July 9, 2009

Eighth Circuit rules in post-Rapanos decision

By Joshua P. Thompson Senior Attorney

AuthorNicholas M. Gieseler

Bad news this morning by way of the Eighth Circuit, as its decision in United States v. Bailey dealt a blow to property rights.  The decision granted the federal government jurisdiction over private property located more than 200 feet away from a navigable waterway.  Under Justice Scalia’s 2006 plurality opinion in Rapanos, the government would have no authority over Mr. Bailey’s land.  In Rapanos, Justice Scalia, joined by three other justices, limited federal Clean Water Act jurisdiction over property to wetlands that have “a continuous surface connection” with a navigable body of water, “making it difficult to determine where the water ends and the wetland begins.”  Scalia’s simple jurisdictional test makes logical sense. Under his test, wetland property with surface water that flows directly into a navigable waterway is covered by the Clean Water Act.  All other wetland property is not.

In Bailey, however, the Eighth Circuit decided to bypass the Scalia test, and instead applied the test formulated by Justice Kennedy’s concurring opinion in Rapanos, which was joined by no other justice.  Justice Kennedy’s test purports that any wetland possessing a “significant nexus” to a navigable waterway is jurisdictional under the Clean Water Act.  Unlike Scalia’s test, in which the jurisdiction of a wetland can be relatively easily determined by the naked eye, Kennedy’s test requires mounds of expert analysis to examine the “nexus” between a privately owned wetland and a navigable waterway.  Often times this nexus can be determined through a convoluted practice of tracing water flow through a series of connected wetlands.

While, at the time, the Rapanos decision was widely considered a victory for private property rights in America, it has taken just three years for the courts to systematically strip away its gains.  Our amicus brief in the case focused in part on an analysis of the Marks rule.  In Marks, the Supreme Court attempted to reconcile instances where the court is fractured and there is no majority opinion.  The Marks court stated that when such a court fracture is present, the holding may be viewed as the position taken by concurring members in the judgment “on the narrowest grounds.”  The phrase “on the narrowest grounds” has presented nightmares for many jurists since it was first posited in 1977.  

In this case, the “narrowest grounds” is represented by the Scalia test.  While all wetland property that is jurisdictional under Scalia is assuredly also jurisdictional under Kennedy, the same cannot be said for the opposite.  Generally speaking, a proper application of the Marks rule results in the controlling opinion being the one that applies to a smaller set of cases.  Here, it is the Scalia test that clearly applies to a smaller set of cases.  The Bailey court, however, chose to bypass an in depth Marks analysis, and instead ruled that a wetland is jurisdictional if it fits into either test provided by the Court in Rapanos.  Functionally, this results in a repudiation of the plurality test and an adoption of the Kennedy test. The Bailey court is just one of several circuits to bypass Rapanos‘ well-defined plurality test in favor of the vague and expansive test put forth solely by Justice Kennedy.  The post-Rapanos fight will continue in other circuits, but until the Supreme Court adopts a clear jurisdictional test, wetland property owners will remain unsure of their rights

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