No. 10-1062 In the .fttprenie Court of tbe Eniteb 'tate CHANTELL SACKETT, et vir, Petitioners, V. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE OF CENTER FOR CONSTITUTIONAL JURISPRUDENCE AND NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER IN SUPPORT OF PETITIONERS EDWIN MEESE III 214 Massachusetts Ave. N.E. Washington D.C. 20002 JOHN EASTMAN ANTHONY T. CASO Counsel of Record KAREN J. LUGO Center for Constitutional Jurisprudence c/o Chapman Univ. Sch. of Law One University Drive Orange, California 92886 Telephone: (714) 628-2530 E-Mail: [email protected]Counsel for Amici Curiae Center for Constitutional Jurisprudence and National Federation of Independent Business Small Business Legal Center
Transcript
No. 10-1062
In the
.fttprenie Court of tbe Eniteb 'tate
CHANTELL SACKETT, et vir,Petitioners,
V.
ENVIRONMENTAL PROTECTION AGENCY, et al.,Respondents.
On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Ninth Circuit
BRIEF AMICUS CURIAE OF CENTER FORCONSTITUTIONAL JURISPRUDENCE AND
NATIONAL FEDERATION OF INDEPENDENTBUSINESS SMALL BUSINESS LEGAL
Counsel of RecordKAREN J. LUGOCenter for Constitutional
Jurisprudencec/o Chapman Univ. Sch. of LawOne University DriveOrange, California 92886Telephone: (714) 628-2530E-Mail: [email protected]
Counsel for Amici Curiae Center for ConstitutionalJurisprudence and National Federation of
Independent Business Small Business Legal Center
i
QUESTION PRESENTED
1. Does the Clean Water Act prohibit judicialreview of orders issued by the EnvironmentalProtection Agency prohibiting the use of privateproperty, imposing significant costs on propertyowners, and threatening millions of dollars in civilpenalties?
Sup. Ct. R. 37.2(a) ........................................................ 1
Sup. Ct. R. 37.6 ............................................................. 1
Miscellaneous
Adams, John, Discourses on Davila,in 6 THE WORKS OF JOHN ADAMS
(Charles Francis Adams ed., 1851) ....................... 13
Adams, Willi Paul, The First AmericanConstitutions: Republican Ideology andthe Making of the State Constitutionsin the Revolutionary Era (1980) ............................ 12
Blackstone, William,1 Commentaries on the Laws of England(Univ. of Chicago Press 1979) (1765) .................... 10
Editor, BOSTON GAZETTE, Feb. 22, 1768 ......................... 9
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Ely, James W., Jr., Is Property the Cornerstoneof Liberty?, Lecture at Conference on PropertyRights at the Alexander Hamilton Institute forthe Study of Western Civilization (Apr. 30, 2009),available at http://www.theahi.org/storage/Is%20Property%20the%20Cornerstone%20of%20Liberty-March%2011.doc(last visited Mar. 23, 2011) .......................... 9-10, 14
Ely, James W., Jr., Property Rights: The Guardianof Every Other Right: A ConstitutionalHistory of Property Rights (1997) ................... 10-12
Hamilton, Alexander, The Defense of the FundingSystem, in 19 THE PAPERS OF ALEXANDERHAMILTON (Harold C. Syrett ed., 1973) ............... 13
Joint EPA-Army Corps of Engineers Memorandum,Clean Water Act Jurisdiction followingthe U.S. Supreme Court's Decisionin Rapanos v. United States &Carabell v. United States (Dec. 2, 2008) ................ 5
Lee, Arthur, An Appeal to the Justiceand Interests of the People of Great Britain,in PRESENT DISPUTE WITH AMERICA(4th ed. 1775) ......................................................... 11
Locke, John, Two Treatises of Government(Peter Laslett ed.,Cambridge Univ. Press 1967) (1690) ............. 10-11
Magna Carta, 1215, Article 39,available at http://www.constitution.org/eng/magnacar.htm (last visited Mar. 23, 2011) ......... 10
1 The Records of the Federal Conventionof 1787 (Max Farrand ed.,Yale Univ. Press rev. ed. 1937) ............................. 13
vi
Webster, Noah, An Examinationinto the Leading Principles of theFederal Constitution (Oct. 10, 1787) ..................... 14
Wilson, James, 2 Collected Works ofJames Wilson (Kermit L. Hall &Mark David Hall eds., 2007) ................................. 13
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IDENTITY ANDINTEREST OF AMICI CURIAE
Amicus, Center for ConstitutionalJurisprudence l is dedicated to upholding theprinciples of the American Founding, including theindividual liberties the Framers sought to protect byadoption of the Constitution. In addition toproviding counsel for parties at all levels of state andfederal courts, the Center has participated as amicuscuriae before this Court in several cases ofconstitutional significance, including Hamdi v.Rumsfeld, 542 U.S. 507 (2004); Elk Grove UnifiedSch. Dist. v. Newdow, 542 U.S. 1 (2004); Zelman v.Simmons-Harris, 536 U.S. 639 (2002); Solid WasteAgency of N. Cook County v. United States ArmyCorps of Eng'rs, 531 U.S. 159 (2001); Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000); and UnitedStates v. Morrison, 529 U.S. 598 (2000). The Centeris vitally interested in effective judicial oversight ofthe exercise of power by administrative agencies—especially where that power interferes with thefundamental right to own and use property.
