United States of America v. Gerke Excavating , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3941
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G ERKE E XCAVATING , I NC .,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-0074-C—Barbara B. Crabb, Chief Judge.
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On Remand From the
Supreme Court of the United States
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S EPTEMBER 22, 2006
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Before POSNER , E ASTERBROOK , and E VANS , Circuit Judges.
P ER C URIAM . This suit charges that the defendant, Gerke
Excavating, violated the Clean Water Act by discharging
pollutants into “navigable waters” from “point sources”
without having obtained the permit from the Corps of
Engineers that is required if the pollutant consists of dredge
or fill material. 33 U.S.C. §§ 1311(a), 1362(12). The district
judge granted summary judgment for the government and
imposed a civil penalty. We affirmed. 412 F.3d 804 (7th Cir.

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2 No. 04-3941
2005). Gerke filed a petition for certiorari. The Court granted
the petition, 126 S. Ct. 2964 (2006), and remanded the case
to us for further consideration in light of Rapanos v. United
States, 126 S. Ct. 2208 (2006), where the Court reversed two
judgments by the Sixth Circuit upholding federal authority
over wetlands, as had we.
There was, however, no majority opinion in Rapanos. Four
Justices, in an opinion supporting reversal, wanted to limit
federal authority over “navigable waters” to “those wet-
lands 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 [Clean Water Act]. Wetlands with only an intermittent,
physically remote hydrologic connection to ‘waters of the
United States’ . . . thus lack the necessary connection to
covered waters that we described as a ‘significant nexus.’
Thus, establishing that wetlands such as those at the
Rapanos and Carabell sites are covered by the Act requires
two findings: First, that the adjacent channel contains a
‘wate[r] of the United States,’ (i.e., a relatively permanent
body of water connected to traditional interstate navigable
waters); and second, that the wetland has a continuous
surface connection with that water, making it difficult to
determine where the ‘water’ ends and the ‘wetland’ begins.”
Id. at 1226-27 (citations omitted).
Justice Kennedy concurred in the judgment to reverse but
not in the plurality opinion. The four dissenting Justices
took a much broader view of federal authority; Justice
Kennedy criticized them as well as criticizing the plurality.
When a majority of the Supreme Court agrees only on the
outcome of a case and not on the ground for that outcome,
lower-court judges are to follow the narrowest ground to

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No. 04-3941 3
which a majority of the Justices would have assented if
forced to choose. Marks v. United States, 430 U.S. 188, 193
(1977). In Rapanos, that is Justice Kennedy’s ground.
The plurality Justices thought that Justice Kennedy’s
ground for reversing was narrower than their own, because
they concluded their extensive and in places harsh criticism
of the concurrence by saying that “Justice K ENNEDY tips a
wink at the agency [i.e., the Corps of Engineers], inviting it
to try its same expansive reading again.” 126 S. Ct. at 2234
n. 15. Justice Kennedy expressly rejected two “limitations”
imposed by the plurality on federal authority over wetlands
under the Clean Water Act, one being the requirement of a
“continuous surface connection” between the wetland and
the conventional waterway that it abuts. Id. at 2242 (concur-
ring opinion). He accused the majority of being “unduly
dismissive of the interests asserted by the United States in
these cases. Important public interests are served by the
Clean Water Act in general and by the protection of
wetlands in particular.” Id. at 2246.
The test he proposed is that “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 2248. This test is narrower (so far as reining
in federal authority is concerned) than the plurality’s in
most cases, though not in all because Justice Kennedy also
said that “by saying the Act covers wetlands (however
remote) possessing a surface-water connection with a

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4 No. 04-3941
continuously flowing stream (however small), the plural-
ity’s reading would permit applications of the statute as far
from traditional federal authority as are the waters it deems
beyond the statute’s reach.” Id. at 2246.
Thus, any conclusion that Justice Kennedy reaches in
favor of federal authority over wetlands in a future case will
command the support of five Justices (himself plus the four
dissenters), and in most cases in which he concludes that
there is no federal authority he will command five votes
(himself plus the four Justices in the Rapanos plurality), the
exception being a case in which he would vote against
federal authority only to be outvoted 8-to-1 (the four
dissenting Justices plus the members of the Rapanos plural-
ity) because there was a slight surface hydrological connec-
tion. The plurality’s insistence that the issue of federal
authority be governed by strict rules will on occasion align
the Justices in the plurality with the Rapanos dissenters
when the balancing approach of Justice Kennedy favors the
landowner. But that will be a rare case, so as a practical
matter the Kennedy concurrence is the least common
denominator (always, when his view favors federal author-
ity).
Justice Kennedy’s proposed standard, which we conclude
must govern the further stages of this litigation, requires
factfinding not yet undertaken by the district court. We
therefore remand the case to that court for such further
proceedings as may be necessary to apply the standard.
R EMANDED WITH D IRECTIONS .

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No. 04-3941 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-06

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