Gerke Excavating, Inc. v. United States - Opposition

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No. 06-1331 In the Supreme Court of the United States

GERKE EXCAVATING, INC., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Acting Assistant Attorney
General
KATHERINE J. BARTON
KATHERINE W. HAZARD
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the wetlands in this case are "waters of the United States" within the meaning of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, § 502(7), 86 Stat. 886, as amended by Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 et seq.); 33 U.S.C. 1362(7).

In the Supreme Court of the United States

No. 06-1331

GERKE EXCAVATING, INC., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A4) is reported at 464 F.3d 723. A prior opinion of the court of appeals is reported at 412 F.3d 804.

JURISDICTION

The judgment of the court of appeals was entered on September 22, 2006. A petition for rehearing was denied on December 1, 2006 (Pet. App. B1-B2). On February 12, 2007, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including April 2, 2007 (see Pet. App. C1-C2), and the petition was filed on that date. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

This case involves a civil enforcement action brought by the United States under the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, as amended by Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 et seq.) (Clean Water Act or CWA). The district court held that petitioner's unpermitted discharges into wetlands violated the CWA, 2004 WL 737522 (Apr. 6, 2004), and the court of appeals affirmed, 412 F.3d 804 (2005).

In June 2006, this Court granted petitioner's prior petition for a writ of certiorari, vacated the judgment of the court of appeals, and remanded the case to the court of appeals for further consideration in light of the Court's intervening decision in Rapanos v. United States, 126 S. Ct. 2208 (2006). 126 S. Ct. 2964. The court of appeals in turn remanded the case to the dis trict court to consider the impact of Rapanos. Pet. App. A1-A4. Petitioner now seeks review of the court of ap peals' remand order.

1. Congress enacted the CWA "to restore and main tain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the "discharge of any pollu- tant by any person" except in compliance with the Act. 33 U.S.C. 1311(a). The term "discharge of a pollut ant" is defined to mean "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. 1362(12)(A). The CWA defines the term "navigable wa ters" to mean "the waters of the United States, includ ing the territorial seas." 33 U.S.C. 1362(7).

The United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agency (EPA) share responsibility for implementing and enforc ing Section 404 of the CWA, 33 U.S.C. 1344, which au thorizes the issuance of permits for the discharge of dredged or fill material into waters covered by the Act. See, e.g., 33 U.S.C. 1344(a)-(c). The Corps and EPA have promulgated substantively equivalent regulatory definitions of the term "waters of the United States." See 33 C.F.R. 328.3(a) (Corps definition); 40 C.F.R. 230.3(s) (EPA definition). Those definitions encompass, inter alia, traditional navigable waters, which include waters susceptible to use in interstate commerce, see 33 C.F.R. 328.3(a)(1), 40 C.F.R. 230.3(s)(1); "[t]ribu- taries" of traditional navigable waters, see 33 C.F.R. 328.3(a)(5), 40 C.F.R. 230.3(s)(5); and wetlands "adja cent" to other covered waters, see 33 C.F.R. 328.3(a)(7), 40 C.F.R. 230.3(s)(7).1 The Corps regulations define the term "adjacent" to mean "bordering, contiguous, or neighboring." 33 C.F.R. 328.3(c).

2. This Court has recognized that Congress, in en acting the CWA, "evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its pow ers under the Commerce Clause to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985) (Riverside Bayview); see International Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987) ("While the Act purports to regulate only 'navigable waters,' this term has been construed expansively to cover waters that are not navigable in the traditional sense."). In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), the Court held that use of "isolated" nonnavigable intrastate waters by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory jurisdiction under the CWA. Id. at 166-174. The Court noted, and did not cast doubt upon, its prior holding in Riverside Bayview that the CWA's coverage extends beyond waters that are "navigable" in the traditional sense. See id. at 172.

Most recently, the Court again construed the CWA term "waters of the United States" in Rapanos, supra. Rapanos involved two consolidated cases in which the CWA had been applied to wetlands adjacent to non- navigable tributaries of traditional navigable waters. See 126 S. Ct. at 2219 (plurality opinion). All Members of the Court agreed that the term "waters of the United States" encompasses some waters that are not navigable in the traditional sense. See id. at 2220 (plurality opin ion); id. at 2241 (Kennedy, J., concurring in the judg ment); id. at 2255 (Stevens, J., dissenting).

