US Supreme Court Briefs

No. 99-1178

In The
Supreme Court of the United States








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



Nancie G. Marzulla
1350 Connecticut Ave., NW
Suite 410
Washington, DC 20036
(202) 822-6770

July 25, 2000


Whether the court below was required under the Chevron doctrine to defer to the Corps’ interpretation of its authority to regulate wildlife habitat under the Federal Water Pollution Control Act of 1972 ("Clean Water Act"), when Congress has evidenced no intent to grant the Corps such authority under other wildlife protection statutes and has instead granted such authority to other agencies?

Pursuant to Rule 37.3 of the Rules of this Court, amicus curiae submits this brief in support of Petitioner. Both parties and the intervenor have consented to the filing of this brief. Those letters of consent have been lodged with the Clerk of this Court.


Defenders of Property Rights is a non-profit, public interest legal foundation dedicated to the preservation of constitutionally protected property rights. Defenders’ mission is to protect those rights considered essential by the Framers of the Constitution and to promote the exercise of governmental power consistent with the constitutional limitations upon the exercise of that power. Defenders’ goal of the vigorous protection of property rights recognizes the special role of federal courts in protecting those rights. Since its founding in 1991, Defenders has participated in every significant property rights case in this Court including City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999); Phillips v. Washington Legal Found., 524 U.S. 156 (1998); Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997); Bennett v. Spear, 520 U.S. 154 (1997); Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995); Dolan v. City of Tigard, 512 U.S. 374 (1994); Keene Corp. v. United States, 508 U.S. 200 (1993); and, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).


This case involves an assertion of regulatory jurisdiction by the U.S. Army Corps of Engineers ("Corps") under Section 404 of the Federal Water Pollution Control Act ("Clean Water Act") over 17.6 acres of privately owned land. In 1987, the Corps originally concluded that it had no regulatory jurisdiction over the 17.6 acres of isolated wetland at issue in this case because the wetland did not meet the regulatory "definition of a wetland or lakes" or the broader definition of "‘waters of the United States.’" Petitioner’s Appendix ("Pet. App.") at 3a-14a, 16a. Later that same year, however, the Corps reversed its position and asserted that it did in fact have jurisdiction over the 17.6 acres because the land was or could be "habitat" for migratory birds. Pet. App. at 4a, 16a. Accordingly, pursuant to Section 404 of the Clean Water Act, the Corps denied petitioner’s wetland permit application. Id.

The Corps’ assertion of jurisdiction over the 17.6 acres of land in this case is not based on an express statutory grant of authority for the Corps to regulate wildlife habitat in non-navigable waters, nor upon an independent analysis of the Clean Water Act by the court below, but solely upon the agency’s interpretation of its own jurisdiction, to which the court below deferred. Pet. App. at 4a-13a.

Specifically, the court below held that it was required by the Chevron doctrine, set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984), to defer to the Corps’ interpretation of its jurisdiction under the Section 404 permitting program of the Clean Water Act. Pet. App. at 9a.


In determining whether or not Congress had in fact delegated regulatory authority over non-navigable migratory bird habitat to the Corps, the court below held that it was required to "review [the Corps’] interpretation of a statute it is charged with administering under the standard outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)." Pet. App. at 9a. The Chevron doctrine states that a court must defer to a reasonable interpretation of an ambiguous statute offered by the agency charged with administering the statute. Chevron, 467 U.S. at 844-45. This doctrine rests in part on the practical premise that agencies have superior technical expertise upon which Congress is entitled to call upon in the enactment of statutes that delegate to these expert agencies the role of fleshing out the details of the regulatory scheme through regulations. However, as this Court has noted, the constitutional heart of Chevron consists of appropriate judicial deference to legislative enactments (including delegation of some policy-making to the executive branch) which underlies the separation of powers doctrine:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s view of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices – resolving competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in the light of everyday realities. . . . The responsibilities for assessing the wisdom of such policy choices are not judicial ones: "Our Constitution vests such responsibilities in the political branches."

