LESLIE SALT CO., a Delaware corporation; Cargill, Inc., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 93-15932.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 14, 1994. Decided May 22, 1995.
55 F.3d 1388
Before LAY, PREGERSON, and O‘SCANNLAIN, Circuit Judges.
However, Coley‘s Rule 32 petition and subsequent federal habeas petition fall between Shattuck and Sandon on the one hand, and Jennison on the other. In Harmon, we concluded that an Arizona state habeas petitioner confronted with the Arizona cases of Shattuck and Sandon was justified in not seeking review in the Arizona Supreme Court in order to exhaust his remedies prior to bringing a federаl habeas petition. Harmon, 959 F.2d at 1462-63. Thus, petitioners are not imputed with the foresight of the Jennison rule. “After Shattuck, an Arizona defendant was reasonably certain to believe—quite justifiably—that after the Arizona Court of Appeals had considered his claims, his state remedies ha[d] been exhausted.” Id. at 1463 (quotations and citations omitted).
Harmon controls with respect to Coley‘s failure to sever claim. The claim was raised in and decided by the Arizona Court of Appeals. It was then raised in the habeas petition. Jennison tells us that Coley failed to exhaust this claim because he could have asked for Arizona Supreme Court discretionary review. But Harmon excuses this failure.
Gonzales argues that the district court correctly found, see Coley, 813 F.Supp. at 709 n. 9, that Coley had “actual knowledge” that he could have raised his claim in the Arizona Supreme Court, because he did so with respect to a prior conviction. Gonzales asks us to distinguish Harmon on the ground that a petitioner who knew the Arizona state procedures, and therefore could not have been confused about them, should not get the benefit of bypassing those procedures.
Gonzales‘s argument is well taken as far as it goes. But the record does not support the application of such a rule in this case. At best, the district court made a finding that Coley knew thаt he could raise a claim in Arizona Supreme Court because he had done so before. That is not a finding that Coley knew that he had to do so. The record does not support the distinction between this case and Harmon that Gonzales seeks. Gonzales has not shown that Coley was so sophisticated in his knowledge of Arizona criminal procedure that he knew he had to appeal to the Arizona Supreme Court and, therefore, that Harmon should not apply. For this reason, we reverse the district court with respect to Coley‘s claim that the state trial court failed to sever certain cоunts at his trial and we remand that claim only for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Edgar B. Washburn, Washburn, Briscoe & McCarthy, San Francisco, CA, for plaintiffs-appellants.
David C. Shilton, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.
We must decide whether to revisit an issue previously resolved by this court—whether isolated, seasonally dry intrastate waters used only by migratory birds are within the regulatory reach of the Clean Water Act. We also decide whether, in the event of violations of the Act, civil fines are mandatory or discretionary.
I
Cargill, Inc., the corporate successor to Leslie Salt Co., owns a 153-acre tract of land southeast of San Francisco. The property abuts the Sаn Francisco Bay National Wildlife Refuge and lies near Newark Slough, a tidal arm of San Francisco Bay. A road divides the property into a 143-acre parcel and a 10-acre parcel. Until 1959, Leslie Salt used the property for salt manufacturing. The eastern part of the 143-acre parcel still contains pits that were used to collect calcium chloride, and the western part contains shallow basins that were used for crystallizing salt.
This appeal centers on 12.5 acres out of the 143-acre parcel, on which the former crystallizers and calcium chloride pits still lie. During muсh of the year, these areas are
A
Under the Clean Water Act (“the Act“), the discharge of any “pollutant“—which includes dredged or fill materials—into “navigable waters” is forbidden unless authorized by a permit issued by the Army Corps of Engineers (the “Corps“).
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
* * * * *
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are or could be used for industrial purposes by industries in interstate commerce.
In the preamble to the 1986 regulations, the Corps suggested that “waters of the United States” also includes waters:
a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or
b. Which are or would be used as habitat by other migratory birds which cross state lines; or
c. Which arе or would be used as habitat for endangered species; or
d. Used to irrigate crops sold in interstate commerce.
51 Fed.Reg. 41,217 (1986). This preamble material has never been subjected to notice-and-comment procedures and has not been promulgated as an official regulation. The predicate for jurisdiction over the seasonally ponded areas still in dispute in this case is their status as “other waters” which are used as habitat by migratory birds.