Four Justices in Rapanos interpreted the term "wa ters of the United States" as covering "relatively perma nent, standing or continuously flowing bodies of water," 126 S. Ct. at 2225 (plurality opinion), that are connected to traditional navigable waters, id. at 2226-2227, as well as wetlands with a continuous surface connection to such water bodies, id. at 2227.2 Justice Kennedy interpreted the term to encompass wetlands that "possess a 'signifi cant nexus' to waters that are or were navigable in fact or that could reasonably be so made." Id. at 2236 (Ken nedy, J., concurring in the judgment); see id. at 2248.3 In addition, Justice Kennedy concluded that the Corps' assertion of jurisdiction over "wetlands adjacent to navigable-in-fact waters" may be sustained "by showing adjacency alone." Ibid. The four dissenting Justices, who would have affirmed the court of appeals' applica tion of the pertinent regulatory provisions, also con cluded that the term "waters of the United States" en compasses, inter alia, all tributaries and wetlands that satisfy either the plurality's standard or that of Justice Kennedy. See id. at 2265-2266 & n.14 (Stevens, J., dissenting).

3. This case arises out of a civil enforcement action brought by the United States under the CWA. The gov ernment alleged that petitioner and others had violated the CWA by discharging fill material into wetlands on an undeveloped 5.8 acre tract in Tomah, Wisconsin, without a permit. 2004 WL 737522, at *1-*4. With re spect to the government's claim against petitioner, the district court entered summary judgment for the United States. Id. at *20.

As the district court explained (2004 WL 737522, at *7), the principal contested issue in the case was whether the area into which petitioner had discharged fill material was part of "the waters of the United States" for purposes of the CWA. The district court first examined the physical characteristics of the area where the discharge had occurred and concluded that it fell within the regulatory definition of "wetlands." Id. at *7-*10; see 33 C.F.R. 328.3(b). The court further deter mined that the wetlands were "adjacent"-defined by the regulations to mean "bordering, contiguous, or neighboring," see 33 C.F.R. 328.3(c)-to tributaries of traditional navigable waters. 2004 WL 737522, at *10- *17. In light of the hydrologic connection between the wetlands and traditional navigable waters, the district court agreed with the government that petitioner's dis charge was covered by the Act. See id. at *16, *20. Pe titioner was assessed a civil penalty of $55,000. See 412 F.3d at 805.4

4. The court of appeals affirmed. 412 F.3d 804 (2005). The court held that the wetlands at issue here are part of the "waters of the United States" as that term is defined in the Corps and EPA regulations imple menting the CWA. Id. at 805-806. The court further held that the regulations reflect a permissible construc tion of the Act and that the statute, so construed, is a valid exercise of congressional power under the Com merce Clause. Id. at 806-808.

5. In November 2005, petitioner filed a petition for a writ of certiorari (No. 05-623). In June 2006, this Court issued its decision in Rapanos. The Court subse quently granted the petition for a writ of certiorari in No. 05-623, vacated the judgment of the court of ap peals, and remanded the case to the court of appeals for further consideration in light of Rapanos. 126 S. Ct. 2964.

6. The court of appeals in turn remanded the case to the district court for further proceedings in light of Rapanos. Pet. App. A1-A4. The court of appeals stated that "Justice Kennedy's proposed standard * * * must govern the further stages of this litigation." Id. at A4. The court observed 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), 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).

Ibid. The court recognized, however, that "a rare case" may occasionally arise in which Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality)," ibid., and it did not specify what it regarded as the proper disposition of such a case.

The United States sought amendment of the court of appeals' opinion to clarify that the CWA term "waters of the United States" encompasses all wetlands that satisfy either the Rapanos plurality's standard or that of Jus tice Kennedy. Petitioner filed a petition for rehearing en banc, arguing that the CWA encompasses only those wetlands that meet the Rapanos plurality's standard. The court of appeals denied the United States' request for clarification and petitioner's request for rehearing. Pet. App. B1-B2.

