US Supreme Court Briefs

No.

In the Supreme Court of the United States
__________

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

Respondents.
__________

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit

__________

PETITION FOR A WRIT OF CERTIORARI
__________

ELIZABETH A. CLARK
TIMOTHY S. BISHOP
Mayer, Brown & Platt
Counsel of Record
1909 K Street, N.W.
Mayer, Brown & Platt
Washington, D.C. 20006
190 South LaSalle Street
(202) 263-3000
Chicago, IL 60603
(312) 782-0600
GEORGE J. MANNINA, JR.
O'Connor & Hannan, L.L.P.
1666 K Street, N.W.
Suite 500
Washington, D.C. 20006
(202) 887-1400
Counsel for Petitioner
QUESTION PRESENTED

Petitioner Solid Waste Agency of Northern Cook County,
which comprises 23 Cook County, Illinois municipalities, acquired
a 500-acre-plus site to construct an urgently needed balefill facility
to dispose of its communities' non-hazardous solid waste.
Petitioner's plans called for filling some 17 acres of permanently or
seasonally wet depressions left by earlier strip mining operations.
The U.S. Army Corps of Engineers twice informed petitioner that it
had no jurisdiction over the site, then abruptly changed its mind on
the sole basis that the isolated waters on the site were used by
migratory birds. The Corps relied on its so-called "migratory bird
rule," which interprets the Clean Water Act to reach isolated
intrastate waters that do or potentially could serve as habitat for
migratory birds. Because the Corps asserted jurisdiction, petitioner
was required to apply for a permit to fill the waters on the site
pursuant to Section 404 of the Clean Water Act. The Corps denied
petitioner's permit application, thereby destroying a significant
municipal public works project important to some 700,000 local
residents.

The question presented in this case, as to which the courts of
appeals are in conflict, is as follows:

Whether the U.S. Army Corps of Engineers, consistent with the
Clean Water Act and the Commerce Clause of the United States
Constitution, may assert jurisdiction over isolated intrastate waters
solely because those waters do or potentially could serve as habitat
of migratory birds.

(I)
ii

RULES 29.6 AND 14.1 STATEMENT

Petitioner is the Solid Waste Agency of Northern Cook County,
a municipal corporation created by intergovernmental agreement
under the laws of Illinois. Its member communities are the cities and
villages of Arlington Heights, Barrington, Buffalo Grove, Elk Grove
Village, Evanston, Glencoe, Glenview, Hoffman Estates, Inverness,
Kenilworth, Lincolnwood, Morton Grove, Mt. Prospect, Niles,
Palatine, Park Ridge, Prospect Heights, Rolling Meadows, Skokie,
South Barrington, Wheeling, Wilmette, and Winnetka. SWANCC
has no parent corporations and no subsidiaries, wholly-owned or
otherwise.

Respondents are the U.S. Army Corps of Engineers; the U.S.
Environmental Protection Agency; Arthur Williams, Lieutenant
General, Chief of Engineers, U.S. Army Corps of Engineers; Robert
E. Slockbower, Lieutenant Colonel, Chicago District Engineer, U.S.
Army Corps of Engineers; Togo D. West, Jr., Secretary of the
Army; Carol M. Browner, Administrator, U.S. Environmental
Protection Agency; and intervenors below, the Village of Bartlett
and Citizens Against the Balefill.
iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................... (I)

RULES 29.6 AND 14.1 STATEMENT .............
ii

TABLE OF AUTHORITIES ..................... v

OPINIONS BELOW ........................... 1

JURISDICTION ............................... 1

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................. 1

STATEMENT ................................ 2

A. The Statutory And Regulatory Scheme ..... 3

B. SWANCC's Balefill Project And The Corps'
Exercise Of Jurisdiction ................. 5

C. SWANCC's Challenge To The Migratory Bird
Rule And The District Court's Ruling ......
7

D. The Seventh Circuit's Decision ........... 8

REASONS FOR GRANTING THE PETITION ......
8

I. THE CIRCUITS ARE SPLIT OVER THE CORPS'
AUTHORITY TO REGULATE ISOLATED
INTRASTATE WATERS BASED ON THEIR
ACTUAL OR POTENTIAL USE BY
MIGRATORY BIRDS ...................... 9

II. THE MIGRATORY BIRD RULE IS AN
IMPERMISSIBLE INTERPRETATION OF THE
CWA .................................. 15
iv

TABLE OF CONTENTS -- CONTINUED
Page

A. The Plain Language of the Act Requires
Jurisdictional Waters To Be Related To
Navigable Waters ..................... 16

B. Legislative HistoryConfirms That Congress Did
Not Intend The Corps To Base Jurisdiction
Merely On The Presence Of Migratory Birds
19

C. No Deference Is Owed To The Migratory Bird
Rule Because It Raises Serious Constitutional
Concerns ............................ 22

D. No Deference Is Owed To The Migratory Bird
Rule Because It Impinges On Traditional State
Powers ............................. 26

III. THE PETITION SHOULD BE GRANTED, NOT
HELD FOR JONES v. UNITED STATES ...... 29

CONCLUSION .............................. 30
v

TABLE OF AUTHORITIES

Page
Cases:

Alden v. Maine, 119 S. Ct. 2240 (1999) ..............
27

BFP v. Resolution Trust Corp.,
511 U.S. 531 (1994) ........................
26, 28

Bailey v. United States, 516 U.S. 137 (1995) .......
16, 19

Berman v. Parker, 348 U.S. 26 (1954) ...............
28

Board of Governors v. Dimension
Financial Corp., 474 U.S. 361 (1986) .............
18

Cargill, Inc. v. United States,
516 U.S. 955 (1995) ........................ passim

Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) ................... 15

DeLovio v. Boit, 7 F. Cas. 418
(Cir. Ct., D.Mass. 1815) ........................
18

Dolan v. City of Tigard, 512 U.S. 374 (1994) ..........
28

Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council,
485 U.S. 568 (1988) ........................
22, 26

Federal Power Commission v. Union Electric
Co., 381 U.S. 90 (1965) ........................ 19
vi

TABLE OF AUTHORITIES -- continued
Page(s)

Gilbert v. United States, 370 U.S. 650 (1962) ..........
16

Hoffman Homes, Inc. v. United States Environmental
Protection Agency, 961 F.2d 1310 (7th Cir. 1992),
vacated, 999 F.2d 256 (7th Cir. 1993) ..........
13, 26

Japan Whaling Association v. American Cetacean
Soc'y, 478 U.S. 221 (1986) ..................... 19

Jones v. United States, No. 99-5739 ..............
29, 30

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .....
19

Leslie Salt Co. v. United States, 896 F.2d 354
(9th Cir. 1990) ......................... 11, 13, 21

Leslie Salt Co. v. United States, 55 F.3d 1388
(9th Cir. 1995) ............................ passim

Maryland v. Wirtz, 392 U.S. 183 (1968) ..............
24

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979) ...................................... 22

New York v. United States, 505 U.S. 144 (1992) ........
27

Perez v. United States, 402 U.S. 146 (1971) ...........
24

Presley v. Etowah County Commission, 502 U.S. 491
(1992) ...................................... 15

Printz v. United States, 521 U.S. 898 (1997) ........... 27
vii

TABLE OF AUTHORITIES -- continued
Page(s)

Rewis v. United States, 401 U.S. 808 (1971) ...........
26

Seminole Tribe v. Florida, 517 U.S. 44 (1996) .........
27

Tabb Lakes Ltd. v. United States, 715
F. Supp. 726 (E.D. Va. 1988), aff'd,
885 F.2d 866 (4th Cir. 1989) .....................
4

The Daniel Ball, 77 U.S. (10 Wall.) 557
(1870) ............................. 16, 17, 18, 20

The Montello, 87 U.S. (20 Wall.) 430 (1874) .......
17, 18

United States v. Appalachian Electric Power Co.,
311 U.S. 377 (1940) ........................
16, 21

United States v. Bird, 124 F.3d 667 (5th Cir. 1997),
cert. denied, 523 U.S. 1006 (1998) ............... 24

United States v. Larkins, 852 F.2d 189
(6th Cir. 1988) ............................... 13

