USA v. Gerke Excavating, Inc. Interprets Rapanos Decision

Sep 22: In the U.S. Court of Appeals, Seventh Circuit (WI, IL, IN), Case No. 04-3941. This is the second U.S. appeals court case to interpret the U.S. Supreme Court 4-4-1 decision in Rapanos v. United States, 126 S.Ct. 2208 (2006) [See links below]. In a brief, but important 5-page decision, the Appeals Court reconsiders its previous decision in this case as a result of the Rapanos decision.

This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into “navigable waters” from “point sources” without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. The district judge granted summary judgment for the government and imposed a civil penalty. The Seventh Circuit Appeals Court affirmed that decision on June 21, 2005. 412 F.3d 804 (7th Cir. 2005).

Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case.

On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...

"Thus, 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), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority)."

In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."

Access the complete opinion (click here). Access the previous, June 21, 2005, decision of the Seventh Circuit in this case (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006, decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete Supreme Court Rapanos opinion and syllabus (click here). [*Water]