 22,

2006. On October 5, 2006, defendant-appellant filed a petition

for rehearing with suggestion for rehearing en banc, and on

November 2, 2006, plaintiff-appellee filed an answer to the

petition. All the judges on the onginal panel have voted to deny

the petition, and none of the judges in regular active service has

Appendix B-2

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

petition and the motion are therefore DENIED.

Appendix C-1

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

February 12, 2007

Mr. M. Reed Hopper

Pacific Legal Foundation

3900 Lennane Drive

Suite 200

Sacramento, CA 95834

Re: Gerke Excavating, Inc.

v. United States

Application No. 06A782

Dear Mr. Hopper:

The application for an extension of time within which to

file a petition for a writ of certiorari in the above-entitled case

has been presented to Justice Stevens, who on February 12,

2007 extended the time to and including April 2, 2007.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

William K. Suter, Clerk

by /s/ Clayton Higgins

Clayton Higgins

Case Analyst

Appendix C-2

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

NOTIFICATION LIST

Mr. M. Reed Hopper

Pacific Legal Foundation

3900 Lennane Drive

Suite 200

Sacramento, CA 95834

Mr. Paul D. Clement

Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Room 5614

Washington, DC 20530-0001

» Clerk

United States Court of Appeals for the Seventh Circuit

219 S. Dearborn Street, Room 2722

Chicago, IL 60604