United States v. Lopez, 514 U.S. 549 (1995) ........ passim

United States v. Riverside Bayview Homes,
474 U.S. 121 (1985) ...................
9, 17, 18, 21

United States v. Utah, 283 U.S. 64 (1931)
......... 20, 21

United States v. Wilson, 133 F.3d 251
(4th Cir. 1997) ............................ passim
viii

TABLE OF AUTHORITIES -- continued
Page(s)

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) .........
11

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .....
28

Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926) ...........................
28

Constitutional and Statutory Provisions

U.S. CONST. art. I, S 8 ..............................
1

16 U.S.C. S 817 ................................. 19

28 U.S.C. S 1254(1) ............................... 1

33 U.S.C. S 403 ................................. 19

33 U.S.C. S 1311(a) .............................. 3

33 U.S.C. S 1344(a) ........................
1, 3, 5, 16

33 U.S.C. S 1362(7)
......................... 1, 3, 16
33 U.S.C. S 1362(12) .............................. 3

33 C.F.R. S 320.4(a) ..............................
27

33 C.F.R. S 328(a)(3) .......................... passim

40 C.F.R. S 230.3(s) ...............................
4

51 Fed. Reg. 41,206 (Nov. 13, 1986) ........... 1, 4, 21
ix

TABLE OF AUTHORITIES -- continued
Page(s)

Other Authorities

THE ATLAS OF BIRD MIGRATION (ed. J. Elphick 1995).......
25

Bablo, Leslie Salt Co. v. United States: Does
the Recent Supreme Court Decision in
United States v. Lopez Dictate the Abrogation
of the "Migratory Bird Rule"?, 14 TEMP. ENVT'L L.
& TECH. J. 277 (1995) ......................... 15

BLACK'S LAW DICTIONARY (4th ed. 1968)
............. 16

Bueschen, Do Isolated Wetlands Substantially Affect
Interstate Commerce?, 46 AM. U. L. REV. 931
(1997) ...................................... 14

118 Cong. Rec. (1972) ............................ 20

THE FEDERALIST (C. Rossiter ed. 1961) ................
27

Gilbert, The Migratory Bird Rule After Lopez:
Questioning the Value of State Sovereignty in the
Context of Wetland Regulation, 39 WM. &
MARY L. REV. 1695 (1998) ......................
14

H.R. REP. NO. 92-911, 92d Cong.,
2d Sess. (1972) .............................. 21

Holman, After United States v. Lopez: Can the Clean
Water Act and the Endangered Species Act
Survive Commerce Clause Attack?, 15 VA. ENVT'L
L.J. 139 (1995) ............................... 26
x

TABLE OF AUTHORITIES -- continued
Page(s)

Leman, The Birds: Regulation of Isolated Wetlands
and the Limits of the Commerce Clause,
28 U.C. DAVIS L. REV. 1237, 1267 (1995) ..........
14

Lessner, Leslie Salt Co. v. United States: Keep the
Birds Out of Your Birdbath: It May Be
Considered The Jurisdiction of the Army Corps
of Engineers as a "Water of the United States,"
2 VILL. ENVT'L L.J. 463 (1991)
.................. 15

Linehan, Endangered Regulation: Why the Commerce
Clause May No Longer Be Suitable Habitat for
Endangered Species and Wetlands Regulation,
2 TEX. REV. L. & POL. 365 (1998)
................ 14

Nagle, The Commerce Clause Meets the Delhi
Sands Flower-Loving Fly, 97 MICH. L. REV.
174 (1998) ............................... 14, 25

R. PETERSON, A FIELD GUIDE TO BIRDS
(4th ed. 1980) ................................ 25

S. REP. NO. 92-1236, 92d Cong.,
2d Sess. (1972) ............................... 21

1 L. TRIBE, CONSTITUTIONAL LAW (3d ed. 2000) .........
25

Warner, The Potential Impact of United States v.
Lopez on Environmental Regulation,
7 DUKE ENVT'L L. & POLICY FORUM 321 (1997) ...... 14
PETITION FOR A WRIT OF CERTIORARI
_____________

Petitioner Solid Waste Agency of Northern Cook County
respectfully petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Seventh Circuit in this
case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-13a) is
reported at 191 F.3d 845. The opinion of the district court (App.,
infra, 14a-36a) is reported at 998 F. Supp. 946. The U.S. Army
Corps of Engineers' decision denying petitioner's revised Section
404 permit application is set out at Pet. C.A. App. 85-171 (deci-
sion) and U.S. C.A. App. 29-189 (appendices).

JURISDICTION

The judgment of the court of appeals was entered on October
7, 1999. On December 16, 1999, Justice Stevens extended the time
for filing the petition for certiorari to and including January 14, 2000.
The jurisdiction of this Court is invoked under 28 U.S.C. S 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Commerce Clause of the Constitution provides in relevant
part that "Congress shall have Power * * * To regulate Commerce

* * * among the several States." U.S. CONST. art. I, S 8.

The relevant provisions of the Clean Water Act, 33 U.S.C. SS
1344(a) and 1362(7), are reproduced at App., infra, 37a-38a. The
pertinent regulation, 33 CFR S 328.3(a)(3) (the "other waters rule"),
and preamble to 51 Fed. Reg. 41,206 (1986) (the "migratory bird
rule"), are reproduced at App., infra, 39a-40a.
2

STATEMENT

The issue in this case is whether, pursuant to the Clean Water
Act ("CWA" or "Act"), the U.S. Army Corps of Engineers
("Corps") properly has jurisdiction over isolated waters that are not
navigable and not connected or adjacent to navigable waters, but
that do or could provide habitat for migratory birds. The Corps has
asserted such jurisdiction in this case and others through its "migra-
tory bird rule" (App., infra, 40a), which interprets the navigable
"waters of the United States" subject to the CWA to include all wa-
ters that are an actual or potential habitat for migratory birds.

The Corps' unprecedentedly broad claim of jurisdiction has
caused sharp disagreement among the courts of appeals. The Fourth
Circuit has rejected the Corps' jurisdictional grab as contrary to the
text of the CWA and constitutionally impermissible. United
States v. Wilson, 133 F.3d 251 (4th Cir. 1997). The Seventh and
Ninth Circuits, in contrast, have upheld the Corps' authority. App.,
infra, 1a-13a; Leslie Salt Co. v. United States, 55 F.3d 1388 (9th
Cir. 1995) (Leslie Salt II). Even the Ninth Circuit, however,
recognized that "[t]he migratory bird rule certainly tests the limits of
Congress's commerce powers and, some would argue, the bounds
of reason." Id. at 1396. Mirroring this circuit split, Justice Thomas
and a number of appellate judges have criticized the Corps' position
in individual concurrences and dissents. Cargill, Inc. v. United
States, 516 U.S. 955 (1995) (Thomas, J., dissenting from denial of
certiorari); see infra, pp. 12-13.

The Seventh Circuit's ruling in this case is legally erroneous. The
notion that the Corps has jurisdiction over isolated intrastate waters
based merely on the actual or potential presence of migratory birds
is inconsistent with the plain language and legislative history of the
CWA. The migratory bird rule also raises substantial constitutional
concerns under the Commerce Clause, which mandate a narrower
reading of the Act to avoid the constitutional difficulty. In those
3

circumstances, the Corps' migratory bird rule is entitled to no
deference under Chevron, and it should be set aside.

Given the split among the circuits and the statutorily and con-
stitutionally untenable basis of the Corps' assertion of jurisdiction, it
is time for this Court to address the question presented. Review of
the Corps' migratory bird rule in this case is especially appropriate
and necessary. The Corps' unfounded claim of jurisdiction has
brought to an abrupt halt the coordinated efforts of 23 municipalities
to address the important local problem of the disposal of solid waste
generated by their 700,000 citizens, derailing a vital, $20-million-
plus public project. Cooperative, multi-municipality efforts to
address common local issues are not properly matters for federal
control. Yet so expansive is the migratory bird rule that it is difficult
to imagine any significant state or municipal project (or private de-
velopment) that would not require the Corps' approval.

Beyond that, the ubiquitous presence of migratory birds, which
number in the billions, means that land-use matters traditionally
subject to local control are now dependent upon federal approval by
the Corps sitting as a sort of super zoning body determining the
"public interest." That federalization of local land-use matters is not
what Congress had in mind when it adopted the CWA, and the
Commerce Clause does not permit it.

