ELR Citation: ELR 20781
No(s). 01-4513 (4th Cir. Jul 2, 2002)

The court holds that the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001) (SWANCC), did not fundamentally or significantly change the law governing a development company's conviction for discharging fill material into protected wetlands in violation of the Clean Water Act. In 1999, the company pled guilty to one count of knowingly filling wetlands and entered into a consent decree with the United States. After the Supreme Court decided SWANCC, the company filed a petition for writ of error coram nobis and a motion to vacate the consent decree under Fed. R. Civ. P. 60(b)(5), arguing that SWANCC legalized the conduct underlying the criminal conviction and the consent decree. The court holds that the district court properly denied both applications. Neither the writ of error coram nobis nor the motion to vacate is warranted unless there has been a fundamental or significant change in the law governing the case. The company argued that such a change had occurred because SWANCC eliminated the federal government's jurisdiction over the wetlands at issue. The court holds, however, that the company is incorrect. At issue in SWANCC was the U.S. Army Corps of Engineers' jurisdiction over an isolated intrastate body of water under 33 C.F.R. §328.3(a)(3), the only subsection that covers isolated bodies of water. Here the Corps' jurisdiction does not rest on subsection (a)(3). Rather, the Corps' jurisdiction for purposes of the guilty plea and the consent decree is based on 33 C.F.R. §328.3(a)(1), (a)(5), and (a)(7). Further, because the Fourth Circuit already invalidated 33 C.F.R. §328.3(a)(3) in its entirety in United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997), an opinion issued before either the plea or the consent decree, SWANCC effected no relevant change in decisional law in the circuit.

Prior decisions in this litigation are published at 28 ELR 20299 and 31 ELR 20750.]

Counsel for Plaintiff
William W. Hamel, Ass't U.S. Attorney
U.S. Attorney's Office
101 W. Lombard St., Baltimore MD 21201
(410) 209-4800

Counsel for Defendants
Alfred H. Moses
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20004
(202) 662-6000

Before Lutting, Williams, and Michael, JJ.