ARGUMENT

Petitioner seeks review of the court of appeals' hold ing that, if the wetlands at issue in this case are found to satisfy the "significant nexus" standard articulated in Justice Kennedy's concurring opinion in Rapanos, 126 S. Ct. at 2241, those wetlands are subject to federal reg ulatory jurisdiction under the CWA. That holding is correct and does not conflict with any decision of this Court or of another court of appeals. Further review is not warranted.

1. As a threshold matter, this Court's review is un warranted because of the interlocutory posture of the case. The court of appeals did not apply this Court's decision in Rapanos to the wetlands at issue here, but instead remanded the case to allow the district court to perform that task in the first instance. Although peti tioner contends that the court of appeals' remand order announced an erroneous legal standard, this Court "generally await[s] final judgment in the lower courts before exercising [its] certiorari jurisdiction." Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (opinion of Scalia, J., respecting the denial of the peti tion for a writ of certiorari); see Brotherhood of Locomo tive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam) (denying certiorari "because the Court of Appeals remanded the case," making it "not yet ripe for review by this Court"). That course is particu larly appropriate here because no court has yet applied either of the legal standards set forth in Rapanos to the wetlands at issue in this case.

2. Petitioner contends (Pet. 4-5) that, under this Court's decision in Marks v. United States, 430 U.S. 188 (1977), the plurality opinion in Rapanos established the controlling legal standard for determining whether the CWA encompasses particular wetlands. Petitioner ar gues (Pet. 4-5) that, if a wetland satisfies Justice Ken nedy's "significant nexus" standard but not that of the Rapanos plurality, it is not covered by the CWA. That argument lacks merit.

a. Under a proper understanding of Rapanos, the Corps and EPA may continue to exercise regulatory jurisdiction over any wetland that satisfies either the standard for CWA coverage adopted by the Rapanos plurality or the standard set forth in Justice Kennedy's concurrence. That is so because the four dissenting Jus tices in Rapanos stated explicitly that they would sus tain the exercise of federal regulatory jurisdiction under the CWA whenever either of those standards is satis fied. See 126 S. Ct. at 2265-2266 & n.14 (Stevens, J., dissenting). Thus, in all such cases, the agencies' exer cise of regulatory jurisdiction would be consistent with the views of a majority of this Court's Members. See U.S. EPA & Dep't of the Army, Clean Water Act Juris diction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States, at 3 & nn. 14-15 (June 5, 2007) <http://www.epa.gov/ owow/wetlands/pdf/RapanosGuidance6507.pdf>

In Marks, this Court stated that, "[w]hen a frag mented Court decides a case and no single rationale ex plaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as the position taken by those Members who concurred in the judgment[] on the narrowest grounds.'" 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). Taken in iso lation, the Marks Court's reference to "those Members who concurred in the judgment[]" might suggest that lower courts, in determining the precedential effect of a fractured decision of this Court, should ignore the views of dissenting Justices. This Court has subsequently rec ognized, however, that in some cases the Marks test is "more easily stated than applied to the various opinions supporting the result," Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (quoting Nichols v. United States, 511 U.S. 738, 745 (1994)), and has acknowledged that "[i]t does not seem 'useful to pursue the Marks inquiry to the utmost logical possibility'" in every case, ibid. (quoting Nichols, 511 U.S. at 745-746).

In some fractured decisions, the narrowest rationale adopted by one or more Justices who concur in the judg ment may be the only controlling principle on which a majority of the Court's Members agree. In that situa tion, application of the rule announced in Marks pro vides a sensible approach to determining the controlling legal principles of the case. But in Rapanos, as in some other instances, no opinion for the Court exists and nei ther the plurality nor the concurring opinion is in any sense a "lesser-included" version of the other.