A. The Statutory And Regulatory Scheme

The CWA prohibits the discharge of "pollutants," including
dredged and fill materials, into "navigable waters" without a permit
from the Corps. 33 U.S.C. SS 1311(a), 1344(a), 1362(12).
"Navigable waters" are defined in the CWA only as "the waters of
the United States." S 1362(7).
4

The Corps has defined the "waters of the United States" in
regulations to include not only navigable waters, tidal waters, and
waters adjacent to such waters, but also [a]ll other waters such as
intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet mead-
ows, playa lakes, or natural ponds, the use, degradation or destruc-
tion of which could affect interstate commerce * * *.

33 CFR S 328.3(a)(3) (1998), App., infra, 39a.1

In the preamble to regulations promulgated in 1986, the Corps
further defined these "other" waters:

EPA has clarified that waters of the United States at [33] CFR
328.3(a)(3) also include the following waters:

a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or

b. Which are or would be used as habitat by other migratory
birds which cross state lines * * *.

51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986), App., infra, 40a.
It is the Corps' reliance on this "migratory bird rule" --which the
Corps never promulgated in accordance with Section 553 of the
Administrative Procedure Act and which therefore has never been
subject to notice and comment --that petitioner challenges as a2
legally improper basis for federal jurisdiction over petitioner's
proposed balefill site.

1

definition, 40 CFR S 230.3(s), which is not directly at issue here.

See Tabb Lakes Ltd. v. United States, 715 F. Supp. 726, 729

2

(E.D. Va. 1988) (the migratory bird rule is invalid as a substantive
rule promulgated without notice and comment), aff'd, 885 F.2d 866
(4th Cir. 1989).
The Environmental Protection Agency has issued an identical
5

B. SWANCC's Balefill Project And The Corps' Exercise Of
Jurisdiction

The Solid Waste Agency of Northern Cook County
("SWANCC") is a municipal corporation comprised of 23 munici-
palities located in northern and northwestern Cook County, Illinois.
SWANCC was formed to develop a system for the safe and
efficient disposal of non-hazardous municipal waste for the approxi-
mately 700,000 people who live in its member communities. As part
of its mission, SWANCC proposed to locate and develop a site for
disposal of that waste. App., infra, 2a.

SWANCC purchased a 533-acre parcel of land to create a
balefill--a landfill where baled, rather than loose, waste is
dumped--on 410 acres of the site located exclusively in Cook
County. Part of the balefill site was agricultural land and part, 298
acres, an "early successional stage forest" that had grown up on land
previously used as a strip mine for gravel. The forested portion of the
site contained "a labyrinth of trenches and other depressions" left by
the strip mining. These trenches and depressions collect rainwater
during some or all of the year, forming "permanent or seasonal
ponds" ranging from one-tenth of an acre to several acres in size,
and from a few inches to several feet in depth. App., infra, 2a.

In 1987, after ten public hearings and 2,500 pages of testimony,
the local zoning board and the Cook County Board of Commission-
ers approved SWANCC's balefill project. Pet. C.A. App. 54. In
1989, SWANCC further obtained a permit for the project from the
Illinois Environmental Protection Agency, which had reviewed
SWANCC's 1,700 page appli-cation and conducted four days of
hearings. Id. at 50-51, 55-56. Because SWANCC planned to fill

17.6 acres of trenches and depressions within the forested area to
construct the balefill, it also requested rulings from the Corps of
Engineers as to whether it required a permit under Section 404 of
the CWA, 33 U.S.C. S 1344(a). After conducting an on-site
inspection, the Corps informed SWANCC in 1986 and again in
6

1987 that those 17.6 acres were not subject to the Corps' regula-
tory authority over "navigable waters" and that a Section 404 permit
was not required. App., infra, 3a-4a, 16a.

The Corps changed its position after the Illinois Nature Pre-
serves Commission informed the Corps in July 1987 that its staff had
observed migratory bird species on the property during a brief site
visit. App., infra, 4a. Based on that assessment, and invoking its
"migratory bird rule," the Corps concluded that the isolated,
intrastate strip-mining depressions on the balefill site were "naviga-
ble" "waters of the United States" within its jurisdiction under the
CWA because they "are used or would be used as habitat by other
migratory birds which cross state lines." Ibid.

In response to the Corps' assertion of jurisdiction, SWANCC
submitted an application for a Section 404 permit, which the Corps
denied in 1991. The Corps also denied SWANCC's revised
application in 1994. App., infra, 4a.3

3

mined that migratory birds actually used waters on the balefill site as
habitat. App., infra, 10a. To be sure, the Corps stated, in denying
SWANCC's permit application, that "the water areas are used as
habitat by migratory bird[s] which cross state lines." But it did so
based not on any recorded observation of birds using the water areas
as habitat, but based solely on the fact that thirteen species of
migratory birds observed at least once on the 533-acre site "are
known to depend on aquatic environments for a significant portion of
their life requirements." Pet. C.A. App. 78; see also id. at 94, 780-
781. Nothing in this case turns, however, on whether the balefill site
was actually or only potentially habitat for migratory birds. Though
the extension of federal jurisdiction to wet areas that might be used
by migratory birds may be even more statutorily and constitutionally
problematic, there is no basis for jurisdiction over actual habitat
either.
The court of appeals incorrectly assumed the Corps had deter-
7

C. SWANCC's Challenge To The Migratory Bird Rule And
The District Court's Ruling

In December 1994, SWANCC brought suit against the Corps
in the District Court for the Northern District of Illinois. SWANCC
challenged both the merits of the Corps' decision and the theory
under which it asserted jurisdiction. Both sides moved for summary
judgment on the issue of jurisdiction, and, on March 25, 1998, the
district court granted summary judgment for the Corps on that
question. App., infra, 14a.

The district court rejected SWANCC's contention that the
migratory bird rule exceeds the bounds of the Corps' authority to
define "navigable waters" and "waters of the United States." The
court recognized that "the Fourth Circuit reached the opposite
conclusion in United States v. Wilson." App., infra, 30a. But it
"decline[d] to follow" Wilson, holding that the migratory bird rule is
justifiable because one purpose of the CWA is "to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." Id. at 29a, quoting 33 U.S.C. S 1251(a).

The district court also rejected SWANCC's argument that the
Commerce Clause and United States v. Lopez, 514 U.S. 549
(1995), bar the migratory bird rule and require the statute to be read
more narrowly. App., infra, 30a-31a. Distinguishing Wilson and
Lopez, the court relied on prior circuit precedent and Leslie Salt II
to conclude that the "commerce clause power, and thus the Clean
Water Act, is broad enough to extend the Corps' jurisdiction to
local waters which may provide habitat to migratory birds and
endangered species." Ibid.; see also id. at 17a-24a. Subsequently,
SWANCC dismissed the remainder of its claims and the district
court entered final judgment for the Corps. Id. at 2a.
8

D. The Seventh Circuit's Decision

The Seventh Circuit affirmed. It first rejected SWANCC's
argument that the migratory bird rule violates the Commerce Clause,
or at least raises enough constitutional problems to mandate a
narrow interpretation of "navigable" "waters of the United States."
App., infra, 5a-9a. The court acknowledged that the migratory bird
rule can be justified, if at all, only under the third prong of federal
regulatory power set forth in Lopez: "regulation of activities that
'substantially affect' interstate commerce." Id. at 5a, quoting 514
U.S. at 558-559. It then held that although the Corps had made no
showing that the use of SWANCC's balefill site by migratory birds
had any effect on interstate commerce, "a single activity that itself has
no discernible effect on interstate commerce may still be regulated
if the aggregate effect of that class of activity has a substantial impact
on interstate commerce." App., infra, 6a. Finally, the court held that
"destruction of the natural habitat of migratory birds in the aggregate
'substantially affects' interstate commerce" because "millions of
people annually spend more than a billion dollars on hunting,
trapping, and observing migratory birds," including by "trave[l]
across state lines." Id. at 7a.