1 Pursuant to this Court's Rule 37.2(a), all parties haveconsented to the filing of this brief. Counsel of record for allparties received notice at least 10 days prior to the due date ofthe Amici Curiae's intention to file this brief. Lettersevidencing such consent have been filed with the Clerk of theCourt.
Pursuant to Rule 37.6, Amici Curiae affirm that no counselfor any party authored this brief in whole or in part, and nocounsel or party made a monetary contribution intended tofund the preparation or submission of this brief. No personother than Amici Curiae, its members, or its counsel made amonetary contribution to its preparation or submission.
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The National Federation of IndependentBusiness (NFIB) is the nation's leading smallbusiness advocacy association, representingmembers in Washington, D.C., and all 50 statecapitals. Founded in 1943 as a nonprofit,nonpartisan organization, NFIB's mission is topromote and protect the right of its members to own,operate, and grow their businesses. NFIB representsabout 350,000 independent business owners who arelocated throughout the United States. The NFIBSmall Business Legal Center is a nonprofit, publicinterest law firm established to provide legalresources and be the voice for small businesses in thenation's courts through representation on issues ofpublic interest affecting small businesses. The NFIBLegal Center frequently files amicus briefs in casesthat will affect small businesses.
NFIB's membership includes ranchers, farmers,homebuilders and many others that would beadversely affected if judicial review were delayeduntil either the landowner has been denied a permitor is subject to an EPA enforcement action. As anorganization that represents only the interests ofsmall business owners, NFIB offers a uniqueperspective on the deleterious effects of the NinthCircuit's ruling. Under this decision, landownerswho have received a compliance order, that theybelieve is invalid, can get their day in court only by:(1) spending hundreds of thousands of dollars andyears applying for a permit that they contend they donot even need, or (2) inviting the agency to bring anenforcement action for potentially hundreds ofthousands of dollars in civil penalties for violations ofthe order, and criminal penalties for underlyingviolations of the Act. Either choice is financially
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untenable for a small business owner and wouldadversely affect the business's ability to operate orexpand.
SUMMARY OF ARGUMENT
In the nearly five years since this Court'sfractured ruling in Rapanos v. United States, theEnvironmental Protection Agency and the ArmyCorps of Engineers have not promulgated aregulation defining the limits of the jurisdictionunder the Clean Water Act. Instead, they havesettled on a joint "guidance" document that by itsterms is not binding on either agency. Propertyowners are thus left with a regulatory regime thatdefines "waters of the United States" no moreconcretely than "I know it when I see it." Againstthis backdrop, the Ninth Circuit has ruled that EPAis entitled to issue what amounts to a mandatoryinjunction to property owners without the need tofirst prove to a court that the property owner hasviolated the Clean Water Act or even that theproperty at issue falls within EPA's jurisdictionunder the Act. Further, the Ninth Circuit ruled thatthe property owners' only opportunity for judicialreview of the agency-issued injunction is to riskmillions of dollars in fines by ignoring the agencyorder, or spending a quarter of a million dollars andtwo years of time in pursuit of a permit from theArmy Corps of Engineers. Once the Corps has issueda final determination on the permit application thenand only then will the property owner be allowed tohave his day in court.
