467 F.3d 56 (1st Cir. 2006), 05-1444, United States v. Johnson

Docket Nº05-1444.
Citation467 F.3d 56
Party NameUNITED STATES, Plaintiff, Appellee, v. Charles JOHNSON, Genelda Johnson, Francis Vaner Johnson, and Johnson Cranberries, LLP, Defendants, Appellants.
Case DateOctober 31, 2006
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (1st Circuit)

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467 F.3d 56 (1st Cir. 2006)

UNITED STATES, Plaintiff, Appellee,

v.

Charles JOHNSON, Genelda Johnson, Francis Vaner Johnson, and Johnson Cranberries, LLP, Defendants, Appellants.

No. 05-1444.

United States Court of Appeals, First Circuit.

October 31, 2006

Heard Oct. 7, 2005.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, Hon. Edward F. Harrington, Senior U.S. District Judge.

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Malcolm Reed Hopper, with whom Gregory T. Broderick was on brief for appellants.

John L. Smeltzer, with whom Kelly A. Johnson, Acting Assistant Attorney General and Ellen Durkee, Attorney, Department of Justice Environment & Natural Resources Division, were on brief for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO, [*] District Judge.

LIPEZ, Circuit Judge.

Following the panel's decision in this case, see United States v. Johnson, 437 F.3d 157 (1st. Cir. 2006), appellants moved for rehearing en banc, noting the Supreme Court's grant of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004). We held their petition in abeyance pending a decision in that case. Following the decision in Rapanos v. United States, 547 U.S. ___, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), appellants supplemented their previous petition. They request that we grant rehearing en banc to resolve the conflict between the panel decision and Rapanos, or, alternately, that we vacate the decision with prejudice on the ground that the evidence in the record supports a judgment in their favor. The government filed a response requesting that we vacate our previous decision and remand to the district court. After careful consideration, we vacate and remand for further proceedings consistent with Rapanos, as described below.

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I. The Panel Decision

This case began when the United States filed a civil action alleging that defendants (now appellants), a group of cranberry farmers in Carver, Massachusetts, had discharged pollutants into federally-regulated waters without a permit in violation of § 301 and § 502 of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311, 1362. In response, appellants contended that the United States lacked jurisdiction over the three properties in question: (1) the Cross Street site; (2) the Fosdick Street site; and (3) the Forest/Fuller Street site (collectively, the "target sites").

In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants' motion for reconsideration, stating that "there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries."

In an appeal to this court, appellants challenged the district court's judgment that the jurisdiction of the CWA extends to the target sites. First, they asserted that their property is not covered by the Environmental Protection Agency ("EPA") regulation promulgated to carry out the CWA. In the alternative, appellants argued that, if their property is covered by the regulation, either the regulation exceeds the authority granted by the CWA, or the CWA exceeds Congress's authority under the Commerce Clause.

We affirmed the trial court's judgment in a divided decision, with two members of the panel concurring in the judgment for different reasons, and one member dissenting. One member of the majority concluded that the hydrological connection between the target sites and the Weweantic River establishes a "significant nexus" between the sites and the river, sufficient to establish jurisdiction under the CWA without creating constitutional issues under the Commerce Clause. For two of the target sites, in the view of this judge, the hydrological connection depended on diffusion of water through wetlands. See 437 F.3d at 162.

The other member of the majority read the record differently to conclude that the hydrological connection was a system of tributaries, some of which happened to flow through wetlands or other bogs. See id. at 182. The concurring panelist thus concluded that it was unnecessary to decide whether the diffusion of water through wetlands was a sufficient hydrological connection to support a "significant nexus." Id.

The dissent concluded that the United States "may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters." Id. at 187 (internal quotations and citation omitted). Moreover, even if the EPA's assertion of jurisdiction was constitutional, the dissent would have held that the government's attempt to assert jurisdiction over appellants' wetlands is inconsistent with its own regulations because the system of tributaries linking the target sites to the Weweantic includes other wetlands. Because the regulations explicitly exclude wetlands adjacent to waters that are themselves wetlands, the dissent argued that the government lacked jurisdiction under its own regulations. Id. at 187.1

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II. Response to the Panel Decision

As noted, appellants filed a petition for rehearing en banc pursuant to Rule 35 of the Federal Rules of Appellate Procedure, arguing that the case should be reheard following the Supreme Court's then-pending decision in Rapanos. We ordered appellants' petition held in abeyance pending the Supreme Court's decision in Rapanos. We further stated that appellants could file a supplemental petition for rehearing en banc within fourteen days after the decision in Rapanos was issued, and the government could then respond.