In those circumstances, the principles on which a majority of the Court agreed may be illuminated only by consideration of the dissenting Justices' views. The dis senting opinions, by emphasizing controlling legal prin ciples on which a majority of the Court agrees, may thereby contribute to an understanding of the law cre ated by the case. And once those principles have been identified, sound legal and practical reasons justify a rule that a lower federal court should adhere to the view of the law that a majority of this Court has unambigu ously embraced. See Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J., concurring) (analyzing the points of agreement among the plurality, concurring, and dis senting opinions to identify the legal "test * * * that lower courts should apply," under Marks, as the holding of the Court); cf. Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1667, 1668-1669 n.15, 1671 (2007) (analyzing con curring and dissenting opinions in a prior case to iden tify a legal conclusion of a majority of the Court); League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2607 (2006) (same); Alexander v. Sandoval, 532 U.S. 275, 281-282 (2001) (same); Wilton v. Seven Falls Co., 515 U.S. 277, 285 (1995) (same).

Consideration of the dissenting Justices' views is consistent with the underlying purpose of the specific rule announced in Marks, because it enables lower courts to discern the governing rule of law that emerges from a fractured decision of the Court. Cf. Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring) (noting the need to look to Marks in view of the absence of an opin ion commanding a majority of the Court). The applica tion of that approach here clearly supports finding the existence of federal regulatory jurisdiction whenever the legal standard of the plurality or of Justice Kennedy's concurrence is satisfied, since a majority of the Court's Members would find jurisdiction in either of those in stances. See id. at 2265 (Stevens, J., dissenting).

b. Petitioner contends (Pet. 3-5, 8-13) that the lower courts must apply solely the standard set forth by the Rapanos plurality, not that of Justice Kennedy, in de termining whether particular wetlands fall within the CWA's coverage. In petitioner's view, Marks requires that the Rapanos plurality opinion be treated as the holding of the Court because the plurality opinion states the "narrowest grounds" for the Court's decision. Pet. 4 (quoting Marks, 430 U.S. at 193). That argument lacks merit.

In Rapanos, five Justices agreed that the judgments of the Sixth Circuit in the consolidated cases under re view should be vacated and the cases remanded for fur ther proceedings. See 126 S. Ct. at 2235 (plurality opin ion); id. at 2252 (Kennedy, J., concurring in the judg ment). The plurality concluded that a remand was nec essary because the court of appeals had not determined, and the existing record provided an inadequate basis for deciding, whether the tributaries at issue "contain[ed] a relatively permanent flow" or whether the pertinent wetlands "possess[ed] a continuous surface connection" to those tributaries. Id. at 2235. Justice Kennedy found a remand to be appropriate because neither the Corps nor the lower courts in the consolidated cases had ad dressed the question "whether the specific wetlands at issue possess a significant nexus with [traditional] navi gable waters." Id. at 2252; see id. at 2250-2252.

Because neither of those grounds for decision is in herently narrower than the other, it is logically impossi ble to identify a consensus "narrowest" position among the views of the Justices who concurred in the judgment. Petitioner is wrong in contending (Pet. 10) that, as a cat egorical matter, "when the [Rapanos] plurality standard is applied to find federal jurisdiction, the result would have the support of all nine Justices." Justice Kennedy observed that the plurality's test "covers wetlands (how ever remote) possessing a surface-water connection with a continuously flowing stream (however small)," 126 S. Ct. at 2246, and he indicated that at least some such wetlands would not fall within the CWA's coverage as he construed the statute, see id. at 2246, 2249. As the court of appeals correctly recognized in the remand order at issue here, that aspect of the Rapanos concurrence sug gests that, in "a rare case," Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1." Pet. App. A4; see United States v. Johnson, 467 F.3d 56, 64 (1st Cir. 2006) (explaining that "[t]he cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction" because there are certain cases in which "the plurality's jurisdictional test would be satisfied, but Justice Kennedy's balancing of interests might militate against finding a significant nexus").5

