ELR Citation: ELR 20200
No(s). 04-3941 (7th Cir. Sep 22, 2006)

The court, in light of the U.S. Supreme Court's decision in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006), remanded a lower court's summary judgment in favor of the U.S. government in a case involving the discharge of dredge or fill material. In Rapanos, the Court failed to reach a majority opinion as to the federal government's jurisdictional reach over wetlands. When a majority of the Court agrees only on the outcome of a case and not on the ground for that outcome, lower courts are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. In Rapanos, that would be Justice Anthony Kennedy's ground. But because Justice Kennedy's proposed standard requires fact-finding not yet undertaken by the district court, the case was remanded.

[A prior decision in this litigation is digested at 35 ELR 20128.]