This result effectively deprives individuals andsmall business owners of the rights to own and to useproperty. Yet the individual rights in property were
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among the core individual liberties that the Framersof the Constitution sought to protect. Review by thisCourt is necessary to ensure that deprivations ofindividual rights in property remain protected by theDue Process Clause.
ARGUMENT
I. REVIEW IS NECESSARY TOPRESERVE THE INDIVIDUALRIGHTS IN PROPERTY RECOGNIZEDBY THE DUE PROCESS CLAUSE
The burden of federal regulation on thosewho would deposit fill material in locationsdenominated "waters of the United States"is not trivial. In deciding whether to grantor deny a permit, the U.S. Army Corps ofEngineers (Corps) exercises the discretion ofan enlightened despot, relying on suchfactors as "economics," "aesthetics,""recreation," and "in general, the needs andwelfare of the people," 33 CFR § 320.4(a)(2004). The average applicant for anindividual permit spends 788 days and$271,596 in completing the process.
Rapanos v. United States, 547 U.S. 715, 721 (2006)(plurality opinion).
The process is more burdensome for those whohave no intent to fill the "waters of the UnitedStates" and indeed have no idea that their propertymay fall within the definition of "waters."
This Court's decision in Rapanos produced fiveseparate opinions on what constitutes the "waters ofthe United States" for purposes of the Clean Water
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Act—none of which commanded a majority of theCourt. The Chief Justice noted in his separateconcurring opinion that the Court would grantsubstantial deference to EPA and the Army Corps ofEngineers if they exercise their rulemaking power toissue regulations defining the terms at issue in thecase. Id. at 758. In the nearly five years since theRapanos decision was issued, the agencies havedeclined to issue such a regulation. Instead, theyhave chosen to issue a "guidance" which theyemphasize is not a "regulation" and does not "imposelegally binding requirements on EPA, the Corps, orthe regulated community, and may not apply to aparticular situation depending on thecircumstances." Joint EPA-Army Corps of EngineersMemorandum issued on December 2, 2008, entitled"Clean Water Act Jurisdiction following the U.S.Supreme Court's Decision in Rapanos v. UnitedStates & Carabell v. United States, at 4 n.17.
"Waters of the United States," it would seem,have now reached the status of Justice Stewart'sdefinition of hard core pronography: "I know it whenI see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).Justice Stewart and his colleagues were attemptingto draw a line of what was protected by the FirstAmendment and what was not in the context of thosewho sought to push the boundaries of prior rulings.The Court was struggling to protect the libertiesincluded in the Bill of Rights. Here, however, we areconfronted with enforcement officials using theirpower under the law to compel surrender of privateproperty rights on the basis of an "I know it when Isee it" definition. The ambiguity in the definitionincreases the agency's power at the expenseindividual liberty. The danger to those fundamental
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rights is only heightened by a refusal of the courts toreview agency action.
Under the Clean Water Act, a property ownerwho moves dirt on a portion of his property can becited for a violation of the Act's prohibition onpolluting the "waters of the United States."33 U.S.C. §§ 1311, 1319, 1362; 40 C.F.R. § 230.3.The Act provides the Administrator with the choiceof seeking enforcement of criminal penalties, seekingan injunction, holding an administrative hearing forthe purpose of assessing civil penalties, seeking ajudicial order for the payment of penalties, or issuinga compliance order. 33 U.S.C. § 1319. According tothe court below, only the first four options offer theproperty owner the opportunity for judicial review ofEPA's actions or assertions. As the Ninth Circuitreads the statute, no such review, however, isavailable for compliance orders.
Compliance orders are not simple orders to"obey the law," but instead operate as mandatoryinjunctions. See TVA v. Whitman, 336 F.3d 1236,1241 (11th Cir. 2003). In this case, the propertyowners were ordered to remove the fill dirt placed onthe property, replant vegetation, and monitor theproperty for a period of three years. The complianceorder does not state whether the property ownerswill ever be allowed to use their property for anypurpose. For the near term, however, the propertyowners have been evicted from their own land.