B
Upon learning that Leslie Salt was discharging fill that affected the seasonally ponded areas, the Corps issued a cease and desist order under section 404 of the Act. Leslie Salt filed suit challenging the Corps’ jurisdiction over the property. The United States also brought an enforcement action, which was consolidated with Leslie Salt‘s suit.
The district court originally held that the Corps had no jurisdiction over Leslie Salt‘s property. Leslie Salt Co. v. United States, 700 F.Supp. 476 (N.D.Cal.1989) (”Leslie Salt I“). On the issue that is currently before this court, the district court held that the temporary ponds in the crystallizers and the pits were not “other waters” under
On appeal, this court reversed and remanded. Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir.1990), cert. denied, 498 U.S. 1126 (1991) (”Leslie Salt II“). The court held, among other things, that the fact that the crystallizers and pits were artificially made and dry part of the year did not exclude
On remand, the district court found that roughly 12.5 acres of seasonally ponded areas, primarily in the calcium chloride pits, were subject to jurisdiction. Leslie Salt Co. v. United States, 820 F.Supp. 478 (N.D.Cal.1992) (“order for judgment“) (”Leslie Salt III“). Thе court justified this holding by referring to the evidence summarized in the United States’ Memorandum on Remand. See id. at 480. Among other things, this Memorandum states that some 55 species of migratory birds use the seasonally ponded areas as habitat. The court also held that Leslie Salt violated the Act in three of these areas by discharging fill or altering structures without a permit at specific points. Finally, in proceedings addressing the issue of remedies, the court ruled that penalties are mandatory under section 309(d) of the Act when a violation has been found, and that the United States was entitled to injunctive relief to restorе the property to its preexisting condition. See id. at 483-84 (“order regarding remedies“). The parties subsequently stipulated to a penalty of $50,000 and a restoration plan. The stipulation preserved Cargill‘s right to appeal the issue of whether penalties are mandatory.
II
Cargill urges this court to revisit the Leslie Salt II court‘s determination that the Corps’ jurisdiction under the Act reaches isolated waters used only by migratory birds. Under law of the case doctrine, however, one panel of an appellate court will not reconsider matters resolved in a prior appeal to another panel in the same case. Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826 (1979); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4478, at 788 (1982). In the subsequent appeal, “[t]he scope of review is narrowed to the limitations of the remand.” Adamian v. Lombardi, 608 F.2d 1224, 1228 (9th Cir.1979), cert. denied, 446 U.S. 938 (1980).
In Leslie Salt II, a panel of this court held that “[t]he commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds and endangered species.” 896 F.2d at 360. The court remanded only for a “factual determination of the sufficiency of the property‘s connections to interstate commerce.” Id. at 361. Thus, the validity of the “migratory bird rule” was established in the first appeal, and this court‘s review should generаlly be limited to the issues decided on remand—the property‘s specific connections to interstate commerce due to migratory bird use. However, Cargill does not appeal the district court‘s factual findings.
Instead, Cargill first claims that this court should not apply law of the case because the panel in Leslie Salt II upheld the migratory bird rule in “a bare conclusion” and “without any discussion.” Admittedly, a more detailed explanation for such a significant holding might have been more illuminating. However, Cargill‘s argument fails for two reasons. First, the panel‘s holding, though succinct, was addressed in a separate sectiоn of the opinion, specifically referred to the migratory bird examples in the preamble to the 1986 regulations, and was supported by citations to relevant case law. Leslie Salt II, 896 F.2d at 360. Judge Rymer‘s dissent in Leslie Salt II challenged the majority on precisely this point, which shows that the panel was aware of the issue. See id. at 361-62 n. 1. Second, “even summarily treated issues become the law of the case.” Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C.Cir.1994). This court has followed law of the case even where the first panel‘s holding was “cryptic and somewhat ambiguous.” Hanna Boys Ctr. v. Miller, 853 F.2d 682, 687 (9th Cir.1988). See also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (“[T]he law of the case turns on whether a court previously decide[d] upon a rule of law ... not on whether, or how wеll, it explained the decision.“).
The law of the case doctrine is not an absolute bar to reconsideration of matters previously decided. The doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). Thus, the court may reconsider previously decided questions in cases in which there has been an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice. Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 4478, at 790.1 Cargill‘s substantive arguments are еssentially an attempt to show that this court‘s decision in Leslie Salt II was clearly erroneous. This court will address the merits of Cargill‘s claims only so far as necessary to determine whether the matter settled in Leslie Salt II should be reconsidered. See Merritt, 932 F.2d at 1320.