Turning to SWANCC's argument that the migratory bird rule is
not a permissible interpretation of the CWA, the court of appeals
held that the "scope of the Act reaches as many waters as the
Commerce Clause allows." Accordingly, it concluded, "because
Congress' power under the Commerce Clause is broad enough to
permit regulation of waters based on the presence of migratory
birds, it is certainly reasonable for the * * * Corps to interpret the
Act in such a manner." App., infra, 10a.

REASONS FOR GRANTING THE PETITION

This Court should grant review because the circuits are split as
to the jurisdictional reach of the CWA, and because the Seventh
Circuit reached a decision in this case that is erroneous as a matter
9

of statutory interpretation and constitutional law and seriously
infringes on prerogatives reserved to States and municipalities in our
system of federalism.

I. THE CIRCUITS ARE SPLIT OVER THE CORPS'
AUTHORITY TO REGULATE ISOLATED INTRA-
STATE WATERS BASED ON THEIR ACTUAL OR
POTENTIAL USE BY MIGRATORY BIRDS

In United States v. Riverside Bayview Homes, 474 U.S. 121,
129 (1985), this Court upheld the Corps' construction of the Clean
Water Act to cover not only "navigable or interstate waters and their
tributaries" but also wetlands "adjacent" to such waters. (Emphasis
added). This Court reserved and did "not express any opinion"
regarding the Corps' much more ambitious claim of authority "to
regulate discharges of fill material into wetlands that are not adjacent
to bodies of open water"--referencing specifically the Corps' claim
in 33 CFR S 328.3(a)(3) to have jurisdiction over "other waters

* * * the use, degradation or destruction of which could affect
interstate commerce." 474 U.S. at 131 n.8. The courts of appeals
have disagreed about the question reserved in Riverside Bayview
Homes, including about the very furthest reach of the Corps'
assertion of jurisdiction over "other waters," the migratory bird rule.

1. The Fourth Circuit in Wilson held "invalid" the Corps' "other
waters" regulation, 33 CFR S 328(a)(3)--the regulation that the
migratory bird rule expressly purports to "clarif[y]" (App., infra,
39a)--on the ground that it "exceeded [the Corps' regulatory
power] under the Clean Water Act." 133 F.3d at 257. Had
Congress enacted S 328(a)(3) as a statute, the court pointed out, "it
would present serious constitutional difficulties * * * under the
Commerce Clause," because it "requires neither that the regulated
activity have a substantial effect on interstate commerce, nor that the
covered waters have any sort of nexus with navigable, or even
interstate waters." Ibid. But, the court held, because the other
waters regulation "is not a statute," "[a]bsent a clear indication to the
10

contrary, we should not lightly presume that merely by defining
'navigable waters' as 'the waters of the United States,' * * *
Congress authorized the Army Corps of Engineers to assert its juris-
diction in such a sweeping and constitutionally troubling manner."
Ibid.

In addition to identifying constitutional difficulties with the Corps'
claim to jurisdiction over "other waters," the Fourth Circuit held that
S 328(a)(3) "expands the statutory phrase 'waters of the United
States' beyond its definitional limit." 133 F.3d at 257. "[A]s a matter
of statutory construction," the Fourth Circuit held, "one would
expect that the phrase 'waters of the United States' when used to
define the phrase 'navigable waters' refers to waters which, if not
navigable in fact, are at least interstate or closely related to interstate
or navigable waters." Ibid.

The Seventh Circuit thought Wilson irrelevant for two reasons,
both mistaken. First, Wilson "involved a challenge to 33 C.F.R.
S 328(a)(3)," while SWANCC "limited its objections to the
propriety of the migratory bird rule as an interpretation of"
S 328(a)(3). App., infra, 10a. Obviously, however, the Fourth
Circuit would not, under its reasoning, uphold an interpretation or
clarification of the very regulation it held invalid: Wilson effectively
struck down not just S 328(a)(3), but also the migratory bird rule.
That is especially clear because the migratory bird rule even more
broadly interprets "waters of the United States" than the underlying
regulation. Instead of requiring a connection or potential connection
with interstate commerce, like the regula-tion, the rule only requires
a connection or potential connection with migratory birds that are
"protected by Migratory Bird Treaties" or "cross state lines." App.,
infra, 40a.

Second, the Seventh Circuit pretended that the Wilson ruling
was limited to the question whether "Congress may regulate waters
based on their potential to affect interstate commerce." App., infra,
at 10a. As the quotations from Wilson set out above show, Wilson
11

cannot be so narrowly cabined. The Fourth Circuit struck down the
"other waters" rule because it does not require a showing of a
"substantial effect on interstate commerce" or a "nexus" with
navigable or interstate waters. 133 F.3d at 257. Unsurprisingly,
since it is solely an interpretation of S 328(a)(3), the migratory bird
rule does not require a showing of a substantial effect on interstate
commerce or any nexus with navigable or interstate waters either.
The Fourth Circuit's Commerce Clause analysis thus applies equally
to the migratory bird rule. The Seventh Circuit also simply ignored
the alternative statutory basis for the Wilson decision. Ibid. Without
doubt, the Fourth Circuit holds the migratory bird rule, as well as the
regulation it interprets, beyond the Corps' statutory authority
because it requires no connection to navigable or interstate waters
or waters closely related thereto.

Wilson cannot be distinguished, and it is flatly at odds with the
Seventh Circuit's decision in this case that the migratory bird rule is
constitutionally unproblematic and statutorily authorized, as well as
with the similar decisions of other circuits. See Leslie Salt Co. v.
United States (Leslie Salt I), 896 F.2d 354, 360 (9th Cir. 1990)
("The commerce clause power, and thus the Clean Water Act, is
broad enough to extend the Corps' jurisdiction to local waters which
may provide habitat to migratory birds and endangered species");
Utah v. Marsh, 740 F.2d 799, 803-804 (10th Cir. 1984) (uphold-
ing Corps jurisdiction over intrastate lake because its waters were
used for fisheries and to irrigate crops which were subsequently
marketed interstate, it was visited by out-of-state tourists, and it was
on migratory bird flyways).

Had SWANCC's balefill been located in the Fourth Circuit, the
result in this case would certainly have been different. This Court
should not tolerate a circuit split on an issue as important as the
scope of federal jurisdiction under
national legislation like the Clean
Water Act. Municipalities and other landowners are entitled to
consistent treatment under the CWA throughout the country; the fate
12

of their projects should not turn on the happenstance of where their
land is located. And the need for national uniformity is especially
great because anyone planning to dredge or fill waters within the
Corps' jurisdiction must obtain a permit or risk facing criminal
sanctions. See, e.g., Wilson, 133 F.3d 251 (criminal convictions at
issue). Whether an act is a federal crime or not should not depend
on where in the country the act takes place.

2. Justice Thomas questioned the validity of the Corps'
migratory bird rule in his dissent from the denial of certiorari to
review the Leslie Salt II decision. He stated that the issue presented
in that case--as here--"raises serious and important constitutional
questions about the limits of federal land-use regulation in the name
of the Clean Water Act." Cargill, Inc. v. United States, 516 U.S.
955, 959 (Thomas, J., dissenting from denial of certiorari).

Justice Thomas observed that "[t]he basis asserted to create
federal jurisdiction over petitioner's land"--"the actual or potential
presence of migratory birds on petitioner's land" --is "even more
far-fetched than that offered, and rejected, in Lopez." 516 U.S. at
957-958. Justice Thomas described as "improper" the Corps'
"assumption * * * that the self-propelled flight of birds across state
lines creates a sufficient interstate nexus to justify the Corps'
assertion of jurisdiction." Id. at 958. He observed that in Leslie Salt,
as here, the Corps made "no showing that humans ever went to
petitioner's property to hunt, trap, or observe migratory birds," or
"that the cumulative effect of land use involving * * * wholly isolated
[waters] would have a substantial effect on interstate commerce." Id.
at 959. There was, in short, absolutely no explanation how "the
activity on the land to be regulated * * * substantially affect[ed]
interstate commerce." Ibid.
13

Justice Thomas concluded that the migratory bird rule "likely
stretches Congress' Commerce Clause powers beyond breaking p-
oint" and expressed, "[i]n light of Lopez, * * * serious doubts about
the propriety of the Corps' assertion of jurisdiction over petitioner's
land." 516 U.S. at 958.

