ELR Citation: ELR 20750
No(s). AW-96-1112, -95-0390 (D. Md. Jun 12, 2001)

The court holds that the ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 31 ELR 20382 (2001), does not warrant granting a petition for a writ of error coram nobis or vacating a consent decree in a case involving the illegal filling of wetlands in violation of the Clean Water Act (CWA). A company placed fill in four parcels of land adjacent to the headwaters of non-navigable creeks. After conviction, the company appealed and the conviction was reversed and the case remanded for a new trial, but a consent decree was reached by the company and the government. Based on the ruling by the U.S. Supreme Court in SWANCC, the company believed that the parcels of land at issue in the case were outside the government's jurisdiction under the CWA and that the company was outside the reach of the CWA.

The court first holds that the SWANCC case does not invalidate the conviction. In prosecuting the company, the government relied on the adjacent/abutting theory of tributaries impacting on navigable waters, which involved 33 C.F.R. §328.3(a)(1), (a)(5), and (a)(7). In contrast, the SWANCC case is a narrow holding in that only the 33 C.F.R. §328.3(a)(3) migratory bird rule is invalid pursuant to a lack of congressional intent. Therefore, it would be improper to extend the ruling in SWANCC any further than the Supreme Court intended. The court then holds that the company's motion to vacate its consent decree with the government must be denied. In addition to the SWANCC opinion not applying to the present case, the consent decree cannot be vacated because the company has already subjected itself to the court's jurisdiction. Whether the parcels of land were navigable or abutting navigable waters is simply an element of the crime with which the company was charged. Because the government has jurisdiction over the case, the consent decree cannot be attacked on the basis that the government failed to prove an element of the crime; namely that the government did not have jurisdiction to bring the instant case.

A prior decision in this litigation is published at 28 ELR 20299.]

Counsel for Plaintiff
P. Michael Cunningham
U.S. Attorney's Office
6625 U.S. CtHse.
101 W. Lombard St., Baltimore MD 21201
(410) 209-4800

Counsel for Defendant
Bruce Baird
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20004
(202) 662-5196/6000

Williams, J.