III
Cargill makes several substantive and procedural challenges to the validity of the migratory bird rule. Because law of the case applies to these claims, Cargill must show not only that the Leslie Salt II court‘s holding regarding the migratory bird rule was wrong, but that it was clearly wrong. See Merritt, 932 F.2d at 1322.
A
Cargill claims that the preamble to the 1986 regulations promulgated a rule without notice and comment as required by the Administrative Procedure Act.
The Leslie Salt II court did not expressly address this claim in its opinion. However, the briefs and other materials submitted to that court reveal that it was aware of both the arguments and the cases relied upon by Cargill. “The law of the case applies to ‘issues decided explicitly or by necessary implication in this court‘s previous disposition.‘” Hanna Boys Ctr., 853 F.2d at 685 (quoting Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.1982)). By holding that use by migratory birds could form a sufficient connection to interstate commerce to support jurisdiction, the Leslie Salt II court implicitly rejected all arguments that the rule is invalid for procedural reasons under the Administrative Procedure Act as well.
The merits of Cargill‘s claim turn on whether the migratory bird examples in the preamble are characterized as a substantive rule or an interpretive rule. A substantive rule is one that imposes “general, extra-statutory obligations pursuant to authority properly delegated by the legislature.” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir.1984) (quotation omitted). An interpretive rule is one that merely explains “what the administrative officer thinks the statute or regulation means.” See id. at 613. A substantive rule must be subjected to notice and comment procedures,
The United States contends that the migratory bird examрles are an interpretive rule because they merely set out the Corps’ understanding of the statutory term “waters of the United States.” The United States gains support for its position from Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir.1993), in which the Seventh Circuit held that it was reasonable for the EPA to interpret
If this court were deciding the issue for the first time, a much more detailed examination of the migratory bird rule‘s effect on agency decisionmaking might be in order. See, e.g., Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir.1987). The court would also have more leeway in its final characterization of the rule. See, e.g., Tabb Lakes, Ltd. v. United States, 715 F.Supp. 726, 729 (E.D.Va.1988) (holding “migratory bird rule” invalid as a substantive rule promulgated without notice and comment), aff‘d, 885 F.2d 866 (4th Cir.1989). However, at this point in the proceedings, the court may address the merits of Cargill‘s claims only so far as necessary to determine whether the Leslie Salt II court was clearly wrong. See Merritt, 932 F.2d at 1320. Given that it is plausible to find that the preamble is merely an interpretive rule, and thus not subject to the notice-and-comment requirements of the Administrative Procedure Act, the holding in Leslie Salt II cannot be deemed clearly erroneous on this ground.
B
Cargill claims that the Corps’ interpretation of the Act to extend jurisdiction to habitat used by migratory birds is unreasonable. Cargill attempts to relitigate the Leslie Salt II court‘s holding that: “the Clean Water Act [ ] is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds....” Leslie Salt II, 896 F.2d at 360. Indeed, Judge Rymer‘s dissent took issue with this part of the holding. See id. at 361 n. 1. However, the existence of a dissent, though it may heighten our concerns, does not compel the court to conclude that the decision in Leslie Salt II was incorrect. See Merritt, 932 F.2d at 1321-22.
Cargill‘s claim turns on whether the preamble‘s example of waters “[w]hich are or would be used as habitat by other migratory birds which cross state lines,” 51 Fed.Reg. 41,217 (1986), can be seen as a reasonable interpretation of the Act‘s term “waters of the United States,”
The reasonableness of the Corps’ interpretation must be judged in light of the Act‘s language, policies, and legislative history. The language of the Act evinces broad congressional purposes that can be cited in support of the Corps’ interpretation. For example,
Clearly the Act fails to mention isolated wetlands. And, to the extent it is relevant, neither does the Act‘s legislative history from 1972 and 1977. However, legislative history
The Corps’ interpretation also finds some support in the Supreme Court‘s analysis of the Act. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-35 (1985), the Court held that it was reasonable for the Corps to exercise jurisdiction over wetlands adjacent to other waters. The Court cited with apparent approval the Corps’ findings that “wetlands ... may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water.” Id. at 135. The Court also referred to the Corps’ assessment that “adjacent wetlands may serve significant natural biological functions, including food сhain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic ... species.” Id. at 134-35 (quotation omitted). These statements applied to adjacent wetlands, not to isolated, seasonally ponded areas as are at issue in this case. See id. at 131 n. 8. The seasonally ponded areas on Cargill‘s property have no hydrological connection to any other body of water; indeed, for much of the year they do not even exist. Nevertheless, the Corps’ rationale for regulating adjacent wetlands may have some application to isolated waters as well. The seasonally ponded areas may have a connection to the aquatic ecosystem in their role as habitat for migratory birds.