Moreover, even if all wetlands satisfying the Rapanos plurality's standard for CWA coverage would also satisfy Justice Kennedy's "significant nexus" stan dard, petitioner would still be wrong in contending that the plurality's approach stated the "narrowest grounds" for decision within the meaning of the Marks rule. To the contrary, Justice Kennedy's concurrence would then state the "narrowest grounds" because it would impose the least restrictive limits on the exercise of regulatory authority by the Corps and EPA, and because it would reflect the narrowest disagreement with the judgments under review in Rapanos and with the approach advo cated by the four dissenters. In Marks, the Court ex plained that the narrowest grounds for decision in Mem oirs v. Massachusetts, 383 U.S. 413 (1966), were the ra tionale of the Memoirs plurality, which allowed some government regulation of obscene materials, rather than the "broader grounds" urged by Justices Black and Douglas, who would have held "that the First Amend ment provides an absolute shield against governmental action aimed at suppressing obscenity." Marks, 430 U.S. at 193. The Court in Marks thus treated the ratio nale that imposed less sweeping constitutional con straints on the government's authority to regulate ob scenity (and that reflected the narrowest disagreement with the judgment under review and with the ap proaches advocated by the dissenters) as the narrower grounds for the decision in Memoirs. Petitioner's con trary suggestion-that the plurality opinion in Rapanos must be deemed the narrowest grounds for the judg ment if it adopted the narrowest view of federal regula tory jurisdiction under the CWA-is thus inconsistent with both the logic and the square holding of Marks it self.

c. Petitioner contends (Pet. 4, 10-14) that the circuits are divided with respect to the standard to be used in identifying "the waters of the United States" in light of the various opinions in Rapanos. Contrary to peti tioner's contention, the Seventh Circuit's decision in this case does not squarely conflict with any decision of an other court of appeals. In any event, the other courts of appeals that have considered the issue have rejected the proposition, advanced by petitioner in this case, that wetlands satisfying Justice Kennedy's legal standard but not that of the Rapanos plurality fall outside the CWA's coverage.

Petitioner asserts (Pet. 13) that the First Circuit in Johnson "rejected the Seventh Circuit's conclusion in this case that under Marks Justice Kennedy's lone con currence is controlling." As petitioner acknowledges (ibid.), however, the First Circuit in Johnson gave full effect to Justice Kennedy's "lone concurrence," holding that the "federal government can establish jurisdiction over [wetlands] if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." 467 F.3d at 66 (emphasis added); see note 5, supra. The decision in Johnson provides no support for petitioner's contention that the CWA's coverage is limited to wetlands that satisfy the standard advocated by the Rapanos plurality. Nor is there any conflict between the First and Seventh Circuits with respect to the CWA's coverage of wetlands that satisfy Justice Ken nedy's "significant nexus" standard. And while the Sev enth Circuit (unlike the First Circuit) did not expressly hold that CWA jurisdiction would exist in the "rare case" (Pet. App. A4) in which the plurality's standard would be satisfied but Justice Kennedy's would not, the court did not foreclose that result either, and accord ingly there is no conflict.

In Northern California River Watch v. City of Healdsburg, 457 F.3d 1023, 1029 (9th Cir. 2006), the court stated that Justice Kennedy's concurring opinion in Rapanos "provides the controlling rule of law." As in the instant case, however, the court did not specifically discuss the proper resolution of a coverage dispute in volving wetlands that satisfy the Rapanos plurality's standard but not Justice Kennedy's. Analysis of that question was unnecessary because the Ninth Circuit held that Justice Kennedy's standard was satisfied and that the wetlands at issue therefore were covered by the CWA. See id. at 1030-1031. A petition for rehearing with respect to the proper application of Rapanos is cur rently pending before the court of appeals in that case, so it is possible that the Ninth Circuit will revise its analysis. The court's opinion provides no support, how ever, for petitioner's contention that the Rapanos plu rality opinion states the sole controlling rule of law.

Thus, the First, Seventh, and Ninth Circuits all agree that wetlands satisfying Justice Kennedy's "sig nificant nexus" standard are covered by the CWA. The First Circuit in Johnson held that the CWA also encom passes wetlands that satisfy the Rapanos plurality's standard but not that of Justice Kennedy. The court in Johnson explained that, if the CWA term "waters of the United States" were read to exclude such wetlands, "there would be a bizarre outcome-the court would find no federal jurisdiction even though eight Justices (the four members of the plurality and the four dissenters) would all agree that federal authority should extend to such a situation." 467 F.3d at 64. No other court of ap peals has specifically addressed the proper treatment under Rapanos of wetlands that satisfy the plurality's standard but not that of Justice Kennedy. But even if a circuit conflict existed with respect to the CWA's appli cation to that category of wetlands, the instant case would be an unsuitable vehicle to resolve the question. That is so both because it is currently unclear whether petitioner's own wetlands fall within that category (see pp. 8-9, supra), and because petitioner agrees with the United States that wetlands in that category are covered by the CWA.