Although Justice Thomas' position did not garner four votes to
review the Leslie Salt II decision, review of the migratory bird rule
has since become more urgent with the Fourth Circuit's 1997 rejec-
tion of the Corps' jurisdiction over "other waters" in Wilson.

3. Circuit judges have been equally critical of the "other waters"
and migratory bird rules in individual opinions. In his concurrence in
Hoffman Homes, Inc. v. United States Envtl Protection Agency,
999 F.2d 256, 262-263 (7th Cir. 1993), for example, Judge
Manion concluded both that the CWA gives no federal jurisdiction
over "isolated wetlands" that "have no effect on the waters of the
United States," and that even if it did, "the Commerce Clause does
not empower Congress to regulate isolated wetlands * * *. To hold
other-wise would be, in effect, to hold that Congress' power under
the Commerce Clause is virtually limitless." Id. at 263; see also ibid.
("The commerce power as construed by the courts is indeed
expansive, but not so expansive as to authorize regulation of puddles
merely because a bird traveling interstate might decide to stop for a
drink"). Judge Rymer, in her separate opinion in Leslie Salt I, was4
likewise unimpressed with the legal basis for the Corps' migratory
bird rule. Leslie Salt I, 896 F.2d at 361 n.1 (Rymer, J., concurring
in part and dissenting in part); see also United States v. Larkins,
852 F.2d 189, 193-194 (6th Cir. 1988) (Merritt, J., concurring);

4

vacated opinion for the Seventh Circuit in Hoffman Homes, Inc. v.
United States Envtl Protection Agency, 961 F.2d 1310 (7th Cir.
1992).
Judge Manion's analysis is more fully set forth in his subsequently
14

Leslie Salt II, 55 F.3d at 1396 ("The migratory bird rule certainly
tests the limits of Congress' commerce powers and, some would
argue, the bounds of reason").

It is no surprise, given these disagreements, that the Corps' juris-
dictional grab has also drawn considerable scholarly attention. By
and large, commentators recognize that the Corps' exercise of juris-
diction over "isolated waters" and migratory bird habitat pushes the
edges (at the very least) of federal Commerce Clause power. E.g.,
Nagle, The Commerce Clause Meets the Delhi Sands Flower-
Loving Fly, 97 MICH. L. REV. 174, 185 n.49 (1998) ("Why the fact
that a bird or animal crosses state lines of its own volition and
without being itself an object of interstate commerce is sufficient for
Commerce Clause purposes remains unexplained").5

5

Questioning the Value of State Sovereignty in the Context of
Wetland Regulation, 39 WM. & MARY L. REV. 1695, 1696 (1998)
(noting "concerns" regarding the validity of the migratory bird rule "in
view of the Lopez decision"); Linehan, Endangered Regulation:
Why the Commerce Clause May No Longer Be Suitable Habitat
for Endangered Species and Wetlands Regulation, 2 TEX. REV. L.
& POL. 365, 414 (1998) (isolated wetland regulations "will be
susceptible to Commerce Clause attack because they are indefensible
as proper regulations of 'commerce' under any untortured definition
of the word"); Bueschen, Do Isolated Wetlands Substantially
Affect Interstate Commerce?, 46 AM. U.L. REV. 931, 950 (1997)
(explaining that in light of Lopez, the migratory bird rule "could be in
jeopardy"); Warner, The Potential Impact of United States v. Lopez
on Environmental Regulation, 7 DUKE ENVT'L L. & POLICY
FORUM 321, 351 (1997) ("A rule permitting jurisdiction to be
determined solely by potential use of a wetland by migratory birds is
arguably too tenuously connected to interstate commerce to trigger
the commerce power in light of Lopez's substantiality requirement");
See also, e.g., Gilbert, The Migratory Bird Rule After Lopez:
15

Beyond the clear circuit split with Wilson, the separate opinions
by Justice Thomas and others and the wealth of critical academic
commentary demonstrate the diversity of views on the propriety of
the migratory bird rule and show that confusion in this area will
continue and likely escalate absent this Court's immediate interven-
tion.

II. THE MIGRATORY BIRD RULE IS AN IMPERM-
ISSIBLE INTERPRETATION OF THE CWA

The Seventh Circuit's decision to defer to the Corps' interpreta-
tion of the Clean Water Act is incorrect. Courts properly defer to an
agency's interpretation of a statute "only if Congress has not
expressed its intent with respect to the question, and then only if the
administrative interpretation is reasonable." Presley v. Etowah
County Comm'n, 502 U.S. 491, 508 (1992). A court "ascertains
[whether] Congress had an intention on the precise question at issue"
by "employing traditional tools of statutory construction," including
analysis of the text, structure, "history and policy of the Act."
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Leman, The Birds: Regulation of Isolated Wetlands and the Limits
of the Commerce Clause, 28 U.C. DAVIS L. REV. 1237, 1267 (1995)
("It is unreasonable to argue that the potential use of an isolated
wetland by any species of migratory bird substantially affects
interstate commerce"); Bablo, Leslie Salt Co. v. United States: Does
the Recent Supreme Court Decision in United States v. Lopez
Dictate the Abrogation of the "Migratory Bird Rule"?, 14 TEMP.
ENVT'L L. & TECH. J. 277, 278 (1995) ("the very tenuous tie between
migratory birds and interstate commerce does not satisfy the tests of
the Commerce Clause enunciated in Lopez"); Lessner, Leslie Salt
Co. v. United States: Keep the Birds Out of Your Birdbath: It May
Be Considered The Jurisdiction of the Army Corps of Engineers
as a "Water of the United States," 2 VILL. ENVT'L L.J. 463, 500
(1991) (expressing doubt that a migratory bird habitat "can be
declared to be such a nexus to interstate commerce as to warrant
Army Corps of Engineers jurisdiction").
16

467 U.S. 837, 843 n.9, 862 (1984). Applying that familiar standard,
the migratory bird rule is invalid. It is inconsistent with the language
and history of the CWA, and it fails to pass muster under established
canons of interpretation requiring that a statute be construed to avoid
raising serious constitutional questions and to avoid impinging on
areas traditionally regulated by the states.

A. The Plain Language of the Act Requires Jurisdictional
Waters To Be Related To Navigable Waters

The plain language of the CWA prohibits discharges into
"navigable waters," defined as "waters of the United States." 33
U.S.C. SS 1344(a), 1362(7). The Corps and the court below
played favorites with these terms, ignoring the phrase "navigable
waters" and focusing exclusively on the phrase "waters of the United
States." App., infra, 9a. But "'[j]udges should hesitate * * * to treat
[as surplusage] statutory terms in any setting.'" Bailey v. United
States, 516 U.S. 137, 145 (1995). The statutory phrases "navigable
waters" and "waters of the United States" are both essential to
divining congressional intent. The former concept, properly under-
stood, forecloses the Corps' migratory bird rule.

1. "Navigable waters" is a term of art that traditionally meant
"waters navigable in fact" (The Daniel Ball, 77 U.S. (10 Wall.)
557, 563 (1870)), but that was refined over time to include those
waters capable of navigation through reasonable improvements.
United States v. Appalachian Elec. Power Co., 311 U.S. 377,
298-299 (1940); see BLACK'S LAW DICTIONARY 1179 (4th ed.
1968); Gilbert v. United States, 370 U.S. 650, 655 (1962)
(statutory terms are generally to be given their established common
law meaning). No one asserts that the gravel-mining depressions on
SWANCC's property are navigable in either sense.

2. The Seventh Circuit ignored this settled common-law
meaning of "navigable waters" and treated that statutory phrase as
surplusage. It justified that approach by pointing to the CWA's
definition of "navigable waters" as the "waters of the United States,"
17

then treating that phrase as the sole source of limits on the Corps'
jurisdiction. App., infra, 9a.

It was error for the court of appeals to write the phrase
"navigable waters" out of the CWA. In fact, the meaning of the
phrase "waters of the United States," while somewhat broader than
"navigable waters," is informed by and incorporates the idea of
navigability. As this Court has held, the phrase means those waters
which "form in their ordinary condition by themselves, or by uniting
with other waters, a continued highway over which commerce is
or may be carried on with other States or foreign countries in the
customary modes in which such commerce is conducted by
water." The Daniel Ball, 77 U.S. at 563 (emphasis added); see
also The Montello, 87 U.S. (20 Wall.) 430, 443 (1874).