III. Rapanos

v. United States

The decision in Rapanos v. United States, 547 U.S. ___, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), resolved two consolidated cases from the Sixth Circuit. In one case, the United States brought an enforcement action alleging that property owners and their affiliated businesses deposited fill materials into wetlands without a permit, in violation of the CWA. Id. at 2219. In the other, property owners were denied a permit to deposit fill material in a wetland approximately one mile from a lake and, after exhausting their administrative appeals, they filed suit. Id.

In both cases, the district court found that there was federal regulatory jurisdiction over the sites in question, and the Sixth Circuit affirmed. The Supreme Court then consolidated the cases and granted certiorari to decide whether these wetlands constitute "waters of the United States" under the CWA, and, if so, whether the CWA is constitutional. See id. at 2220.

The Court issued a split decision construing the phrase "waters of the United States" as used in the CWA. The plurality concluded that the phrase "waters of the United States" includes only "relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] . . . oceans, rivers, [and] lakes.' " Id. at 2225. Thus, for purposes of determining federal regulatory jurisdiction, "only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and covered by the Act." Id. at 2226 (emphasis in original). The plurality vacated the decision of the Sixth Circuit in both cases and, noting "the paucity of the record," remanded for further proceedings. Id. at 2235.

Justice Kennedy concurred in the judgment, but rejected the plurality's rationale. Instead, he concluded that jurisdiction extends to wetlands that "possess a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." Id. at 2236. Justice Kennedy further found that wetlands "possess the requisite nexus" if "either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.' " Id. at 2248. Where the wetlands in question are "adjacent to navigable-in-fact waters, [the government] may rely on adjacency to establish its jurisdiction." Id. at 2249. Where the wetlands are adjacent to nonnavigable tributaries, "[a]bsent more specific regulations . . . [the government] must establish a significant nexus on a case-by-case basis." Id. at 2249.

Justice Stevens authored a dissent joined by three other Justices. In the view of the dissenters, to the extent that the CWA includes a "significant nexus" requirement, this requirement "is categorically satisfied as to wetlands adjacent to

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navigable waters or their tributaries." Id. at 2263-64. The dissent concluded by noting specifically that "all four Justices who have joined this opinion would uphold the Corps' jurisdiction . . . in all other cases in which either the plurality's or Justice Kennedy's test is satisfied ...." Id. at 2265.

IV. Subsequent Motions

Following the Supreme Court's decision in Rapanos, appellants filed a supplemental petition for rehearing en banc challenging the view in one of the panel opinions that a hydrological connection constitutes a jurisdictionally sufficient "significant nexus." Appellants contend that rehearing is necessary to resolve the tension between the panel opinion and Rapanos. They argue that under either the plurality opinion or Justice Kennedy's concurrence, a hydrological connection is insufficient to establish jurisdiction, although they also argue strenuously that the plurality's test alone should apply. Alternatively, appellants contend that the evidence in the record is sufficient to support a finding in their favor under the standards in Rapanos, and urge that we vacate the decision and direct the district court to enter judgment for them.

The United...

