U.S. v. Freedman Farms Inc.

• Decision Date: 18 May 2011
• Docket Number: No. 7:10–CR–00015–FL.,7:10–CR–00015–FL.
• Citation: 786 F.Supp.2d 1016
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of Americav.FREEDMAN FARMS, INC.; and William Barry Freedman, Defendants.

786 F.Supp.2d 1016

UNITED STATES of America

v.FREEDMAN FARMS, INC.; and William Barry Freedman, Defendants.

No. 7:10–CR–00015–FL.

United States District Court, E.D. North Carolina,Southern Division.

May 18, 2011.

Gaston Williams, U.S. Attorney's Office, Raleigh, NC, for United States of America.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

This matter comes before the court on the government's motion for reconsideration (DE # 102), seeking the court's reconsideration of its notice dated February 17, 2011, of its preliminary jury instruction regarding what constitutes a “water of the United States.” Defendants have filed a response in opposition to the government's motion for reconsideration. Where jury selection in this case is set to commence Tuesday, June 21, 2011, the issues raised are ripe for review.

The court's instruction regarding what constitutes a “water of the United States” is pivotal. Of its own initiative, a schedule before trial was carved out for briefing as to this instruction.¹ After consideration of the parties' initial set of briefs, in notice entered February 17, 2011, the court set out the instruction deemed appropriate under law, to which the government objects.

By considering and determining in advance what constitutes a “water of the United States,” a more simplified trial procedure will result, and delay at trial, which the government anticipates may take three weeks to try, is avoided. The parties' pre-trial preparations will be more focused as a result, and resources conserved. The court commends the parties for their well-considered briefing of or relating to the instant motion. For the reasons that follow, the government's motion must be and is DENIED.

THE COURT'S NOTICE REGARDING JURY INSTRUCTIONS

At issue is the proper interpretation of the phrase “waters of the United States” for purposes of the Clean Water Act, 33 U.S.C. § 1251, et seq. (“the Act”). Briefly, the government's jurisdiction to prosecute under the Act is defined by the Act itself, which prohibits the discharge of pollutants into “waters of the United States.” 33 U.S.C. § 1311(a) (prohibiting discharge of pollutants); Id. § 1362(12) (defining “discharge of pollutants” as the “addition of any pollutant to navigable waters”); Id. § 1362(7) (defining “navigable waters” as “waters of the United States, including the territorial seas”). Accordingly, in this case the government has jurisdiction to prosecute defendants only if Browder's Branch, the water body at issue, is a “water of the United States.”

The regulations define “waters of the United States” to include not only traditionally navigable waters, but also all interstate waters and wetlands, intrastate waters that affect interstate commerce, tributaries of any of those waters, as well as wetlands adjacent to any of those waters or their tributaries. 33 C.F.R. § 328.3(a).

The Supreme Court most recently interpreted the phrase “waters of the United States” in Rapanos v. United States, wherein the Court issued a split decision regarding the meaning of the phrase in the context of adjacent wetlands. 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The split decision set forth two competing definitions that the individual circuits have since struggled to reconcile. In its motion for reconsideration, the government expressly approves of this court's characterization of the two Rapanos standards. (Mot. for Recons., 3) The two standards are briefly reiterated here for ease of reference.

The plurality opinion, authored by Justice Scalia, began its analysis by defining “waters of the United States” to include only those “relatively permanent, standing or continuously flowing” bodies of water, those which form geographic features ordinarily described as “streams, oceans, rivers, and lakes.” 527 U.S. at 739, 119 S.Ct. 2240. The plurality then addressed the circumstances under which a wetland may be considered “adjacent to” a “water of the United States,” and concluded that “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 742, 119 S.Ct. 2240.

In his concurring opinion, Justice Kennedy set forth a different standard that has become known as the “significant nexus” test. Id. at 779–80, 119 S.Ct. 2240. There, Justice Kennedy reasoned that:

[Jurisdiction] over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense ... wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

Id. at 779–80, 119 S.Ct. 2240.

This court in its February 17, 2011, notice observed that the circuits have split on the question of which Rapanos opinion provides the holding. After examining the circuit split, including a recent case wherein the Fourth Circuit applied the significant nexus test, the court noticed preliminary intent to instruct the jury using the significant nexus test only. The government now seeks the court's reconsideration of the matter.

DISCUSSION

The government advances argument that the court's preliminary jury instruction improperly limits the government's jurisdiction under the Act, asserting instead that the competing Rapanos standards are more properly understood as alternative methods of establishing jurisdiction under the Act. The government therefore argues that the jury instruction regarding “water of the United States” should incorporate both definitions. (Mot. for Recons., 2)

A. The Relevant Case Law

Sophisticated briefing on both sides raises substantial issues for consideration, seeking to shed light on the dimly lit landscape of post- Rapanos jurisprudence. The problem stems from the fact that Rapanos was fractured, without a majority opinion. As a result, the circuit courts of appeal have struggled to determine which opinion (or combination of opinions) provides the holding and governing rule going forward.

In Marks v. United States, the Supreme Court addressed the standard for finding the holding of a divided Court in circumstances where no opinion attracts a majority. 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). There, the Supreme Court stated that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Id. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). For example, in Marks, the Court endeavored to determine the binding effect of Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), in which a three-justice plurality held that the book at issue was not obscenity and therefore entitled to constitutional protection, whereas two members concurred in that judgment on the grounds that the First Amendment provided an absolute shield against government suppression of obscenity. The Court determined that the plurality's opinion constituted the Court's holding because the plurality's position was narrower than that of the concurring members. Marks, 430 U.S. at 193–94, 97 S.Ct. 990.

Even with the guidance set forth in Marks, however, the lower courts have struggled to divine a guiding principle from the Rapanos decision. As the Supreme Court itself has recognized, applying Marks to determine the holding of a fractured decision is often more easily said than done. See Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). In particular, application of the Marks rule is problematic when “one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others.” King v. Palmer, 950 F.2d 771, 781 (1991). In such circumstances, it is difficult to determine which holding is the narrowest.

This is precisely the problem presented by Rapanos. As several circuit courts of appeal have recognized, Marks does not translate easily to Rapanos because neither the plurality opinion nor the concurring opinion is a precise subset of the other. See, e.g., U.S. v. Bailey, 571 F.3d 791, 798 (8th Cir.2009) (observing that “there is little overlap between the plurality's and Justice Kennedy's opinions”); U.S. v. Johnson, 467 F.3d 56, 64 (1st Cir.2006) (observing that “the cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction”).

Significantly, Justice Kennedy found the plurality opinion too restrictive of federal jurisdiction over adjacent wetlands, expressly rejecting the plurality's limitation of jurisdiction to “relatively permanent” bodies of water as well as the plurality's requirement of a “continuous surface connection” between a wetland and an adjacent “relatively permanent” waterway. Rapanos, 547 U.S. at 768–69, 126 S.Ct. 2208. Justice Kennedy thereafter concluded that federal jurisdiction exists where there is a significant nexus between the wetland in question and a traditionally navigable waterway. Id., at 779–80, 126 S.Ct. 2208.

Because Justice Kennedy rejected those limitations set forth in the plurality's opinion, many circuit courts of appeal have determined that Justice Kennedy's is the narrower test because it is generally less restrictive of federal...