United States v. Rapanos

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 5, 2003
• Docket: 02-1377
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rapanos No. 02-1377 ELECTRONIC CITATION: 2003 FED App. 0268P (6th Cir.) File Name: 03a0268p.06 Indiana, for Appellee. Virginia S. Albrecht, Stephen M. Nickelsburg, HUNTON & WILLIAMS, Washington, D.C., for Amici Curiae. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X - BOYCE F. MARTIN, JR., Chief Circuit Judge. This case Plaintiff-Appellant, arises from the criminal conviction of John Rapanos for - - No. 02-1377 unlawfully filling wetlands in Michigan in violation of the v. - Clean Water Act, 33 U.S.C. § 1311(a). After the conviction, > an appeal, a denial of certiorari, a second appeal, and a grant , of certiorari, the Supreme Court remanded the case back to JOHN A. RAPANOS, - Defendant-Appellee. - us to review in light of Solid Waste Agency of North Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). N We remanded the case to the district court. The district court Appeal from the United States District Court found that, in light of Solid Waste, Rapanos’s land was for the Eastern District of Michigan at Bay City. outside the jurisdiction of the Clean Water Act and the No. 93-20023—Lawrence P. Zatkoff, Chief District Judge. charges were dismissed. The United States now appeals this decision. For the reasons below, we REVERSE the judgment Argued: June 18, 2003 of the district court and REINSTATE the convictions.

Decided and Filed: August 5, 2003 John Rapanos owns a one hundred and seventy-five-acre plot of land in Williams Township, Bay County, Michigan. Before: MARTIN, Chief Circuit Judge; NORRIS and This plot once contained forested wetlands and cleared ROGERS, Circuit Judges. meadow areas. During the course of this proceeding, the wetlands in question have been described as between eleven _________________ and twenty miles from the nearest navigable-in-fact water. The government argues that there is a significant and direct COUNSEL link between the wetlands on Rapanos’s land and this navigable waterway, rendering the wetlands covered by the ARGUED: Jennifer J. Peregord, UNITED STATES Clean Water Act. The wetlands are connected to the ATTORNEY, Detroit, Michigan, for Appellant. Thomas V. Labozinski Drain (a one hundred year-old man-made drain) Wilhelm, Waterford, Michigan, for Appellee. ON BRIEF: which flows into Hoppler Creek which, in turn, flows into the Jennifer J. Peregord, UNITED STATES ATTORNEY, Kawkawlin River, which is navigable. The Kawkawlin Detroit, Michigan, for Appellant. Thomas V. Wilhelm, eventually flows into Saginaw Bay and Lake Huron. Waterford, Michigan, David E. Dearing, Indianapolis,

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At some unstated time, Rapanos decided to sell this plot of Rapanos’s first trial ended in a mistrial, and the second trial land to developers, but in order to make the land more concluded with a guilty verdict. United States v. Rapanos, attractive, Rapanos made plans beginning in 1988 to clear the 895 F. Supp. 165, 166 (E.D. Mich. 1995). Rapanos then filed trees from the land and to eradicate the wetlands that were on a motion for judgment of acquittal and a new trial. The the property. In December of 1988, Rapanos’s attorney district court denied the motion for judgment of acquittal but approached the Michigan Department of Natural Resources granted a new trial. Id. at 170. The district court found that, with the development plan. The Department informed him although defense counsel did not object to certain questioning that the land contained wetlands and a permit would be by the prosecution, the court committed plain error by necessary for development to begin on the area, advising that permitting the questioning to proceed. Id. at 168. On appeal a wetlands consultant be hired to help Rapanos get the permit. to this court, we held that the line of questioning was not Rapanos hired a consultant, who found at least forty-nine and improper and, therefore, the district court did not commit at most fifty-nine acres of wetlands. After receiving the plain error. We reversed the court’s grant of a new trial and report, Rapanos asked the consultant to destroy any paper remanded for sentencing. United States v. Rapanos, 115 F.3d evidence of the wetlands on his property and then threatened 367, 374 (6th Cir. 1997). to fire him and sue if he did not comply. Despite warnings from the Michigan Department of Natural Resources and the The district court sentenced Rapanos to three years of United States Environmental Protection Agency, Rapanos probation and ordered him to pay $185,000. He appealed his began destroying the wetlands on his property by filling them conviction, and the United States cross-appealed his sentence. with earth and sand. This court affirmed Rapanos’s conviction on direct appeal but remanded to the district court for resentencing. United States On November 7, 1989, a search warrant was issued, and the v. Rapanos, 235 F.3d 256, 261 (6th Cir. 2000). Rapanos filed executing officers found twenty-nine acres of wetlands on a petition for writ of certiorari, which the Supreme Court Rapanos’s property. In April of 1991, the Michigan granted. The order granting the writ vacated this court’s Department of Natural Resources asked the United States judgment and remanded the case to us for further Environmental Protection Agency to intervene and force consideration in light of Solid Waste, 531 U.S. 159. Rapanos compliance from Rapanos. The facts established at trial that v. United States, 533 U.S. 913 (2001). We remanded the case Rapanos and his attorney lied in response to the compliance to the district court for consideration in light of Solid Waste. order. Subsequently, Rapanos was charged with knowingly United States v. Rapanos, Nos. 98-2424, 99-1578, 99-1074, discharging pollutants into the waters of the United States 2001 WL 868006 (6th Cir. July 13, 2001). On remand, the without a permit, a violation of the Clean Water Act. While district court set aside Rapanos’s convictions and dismissed acknowledging that the wetlands were destroyed, Rapanos the case, finding that Solid Waste had changed the scope of argues that the area is not subject to the Clean Water Act federal jurisdiction under the Clean Water Act. The district because of a lack of federal jurisdiction. He argues the court found that because the wetlands on Rapanos’s property wetlands on his property are not part of the “waters of the were not “directly adjacent to navigable waters,” the United States” as required by the Act. The Act defines government could not regulate them. United States v. “navigable waters” as “waters of the United States.” 33 Rapanos, 190 F. Supp. 2d 1011, 1015-16 (E.D. Mich. 2002). U.S.C. § 1362(7). The United States appealed this order, which brings this case before us now. No. 02-1377 United States v. Rapanos 5 6 United States v. Rapanos No. 02-1377

