By Michael Berger (310.312.4185)
This article was originally published in the August 28, 2006 issue of the Los Angeles Daily Journal.
At last count, there were nine justices on the United States Supreme Court. By any standard arithmetic computation, it takes five votes to reach a legal conclusion on that body. So what happens when the Court splits 4-1-4? Is there a controlling rule of law? If so, what is it? The answer may not be as simple as you think.
As it closed out the session in June, the Supreme Court issued its ruling in the hotly contested wetlands case of Rapanos v. U.S., 126 S.Ct. 2208 (2006). Diving once again into the definitional question of what Congress meant when it adopted a statute to regulate the nation's "navigable waters" (33 U.S.C. Section 1311(a)), which, in turn, is defined (in a not terribly helpful fashion) as "waters of the United States" (33 U.S.C. Section 1362(7)), the Court split three ways.
Four justices (led by Justice Antonin Scalia) opted for the narrow, literal view that "waters," particularly "navigable waters," actually had to consist of water in a form that could be used for navigation. If Congress meant something else, it could have said so. Four other justices (led by Justice John Paul Stevens), however, preferred the broad regulation adopted by the U.S. Army Corps of Engineers, which would include as "navigable waters" any land through which rainwater or drainage may occasionally flow, whether on or below the surface.
Justice Anthony Kennedy eschewed both, opting for a middle ground. He joined the Scalia faction in reversing the 6th U.S. Circuit Court of Appeals because he believed its use of the Corps' definition went too far. In Kennedy's view, "navigable waters" would include wetlands that had a "significant nexus" to navigable waters. Chief Justice John Roberts filed a short concurring opinion lamenting the fact that the Court was not able to draft an opinion that could command the assent of a majority.
So the parties in Rapanos got the right to go back to the lower courts and try again, with some - albeit less than clear - guidance from the Supreme Court. But what happens when they try again? More broadly, what happens to the rest of us when we are involved in similar litigation (or administrative proceedings before the Corps) and need to know what the rule is?
What indeed? The Chief Justice noted that the Court's output had left "[l]ower courts and regulated entities ... to feel their way on a case-by-case basis." The 9th Circuit appears to have had the first appellate crack at explaining how to add up 4 and 1 and 4 and come up with a rule, handing down its decision in Northern California River Watch v. City of Healdsburg, 2006 DJDAR 10537 (9th Cir. Aug. 10, 2006), less than two months after Rapanos.
The question in both Rapanos and River Watch had to do with whether specific wetlands qualified as navigable waters or waters of the United States so as to be governed by the federal Clean Water Act. River Watch centered on an old quarry pit called Basalt Pond that had filled with water. The city of Healdsburg, with permission of the owners of the pond, incorporated the pond into its waste treatment facility. Although the pit was separated from the concededly navigable Russian River by a levee, the Court said that there was evidence that water from the pond seeped into the river below ground and that when the levee was overtopped (shades of Katrina and New Orleans) the pond was actually directly connected to the river.
The issue here is not whether River Watch reached the correct result but how it got there. The Court said it was applying Rapanos and coming up with an actual holding from the divergent reasoning in the various opinions.
The 9th Circuit concluded it could just eliminate the two four-justice opinions and heed only the Kennedy concurring opinion. Huh? From a nine-justice Court, can one sweep aside the views of eight and conclude that the view of the last justice standing represents the binding determination of the Court? That's what the 9th Circuit did, and here's how it says it got there: "Justice Kennedy, concurred only in the judgment and, therefore, provides the controlling rule of law."
In other words, the views of the other eight, because they represent polar opposite positions on the legal question at the heart of the Rapanos decision, simply can be disregarded because, without the Kennedy vote, there would have been no prevailing party. Thus, Kennedy's views are those of the Court or, to use the 9th Circuit's word, "controlling."
To reach that conclusion, the 9th Circuit harkened back to the Supreme Court's decision in Marks v. U.S., 430 U.S. 188 (1977). In Marks, the Court was dealing with obscenity, a field of the law that has caused interpretational headaches for years. Parsing its earlier output and finding no prevailing rationale that had obtained five adherents, the Court concluded that, in such fragmented cases, the holding of the Court could be viewed as the position of the justices who concurred in the judgment on the narrowest grounds. And Northern California properly quotes Marks to that effect.
But then what happened? Can the viewpoint of one justice that discards the views of all of the eight other justices as being too extreme in one direction or the other be said to be the "narrowest" ground for applying the statute in question? Viewing the three alternative rationales in a classic "Goldilocks and the Three Bears" mode, Kennedy - for himself alone - concluded that the analysis of one group was too hot, the other was too cold, and only his was just right.
To apply Marks' "narrowest grounds" rule properly, we need a brief recap, a review of the bidding as it were, of the views expressed in Rapanos. First, Scalia's group of four opted for an interpretation of the Clean Water Act that hewed to the critical words of the statute, that is, "navigable waters" and "waters of the United States." That group believed that the critical term in both ends of that definition is "waters" and that the Army Corps of Engineers had gone overboard in interpreting those phrases to cover much that is not water and, in some cases, is barely damp.
Stevens' group, by contrast, would have upheld the Corps' broad definition that swept within its grasp all manner of wetlands and isolated (non-navigable) ephemeral streams that are geographically far removed from actual navigable waterways. This group relied on the fact that the Corps had acted in this fashion for 30 years - something that the plurality saw as a reason for ending an erroneous interpretation rather than continuing it. Congress, of course, could enlarge the scope of the statute by broadening the essential coverage. It has not done so, but that does not mean that it could not in the future.
In any event, whether one personally prefers the Scalia view or the Stevens view is not the point. The point, under the Marks analysis that the 9th Circuit said it would apply, is which group of justices presents what Marks called the "narrowest" ground for decision. Kennedy's concurring opinion rejected the views of both groups in favor of a compromise. That is why he concurred only in the judgment.
But that very compromise shows that his view cannot represent the "narrowest" ground of decision. If one were to search for the narrowest ground that supported the Court's judgment, it would be found in the Scalia group's opinion. That opinion hewed to a narrow interpretation of the Clean Water Act. Kennedy agreed in part (which is why he concurred in the reversal) because he thought the Corps had gone too far.
By definition, if the Kennedy opinion struck a middle course between the two extremes, it could not have represented the prevailing opinion that employed the narrowest grounds.
Clean Water Act and wetlands cases arouse emotions. But the procedure for resolving such cases needs to adhere to the same rules as other cases. In this context, as the Chief Justice put it in Rapanos, the Court's failure to obtain five adherents to a rationale meant each lower court and litigant was on its own. Elevating to the status of a Court holding the one opinion that drew no agreement from any other justice seems procedurally wrong and substantively erroneous. Moreover, it doesn't even appear to have been necessary. Given the facts stated in the 9th Circuit's opinion, the result it reached could have been harmonized with each of the three Supreme Court views - without adding to the mythology of "the Kennedy Court" and exalting an opinion in which no one else joined.
Michael M. Berger is a partner in the Los Angeles office of Manatt, Phelps & Phillips, where he is a co-chairman of the firm's appellate practice group.
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Michael Berger Mr. Berger is one of California’s preeminent appellate lawyers and is Co-Chair of Manatt’s Appellate Practice Group. One of the top land use and condemnation lawyers in the United States, his practice focuses on representing homeowners, landowners, and developers in complex litigation. His appellate cases have involved planning, zoning, eminent domain, landslides, contract, due process, equal protection, defective construction, nuisance, property insurance and environmental law. He also counsels property owners and developers during the permit application phase to ensure that preconditions to suit are satisfied in the event that litigation becomes necessary.
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