January 27, 2011

The Ninth Circuit backtracks under Rapanos

By The Ninth Circuit backtracks under Rapanos

Author:  Damien M. Schiff

Yesterday, the Ninth Circuit Court of Appeals issued an amended opinion in Northern California Riverwatch v. Wilcox, 620 F.3d 1075 (9th Cir. 2010).  The decision, originally issued last summer, concerned the scope of the phrase "under Federal jurisdiction" as it is found in Section 9 of the Endangered Species Act.  The amended opinion, in response to a suggestion by the United States as amicus curiae, addresses the old opinion's discussion, in dictum, as to whether the federal government can use the Rapanos Scalia plurality test, as well as the Kennedy concurrence test, to determine wetlands jurisdiction under the Clean Water Act.

The opinion formerly read:

The broad sweep of the Corps' authority to regulate was sharply debated in Rapanos, in which the Court split 4-1-4 with regard to the limits of the Corps' regulatory jurisdiction of non-adjacent wetlands on privately-owned land. The plurality opinion characterized the Corps' ability to regulate as overly expansive, noting that "the Corps consciously sought to extend its authority to the farthest reaches of the commerce power." Rapanos, 547 U.S. at 738 (citing 42 Fed. Reg. 37,122, 37,127 (1977)). [**37] Even Justice Kennedy's controlling concurrence is based on his concern about "the potential overbreadth of the Corps' regulations." Id. at 782 (holding that the Corps has jurisdiction on the basis of adjacency to regulate wetlands adjacent to navigable-in-fact waters, but "must establish a significant nexus on a case-by-case basis" if the wetlands are adjacent to nonnavigable tributaries); see City of Healdsburg, 496 F.3d at 999-1000 (noting that Justice Kennedy's concurrence in Rapanos "provides the controlling rule of law") (citing United States v. Gerke, 464 F.3d 723, 724-25 (7th Cir. 2006) (per curiam) (determining that Justice Kennedy's concurrence meets the test of Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) for determining the controlling holding of Supreme Court case without a majority opinion)).

The opinion now reads, in relevant part with emphasis added:

The broad sweep of the Corps’ authority to regulate was sharply debated in Rapanos, in which the Court split 4-1-4 with regard to the limits of the Corps’ regulatory jurisdiction of non-adjacent wetlands on privately-owned land. The plurality opinion characterized the Corps’ ability to regulate as overly expansive, noting that "the Corps consciously sought to extend its authority to the farthest reaches of the commerce power." Rapanos, 547 U.S. at 738 (citing 42 Fed. Reg. 37,122, 37,127 (1977)). Even Justice Kennedy’s concurrence is based on his concern about "the potential over-breadth of the Corps’ regulations." Id. at 782 (holding that the Corps has jurisdiction on the basis of adjacency to regulate wetlands adjacent to navigable-in-fact waters, but "must establish a significant nexus on a case-by-case basis" if the wetlands are adjacent to nonnavigable tributaries). In City of Healdsburg, 496 F.3d at 999- 1000, the court found that Justice Kennedy’s concurrence in Rapanos "provides the controlling rule of law for our case." We did not, however, foreclose the argument that Clean Water Act jurisdiction may also be established under the plurality’s standard.

Basically, then, the Ninth Circuit is backtracking from what many other courts and commentators have hitherto assumed, namely, that Healdsburg foreclosed the government's reliance on Scalia.  It remains to be seen, of course, whether the court's amended dictum will have any real regulatory effect, for there are likely few if any wetlands that would not be jurisdictional under Kennedy's test but would be under Scalia's.

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