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32 practice notes
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...concluded that CWA jurisdiction exists if either Justice Kennedy's standard or the plurality's standard is met. United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006), cert. denied, 552 U.S. 948 (2007); U.S. v. Donovan, 661 F.3d. 174, 176 (3rd Cir. 2011), cert. denied, 132 S.Ct. 2409 (20......
  • THE CLEAN WATER RULE: NOT DEAD YET.
    • United States
    • Environmental Law Vol. 48 Nbr. 2, March 2018
    • March 22, 2018
    ...States v. Donovan, 661 F.3d 174, 180 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006). (187) United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009); United States v. Lucas, 516 F.3d 316, 326-27 (5th Ci......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...the Corps has jurisdiction over wetlands that satisfy either the plurality or Justice Kennedy's test.") (citing United States v. Johnson, 467 F.3d 56, 60 (lst Cir. The EPA and the Corps have adopted Justice Kennedy's "substantial nexus" test in guidance statements on their jurisdiction. See......
  • Defining fair notice: logical outgrowth doctrine applied to the waters of the United States.
    • United States
    • Notre Dame Law Review Vol. 92 Nbr. 2, December - December 2016
    • December 1, 2016
    ...See Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. at 22,252 (first citing United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006), cert, denied, 552 U.S. 948 (2007); then citing United States v. Donovan, 661 F.3d. 174, 176 (3rd Cir. 2011), cert, denie......
  • Request a trial to view additional results
7 firm's commentaries
  • Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction
    • United States
    • JD Supra United States
    • January 15, 2019
    ...Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). [14] See supra note 1 at 80-81, 116-21, 156-60. [15] Supra note 1 at 82, 83. [16] Supra note 1, at 58. [17] Supra note 1, at......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • Mondaq United States
    • March 7, 2017
    ...decided that either the "relatively permanent" definition or the "significant nexus" definition can be used. United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791 (8th Cir. 2009). The 11th Circuit ......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • JD Supra United States
    • March 7, 2017
    ...decided that either the “relatively permanent” definition or the “significant nexus” definition can be used. United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791 (8th Cir. The 11th Circuit has hel......
  • Finally Finality? The Trump Administration’s Answer to One of Environmental Law’s Most Contested Questions: What Are “Waters of the United States”?
    • United States
    • JD Supra United States
    • February 21, 2020
    ...Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. [17] Rule pp. 80, 142. Ankur TohanEndre Szalay...
  • Request a trial to view additional results
23 books & journal articles
  • THE CLEAN WATER RULE: NOT DEAD YET.
    • United States
    • Environmental Law Vol. 48 Nbr. 2, March 2018
    • March 22, 2018
    ...States v. Donovan, 661 F.3d 174, 180 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006). (187) United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009); United States v. Lucas, 516 F.3d 316, 326-27 (5th Ci......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...the Corps has jurisdiction over wetlands that satisfy either the plurality or Justice Kennedy's test.") (citing United States v. Johnson, 467 F.3d 56, 60 (lst Cir. The EPA and the Corps have adopted Justice Kennedy's "substantial nexus" test in guidance statements on their jurisdiction. See......
  • Defining fair notice: logical outgrowth doctrine applied to the waters of the United States.
    • United States
    • Notre Dame Law Review Vol. 92 Nbr. 2, December - December 2016
    • December 1, 2016
    ...See Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. at 22,252 (first citing United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006), cert, denied, 552 U.S. 948 (2007); then citing United States v. Donovan, 661 F.3d. 174, 176 (3rd Cir. 2011), cert, denie......
  • Should the courts save taxpayer standing? Interpreting Hein v. Freedom from religion Foundation narrowly through the lens of judicial-branch spending.
    • United States
    • Journal of Appellate Practice and Process Vol. 10 Nbr. 2, September 2009
    • September 22, 2009
    ...opinion of the Court, for "it has so obviously baffled and divided the lower courts that have considered it"); see also U.S. v. Johnson, 467 F.3d 56, 62 (1st Cir. 2006) ("Marks ... has proven troublesome in application for the Supreme Court itself and for the lower (125.) See e.g. Johnson, ......
  • Request a trial to view additional results
2 provisions
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...concluded that CWA jurisdiction exists if either Justice Kennedy's standard or the plurality's standard is met. United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006), cert. denied, 552 U.S. 948 (2007); U.S. v. Donovan, 661 F.3d. 174, 176 (3rd Cir. 2011), cert. denied, 132 S.Ct. 2409 (20......
  • Revised Definition of “Waters of the United States”
    • United States
    • Army, Corps Of Engineers Department,Defense Department
    • Invalid date
    ...opinion published at 457 F.3d 1023 (9th Cir. 2006)); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 5. Post-Rapanos Implementation of the 1986 Regulations For ne......

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