We review the district court’s statutory and legal One of the exceptions is that a permit must be issued by the interpretations de novo. United States v. Markwood, 48 F.3d Corps of Engineers “for the discharge of dredged or fill 969, 975 (6th Cir. 1995). The two questions at issue are material into the navigable waters at specified disposal sites.” whether the district court correctly interpreted the holding of 33 U.S.C. § 1344(a). “Navigable waters” is in turn defined as Solid Waste and applied it to the facts of this case and “waters of the United States, including territorial seas,” 33 whether the original jury instructions were correct in light of U.S.C. § 1362(7), and the Supreme Court has noted that Solid Waste. “Congress chose to define waters covered by the Act broadly” in that definition. United States v. Riverside Bayview Homes, The controversy in Solid Waste arose from a group of Inc., 474 U.S. 121, 133 (1985). Although simple in theory, Chicago suburbs’ efforts to find new landfill areas. 531 U.S. the application of “waters of the United States” has been at 162-63. They targeted land that had been a sand and gravel anything but straightforward. mining area from the late 1920's until 1960. Id. at 163. Once the mining operation was abandoned, a forest began to take As common sense makes clear, the Clean Water Act cannot over, and some of the excavation areas collected enough purport to police only the navigable-in-fact waters in the water to become permanent and seasonal ponds. Id. When United States in order to keep those waters clean from the suburbs wanted to use the land for landfill, the United pollutants. A pollutant can contaminate non-navigable water States Army Corps of Engineers objected to this destruction and pollute the navigable-in-fact waters downstream. of “waters of the United States.” Id. at 164. The non- Congress acknowledged this reality when it created the Clean navigable and isolated ponds were given this designation Water Act, stating, “Water moves in hydrological cycles and because the ponds had become the home of migratory birds; it is essential that discharge of pollutants be controlled at the the Corps had recently promulgated the “Migratory Bird source.” S.Rep. No. 92-414, at 77 (1972). As Solid Waste Rule,” which brought waters that were home to migratory makes clear, however, the need to protect the navigable birds under federal jurisdiction, based on the principle that waters from pollution, as the Clean Water Act intends, does “millions of Americans cross state lines and spend over a not require extending the federal government’s jurisdiction billion dollars to hunt and observe migratory birds.” Id. at over all non-navigable waters. 166. In Solid Waste, however, the Supreme Court rejected that basis for Clean Water Act jurisdiction and ruled that the Wetlands have presented one of the most difficult areas in Migratory Bird Rule exceeded the limitations of the Clean which to determine the Clean Water Act’s exact jurisdictional Water Act. Id. at 174. The ponds were, therefore, not limitations. Although wetlands are not traditionally “waters of the United States,” and the group of suburbs was navigable-in-fact, they play an important ecological role allowed to develop the land without federal interference. Id. where they exist. In 40 C.F.R. § 230.3(s), the regulation specifies protection for wetlands that The primary question in the case before us is one of jurisdiction. Rapanos claims that Solid Waste has redefined affect interstate or foreign commerce . . . [,] [w]hich are the jurisdiction of the Clean Water Act to such a degree that or could be used by interstate or foreign travelers for his land is no longer under the Act’s protection. We must recreational or other purposes . . . [,] [f]rom which fish or first turn to the Act itself. The Clean Water Act prohibits the shellfish are or could be taken and sold in interstate or “discharge of any pollutant by any person” except for certain foreign commerce [, and] [w]hich are or could be used situations enumerated in the Act itself. 33 U.S.C. § 1311(a). No. 02-1377 United States v. Rapanos 7 8 United States v. Rapanos No. 02-1377