Finally, as discussed above, the Seventh Circuit‘s decision in Hoffman Homes supports the notion that it is reasonable to interpret the Act as allowing migratory birds to be the connection between a wetland and interstate commerce. Hoffman Homes, 999 F.2d at 261. See also Utah v. Marsh, 740 F.2d 799, 803 (10th Cir.1984) (holding that a lake‘s presence “on the flyway of several species of migratory waterfowl” was one factor among several supporting Act jurisdiction).
If this court were considering the issue for the first time, Cargill‘s arguments might well deservе closer consideration. However, in light of the broad purposes evinced by the language of the Act and, to a greater extent its legislative history, and the tangential support found in other cases, the holding in Leslie Salt II cannot be considered clearly erroneous on this ground.
C
Cargill claims that, if the migratory bird rule is held to be a reasonable interpretation of the Act, then it would exceed Congress‘s powers under the Commerce Clause. Again, this is an attempt to relitigate the Leslie Salt II court‘s holding that “[t]he commerce clause power ... is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds and endangered spеcies.” Leslie Salt II, 896 F.2d at 360. Even Judge Rymer, in dissent, agreed that the commerce power can reach regulation of migratory bird habitat; she argued instead that Congress did not intend to extend Act jurisdiction to such an extent. Id. at 361 n. 1.
A court‘s review of congressional enactments under the Commerce Clause should be highly deferential. United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991). “[A]ctivity that is seemingly insignificant may be regulated [under the Commerce Clause] where one individual‘s ‘contribution, taken together with that of many others similarly situated, is far from trivial.‘” Columbia River Gorge United v. Yeutter, 960 F.2d 110, 113 (9th Cir.) (quoting Wickard v. Filburn, 317 U.S. 111, 127-28 (1942)), cert. denied, 506 U.S. 863 (1992).
One rationale for regulating migratory bird habitat as an element of interstate commerce was expressed by the Seventh Circuit in Hoffman Homes: “Throughout North America, millions of people annually spend more than a billion dollars on hunting, trap-
The Supreme Court has suggested that Congress‘s commerce clause powers extend to the regulation of migratory birds. In Hughes v. Oklahoma, 441 U.S. 322, 329-36 (1979), the Court impliedly said as much when it held that state regulations of intrastate wildlife fall within the ambit of the dormant Commerce Clause. Other courts have also found that the Commerce Clause extends this far. In Palila v. Hawaii Dep‘t of Land and Natural Resources, 471 F.Supp. 985, 995 (D.Haw.1979), aff‘d, 639 F.2d 495 (9th Cir.1981), the court, in upholding the Endangered Species Act against a Commerce Clause challenge, stated that “a national program to protect and improve the natural habitats of endangered species preserves the possibilities of interstate commerce in these species and of interstate movement of persons, such as amateur students of nature or professional scientists who come to a state to observe and study these species.”
The migratory bird rule certainly tests the limits of Congress‘s commerce powers and, some would argue, the bounds of reason. In this case, there is no evidence of human contact with the seasonally ponded areas. The only humans that hunt or photograph the birds using these ponds apparently are doing so after they have reached other locations. Nevertheless, given the broad sweep of the Commerce Clause, the holding in Leslie Salt II cannot be considered clearly erroneous on this ground.3
We conclude that reconsideration of Leslie Salt II by this panel is inappropriate.
IV
PREGERSON, Circuit Judge, with whom LAY, Circuit Judge, concurs:
We concur in Judge O‘Scannlain‘s opinion as to Parts I through III. However, we deliver the opinion of the Court as to Part IV, addressing the issue of whether civil penalties are mandatory under section 309(d) of the Act.
Cargill claims the district court erred when it held that section 309(d) of the Act mandates that a civil penalty be imposed for Cargill‘s violations. See Leslie Salt III, 820 F.Supp. at 483-84.
Section 309(d) provides:
Any person who violates [one of the enumerated provisions of the CWA] shall be subject to a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, ... any good faith efforts to comply with the applicable requirements, ... and such other matters as justice may require.
