# Amicus Curiae Brief — Friends of the Everglades v. South Florida Water Management District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2348%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1082 ## Text we 7 Supreme Coun, US FILED No. 10-196 SEP 10 2010 OFFICE OF THE CLERK In The Supreme Court of the Anited States * FRIENDS OF THE EVERGLADES; FLORIDA WILDLIFE FEDERATION: AND FISHERMEN AGAINST DESTRUCTION OF THE ENVIRONMENT, Petitioners, VS. SOUTH FLORIDA WATER MANAGEMENT DISTRICT; CAROL WEHLE, EXECUTIVE DIRECTOR; UNITED STATES; AND UNITED STATES SUGAR CORPORATION, Respondents. + On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit ¢ BRIEF OF AMICUS CURIAE SIERRA CLUB IN SUPPORT OF PETITIONERS FRIENDS OF THE EVERGLADES, ET AL. ¢ KENNETH B. WRIGHT, ESQUIRE Counsel for Amicus Curiae BLEDSOE JACOBSON SCHMIDT WRIGHT LANG & WILKINSON 1301 Riverplace Blvd., Suite 1818 Jacksonville, FL 32207 Telephone: 904-398-1818 Facsimile. 904-398-7073 ken@jacobsonwright.com COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 TABLE OF CONTENTS Page pe RR eB) Ok gy ly. Ie i SPRRO ses CIE PAU TEER k Bil kcnscevesckescecsessscscsesaresas il STATEMENT OF INTEREST .....................0....... 1 SUMMARY OF ARGUMENT ............. Cap ere Pee ae 2 Pa IE Er ay sore ceed eee esas inaa ened evasiconyociwersesis 4 L. UMEFORUCTION .........000..5.55. Tieceas eens er inde as 4 II. EPA’s Unitary Waters Rule Is Not En- titled to Chevron Deference........... rere 9 Ill. The EPA Rule Violates Separation of Pr er I es ee civ acs tteleiees 12 Ee ae ibs vies hous dceunnaasevincasnsasavaeseeseS ee? ae 1 TABLE OF AUTHORITIES Page CASES Catskill Mtns. Chapter of Trout Unlimited v. City of New York, 451 F.3d 77 (2nd Cir. 2006) ......... 9 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 $b! | eee jaeasieastebereeaas ae 3, 9, 10, 11, 12 Friends of the Everglades, Inc. v. South Flor- ida Water Management District, 2006 WL DO DOES a.o..oc cvasnunsconsensesseusccnnwsseeelecee enna 5, 10 Friends of the Everglades, Inc. v. South Florida Water Management District, 570 F.3d 1210 CDTi Civ, DOB) nisin si canstavssccceueesasnsenmeceteeuia cena 9 International Assn. of Machinists and ? 12 “navigable waters” or at the definition of navigable waters, 1.e., “The waters of the United States.” As ti-is Court in Rapanos found, “waters” in the plural sense consists of: “‘streams,’ ‘oceans,’ ‘rivers, ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.” Id. at 733. Consequently, as in Rapanos, no Chevron deference can be accorded to the EPA’s rule here. Ill. The EPA Rule Violates Separation of Powers Principles The Sierra Club also supports the granting of certiorari on the separation of powers issue raised by the Miccosukee Tribe. The EPA Unitary Waters rule is nothing more than the product of this litigation. The rule was not finally issued until after the briefs were filed in the Eleventh Circuit and the EPA mere- ly codified its previously rejected litigation position in order to change the outcome of this case. It is well known that litigation tends to harden the positions of the parties. Jnternational Assn. of Machinists and Aerospace Workers, AFL-CIO v. National Meditation Board, 930 F.2d 45, 49 (D.C. Cir. 1991). For this reason common sense dictates that a rule enacted to support a litigation position is suspect in itself. How- ever, when an agency's litigation position 1s not only adopted to change the lower court result in the cur- rent case, but also to overrule the law as established by holdings of several federal courts, separation of powers issues are clearly implicated. While the courts may not intrude upon the rulemaking powers of the delegated agencies, so too, such agencies may not 13 intrude on the judicial power to say what the law is. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177 (1803). The separation of powers doctrine prohibits one co-equal branch of the government from encroaching on the powers of another branch. Loving v. United States, 517 U.S. 748, 757 (1996). When an adminis- trative agency steps in to alter the decision of the court through interpretation of the law, it is invading the province of the court to say what the law is. Congress has not and cannot provide the EPA, or any other executive agency, with the authority to exercise judicial power. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995). Yet, that is the effect of the EPA rule in this case. The courts have emphatically de- termined that the unitary waters interpretation of the CWA is erroneous. EPA seeks to overrule these judicial determinations suwb-silentio through its rule. It has not the power to do so. If EPA feels that the decision of the courts are incorrect or the result undesirable, it is free to peti- tion Congress to change the law. Sierra Club v. EPA, 311 F.3d 853, 862 (7th Cir. 2002). It may not, howev- er, invade the province of the judiciary in an effort to obtain a result that it had failed to attain during the course of litigation. 14 CONCLUSION For the reasons set forth herein, the Sierra Club requests that this Court grant the petition for certio- rari sought by the petitioners. Respectfully submitted, KENNETH B. WRIGHT, ESQUIRE Counsel for Amicus Curiae BLEDSOE JACOBSON SCHMIDT WRIGHT LANG & WILKINSON 1301 Riverplace Blvd., Suite 1818 Jacksonville, FL 32207 Telephone: 904-398-1818 Facsimile: 904-398-7073 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2348%3A14. Public record. Not legal advice.