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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0969%3A5. Public record. Not legal advice.