This is an issue of first impression before this court. “In construing statutes in a case of first impression, we first look to the language of the controlling statutes, and second to legislative history.” Central Mont. Elec. Power Coop. v. Administrator of Bonneville Power Admin., 840 F.2d 1472, 1477 (9th Cir.1988). “Absent a clearly expressed legislative intent to the contrary, the plain language must ordinarily be regarded as conclusive.” Id.
The language of section 309(d) is somewhat odd in that it uses the words “shall be
We agree with the other circuits that have held that civil penalties are mandatory under section 309(d). First, as a matter of statutory interpretation, a longstanding canon holds thаt the word “shall” standing by itself is a word of command rather than guidance when the statutory purpose is the protection of public or private rights. Escoe v. Zerbst, 295 U.S. 490, 494 (1935) (Cardozo, J.). The Act serves precisely such purposes. Second, Congress used less definitive language when it wanted to indicate that penalties are discretionary. Shortly after section 309(d), in section 309(g)(1), Congress used the words “may ... assess a ... civil penalty” with regard to administrative actions.
Finally, the fact that civil penalties are mandatory under section 309(d) does not restrain a district court‘s discretion as significantly as Cargill suggests. District courts retain the broad discretion to set a penalty commensurate with the defendant‘s culpability. Indeed, in its consideration of the seriousness of a defendant‘s violations and “such other matters as justice may require,” the district court could assess a civil penalty of only a nominal amount.
V
In sum, we affirm the district court‘s “order on judgment” on the ground that law of the case bars reconsideration of the validity of the migratory bird rule and that Cargill‘s challenges to this rule do not demonstrate thаt the holding of the prior appeal was clear error. To do otherwise would too lightly regard the decision of another panel of this court. Only an en banc court may alter such outcome.
We also affirm the “order regarding remedies” to the extent that it held that civil penalties are mandatory under section 309(d) of the Act.
AFFIRMED.
O‘SCANNLAIN, Circuit Judge, dissenting in part:
I respectfully dissent from Part IV of the majority opinion.
Section 309(d) of the Clean Water Act (“the Act“) provides:
Any person who violates [one of the enumerated sections of the Act] shall be subject to a civil penalty not to exceed $25,000 per day for each violation.
Section 309(d) did not use the words “shall pay“; it used the words “shall be subject to.” The latter phrase is synonymous with “shall be liable tо” or “shall be answerable to.” Black‘s Law Dictionary 1278 (5th ed. 1979). Read literally, the section merely states that a violator is liable to be assessed a civil penalty, not that he or she must be. In
If Congress had meant civil penalties to be mandatory, it could have written section 309(d) to state that a violator “shall pay” a civil penalty. Indeed, these are precisely the words it has chosen in numerous civil penalty provisions. See, e.g.,
In addition, to the extent it might be relevant, the Act‘s legislative history reveals no congressional intent whatsoever to make civil penalties mandatory. The House Report to the 1972 Amendments simply states that “the courts are authorized to apply appropriate civil penalties under Section 309(d).” H.R.Rep. No. 911, 92nd Cong., 2d Sess. 133 (1972) (emphasis added). It does not suggest that Congress believed the courts are required to do so.
Even if section 309(d) were found to be ambiguous, the rule of lenity should counsel us to choose the interpretation least likely to impose penalties unintended by Congress. See National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994). The rule of lenity has not been limited to criminal statutes, particularly when the civil sanctions in question are punitive in character. See United States v. Thompson/Center Arms Co., 504 U.S. 505, 518 n. 10 (1992). The penalties contemplated by section 309(d) clearly have punitive purposes. Tull v. United States, 481 U.S. 412, 422-23 (1987). Thus, section 309(d) should not be read to require civil penalties in all cases but only where the district court, in its discretion, finds them appropriate.
Undoubtedly, civil penalties will be imposed in most cases of proven violations of the Act; however, by leaving them to the district court‘s discretion, more appropriate remedies may be fashioned in exceptional cases. For example, the district court may encounter situations in which the purposes of the Act are better served by seeing to it that the violator undertakes comprehensive corrective actions. See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60-61 (1987) (suggesting that civil penalties might be inappropriate where violator agrees to take some extreme corrective action).
I would therefore reverse the district court‘s “order regarding remedies” to the extent that it held that section 309(d) of the Act mandated that a civil monetary penalty be imposed for every violation of the Act.