Amicus Curiae Brief — Lucas v. United States (No. 07-1512)

8 @

FILED

JUL - 3 2008

No. 07-1512 OFFICE OF THE CLERK

Jeol atintitente RT, U.S

In the

Supreme Court of the United States

7%

ow:

ROBERT J. LUCAS, JR., et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

”’

el

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

7%

aA

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

an

v

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. In applying Rapanos v. United States, 547 U.S. 715

(2006), to determine federal jurisdiction over wetlands

under the Clean Water Act, are federal courts bound to

apply the analysis of the plurality decision, the

concurrence, or some other standard?

2. Under whichever approach the Court chooses, did

the Fifth Circuit err in holding that federal jurisdiction

under the Act extends to a wetland that merely

“neighbors” a “tributary” of a navigable water, without

requiring that the wetland have a continuous surface

connection with a relatively permanent body of water,

or that it significantly affect the quality of traditional

navigable waters?

3. Is an ordinary residential septic tank a “point

source” under the Act and, if so, can one who designs or

certifies the system but neither owns nor operates it be

held criminally liable for its discharges?

il

TABLE OF CONTENTS

SeRsRr EOIN FRIGGIN LIGD 2.2... cece eee 1

SAmee OF AUTHORITIES ..........05 0c eeee ill

INTEREST OF AMICUS CURIAE ............. 1

INTRODUCTION AND SUMMARY

i Noh yin 5 4 yy vine bes oo eRe 2

REASONS FOR GRANTING THE WRIT ........ 5

I. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE A

CONFLICT AMONG THE CIRCUITS

ABOUT THE STANDARD TO APPLY IN

DETERMINING JURISDICTIONAL

WETLANDS UNDER THE CLEAN

ee eek iy ss kA 5 he be os oe 5

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

ee 6 a 11

Ill. IN ADDITION TO THE CIRCUIT

CONFLICTS, FAIRNESS AND JUSTICE

WARRANT A REVIEW OF THIS CASE .... 14

I 6 yin. oad Win ws 6M Sak 18

ul

TABLE OF AUTHORITIES

Page

Cases

Borden Ranch Partnership v. United

States Army Corps of Engineers,

261 F.3d S10 (Sth Cir. ZO01). ...............% 16

Furman v. Georgia, 408 U.S. 238 (1972) ......... 6

Gregg v. Georgia, 428 U.S. 153 (1976) ......... 5-6

In re Michael Francis Cook,

ee Ms OD vn nce ccc ccc vevervves 6

Johnson v. Board of Regents of

the University of Georgia,

263 F.3d 1234 (ilth Cir. 2001)............... 8

King v. Palmer, 950 F.2d 771

Sy dap eww es eb ee 8,13

Marks v. United States,

ee a TE nc ce ve eens ene weds passim

Memoirs v. Attorney General of

Massachusetts, 383 U.S. 413 (1966) ........... 8

Nichols v. United States,

PRB Ie Bes Fo)! | 14

Northern California River Watch v.

City of Healdsburg, 457 F.3d 1023

a ee 4

Northern California River Watch v.

City of Healdsburg, 496 F.3d 993

Se ee ES los bo ca woes see wa 1, 10-11

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 483 U.S. 711 (1987) .... 13

lv

TABLE OF AUTHORITIES—Continued

Page

Planned Parenthood v. Casey,

947 F.24 G62 Oa Cir. 19901) .. 2... we ew ees 12

Rapanos v. United States,

ge Beep 2: | passim

Student Public Interest Research

Group of New Jersey, Inc. v.

