February 1, 2018

PLF urges the High Court to clarify the rule for interpreting split decisions

By Brian T. Hodges Senior Attorney

For the law to be just, it must be non-arbitrary, such that it is applied in a predictable and uniform manner to all persons. Yet increasingly, the U.S. Supreme Court is deciding some of the most important (and divisive) legal questions with fractured decisions, leaving many to question whether those cases stand for any one legal rule.

The Court tried to answer that question several decades ago in Marks v. United States (1977), where it explained 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.’” But, in practice, that instruction has proven to be more confusing than illuminating.

Many lower courts interpret Marks as directing them to search for a single “narrowest” opinion—even where the putatively “narrowest” opinion reflects the reasoning of only one of the Court’s nine members. Other courts find it inappropriate to give binding effect to portions of an opinion in which a majority of Justices did not explicitly or implicitly acquiesce. Still other courts consider the rationale of dissenting opinions when striving to find the “narrowest grounds.” Given this, it is unsurprising to find a series of long-standing circuit splits on important legal issues resulting from disagreements regarding the “narrowest grounds” rule.

Consider, for example, the Court’s 4-1-4 decision in Rapanos v. United States (2006). In that case, the Supreme Court sought to define the scope of the Clean Water Act (CWA), which prohibits the discharge of pollutants, including dredged and fill material, into “navigable waters” without a federal permit and defines the term “navigable waters” as “waters of the United States.” Five of the nine Justices agreed the Army Corps’ regulations exceeded the scope of the Act and that the agency could not regulate all waters based solely on a hydrological connection to a downstream navigable-in-fact waterway, but the Justices disagreed on one rationale.

Justices Scalia, Thomas, Alito, and Roberts determined the language, structure, and purpose of the CWA limited federal authority to “relatively permanent, standing or continuously flowing bodies of water” commonly recognized as “streams, oceans, rivers and lakes” connected to traditional navigable waters. Although Justice Kennedy joined the plurality in finding the agency regulations beyond the scope of the Act, he proposed a different standard for determining “waters of the United States” subject to federal control under the Act.

In the years since Rapanos, many courts have either adopted the lone Kennedy concurrence, or rejected Marks as unworkable. Other courts have adopted an either/or test allowing the government to establish federal jurisdiction under either the Kennedy concurrence or the Scalia plurality. Still others have adopted the Kennedy concurrence as a subset of the dissenting opinion’s rationale.

This confusion leaves landowners throughout the nation subject to differing interpretations of the law, and potentially subject to ruinous penalties (and equally ruinous permit costs) if their property falls within any of those interpretations of federal jurisdiction.

Because of this patent injustice, PLF attorneys filed an amicus brief with the U.S. Supreme Court on behalf of several of our CWA clients, urging the Court to clarify the Marks rule when it considers arguments in Hughes v. United States (a criminal sentencing case that will require interpretation of a fragmented decision).

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