for industrial purposes by industries in interstate “Migratory Bird Rule.” 51 Fed. Reg. 41217 (Nov. 13, 1986) commerce. (was codified at 33 C.F.R. § 328.3). The Court ruled that the Migratory Bird Rule “exceeds the authority granted to the Additionally, the regulation specifies coverage for respondents under § 404(a) of the [Clean Water Act].” Solid “[w]etlands adjacent to waters” listed above. Id. Essentially, Waste, 531 U.S. at 174. any wetlands adjacent to waters that are protected by the Clean Water Act are also protected. Id. Here, Rapanos successfully argued to the district court that Solid Waste drastically changed the scope of power granted The Supreme Court first addressed this question of the by the Clean Water Act. In support of his argument, Rapanos applicability of the Clean Water Act to wetlands in Riverside turns to Chief Justice Rehnquist’s frequent use in the majority Bayview, 474 U.S. 121, a case originally from this circuit. In opinion of the phrase “wetlands adjacent to water.” Rapanos that case, a landowner wished to develop his wetlands area for argues that by the use of this phrasing, the Court required that a housing development. Id. at 124. The wetlands were wetlands be directly adjacent to navigable water in order for located in close proximity to Lake St. Clair, Michigan, a the wetlands to be covered by the Clean Water Act. Although navigable-in-fact body of water. Id. The Court held that non- the wetlands were incidentally directly adjacent to navigable- navigable wetlands, if adjacent to navigable water, are under in-fact water in Riverside, this interpretation would mark a the jurisdiction of the Clean Water Act. Id. at 131. The Court stark departure from the broad interpretation of the Clean recognized that the next question before them was whether Water Act’s scope expressed by the Court in that case. See “the [Corps’ definition of wetlands] itself is valid as a Riverside, 474 U.S. 121. construction of the term ‘waters of the United States.’” Id. The Court noted that “Congress chose to define the waters Riverside Bayview established that it was a reasonable covered by the Act broadly. . . . [T]he term ‘navigable’ . . . is application of the Clean Water Act to protect wetlands of limited import.” Id. at 133. The Court ultimately held that “adjacent to” navigable waterways. 474 U.S. at 135. Solid “a definition of ‘waters of the United States’ encompassing all Waste stated that the Migratory Bird Rule was an wetlands adjacent to other bodies of water over which the unreasonable application of the Clean Water Act. 531 U.S. at Corps has jurisdiction is a permissible interpretation of the 174. Act.” Id. at 135. In the post-Riverside jurisprudence, however, the question remains as to how far the jurisdiction This case is closer to Riverside Bayview than to Solid may go and remain a “permissible interpretation.” Waste. In drawing this conclusion, we find persuasive the Fourth Circuit’s recent decision in United States v. Deaton, The Supreme Court’s most recent exploration of the extent 332 F.3d 698 (4th Cir. 2003). In Deaton, the defendants were of Clean Water Act jurisdiction comes in Solid Waste, 531 charged under the same statute as Rapanos. Id. at 701. In a U.S. 159. In that case, the Court recognized that further similarity, Deaton involved wetlands that drain into a constitutional limits exist as to how far Congress can extend ditch which must pass through other waterways to get to the Clean Water Act’s coverage beyond navigable-in-fact navigable-in-fact water, just as is the case on Rapanos’s land. waters. In Solid Waste, the water in question was in Id. at 702. The Fourth Circuit analyzed the situation in light permanent and seasonal ponds with no hydrological of the Supreme Court’s decision in Solid Waste and held, id. connection to other waterways. Id. at 163. The United States at 709 (citations omitted), that claimed federal jurisdiction over the ponds through the No. 02-1377 United States v. Rapanos 9 10 United States v. Rapanos No. 02-1377