AT&T Bell Labs, 842 F.2d 1436

es ae oe hag Siw bo 6-4 4 88 ee 13

Tyler v. Bethlehem Steel Corp.,

OGG 2 :2e Li7G Ge Cer, 1968) .... we ee cee 12

United States v. Chevron Pipe

Line Company, 437 F. Supp. 2d 605

Ss I ee cy aw eh ean 17

United States v. Gerke Excavating, Inc.,

412 F.30 804 (7th Cir. SO0G) .... ww ee ee 4

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006)............ passim

United States v. Gradwell,

ee re, RET oo 5 ie eh ple ewe cee eee eewn 17

United States v. Johnson, 467 F.3d 56

CSS I kc ws ve ek ee wee ee oes passim

United States v. Lanier,

Se Oe, te RUPEE 6 gk bk wee See ie ee eee ¥7

United States v. Lucas, 516 F.3d 316

ne WO kts 1,4, 11

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Mills,

817 F. Supp. 1546 (N.D. Fila. 1993) .......... 16

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007)......... 4,11,14

United States v. Williams, 435 F.3d 1148

I ee ca ee vacua 12

Federal Regulation

aR eA re a 15

Miscellaneous

Brown, Gordon M., Regulatory

Takings and Wetlands: Comments

on Public Benefits and Landowner

Cost, 21 Ohio N.U. L. Rev. 527 (1994) ........ 15

Kimura, Ken, A Legitimacy Model for the

Interpretation of Plurality Decisions,

77 Cornell L. Rev. 1593 (1992) ............ 9-10

Thurmon, Mark Alan, Note, When the Court

Divides: Reconsidering the Precedential

Value of Supreme Court Plurality

Decisions, 42 Duke L.J. 419 (1992) ......... 8

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

Gast vietted dune 25, 2007) ........ 2.22 ae. 15

1

INTEREST OF AMICUS CURIAE’

Pacific Legal Foundation (PLF) was founded 35

years ago and is widely recognized as the largest and

most experienced nonprofit legal foundation ofits 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 and seeks to balance

environmental goals with individual rights and other

social values.

PLF attorneys represented John Rapanos in

Rapanos v. United States, 547 U.S. 715 (2006), on

which this case turns and has participated in virtually

every circuit court case interpreting that decision. PLF

represented the landowners in United States v. Gerke

Excavating, Inc., 464 F.3d 723 (7th Cir. 2006) (cert.

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

Cir. 2006) (cert. denied), and was amicus in Northern

California River Watch v. City of Healdsburg, 496 F.3d

993 (9th Cir. 2007) (cert. denied), and United States v.

Lucas, 516 F.3d 316 (5th Cir. 2008), below.

' In accordance with Rule 37, Counsel of Record for all parties

received notic® at least ten days prior to the due date of the

Amicus Curiae’s intention to file this brief. The parties have

provided written consent to the filing of this brief which has been

lodged with the Clerk of this Court.

Amicus Curiae affirms that no counsel for a party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amicus Curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission.

2

On two occasions, PLF petitioned this Court to

address a conflict among the circuits as to the

application of Rapanos in determining federal

jurisdiction under the Clean Water Act. Those cases

(Gerke and Johnson) involved remand orders

authorizing federal regulation of wetlands using

contradictory legal standards. Certiorari was denied in

both cases. This Court now is presented with a final

decision from the Fifth Circuit which enlarges the

conflict among the circuits and imposes long-term

prison sentences on Petitioners. PLF submits this

brief to urge this Court to resolve this conflict.

INTRODUCTION AND

SUMMARY OF ARGUMENT

It is a travesty of justice to imprison common

citizens for ordinary conduct without either criminal

knowledge or criminal intent. In this case, Petitioners

Mr. Robert J. Lucas, Mrs. Robbie Lucas Wrigley, and

Mr. M. E. Thompson have been sentenced to seven to

nine years in federal prison (where they now are

serving) and each fined millions of dollars for filling

wetlands and installing professionally engineered

residential septic systems without federal permits,

even though the wetlands fail to satisfy any predictable

standard for federal jurisdiction and the government

has never required a federal permit for the installation

of a residential septic system.

The subject wetlands were deemed jurisdictional

because they “neighbor” nonnavigable intermittent

“tributaries” (i.e., swales and drainage ditches) that are

alleged to connect to actual navigable waters miles

away. The terms “neighboring” and “tributaries” are

undefined and indeterminate so that even expert

practitioners and government officials cannot agree on

3

their application. In over 35 years of enforcement of

the Clean Water Act, the Environmental Protection

Agency and the Corps of Engineers have never adopted

a consistent standard for determining jurisdictional

wetlands. Nor has the agency ever required a

discharge permit for the millions of residential septic

systems used nationwide. Those standards that are

applied are subjective, inconsistent, and unpredictable.

In a word: arbitrary. No reasonable person would or

should have expected federal control to reach as far as

the agencies now claim.