The compliance order requirements displacingthe Sacketts from their property distinguishes thiscase from United States v. Riverside Bay view Homes,Inc., 474 U.S. 121 (1985). In that case, this Courtdismissed the argument that an agency's mere
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exercise of jurisdiction over property wouldconstitute a taking. Id. at 127. Here, however, wehave something more than a mere permitrequirement. The property owners have beenordered off of their property.
In answer to the complaint that there has beenno judicial review of this order to vacate their ownproperty, the court below ruled that judicial reviewcould be had if only the Sacketts would apply for apermit to fill the wetlands (whether or not theproperty is in fact wetlands) from the Army Corps ofEngineers. Once that permit was denied, theSacketts could then challenge the denial and therebyobtain judicial review of EPA's claim that theproperty at issue falls within the statutory definitionof "waters of the United States."
The plurality opinion in Rapanos noted thedifficulties in pursuing such a permit. On average, ittakes a little more than two years to obtain a finaldecision from the agency and costs more than aquarter of a million dollars. Rapanos, 547 U.S.at 719. Even without the delay, the cost outstripsthe total value of the vast majority of single familyhome lots.
The Ninth Circuit interpreted the statute asauthorizing the agency to issue its own mandatoryinjunction (thus rendering meaningless theprovisions of the statute authorizing the agency toseek an injunction from the United States DistrictCourt). A property owner who wants judicial reviewof that injunction has two options. First, the ownercan ignore the order—daring the agency to bring theaction to court in an attempt to enforce its injunctionwith civil penalties that can range up to $32,500 per
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day. Then and only then will the property ownerhave the opportunity to contest the basis of theorder—that placing fill-dirt on the propertyamounted to the addition of a pollutant to the"waters of the United States." The statute providesthat mere violation of the compliance order—separate and apart from violation of the Clean WaterAct—is grounds for assessment of the daily penalty.Thus, to obtain judicial review of the mandatoryinjunction a property owner would need to riskruinous fines of potentially millions of dollars.2
The only other option is to submit to theinjunction, vacate the property, and seek a permitfrom the Army Corps of Engineers. At the conclusionof that two-year process, the property owner couldseek review of the agency's determination of whetherthe property constituted "waters of the UnitedStates." In this case, however, we deal withindividuals who were seeking to build a home on aresidential lot in an area where neighboringproperties were already developed. This is not thetype of a project that can support a permit processthat costs a quarter of a million dollars and takesmore than two years to complete. Nonetheless, theNinth Circuit ruled that this was a sufficientopportunity for judicial review to avoid any violationof the Due Process Clause.
We arrive at this situation because of a steadydevaluation of the constitutionally protectedindividual right to own and use property. Although
2 If a property chose to ignore the compliance order for the timeit took to obtain a final determination from the Army Corps ofEngineers on a permit, the potential total fine would exceed$25 million.
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specifically mentioned in the Takings Clause of theFifth Amendment and Due Process Clauses of theFifth and Fourteenth Amendments, individual rightsin property have steadily been eroded to the pointthat no constitutional violation is seen in regulationsthat require individuals to obtain "permission" to usetheir property. Riverside Bayview, 474 U.S. at 127.Indeed, a delayed hearing is not seen as a problemfor purposes of the Due Process Clause where "onlyproperty rights are involved." Mitchell v. W.T. GrantCo., 416 U.S. 600, 611 (1974) (emphasis added,citation omitted). Those conclusions are onlypossible if one ignores the original meaning of theprotections in the Constitution for the individualright to own and use property.
One of the founding principles of this nation wasthe view that respect for property is synonymouswith personal liberty. In 1768, the editor of theBoston Gazette wrote: "Liberty and Property are notonly join'd in common discourse, but are in their ownnatures so nearly ally'd, that we cannot be said topossess the one without the enjoyment of the other."Editor, BOSTON GAZETTE, Feb. 22, 1768, at 1. Thiswidespread association of liberty and property,particularly fueled by the availability of land, grewfrom the background and influence of English lawand philosophy.
The Magna Carta of 1215 included the firstsafeguard of rights from infringement by themonarch. James W. Ely, Jr., Is Property theCornerstone of Liberty?, Lecture at Conference onProperty Rights at the Alexander Hamilton Institutefor the Study of Western Civilization (Apr. 30, 2009),at 1, available at http://www.theahi.org/storage/Is%
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20Property%20the%20Cornerstone%20of%20Liberty-March%2011.doc (last visited Mar. 23, 2011). Article39 of the Magna Carta provided, "No freeman shallbe. . . disseised . . . except by the lawful judgment ofhis peers or by the law of the land." Magna Carta,1215, Article 39, available at http://www.constitution.org/eng/magnacar.htm (last visited March 23, 2011).In his 1765 Commentaries on English Law WilliamBlackstone expounded on the application of theMagna Carta and defined private property rights asboth sacred and inviolable. It was the "absoluteright, inherent in every Englishman . . . whichconsists of the free use, enjoyment, and disposal ofall his acquisitions, without any control ordiminution, save only by the laws of the land."William Blackstone, 1 Commentaries on the Laws ofEngland 135 (Univ. of Chicago Press 1979) (1765).
In the late seventeenth century, a wave ofEnglish political philosophers responded to theStuart crowns' trespasses by developing theories ofproperty rights. Ely, Lecture, supra, at 2. JohnLocke, the foremost of these influential thinkers,taught that the right to own private property wasnatural and in fact preceded the state's politicalauthority. Locke's 1690 Two Treatises ofGovernment suggested that rights in property wereinseparable from liberty in general, and that the onlypurpose of government was to protect property andall of its aspects and rights. James W. Ely, Jr.,Property Rights: The Guardian of Every Other Right:A Constitutional History of Property Rights 17(1997). "The great and chief end therefore, of Men'suniting into Commonwealths, and puttingthemselves under Government, is the preservation ofProperty." John Locke, Two Treatises of Government
"Lockean" thinking helped to weaken claims ofabsolute monarchy in England and profoundlyinfluenced 18th century Whigs. Their political andphilosophical posture shifted to stress the rights ofproperty owners as the bulwark of freedom fromarbitrary government. Ely, Property Rights, supra,at 17. Property ownership was identified with thepreservation of political liberty.
Whig political thought and Blackstone'scommentaries were widely studied and shaped publicattitudes in colonial America, where property andliberty were inseparable. The Revolution, promptedby England's constant violation of property andcommerce, is evidence of the depth of the Founder'scommitment to the belief that rights in propertycould not be separated from political liberty. AsArthur Lee of Virginia declared in his revolutionary1775 publication, "The right of property is theguardian of every other right, and to deprive a peopleof this, is in fact to deprive them of their liberty".Arthur Lee, An Appeal to the Justice and Interests ofthe People of Great Britain, in PRESENT DISPUTE WITH
AMERICA 14 (4th ed. 1775).
In 1776, the Declaration of Independencesolidified this tie between political liberty andprivate property. In drafting the Declaration,Thomas Jefferson did not distinguish property fromother natural rights, remaining consistent with Whigphilosophy and borrowing heavily from John Locke.Ely, Property Rights, supra, at 17. Locke describedthe natural rights that government was formed toprotect as "life liberty, and estates." Jefferson
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substituted "pursuit of happiness" for "estates," butthis should not be misunderstood as any de-emphasisof property rights. Instead, the acquisition ofproperty and the pursuit of happiness were so closelytransposed that the founding generation found thenaming of either one sufficient to invoke both. WilliPaul Adams, The First American Constitutions:Republican Ideology and the Making of the StateConstitutions in the Revolutionary Era 193 (1980).
"Liberty and Property" became the first motto ofthe revolutionary movement. Ely, Property Rights,supra, at 25. The new Americans emphasized thecentrality and importance of the right to property inconstitutional thought. Protection of propertyownership was integral in formation of theconstitutional limits on governmental authority. Id.at 26. As English policies continued to threatencolonial economic interests, they strengthened thephilosophical link between property ownership andthe enjoyment of political liberty in American's eyes.Adams, supra, at 193.
The widespread availability of land did not alterthe view that rights in property could not beovercome by a simple public desire. Instead, itstrengthened the view that property was central tothe new American social and political order. Id.Early State constitutions explicitly reflected thisfundamental principle in their language.New Hampshire's 1783 Constitution was one of fourto declare that "All men have certain natural,essential, and inherent rights—among which are, theenjoying and defending life and liberty; acquiring,possessing, and protecting, property; and, in a word,
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of seeking and obtaining happiness." N.H. Const.pt. 1, art. 2.
Revolutionary dialogue and publicationsemphasized the interdependence between liberty andproperty. In 1795, Alexander Hamilton wrote:"Adieu to the security of property adieu to thesecurity of liberty. Nothing is then safe, all ourfavorite notions of national and constitutional rightsvanish." Alexander Hamilton, The Defense of theFunding System, in 19 THE PAPERS OF ALEXANDERHAMILTON 47 (Harold C. Syrett ed., 1973). When thedelegates to the Philadelphia convention gathered in1787, they echoed this Lockean philosophy. DelegateJohn Rutledge of South Carolina, for instance,argued that "Property was certainly the principalobject of Society." 1 The Records of the FederalConvention of 1787 534 (Max Farrand ed., Yale Univ.Press rev. ed. 1937).
The order in which James Wilson listed thenatural rights of individuals in his 1790 writing istelling—property came unapologetically first: "I amfirst to show, that a man has a natural right to hisproperty, to his character, to liberty, and to safety."James Wilson, 2 Collected Works of James Wilsonch. 12 (Kermit L. Hall & Mark David Hall eds.,2007). Also in 1790, John Adams proclaimed"Property must be secured, or liberty cannot exist."John Adams, Discourses on Davila, in 6 THE WORKSOF JOHN ADAMS 280 (Charles Francis Adams ed.,1851).
In the minds of the Founders, propertyownership was so closely associated with liberty thatproperty rights were considered indispensible. Thelanguage of the Bill of Rights sharply underscores
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the Founders' understanding of the close tie betweenproperty rights and other personal liberties. It is ofgreat significance that the Fifth Amendmentcontains key provisions safeguarding property aswell as key procedural protections protecting otherindividual rights. This arrangement shows that thedrafters saw no real distinction between individualliberty and property rights. Ely, Lecture, supra, at 5.
The founding generation believed that all thatwhich liberty encompassed was described andprotected by their property rights. Noah Websterexplained in 1787: "Let the people have propertyand they will have power that will forever be exertedto prevent the restriction of the press, the abolition oftrial by jury, or the abridgment of many otherprivileges." Noah Webster, An Examination into theLeading Principles of the Federal Constitution 58-61(Oct. 10, 1787). From the beginnings of our country,and always in the minds of the Founders, theserights stood or fell together. Ely, Lecture, supra,at 5.
These rights and values were enshrined in theConstitution—the Due Process Clause specificallyforbids a deprivation of property without "dueprocess of law." As a practical matter, however, theNinth Circuit has authorized in this case whatamounts to a permanent deprivation of property withno opportunity for judicial review. Review by thisCourt is necessary to preserve the Due Processprotections for individual rights in property.
CONCLUSION
EPA is undoubtedly pursuing a program that itbelieves to be socially beneficial. In that pursuit,
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EPA and the Corps have consistently pushed thelimits of their authority to regulate private property.See Solid Waste Agency of N. Cook County, 531 U.S.at 171-72. The uncertain definition of "waters of theUnited States" is now coupled with an unreviewablepower to issue mandatory injunctions. Congresscould not have intended such a result and theconstitutional protection of the individual libertiesto own and use property cannot tolerate suchunreviewable power. Amici urge the Court to grantthe petition for writ of certiorari.
DATED: March, 2011.
Respectfully submitted,
EDWIN MEESE III JOHN EASTMAN214 Mass. Ave. NE ANTHONY T. CASOWashington, DC 20002 Counsel of Record
KAREN J. LUGOCenter for Constitutional
Jurisprudencec/o Chapman University
School of LawOne University DriveOrange, CA 92886Telephone: (714) 628-2530E-Mail: [email protected]
Counsel for Amici Curiae Center for ConstitutionalJurisprudence and National Federation of
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