[Solid Waste], of course, emphasizes that the [Clean Rule as exceeding the authority granted to the Army Corps of Water Act] is based on Congress’ power over navigable Engineers by the Clean Water Act, because it found “nothing waters, suggesting that covered non-navigable waters are approaching a clear statement from Congress that it intended those with some connection to navigable ones. But we [the Act] to reach an abandoned sand and gravel pit.” Solid cannot tell from the Act the extent to which nonnavigable Waste, 531 U.S. at 174. tributaries are covered. The statutory term “waters of the United States” is sufficiently ambiguous to constitute an The evidence presented in this case suffices to show that implied delegation of authority to the Corps; this the wetlands on Rapanos’s land are adjacent to the Labozinski authority permits the Corps to determine which waters Drain, especially in view of the hydrological connection are to be covered within the range suggested by [Solid between the two. It follows under the analysis in Deaton, Waste]. with which we agree, that the Rapanos wetlands are covered by the Clean Water Act. Any contamination of the Rapanos The court further stated, id. at 712 (citations omitted), wetlands could affect the Drain, which, in turn could affect navigable-in-fact waters. Therefore, the protection of the In Riverside Bayview the Supreme Court concluded that wetlands on Rapanos’s land is a fair extension of the Clean the Corps regulation extending jurisdiction to adjacent Water Act. Solid Waste requires a “significant nexus between wetlands was a reasonable interpretation in part because the wetlands and ‘navigable waters,’” 531 U.S. at 167, for of what [Solid Waste] described as “the significant nexus there to be jurisdiction under the Clean Water Act. Because between the wetlands and ‘navigable waters.’” There is the wetlands are adjacent to the Drain and there exists a also a nexus between a navigable waterway and its hydrological connection among the wetlands, the Drain, and nonnavigable tributaries. . . . This nexus, in light of the the Kawkawlin River, we find an ample nexus to establish “breadth of congressional concern for protection of water jurisdiction. Riverside Bayview, 474 U.S. at 133. quality and aquatic ecosystems,” is sufficient to allow the Corps to determine reasonably that its jurisdiction over We now turn to the second question before us, regarding the whole tributary system of any navigable waterway is the disputed jury instruction. The instruction reads as warranted. The regulation, as the Corps reads it, reflects follows: a reasonable interpretation of the Clean Water Act. The Act thus reaches to the roadside ditch and its adjacent The term waters of the United States includes waters wetlands. such as lakes, rivers, streams, including intermittent streams or wetlands. The use, degradation, or destruction Because we find the Fourth Circuit’s reasoning persuasive, of, which could affect interstate or foreign commerce, we disagree with the broad interpretation of Solid Waste taken including any such water from which fish or shellfish are by the district court in this case, Rapanos, 190 F. Supp.2d at or could be taken and sold in interstate commerce. 1016, and, instead, agree with Deaton, 332 F.3d 698 at 708-9. The definition of waters of the United States also Although the Solid Waste opinion limits the application of the includes tributaries of the waters . . . just identified, and Clean Water Act, the Court did not go as far as Rapanos wetlands adjacent to waters of the United States. argues, restricting the Act’s coverage to only wetlands directly abutting navigable water. Instead, the Solid Waste Rapanos did not object to the jury instruction; in fact, he Court, in a narrow holding, invalidated the Migratory Bird specifically requested them. Our review of the instruction is No. 02-1377 United States v. Rapanos 11 12 United States v. Rapanos No. 02-1377

therefore for plain error. Fed R. Crim. P. 52(b). We have REMANDED to the district court for resentencing based on stated in United States v. Jones, 108 F.3d 668, 670 (6th Cir. a total offense level of twelve. See Rapanos, 235 F.3d at 261. 1997) (citations omitted), that [O]ur inquiry under Rule 52(b) consists of the following four distinct, though interrelated, analyses: (1) whether an error occurred in the district court; (2) if error occurred, whether the error was plain; (3) if the error was plain, whether the plain error affected substantial rights; and (4) "even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings." In this case, we need only go so far as the first part of the Rule 52(b) inquiry as set forth in Jones. Because the Solid Waste holding was limited in the way we have described, there was no error in the jury instructions. Solid Waste invalidated the “Migratory Bird Rule” but it did not invalidate the agency’s regulations upon which the jury instruction was based. See 33 C.F.R. § 328(a)(3). Moreover, even if the jury instruction could be interpreted to have permitted the jury to find that the wetlands at issue were covered because the “affect commerce” language somehow permits an inference like that rejected in Solid Waste, there is no indication that such an error affected substantial rights in this case. There was no evidence of migratory bird activity in Rapanos’s wetlands. Therefore, the jury could not have based its decision on impermissible grounds, and Rapanos’s substantial rights could not have been affected. For the foregoing reasons, we REVERSE the decision of the district court and REINSTATE the conviction. 28 U.S.C. § 2106. In light of our previous ruling, the case is hereby