There is a growing trend among federal agencies

and the courts to expand the enforcement power of the

government incrementally by adopting regulatory

interpretations that go beyond their plain meaning and

intent. This case is a singular example of government

overreaching. Under Fifth Circuit jurisprudence,

innocent conduct becomes criminal. This is contrary to

Supreme Court precedent and an assault on common

sense. In the interests of fairness and justice, this

Court should grant review and reverse the decision

below.

Review by this Court also is warranted to resolve

multiple conflicts among the lower courts as to how to

interpret this Court’s Rapanos decision and to identify

the proper legal standard for determining Clean Water

Act jurisdiction.

In Rapanos, a five Justice majority of this Court

held that federal jurisdiction did not extend to

wetlands under the Clean Water Act based solely ona

hydrological connection between those wetlands and a

navigable-in-fact waterway downstream. But this

Court split on the test for establishing such

jurisdiction. A four Justice plurality interpreted the

4

Clean Water Act narrowly to cover traditional rivers,

lakes, and streams connected to navigable-in-fact

waters, and those wetlands “indistinguishable” from

these waters. But Justice Kennedy, who concurred in

the judgment, interpreted the Act broadly so as to

reach any wetland with a “significant nexus” to

navigable-in-fact waters.

The Circuit Courts of Appeals are split on how to

apply this Court’s Rapanos decision. In United States

v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005)

(cert. denied), the Seventh Circuit held that Justice

Kennedy’s “significant nexus” test was controlling.

The Ninth Circuit came to the same conclusion in

Northern California River Watch v. City of Healdsburg,

457 F.3d 1023 (9th Cir. 2006) (cert. denied). But, the

First Circuit expressly rejected this reading of Rapanos

and held that Clean Water Act jurisdiction could be

extended to inland wetlands based on either the

plurality test or Justice Kennedy’s “significant nexus”

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

2006) (cert. denied). The Eleventh Circuit in United

States v. Robison, 505 F.3d 1208 (11th Cir. 2007), then

rejected the First Circuit “either/or” test and followed

the Seventh and Ninth Circuits. The Fifth Circuit in

this case added to the confusion by failing to adopt any

controlling opinion in Rapanos, but expressly holding

that “the Government has jurisdiction over waters that

neighbor tributaries of navigable waters.” United

States v. Lucas, 516 F.3d at 326.

These circuit rulings conflict with this Court's

analysis in Marks v. 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.” (Citing

Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)

(emphasis added).) Under a literal reading of Marks,

the “narrowest grounds” in Rapanos is the plurality

position because it is a logical subset of the Kennedy

test. But not all courts follow a literal reading of

Marks. Indeed, there is general disagreement among

the circuits as to whether and how Marks applies to

this Court’s split decisions.

Review by this Court is necessary not only to

resolve a clear and substantial conflict among the

Circuit Courts as to enforcement of the Clean Water

Act under Rapanos, but also to clarify this Court’s

interpretive rules for split opinions.

REASONS FOR GRANTING THE WRIT

I

THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RESOLVE

A CONFLICT AMONG THE CIRCUITS

ABOUT THE STANDARD TO

APPLY IN DETERMINING

JURISDICTIONAL WETLANDS

UNDER THE CLEAN WATER ACT

In Marks, this Court was clear: “When 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 (citing Gregg, 428 U.S. at 169 n.15) (emphasis

added). Although this interpretive rule has been

difficult in application, it has been recognized as the

only approach sanctioned by this Court for interpreting

6

its split decisions. In re Michael Francis Cook,

322 B.R. 336, 341 (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 decisioiu in Gregg v.

Georgia, 428 U.S. 153. 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 separatcly

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.

In Gerke, 464 F.3d 723, which also involved a

jurisdictional challenge to federal regulation of inland

wetlands, the Seventh Circuit putatively relied on

Marks to interpret Rapanos, but it changed the

wording of the Marks rule, and therefore the test. In

Gerke, 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

7

assented if forced to choose. In Rapanos,

that is Justice Kennedy’s ground.

Id. at 724 (citations omitted).

This adulterated version of the Marks rule

allowed the Seventh Circuit 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, it 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

Gerke equated “narrowest grounds” with the opinion

“least restrictive of federal authority.” 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 First Circuit

observed that this was mere coincidence and that it

“does not necessarily mean that the Supreme Court in

Marks equated the ‘narrowest grounds’ .. . 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 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

8

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.”

id.