Thus, as the Fourth Circuit explained in Wilson, "the phrase
'waters of the United States' when used to define the phrase
'navigable waters'" naturally "refers to waters which, if not navigable
in fact, are at least interstate or closely related to navigable or
interstate waters." 133 F.3d at 257. The migratory bird rule, like the
regulation it purports to interpret, "defines 'waters of the United
States' to include waters that need have nothing to do with navigable
or interstate waters," and deserves no deference because it
"expands the statutory phrase 'waters of the United States' beyond
its definitional limit." Ibid.

3. The Seventh Circuit's reliance on this Court's decision in
Riverside Bayview Homes as support for its interpretation of the
CWA is misplaced. This Court explained in Riverside Bayview that
Congress' use of the phrase "waters of the United States" in the
CWA evidences an intent to "regulate at least some waters that
would not be deemed 'navigable' under the classical understanding,"
and in that sense (only), the concept of navigability "is of limited
import" in the CWA. Riverside Bayview Homes, 474 U.S. at 133
(emphasis added). Nowhere, however, has this Court suggested that
18

the Corps can ignore altogether the concept of navigability, as it
does in its "other waters" and migratory bird rules.

To the contrary, in stark contrast to Corps' sweeping definition
of "waters of the United States," the definition this Court found
reasonable in Riverside Bayview--navigable waters and their
"adjacent wetlands"--does accord with the traditional interpretation
of "waters of the United States" as a "continued highway for
commerce." "Adjacent wetlands" abut navigable waters, thus
forming a "continued highway" and becoming "waters of the United
States." The Daniel Ball, 77 U.S. at 563; The Montello, 87 U.S.
at 443; see also DeLovio v. Boit, 7 F.Cas. 418, 423 (Cir. Ct.,
D.Mass. 1815) (Storey, J.) ("marsh land, bordering on the sea" may
be within the admiralty jurisdiction). Isolated, man-made depressions
that fill with rainwater are not remotely similar. Thus, Riverside
Bayview provides no support for the extraordinary extension of
federal jurisdiction over local land use approved by the Seventh
Circuit.

4. The only statutory analysis engaged in by the court below
was its iteration of the purpose of the Act, which includes the phrase
"biological integrity" and the goal of ensuring "water quality which
provides for the protection and propagation of * * * wildlife." App.,
infra, 10a. But "[a]pplication of 'broad purposes' of legislation at
the expense of specific provisions ignores the complexity of the
problems Congress is called upon to address and the dynamics of
legislative action * * * and, in the end, prevents the effectuation of
congressional intent." Board of Governors v. Dimension Fin.
Corp., 474 U.S. 361, 373-374 (1986).

In contrast to the highly generalized purposes of the Act relied
on by the Seventh Circuit, the CWA's text is specific and transpar-
ently clear. When it enacted the CWA, Congress was no stranger
to the terms "navigable waters" and "waters of the United States,"
including their common law meanings and alternatives. It had
19

previously used both concepts "to determine the extent of the
authority of the [Corps] under the Rivers and Harbors Appropriation
Act of 1899," 33 U.S.C. S 403. Kaiser Aetna v. United States,
444 U.S. 164, 171 (1979). Congress' choice to use those well-
understood terms to define the scope of the CWA should not be
treated lightly, and it supports the Fourth Circuit's view of the
Corps' jurisdiction, not the Seventh Circuit's interpretation.

Equally telling, in the Federal Power Act Congress gave an
agency authority over activities not only on "navigable waters," but
also on streams "other than those defined in this chapter as
navigable waters, and over which Congress has jurisdiction
under its authority to regulate commerce with foreign nations
and among the several States." 16 U.S.C. S 817 (emphasis
added). It follows that "Congress knew how to draft a statute to6
reach" all nonnavigable waters over which Congress has Commerce
Clause jurisdiction. Bailey, 516 U.S. at 150. That Congress used no
similar language in the CWA indicates that, contrary to the ruling
below, it did not intend the CWA to apply so broadly.

B. Legislative History Confirms That Congress Did Not
Intend The Corps To Base Jurisdiction Merely On The
Presence Of Migratory Birds

This Court will not defer to an agency construction where "the
legislative history of the enactment shows with sufficient clarity that
[it] is contrary to the will of Congress." Japan Whaling Ass'n v.
American Cetacean Soc'y, 478 U.S. 221, 233 (1986). Such is the
case here.

6

Power Act, this Court has refused to extend congressional authority
to "intrastate nonnavigable waters which do not flow into any
navigable streams." Federal Power Comm'n v. Union Elec. Co.,
381 U.S. 90, 97 & n.9 (1965).
It is noteworthy that even under the broadly worded Federal
20

1. Section 404(a) and the definition of "navigable waters" as
"waters of the United States" originated in the Federal Water
Pollution Control Act Amendments of 1972. In the thousands of
pages of legislative history of those amendments, isolated waters are
mentioned not once. Neither the government nor the court below has
produced a single such reference. Yet the extension of federal
jurisdiction to isolated waters implicates many millions of acres.
Given the important policy and political interests at stake in drawing
the boundary line between federal and local control of development,
such a vast expansion of federal authority over heretofore local
concerns would hardly have passed in silence.

Congressional statements about the language that was used in
the statute--"navigable waters" and "waters of the United
States"--reflect established common law definitions. See 118
CONG. REC. H33,756 (1972) (statement of Rep. Dingell, House
floor manager); id. at H33,699 (statement of Sen. Muskie, Senate
floor manager). By defining "navigable waters" as "waters of the
United States," the legislative history shows, Congress merely sought
to avoid giving "navigable waters" its most "limited" or "technical"
meaning--navigable in fact--"derived from the Daniel Ball case."
Id. at H33,756 (Rep. Dingell). Congress wanted a definition "in line
with more recent judicial opinions" that "expanded that limited view
of navigability * * * to include
waterways which would be 'suscepti-
ble of being used * * * with reasonable improvement,' as well as
those waterways which include sections presently obstructed by
falls, rapids, sand bars, currents, floating debris, et cetera." Ibid.,
quoting United States v. Utah, 283 U.S. 64, 72 (1931). See also
ibid. (Rep. Dingell quotes cases, which all involve waters previously
or currently obstructed to navigation). In other words, the text was
designed to reference the broader definitions of "navigable waters"
and "waters of the United States" established by this Court. See also
118 CONG. REC. H33,699 (statement of Sen. Muskie).
21

In light of these explanations, the statement in the House and
Senate conference reports that "[t]he conferees fully intend that the
term 'navigable waters' be given the broadest possible constitu-
tional interpretation" is clear. S. REP. No. 92-1236, 92d Cong., 2d
Sess. 144 (1972) (emphasis added); see also H.R. REP. No. 92-
911, 92d Cong., 2d Sess. 131 (1972). Congress simply meant that
the CWA should reach waters capable of navigation by reasonable
improvement, consistent with this Court's decisions in cases such as
Appalachian Electric and United States v. Utah. It does not
mean, as the Seventh and Ninth Circuits have held, that the CWA
"reaches as many waters as the Commerce Clause allows." App.,
infra, 9a (emphasis added); Leslie Salt I, 896 F.2d at 360. Had
that been Congress' intent, it would have said so expressly, as it did
in the Federal Power Act.

2. No different message was sent by Congress when, in 1977,
it rejected amendments that would have limited the Corps' authority
to waters navigable in fact and their adjacent wetlands. This Court
concluded in Riverside Bayview Homes that Congress' inaction
showed that "the scope of the Corps' asserted jurisdiction over
wetlands was specifically brought to Congress' attention," and that
"even those who thought that the Corps' existing authority under S
404 was too broad" recognized that existing legislation should be
read to cover adjacent wetlands. 474 U.S. at 137-138 (emphasis
added). Neither conclusion supports the migratory bird rule.

