Federal Judiciary

Resisting a Rapanos sequel

By Akin Gump Supreme Court Practice Group

Arguing that the federal government was seeking “boundless” authority to regulate wetlands miles away from flowing waterways, an Alabama company and two of its executives on Monday urged the Supreme Court to turn aside a new government appeal on the issue.  The brief, filed in U.S. v. McWane, Inc. (08-223), suggests with some sarcasm that “the government intends to honor no interpretation that this Court might give the [Clean Water Act] unless the government wins.”

Lower courts have split on how to interpret and apply the Supreme Court’s splintered decision in 2006 in Rapanos v. U.S.  Three different interpretations of the Clean Water Act’s provisions on protecting wetlands emerged from that ruling, and lower courts have disagreed about which one controls.  The Justice Department last month appealed the McWane case from the Eleventh Circuit Court, asking the Justices to clear up the confusion.  (A post discussing that appeal can be read here.)

That case involves the criminal prosecution of a Birmingham, Ala., pipe making company and its general manager, James Delk, and plant manager, Michael Devine. They were convicted of CWA violations for allegedly polluting wetlands with discharges of process water from the plant.  Heavy fines were imposed, but no prison terms.  The Eleventh Circuit Court overturned the convictions, rejecting the government view of the CWA’s scope, and ordered a new trial.

The company and its two managers took two steps on Monday: they filed a brief opposing review of the government appeal, and they filed an appeal of their own seeking to head off a new trial.  Their own appeal was offered for review if the Court decided to hear the government appeal in 08-223.  (Their opposition brief is here, and their conditional cross-petition is here.  The cross-petition is McWane v. U.S., 08-364.)

Repeaedly lambasting the government’s arguments, the brief against review of that appeal said that the prosecutors had put forth a “boundless knee-bone’s-connected-to-the-thigh-bone approach to the definition of navigable waters.”

But the main legal thrust of the response is that there is no need — at least not yet — for the Court to step in to try to resolve confusion over the Rapanos decision.  “No court of appeals in the two years since Rapanos has concluded that the interpretation urged by the government would alter the outcome on the facts before it.”  The government, it said, had raised “a question that, even if answered in its favor, would not affect the outcome of this or possibly any other case.”

In their own appeal, the company and its managers contended that, since the government failed to produce sufficient evidence to get a conviction, it would be a violation of the “Double Jeopardy Clause” to stage a new trial.

The two cases have not yet been scheduled for a Conference of the Justices.

Full post as published by SCOTUSBLOG on September 23, 2008 (boomark / email).