In contrast to the Seventh Circuit’s reading of

Marks in Gerke, the First Circuit opined that the

“narrowest grounds” might sensibly be interpreted to

mean the “less far-reaching-common ground,” 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). See also Johnson, 467 F.3d

at 63.

Relying on King v. Palmer, 950 F.2d 771, 781

(D.C. Cir. 1991), the First Circuit 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 63. “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. According to the First Circuit,

Marks followed this approach. In Marks this Court

examined Memoirs v. Attorney General of

Massachusetts, 383 U.S. 413 (1966), in which a

majority of this Court held that a lower court

9

incorrectly concluded a book was obscene and did not

have First Amendment protection. Three Justices

decided that if materials are deemed obscene they

should receive no First Amendment protection while

two other Justices concluded that the _ First

Amendment provided an absolute shield against

government action. As a logical subset of the other,

this Court concluded in Marks that the former opinion,

excluding obscene materials from First Amendment

protections, was the “narrowest grounds” for the

judgment and the controlling opinion in the case.

Put another way:

Tue 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, A Legitimacy Model for the Interpretation

of Plurality Decisions, 77 Cornell L. Rev. 1593, 1603-04

(1992).

In Johnson, the First Circuit 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

10

limit jurisdiction.” Johnson, 467 F.3d at 64. However,

the First Circuit failed to consider the obvious

possibility that-the-plurality standard is a “logical

subset” of the Kennedy standard. This possibility was

simply ignored. So broad is the Kennedy approach

that the plurality found it barely distinguishable from

the government’s “any hydrological connection” test the

majority struck down: “Justice Kennedy tips a wink at

the agency, inviting it to try its same expansive

reading again.” Rapanos, 547 U.S. at 757 n.15.

Thus, in Rapanos, the plurality’s jurisdictional

standard is comparable to the narrower strict scrutiny

standard, whereas the Kennedy “significant nexus”

standard is comparable to the broader rational basis

standard. As Justice Stevens observed, it would be an

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

Justice Kennedy’s is not.” Jd. at 810 n.14.

In other words, the plurality opinion was decided

on the “narrowest grounds,” not because it is the most

restrictive of federal authority, but because it is less

sweeping and would require the same outcome in a

subset of the cases as would the more sweeping

Kennedy opinion. For this reason, the First Circuit

rejected Gerke’s conclusion that under Marks Justice

Kennedy’s lone cencurrence is controlling in. Rapanos.

Instead, the First Circuit held that “Marks does not

translate easily to the present situation,” Johnson,

467 F.3d 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.” ld. at 60.

In Northern California River Watch v. Healdsburg,

496 F.3d 993, the Ninth Circuit adopted the approach

of the £. venth Circuit holding that Justice Kennedy’s

11

“significant nexus” standard is controlling in Rapanos

under the Marks rule, thus creating an additional

conflict among the Circuits. The Eleventh Circuit

adopted this same approach in United States v.

Robison, 505 F.3d at 1221, after expressly rejecting the

First Circuit’s “either/or” test put forward in Johnson.

According to the Eleventh Circuit, “It would be

inconsistent with Marks to allow the dissenting

Rapanos Justices to carry the day and impose an

‘either/or’ test” because, under Marks, the opinion of

the dissenting Justices “is of no moment.” Id. Finally,

the Fifth Circuit in this case applied the jurisdictional

tests of the Rapanos plurality, the concurrence, and

the dissent as if they were all of equal validity without

so much as a mention of the Marks rule. Then it

perversely held that “the government has jurisdiction

over waters that neighbor tributaries of navigable

waters.” United States v. Lucas, 516 F.3d at 326. This

“neighboring” test is not found in the Rapanos decision,

thus the Fifth Circuit introduced a new jurisdictional

standard and an additional conflict among the circuits.

This conflict creates a substantial disparity

between these circuits in the enforcement of the Clean

Water Act which requires reconciliation by this Court.

II

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

As the First Circuit points out, a number of Cir-

cults have abandoned this Court’s Marks approach to

12

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 64-65. 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.’”) (citing 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 First Circuit

in this case used similar logic to justify its

determination that federal jurisdiction over wetlands

could be established under either the plurality test in

Rapanos or the Kennedy test:

13

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.

in Student Public Interest Research Group of New

Jersey, Inc. v. AT&T Bell Lubs, 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 judgment. The Third Circuit

determined that “|b]ecause the four dissenters would

allow contingency multiphers 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, 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 (citing Marks, 430 U.S. at 93). The D.C.

