ELR Citation: ELR 21046
No(s). 93-15932 (9th Cir. May 22, 1995)

The court holds that the law of the case doctrine bars it from reconsidering the validity of the U.S. Army Corps of Engineers' (Corps') interpretation of Federal Water Pollution Control Act (FWPCA) §502(7)'s phrase "waters of the United States" to include isolated, seasonally dry, artificial intrastate waters that may provide habitat for migratory birds. In the earlier appeal, Leslie Salt Co. v. United States, 20 ELR 20477 (9th Cir. 1990) (Leslie Salt II), held that the commerce clause power and the FWPCA are broad enough to extend the Corps' jurisdiction to local waters on a landowner's property which may provide habitat to migratory birds and endangered species, also referred to as the "migratory bird rule." That court reversed the district court's decision to the contrary and remanded for a factual determination on which parts of the landowner's property had sufficient connections to interstate commerce to be subject to the Corps' jurisdiction under the FWPCA. On remand, the district court found that 12.5 acres of the landowner's property, consisting of the seasonally ponded areas, were subject to the Corps' jurisdiction. On appeal, the landowner did not challenge the district court's factual finding, but sought to overturn Leslie Salt II's previous decision upholding the validity of the migratory bird rule.

The court first notes that Leslie Salt II established the validity of this migratory bird rule. The court also notes that its review of the rule on appeal should generally be limited to the issues decided on remand from its earlier decision—the property's specific connections to interstate commerce because of migratory bird use.

The court holds that its rejection in Leslie Salt II of all of the landowner's arguments that the rule is procedurally invalid under the Administrative Procedure Act (APA) is not clearly erroneous. Given that it is plausible to find that the Corps' policy on protecting migratory birds is merely an interpretive rule, it is thus not subject to the APA's notice-and-comment requirements. The court next holds that its decision in Leslie Salt II that the FWPCA's policy of protecting wildlife can be interpreted to include isolated waters that migratory birds use is not clearly erroneous. Although the FWPCA's language does not explicitly suggested that isolated waters used only by migratory birds fall within the Corps' jurisdiction, the Act's broad purposes, legislative history, and case law indicate that the Act can plausibly be read to include these waters.

Finally, the court holds that civil penalties are mandatory under FWPCA §309(d) for violations of the Act. If Congress had intended civil penalties under §309(d) to be discretionary, it would have used the word "may" instead of "shall be subject to." Although the provision requires district courts to impose a penalty, they retain broad discretion to set a penalty commensurate with a defendant's culpability.

[Prior decisions in this litigation are published at 17 ELR 21006, 19 ELR 20420, 20 ELR 20477, 22 ELR 20359, and 22 ELR 20361.]

Counsel for Plaintiffs
Edgar B. Washburn
Washburn, Briscoe & McCarthy
55 Francisco St., Ste. 600, San Francisco CA 94133
(916) 421-3200

Counsel for Defendant
David C. Shilton
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Lay,^* Pregerson, and O'Scannlain, JJ.