U.S. v. Johnson Provides Another Interpretation Of Rapanos

Oct 31: In the U.S. Court of Appeals, First Circuit, Case No. 05-1444. Following the First Circuit's decision in this case, see United States v. Johnson, 437 F.3d 157 (1st. Cir. 2006), appellants moved for rehearing en banc (full panel), noting the Supreme Court's grant of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004). The Appeals Court held the petition in abeyance pending a decision in that case. Following the decision in Rapanos v. United States, appellants supplemented their previous petition. They requested that the Appeals Court grant a rehearing en banc to resolve the conflict between the panel decision and Rapanos, or, alternately, that the decision be vacated with prejudice on the ground that the evidence in the record supports a judgment in their favor. The government filed a response requesting that the Appeals Court vacate its previous decision and remand the case to the district court (Massachusetts). The Appeals Court said in a 2-1 decision, "After careful consideration, we vacate and remand for further proceedings consistent with Rapanos..."

In its opinion, the Appeals Court explained the history of the case saying, "In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants' motion for reconsideration, stating that 'there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.'" The Appeals Court affirmed the trial court's judgment in a divided, 2-1 decision. The majority concluded that it was unnecessary to decide whether the "diffusion of water through wetlands" was a sufficient hydrological connection to support a "significant nexus." The dissenting Judge said the United States "...may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters."

The Appeals Court offers a brief summation of the Supreme Court decision in Rapanos v. United States. In their briefs for en banc rehearing, appellants contended that a rehearing was necessary to resolve the tension between the panel opinion and Rapanos. They argued that under either the plurality opinion or Justice Kennedy's concurrence, a" hydrological connection" is insufficient to establish jurisdiction, although they also argued strenuously that the plurality's test alone should apply. The government argued that additional factfinding is necessary before the legal principles articulated in Rapanos can be applied in this case and opposed the petition for en banc review and urged the Appeals Court, instead "to vacate the panel's decision and remand the case to the district court."

The Appeals Court ruled, "We agree with the government that remand to the district court for application of the Rapanos standards is appropriate. The parties presented their cases in the district court without any awareness of the standards that now apply. They should now have an opportunity to develop their positions in the district court with an awareness of these standards. However, the question of what legal standard to apply is one of some complexity, and other courts have taken varying approaches to the issue. We conclude that the United States may assert jurisdiction over the target sites if it meets either Justice Kennedy's legal standard or that of the plurality. We explain our reasoning..."

In explaining, the Appeals Court says, in the months since Rapanos, four courts have applied its legal standards -- two district courts and two courts of appeals [See links below to the WIMS-EcoBizPort Special Report on Rapanos]. The Appeals Court discusses the district court decisions -- United States v. Evans; and United States v. Chevron Pipe Line Co. -- and the other Appeals Court decisions -- Northern California River Watch v. City of Healdsburg (9th Circuit); and USA v. Gerke Excavating, Inc.

The Appeals Court also analyzes the so-called "Marks directive" that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds," Marks, 430 U.S. at 193 (internal citation omitted). On Marks, the Appeals Court says the understanding of "narrowest grounds" as used in Marks "does not translate easily to the present situation."

In its conclusion, again in a split 2-1 decision, the Appeals Court says on remand, "...the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." The dissent in the opinion indicates, "I depart from the majority in interpreting what standards Rapanos has established. The plurality's 'hydrological connection' test provides the proper constitutional limit on federal regulation under the Clean Water Act. Although the majority has provided an able analysis of a thorny issue, I cannot concur that Justice Kennedy's seemingly opaque 'significant nexus' test is a constitutional measure of federal regulatory jurisdiction..."

Access the complete opinion and brief dissent (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]