First, the migratory bird rule was not officially promulgated by
the Corps until 1986. 51 Fed. Reg. 41206, 41217 (1986); App.,
infra, 39a. Absent clairvoyance, Congress could not have "acqui-
esced in the Corps' definition of waters" (474 U.S. at 138) in the
migratory bird rule by its failure to act in 1977. See Leslie Salt I,
896 F.2d at 361 n.1 (Rymer, J., dissenting) (rejecting argument that
Congress acquiesced in the migratory bird rule because "[t]his 1986
addition to, or clarification of, the Corps' regulations was not
considered during congressional debates on the [CWA] of 1977").
22

Second, even the government has not ventured to suggest that "even
those who thought that the Corps' existing authority under S 404
was too broad" would comfortably read the existing legislation to
cover isolated intrastate depressions visited by migratory birds. Nor
could it: the migratory bird rule marks the very furthest extent of
asserted federal jurisdiction and is a giant leap beyond the normal
bases upon which the federal government inserts itself into local
affairs. In sum, the legislative history of Section 404 provides no
support for, but contradicts, the migratory bird rule.

C. No Deference Is Owed To The Migratory Bird Rule
Because It Raises Serious Constitutional Concerns

1. The migratory bird rule is also entitled to no deference
because it raises "serious constitutional concerns" and "there is
another interpretation that may fairly be ascribed" to the Act.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 577 (1988); see also
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501 (1979)
(when an agency's "exercise of its jurisdiction * * * would give rise
to serious constitutional questions" no deference is owed unless the
regulation denotes "the affirmative intention of the Congress clearly
expressed"). The Commerce Clause "is subject to outer limits."
Lopez, 514 U.S. at 557. The migratory bird rule hovers around or
exceeds those limits, at minimum raising "serious constitutional
questions." Even defenders of the migratory bird rule acknowledge
that it "tests the limits of Congress' commerce powers, and, some
would argue, the bounds of reason." Leslie Salt II, 55 F.3d at 1396.

2. The Seventh Circuit recognized that the migratory bird rule
can be justified, if at all, only as regulation of an activity that
"substantially affect[s]" interstate commerce. App., infra, 6a-7a;
Lopez, 514 U.S. at 558-559. But the court did not rest its decision
that the rule is constitutionally unproblematic on a showing by the
Corps that filling gravel-mining depressions on SWANCC's
23

propertywould "substantially" affect interstate commerce. The terms
of the migratory bird rule require nothing more than the particular
waters in question "are or would be used" as a habitat by migratory
birds that are protected by international treaty or that "cross state
lines" (App., infra, 40a), and the Corps made no showing beyond
that requirement when it determined that SWANCC's balefill
property is within its jurisdiction. See App., infra, at 6a (acknowl-
edging that any impact on birds on SWANCC's property "has no
discernible effect on interstate commerce"). The migratory bird rule's
lack of any connection to commerce, reflected in the Corps
jurisdictional determination in this case, renders the basis for federal
jurisdiction "even more farfetched than that offered, and rejected in
Lopez" and raises "serious doubts" about the "propriety of the
Corps' assertion of jurisdiction." Cargill, 516 U.S. at 958 (Thomas,
J., dissenting from denial of certiorari).

3. The Seventh Circuit avoided the difficulty that migratory bird
use of SWANCC's property has "no discernable effect on interstate
commerce" by theorizing that the "cumulative impact" of "the
destruction of migratory bird habitat" "substantially affects" interstate
commerce in hunting and birdwatching. App, infra, 6a-7a. The7
commerce power may not be extended by that kind of bootstrap-
ping.

7

a "showing that the cumulative effect of land use involving * * *
water that is wholly isolated from any water used, or usable, in
interstate commerce" would have a substantial effect on migratory
birds, much less "a substantial effect on interstate commerce."
Cargill, 516 U.S. at 959 (Thomas, J.) (emphasis added). There is no
evidence that the numbers of any commercially relevant bird species
would diminish as a result of the Corps not regulating isolated waters.
The speculative assumption that filling a particular intrastate pond or
trench will have a noticeable effect on migratory birds, which in turn
will have a substantial effect on commerce, depends on "pil[ing]
inference upon inference," an approach rejected in Lopez. 514 U.S.
at 567.
The Seventh Circuit disregarded the fact that there has never been
24

To be sure, "[w]here the class of activities is regulated and that
class is within the reach of federal power" because of its aggregated
effect on commerce, "the courts have no power 'to excise, as trivial,
individual instances' of the class." Perez v. United States, 402 U.S.
146, 154 (1971), quoting Maryland v. Wirtz, 392 U.S. 183, 193
(1968). But "the de minimis character of individual instances * * *
is of no consequence" only when those instances are "essential
part[s]" of "a general regulatory statute" that "bears a substantial
relation to commerce." Lopez, 514 U.S. at 558. Here, isolated,
purely intrastate wet areas are not within the class obviously
regulated by Congress in the CWA, nor did Congress show any
concern in the CWA with migratory birds as a class. And the Corps
has never explained how preventing the filling of isolated, intrastate,
man-made depressions is "essential" to any goal identified by
Congress in the CWA.

The "regulated class" approach to Commerce Clause analysis,
which recognizes federal jurisdiction despite the lack of any
significant effect on commerce of particular regulated circumstances,
should have no application in cases such as this where there is a
glaring disconnect between the class covered by the statute ("naviga-
ble" "waters of the United States") and the asserted basis of an
agency's jurisdiction (migratory birds), and where the agency has
failed to show that extending its jurisdiction is essential to the
achievement of any statutory goal. See, e.g., United States v. Bird,
124 F.3d 667, 676 (5th Cir. 1997) (rejecting the government's
claim that "Congress need only identify a broad 'class of activities'
and determine that, viewed in the aggregate, the class 'substantially
affects' interstate commerce," requiring instead the separate
incidents be connected to interstate commerce).8

8
Professor Nagle points out that this Court "has said little about how
25


4. The migratory bird rule contains no "jurisdictional element
which would ensure, through case-by-case enquiry" that particular
isolated waters "affec[t] interstate commerce." Lopez, 514 U.S. at
561. Under the rule, it is enough that the waters "are or would be
used as habitat" by any migratory bird. App., infra, 40a. Accord-
ingly, the Corps conducted no analysis of the impact on commerce
of filling the gravel-mining depressions on SWANCC's balefill site.

5. The basis of the Corps rule and assertion of jurisdiction here
appears to be that the self-propelled flight of birds across state or
national boundaries alone is enough to implicate the Commerce
Clause, allowing regulation of every place where the birds might
naturally stop. The ramifications of this assertion are astonishing.
Approximately five billion land birds migrate across North America
every year, with flyways covering the entire continental United
States. THE ATLAS OF BIRD MIGRATION 54-83 (ed. J. Elphick
1995); R. PETERSON, A FIELD GUIDE TO BIRDS 305-370 (4th ed.
1980). By the Corps' rationale, the Commerce Clause would stretch

far Congress can reach in aggregating activities or how one decides
what aggregations are permissible." But he notes that the "available
clues counsel against overly broad aggregations" like that relied on
below: "Lopez rejects any Commerce Clause test that every
conceivable federal statute could satisfy. The Court's frequently
stated concern about federalism pushes toward less sweeping
aggregations. And lower courts have rejected the contention that
Congress can satisfy the Commerce Clause simply by choosing a
broad category of activities whose aggregate effect on interstate
commerce is substantial." 97 MICH. L. REV. at 197-198 (footnotes
omitted). See also 1 L. TRIBE, CONSTITUTIONAL LAW 825 n.68 (3d
ed. 2000) ("Lopez leaves unanswered many questions regarding
focus and levels of generality [in aggregation] that were raised by
Wickard and its progeny"). Review in this case would give this
Court an opportunity to guide the lower courts in their application of
the aggregation principle, which has taken on greater practical
significance after Lopez.
26

to cover virtually every piece of property in the country, regardless
of its commercial or noncommercial use.

As in Lopez, "if we were9
to accept the Government's arguments, we are hard pressed to posit
any activity by an individual that Congress is without power to
regulate." 514 U.S. at 564.

At the very least, the migratory bird rule raises "serious constitu-
tional concerns." Edward J. DeBartolo Corp., 485 U.S. at 577;
see Cargill, 516 U.S. at 959 ("This case raises serious and
important constitutional questions about the limits of federal land-use
regulation in the name of the [CWA] that provide a compelling
reason to grant certiorari") (Thomas, J.). Because the Corps'
dubious approach lacks support in the text or legislative history,
much less the requisite "clearest indication" of congressional support,
the Seventh Circuit's deference to the rule cannot be sustained.

D. No Deference Is Owed To The Migratory Bird Rule
Because It Impinges On Traditional State Powers

The migratory bird rule also runs afoul the interpretative principle
that a court will not assume that Congress intended to substantially
"alter sensitive federal-state relationships" by regulating conduct
"traditionally subject to state regulation" unless Congress said so
clearly. Rewis v. United States, 401 U.S. 808, 811-812 (1971);
see BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (if
a federal law is to be read to "radically readjus[t] the balance of

9

Homes. See 961 F.2d at 1321 n.9 (government conceded that its
interpretation would allow it to regulate a puddle visited by migratory
birds). See also Holman, After United States v. Lopez: Can the
Clean Water Act and the Endangered Species Act Survive
Commerce Clause Attack?, 15 VA. ENVT'L L.J. 139, 197 (1995)
("migratory flyways cover the entire United States and, as birdwatch-
ers will attest, migratory birds will alight almost anywhere. Thus the
migratory bird rule * * * operates as a limiter-manque--a limiting rule
with no limits").
The government conceded as much at oral argument in Hoffman
27

state and national authority," "those charged with the duty of
legislating [must be] reasonably explicit").

Byvastly expanding federal jurisdiction to include tens of millions
of acres of isolated intrastate waters and wetlands --traditionally the
exclusive province of the States and their subdivisions--the migra-
tory bird rule drastically alters "sensitive federal-state relationships,"
making the Corps a sort of super zoning board for all permanently
or seasonally wet areas of the United States. Under the migratory
bird rule, it is the Corps that ultimately decides whether a project is
in the "public interest" (33 CFR S 320.4(a)), supplanting the
considered judgments of state and local authorities, as it did in this
case. Such a rule was not anticipated by Congress, much less clearly
intended, and therefore cannot be sustained.

In light not only of Lopez, but also this Court's federalism
jurisprudence in recent cases such as last Term's sovereign immunity
decisions, Printz v. United States, 521 U.S. 898 (1997), Seminole
Tribe v. Florida, 517 U.S. 44 (1996), and New York v. United
States, 505 U.S. 144 (1992), this Court should demand much
clearer authority from Congress before permitting an agency to
deprive states and municipalities of their traditional police powers
over the use of land so ephemerally connected to interstate com-
merce. "Although the Constitution grants broad powers to Con-
gress, our federalism requires that Congress treat the States in a
manner consistent with their status as residuary sovereigns and joint
participants in the governance of the Nation." Alden v. Maine, 119
S. Ct. 2240, 2263 (1999). The Founders likewise understood that
the States "form distinct and independent portions of the supremacy,
no more subject, within their respective spheres, to the general
authority, than the general authority is subject to them, within its own
sphere." THE FEDERALIST NO. 39, at 245 (C. Rossiter ed. 1961) (J.
Madison).
28

BFP is instructive. There, this Court rejected an interpretation
of the Bankruptcy Code that would have preempted state foreclo-
sure law. The Court explained that the power to ensure the security
of titles to real estate "inheres in the very nature of [state] govern-
ment" and that the construction urged by the government would in-
trude on "the essential [state] sovereign interest in the security and
stability of title to the land." 511 U.S. at 544 & n.8. This Court
would not permit an interpretation of the Code that "displace[d] tra-
ditional state regulation in such a manner" absent a "'clear and mani-
fest'" statement of congressional intent. Id. at 544; see also Lopez,
514 U.S. at 567-568 (emphasizing the need to maintain "a distinc-
tion between what is truly national and what is truly local").

The same principle governs here. The migratory bird rule allows
for intrusive federal land-use regulation that impinges on "the
authority of state and local governments to engage in land use
planning," which this Court has recognized "as long ago as our
decision in Village of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926)." Dolan v. City of Tigard, 512 U.S. 374, 384 (1994).
Because land-use decisions are the prerogative of States and their
subdivisions, this Court has repeatedly deferred to these interests.
See Village of Belle Terre v. Boraas, 416 U.S. 1, 4 (1974);
Village of Euclid, 272 U.S. at 388; see also Village of Belle Terre,
416 U.S. at 13 (Marshall, J., dissenting on other grounds) ("zoning
is a complex and important function of the State" which "may indeed
be the most essential function performed by local government"). Just
as federal courts "do not sit to determine whether a particular
housing project is or is not desirable" (Berman v. Parker, 348 U.S.
26, 32 (1954)), so too should federal agencies forbear from
becoming local land-use authorities.

Thus, the text and history of the CWA, together with important
principles of statutory interpretation that serve to protect state and
local powers from unintended federal interference, all indicate that
the Corps' migratory bird rule is an impermissible construction of the
29

Act that is owed no deference. The Seventh Circuit's contrary
decision is erroneous and should be reversed.

III. THE PETITION SHOULD BE GRANTED, NOT
HELD FOR JONES v. UNITED STATES

This Court has granted certiorari in Jones v. United States, No.
99-5739 (cert. granted Nov. 15, 1999), to decide whether inter-
preting the federal arson statute to reach intra-state arson of
residential property is permissible in light of Commerce Clause
constraints on federal power. See Order List, Nov. 15, 1999
(reformulating the question for review as "[w]hether, in light of
United States v. Lopez, * * * and the interpretative rule that
constitutionally doubtful constructions should be avoided, * * * [18
U.S.C.] Section 844(i) applies to the arson of a private residence;
and if so, whether its application to the private residence in the
present case is unconstitutional").

It appears likely that in Jones this Court will provide guidance
as to the effect Commerce Clause concerns should have on the
proper interpretation of jurisdictional grants in federal statutes.
Stated in the abstract, that issue is of obvious relevance to this case:
we contend that Commerce Clause problems raised by the migra-
tory bird rule mean that it is an impermissible construction of the
CWA under the established "interpretative rule that constitutionally
doubtful constructions should be avoided." Nevertheless, holding this
petition for Jones would not be useful or appropriate.

To begin with, this case and Jones involve very different statutes
and entirely different factual bases that are alleged by the United
States to provide a sufficient nexus to interstate commerce. There is
no reason to believe that this Court's ruling whether a federal arson
conviction may be based on the burned residence's receipt of out-
of-state gas (and the like) will illuminate whether the presence of
migratory birds is a proper basis for CWA jurisdiction. The different
language of the statutes involved, their different regulatory histories,
30

and the vastly different questions whether the supply of natural gas
to a residence or use of wet areas by migratory birds are "interstate
commerce," suggest that however this Court decides Jones, the
issue in this petition will remain alive and in urgent need of this
Court's review.

The two cases also involve completely different Commerce
Clause issues. Jones concerns a "case-by-case inquiry" into
evidentiary sufficiency under a statutory jurisdictional element. This
case raises the wholly different question of when deference is owed
to agencies that seek to stretch their own jurisdiction to (or beyond)
constitutional limits.

Moreover, the Seventh Circuit made abundantly clear that it
regards protecting migratory bird habitat as implicating interstate
commerce and sees no constitutionally doubtful interpretation at all
in this case. A ruling in Jones that Commerce Clause problems are
to be avoided by narrowing interpretations of jurisdictional grants
would have no impact whatsoever on the Seventh Circuit on remand
following a GVR, for the Seventh Circuit sees no conceivable
Commerce Clause problem to begin with.

In light of these differences, and because the courts of appeals
are in disarray as to an important issue concerning the scope of the
Clean Water Act that will not be settled in Jones, we urge this Court
to grant independent review in this case.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELIZABETH A. CLARK
Timothy S. Bishop
Mayer, Brown & Platt
Counsel of Record
1909 K Street, N.W.
Mayer, Brown & Platt
Washington, D.C. 20006
190 South LaSalle Street
(202) 263-3000
Chicago, IL 60603

(312) 782-0600
GEORGE J. MANNINA, JR.
O'Connor & Hannan, L.L.P.
1666 K Street, N.W.
Suite 500
Washington, D.C. 20006
(202) 887-1400

Counsel for Petitioner
JANUARY 2000

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