Chevron, 467 U.S. at 865-66 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)).

This Court has never held, however, that the legal determination of what power Congress has delegated to an agency (and what regulatory power Congress has withheld) turns on the agency’s policy determinations, rather than the traditional rules of statutory construction employed by the courts. To the contrary, last term, this Court held that although judicial deference is appropriate to an agency’s statutory interpretation, the reviewing court must nevertheless assure that the agency’s interpretation is not "‘inconsistent with the administrative structure that Congress enacted into law.’" Food & Drug Administration v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1297 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). This Court further held:

In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning--or--ambiguity of certain words or phrases may only become evident when placed in context. It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," and "fit, if possible, all parts into an harmonious whole." Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.

Id. at 1300-01 (citations omitted).

In the present case, the court below ignored these established canons of statutory construction, effectively converting the task of determining the outer limits of Corps jurisdiction from one of statutory construction into a policy matter to be decided by the Corps itself. By deferring to the agency’s policy determination as to its jurisdiction under the Clean Water Act, or the migratory bird rule which provides that the Corps can require a dredge and fill permit for isolated wetlands if the Corps believes that such wetlands are or could be habitat for migratory birds, the court below allowed the agency to define for itself the regulatory authority that Congress should have granted it as a policy matter, and not the legal question of whether Congress had, in fact, delegated such authority to the Corps.

In consequence, the court below completely ignored the fact that Congress has developed an entirely separate scheme for migratory bird protection: the Migratory Bird Treaty and the Migratory Bird Treaty Act of 1918, the treaty’s implementing statute. 16 U.S.C.A. §§ 703-712 (West 1985 & Supp. 2000). Moreover, Congress has established special protections for particular species, e.g., the Bald and Golden Eagle Protection Act, 16 U.S.C.A. §§ 668-668d, and generally for threatened and endangered species, the Endangered Species Act, 16 U.S.C.A. §§ 1531-1544. Congress has also created refuges, national seashores, wilderness areas, national parks, national marine sanctuaries and other specific designations that are designed to provide habitat for migratory birds and wildlife. See, e.g., National Park Service Organic Act of 1916, 16 U.S.C.A. §§ 1-18f-3; Refuge Recreation Act of 1962, 16 U.S.C.A. §§ 460k-460k-4; Wilderness Act of 1964, 16 U.S.C.A. §§ 1131-1136; National Wildlife Refuge System Administration Act of 1966, 16 U.S.C.A. §§ 668dd-668ee; Fish and Wildlife Conservation Act of 1980, 16 U.S.C.A. §§ 2901-2912; National Marine Sanctuaries Act, 16 U.S.C.A. §§ 1431-1445b.

In this entire scheme, the Army Corps of Engineers has no role, except to follow the dictates of those lead agencies to which Congress has, in fact, delegated such authority. See Bennett v. Spear, 520 U.S. 154, 154 (1997) (noting Corps must seek biological opinion from Fish and Wildlife Service under Section 7 of the Endangered Species Act when proposed potentially affects certain wildlife). Indeed, had Congress wanted to give the Corps authority over wildlife habitat protection under any of these statutes, or to implicate the Corps’ permitting authority under Section 404 of the Clean Water Act, there is no reason why it could not have done so.

In short, under the regulatory scheme adopted by Congress, there is nothing to even suggest that Congress ever intended that the Corps exercise the Clean Water Act’s Section 404 permitting authority over isolated wetlands solely because of the presence of migratory birds. The court below’s decision to defer to the agency’s policy determination regarding its own jurisdiction not only fails to take into account Congress’ overall administrative scheme with respect to the Clean Water Act and numerous wildlife protection statutes, but also runs afoul of the inherent limitation of the Chevron doctrine – separation of powers. Since Congress evidently did not intend to delegate wildlife habitat protection authority to the Corps, the Corps’ usurpation of that authority for itself turns on its head the very notion of separation of powers.

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