4. Petitioner contends (Pet. 16) that the "significant nexus" standard in Justice Kennedy's opinion "raises due process concerns" because it provides insufficient guidance to regulated parties. Under settled legal prin ciples, however, petitioner can prevail in such a chal lenge only by showing that the CWA term "waters of the United States," if construed in accordance with Justice Kennedy's "significant nexus" standard, would be un constitutionally vague as applied to petitioner's own con duct. See, e.g., United States v. Powell, 423 U.S. 87, 92- 93 (1975); United States v. Mazurie, 419 U.S. 544, 550 (1975) ("It is well established that vagueness challenges to statutes which do not involve First Amendment free doms must be examined in the light of the facts of the case at hand."); Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). Although petitioner asserts (Pet. 19) that the standard articulated in Justice Kennedy's concur rence may "result in inconsistent and unpredictable ap plications" in future cases, petitioner makes no effort to demonstrate that the "significant nexus" standard is impermissibly vague as applied to the circumstances of this case. In any event, because no court has yet applied the "significant nexus" standard to the wetlands at issue here, this Court's consideration of petitioner's due pro cess claim would be premature.

CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. PAUL D. CLEMENT
Solicitor General
RONALD J. TENPAS
Acting Assistant Attorney
General
KATHERINE J. BARTON
KATHERINE W. HAZARD
Attorneys
JUNE 2007

1 To avoid confusion between the term "navigable waters" as defined in the CWA and implementing regulations, see 33 U.S.C. 1362(7) and 33 C.F.R. 328.3(a), and the traditional use of the term "navigable waters" to describe waters that are, have been, or could be used for interstate or foreign commerce, see 33 C.F.R. 328.3(a)(1), this brief will refer to the latter as "traditional navigable waters."

2 The Rapanos plurality noted that its reference to "relatively per manent" waters "d[id] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought," or "seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months." 126 S. Ct. at 2221 n.5.

3 Justice Kennedy explained that wetlands "possess the requisite nexus" to traditional 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.'" 126 S. Ct. at 2248.

4 After the district court issued its order granting summary judg ment for the government, petitioner and the other defendants entered into a stipulation with the government. See Appellant's C.A. App. Tab 2 (Dist. Ct. Docket No. 157). Petitioner and its co-defendants agreed to restore the wetlands and, after completion of restoration, not to fill or disturb any portion of the site again, except as approved by the Corps. See id. at 1-6. Pursuant to the stipulation and order, petitioner reserved the right to appeal on the question of CWA coverage with respect to the district court's imposition of a civil penalty and costs. See id. at 6. Petitioner expressly waived any right to appeal "relating to the restoration of the Site and the injunction against future Clean Water Act violations issued by the Court." Id. at 6-7. A consent decree entered by the district court the same day finally resolved all issues between the United States and the other defendants. See Appellant's C.A. App. Tab 3 (Dist. Ct. Docket No. 158).

5 In Johnson, the court of appeals explained that, for purposes of Marks analysis, one ground of decision can reliably be identified as "narrower" than another only when the first rationale is a "logical subset" of the second. 467 F.3d at 63 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc), cert. denied, 505 U.S. 1229 (1992)). The court further explained that "[t]his understanding of 'narrowest grounds' as used in Marks does not translate easily to the present situation" because "[t]he cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction." Id. at 64. The court of appeals also observed that, "[s]ince Marks, several members of [this] Court have indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced." Id. at 65. The First Circuit concluded that "[t]he federal government can establish jurisdiction over [wetlands] if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." Id. at 66. The court explained that, because the four Rapanos dissenters would find federal regulatory jurisdiction in any case where either of those standards is satisfied, this approach "provides a simple and pragmatic way to assess what grounds would command a majority of the Court." Id. at 64.