Circuit relied as well on the fact that this Court “had

not explicitly applied Marks to situations where

14

concurring and dissenting votes would be combined.”

Id.

More recently, although the Eleventh Circuit in

Robison agreed with the Seventh Circuit in Gerke, that

the Kennedy opinion in Rapanos was controlling under

Marks, the Eleventh Circuit parted ways with Gerke in

concluding that the Rapanos dissent was “of no

moment.” Robison, 505 F.3d at 1221.

This widespread circuit conflict has not gone

unnoticed by this Court. This Court has remarked on

how the Marks’ inquiry has “so obviously baffled and

divided the lower courts that have considered it.”

Nichols v. United States, 511 U.S. 738, 746 (1994). It

is time, therefore, for this Court to address this conflict

in the context of this case.

Ill

IN ADDITION TO THE CIRCUIT

CONFLICTS, FAIRNESS AND JUSTICE

WARRANT A REVIEW OF THIS CASE

For the first time, in this case, a residential septic

system (like the millions used throughout the country)

has been declared a “point source” under the Clean

Water Act subject to NPDES permitting. Thus, with-

out notice or precedent Petitioners have been fined

millions of dollars and sentenced to federal prison for

nearly a decade for a criminal act they could not have

intended or even foreseen. This is a travesty of justice

which, standing alone, warrants review by this Court.

But there is more.

Since the promulgation of the Clean Water Act, the

Corps of Engineers and the Environmental Protection

Agency have failed to follow a consistent jurisdictional

15

test for regulated wetlands. A report from the General

Accounting Office confirmed that the Army Corps of

Engineers’ local districts “differ in how they interpret

and apply the federal regulations when determining

which waters and wetlands are subject to 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 June 25, 2007)

(GAO Report).

In addition to the interdistrict inconsistences, the

GAO Report concluded 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 federal

government. In this case, as in others, those decisions

became the basis for multimillion dollar fines and

criminal prosecution.

The right 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 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

16

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, 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 men were convicted in the

Eleventh Circuit for filling “wetlands” on their property

without a permit—an act a district court characterized

as the innocuous placing of clean fill on dr» land:

This case presents the disturbing impli-

cations of the expansive jurisdiction which has

been assumed by the United States Army Corp

of Engineers under the Clean Water Act. Ina

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 /Jand 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, 261 F.3d 810 (9th Cir. 2001).

17

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. Id.

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 jurisdic-

tional test applied in this case provides no such clarity.

To the contrary, it is perfectly opaque. When, exactly,

does a wetland “neighbor” an undefined “tributary”?

Similar questions were raised by the district court

in United States v. Chevron Pipe Line Company, 437 F.

Supp. 2d 605, 613 (N.D. Tex. 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. Jd. 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. Jd. at 607-08.

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.” Jd. at 613.

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

18

on how to implement its vague, subjective centerpiece.

That is, exactly what is ‘significant’ and how is a

‘nexus’ determined?” Jd. (citations omitted). There-

fore, 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 615. 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.

The ambiguous standard imposed by the court in

this case is sure to result in inconsistent and

unpredictable applications of the law. Sucha standard

leaves the door open to continued federal] overreach.

Only this Court can strike the constitutional balance

between federal power and individual rights. See

Johnson, 467 F.3d at 66 (Torruella, C. J., dissenting).

CONCLUSION

There is a real and growing conflict among the

circuits over federal wetland jurisdiction that must be

resolved by this Court. There is also a real and

growing conflict among the circuits over the applic-

ability of the Marks rule in interpreting split decisions,

like Rapanos, that must be resolved by this Court.

These conflicts have now resulted in the criminal

prosecution and imprisonment of ordinary citizens

based on unsettled and contradictory jurisdictional

standards under the Clean Water Act. Further

inaction by this Court will result in continuing

19

uncertainty as to the scope of the Act and undermine

the Constitution’s safeguards against arbitrary

enforcement of the law. Therefore certiorari should be

granted.

DATED: July, 2008.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

3900 Le.nane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-711]

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation