Federal jurisprudence - the First Circuit construes plurality opinions to expand the reach of the Clean Water Act.

• Author: Riordan, Katherine F.

Federal Jurisprudence--The First Circuit Construes Plurality Opinions to Expand the Reach of the Clean Water Act--United States v. Johnson, 467 F.3d 56 (1st Cir. 2006), cert. denied, 128 S. Ct. 375 (2007)

The Clean Water Act (CWA) extends federal protection to "navigable waters," which it broadly defines as "the waters of the United States, including territorial seas." (1) In Rapanos v. United States, (2) the Supreme Court attempted to define the standard for determining the CWA's reach over wetlands but, unable to reach a majority opinion, issued a fragmented plurality decision setting forth conflicting legal standards. (3) To identify Rapanos's controlling legal standard, some courts invoke the narrowest ground formula while others adopt Justice Stevens's instructions set forth in his Rapanos dissent. (4) In United States v. Johnson, (5) the First Circuit Court of Appeals considered which of these formulas it should invoke in construing Rapanos. (6) The First Circuit adopted Justice Stevens's instructions and directed lower courts to find CWA jurisdiction over wetlands that satisfy either standard set forth in Rapanos. (7)

In 1999, the United States filed a civil action alleging that a group of cranberry farmers violated the CWA by discharging dredge and fill materials into federally regulated waters without a permit. (8) The three wetlands at issue were linked to a navigable-in-fact river by non-navigable streams, creeks, or ditches. (9) The United States District Court for the District of Massachusetts found that the hydrological connection between the three wetlands and the navigable water established a sufficient basis for CWA jurisdiction and granted summary judgment in favor of the government. (10) The First Circuit affirmed the district court's ruling and issued a panel decision upholding CWA jurisdiction over the wetlands. (11)

Shortly after the First Circuit delivered its panel decision, the Supreme Court decided Rapanos v. United States, which also concerned CWA jurisdiction over wetlands. (12) In response to the Rapanos decision, the Johnson litigants requested a rehearing and asked the First Circuit to apply the proper legal standard for determining CWA jurisdiction over wetlands. (13) Perplexed by the Rapanos holding, the First Circuit, on rehearing, sought to decipher the fragmented decision and extract the controlling legal standard. (14) The court considered various interpretations and ultimately adopted Justice Stevens's instruction to find jurisdiction if the wetlands satisfy either the standard of the Rapanos plurality or its concurring Justice. (15)

The United States Supreme Court has struggled to define the CWA's reach and has offered both liberal and narrow interpretations. (16) In particular, the Court has struggled to devise a definitive legal standard for determining whether the CWA applies to wetlands. (17) The Court attempted to resolve this ambiguity in Rapanos, but failed to render a majority opinion and instead issued a fragmented plurality decision. (18) Justice Scalia authored the four-Justice plurality opinion limiting CWA jurisdiction to wetlands with a "continuous surface connection" to "relatively permanent, standing or continuously flowing" water bodies. (19) In his lone concurring opinion, Justice Kennedy concluded that CWA jurisdiction should extend to wetlands that possess a "significant nexus" to navigable waters. (20) Finally, authoring the four-Justice dissenting opinion, Justice Stevens directed courts to find CWA jurisdiction if the wetland at issue satisfies either the plurality's or Justice Kennedy's test. (21)

When the Supreme Court issues a fragmented plurality opinion, lower courts often struggle to extract the controlling legal standard. (22) One method of deciphering a fragmented decision is to invoke the formula set forth in Marks v. United States, (23) which treats the controlling legal standard as the "position taken by those Members who concurred in the judgments on the narrowest grounds." (24) Depending on the court, the "narrowest ground" may be the opinion least restrictive of federal regulation, the opinion based on less far-reaching grounds, or the opinion that is a subset of another opinion. (25) Justice Stevens's approach, however, is an alternative method that instructs lower courts to find CWA jurisdiction when the wetland satisfies either the Rapanos plurality's or Justice Kennedy's test. (26) According to Justice Stevens, this approach ensures a working majority of at least five voting Justices. (27) That is, all four dissenting Justices would uphold CWA jurisdiction under either the plurality's or Justice Kennedy's test. (28)

Lower courts have employed both the Marks formula and Justice Stevens's instructions to decipher Rapanos and extract a legal standard for establishing CWA jurisdiction over wetlands. (29) Using the Marks formula, the Seventh and Ninth Circuit Courts of Appeals concluded that Justice Kennedy's significant nexus test was the narrowest ground and therefore the controlling legal standard. (30) Because the plurality and concurring opinions do not overlap in Rapanos, other courts find the Marks formula inapposite as applied to the Rapanos decision. (31) Those courts have adopted Justice Stevens's instructions and consider both the plurality's and Justice Kennedy's test to determine CWA jurisdiction. (32)

In United States v. Johnson, the First Circuit Court of Appeals adopted Justice Stevens's instructions and held that the government may prove CWA jurisdiction using either Justice Kennedy's or the Rapanos plurality's test. (33) According to the court, Justice Stevens's instructions provide a useful alternative to the Marks formula, which does not easily translate to the Rapanos decision. (34) In fact, the court cited several cases in which the Supreme Court disregarded the Marks formula altogether. (35) The First Circuit also reasoned that Justice Stevens's approach ensures that lower courts will find CWA jurisdiction in all cases where a majority of the Rapanos Court would find jurisdiction. (36) It rejected the notion that in extracting a legal standard, lower courts should ignore dissenting opinions. (37) Instead, the First Circuit held that with respect to Rapanos, lower courts must examine the points of commonality among all Justices, and concluded that Justice Stevens's approach best serves this objective. (38)

In United States v. Johnson, the First Circuit sensibly deviated from the Marks norm by invoking Justice Stevens's instructions in Rapanos. (39) As applied to the Rapanos decision, Justice Stevens's instructions afford a logical and pragmatic approach to extracting the decision's controlling legal standard. (40) Though most courts that follow the Marks formula conclude that Justice Kennedy's opinion is the narrowest ground, their reasoning is flawed and illogical. (41) While Marks is logical in cases involving overlapping opinions, it does not translate to the Rapanos decision, which sets...