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Cargill, Inc. v. United States

ELR Citation: 26 ELR 20001
Nos. No. 95-73, 116 S. Ct. 407/516 U.S. 955/(U.S., 10/30/1995) cert. denied; dissent from cert. denial

Dissenting from the U.S. Supreme Court's denial of certiorari in a case in which the Ninth Circuit ruled that the presence of migratory birds on property creates a sufficient connection to interstate commerce to give the U.S. Army Corps of Engineers (the Corps) jurisdiction over the property under the Federal Water Pollution Control Act (FWPCA), Justice Thomas states that he would have granted certiorari in light of United States v. Lopez, 115 S. Ct. 1624 (U.S. 1995). The Corps ordered the property's owner to stop filling man-made pits that occasionally collect rainwater and are used by migratory birds. The Corps asserted jurisdiction over the pits under the preamble to the Corps' rules defining waters of the United States, which suggests that the phrase includes waters that are habitat for migratory birds that cross state lines. Justice Thomas noted that other than the occasional presence of migratory birds, there was no showing that petitioner's land use would have any effect on interstate commerce, much less a substantial effect. He also notes that the basis asserted to create federal jurisdiction over the land in this case seems to be more far-fetched than that offered and rejected in Lopez. He deems improper the assumption that the self-propelled flight of birds across state lines creates a sufficient interstate nexus to justify the Corps' assertion of jurisdiction over any standing water that could serve as a habitat for migratory birds. He further states that the fact that substantial interstate commerce depends on the continued existence of migratory birds does not give the Corps carte blanch authority to regulate every property that migratory birds use or could use as habitat. Justice Thomas concludes by noting that this case "raises serious and important constitutional questions about the limits of federal land-use regulation in the name of the FWPCA."

[Prior opinions in this case are published at 17 ELR 21006; 19 ELR 20420; 20 ELR 20479; and 22 ELR 20359 and 20361. Briefs are digested at ELR BRIEFS & PLEADS. 66300.]

Counsel for Appellant
Louis F. Claiborne
Washburn, Briscoe & McCarthy
55 Francisco St., Ste. 6700, San Francisco CA 94133
(415) 421-3200

Counsel for Appellee
Hon. Drew S. Days III, Solicitor General
Office of Solicitor General
U.S. Department of Justice, Rm. 5143, Washington DC 20530
(202) 514-2201