Privately-Owned Wetlands and the ESA

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SandBar 9:4, October, 2010 Recommended citation: Mary McKenna, Privately-Owned Wetlands and the ESA, 9:4 SandBar 12 (2010). Privately-Owned Wetlands and the ESA Mary McKenna, 2011 J.D. Candidate, University of Mississippi School of Law Recently, after an endangered plant species was discovered on and removed from privately-owned wetlands, the Ninth Circuit considered whether privately-owned wetlands situated adjacent to navigable waters and their tributaries were considered “areas under Federal jurisdiction” for the purposes of the Endangered Species Act regulation.1 Although the court found the term “areas under Federal jurisdiction” ambiguous, it was unconvinced that the U.S. Fish and Wildlife Service (FWS) had interpreted the term, ultimately holding that “areas under Federal jurisdiction” did not include the privately-owned land at issue, thereby affirming the district court’s ruling and the granting of summary judgment to the defendants. Background William and Frank Schellinger own 21 acres of private property comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, and vernal swales in Sebastopol, California. Their 21 acres (the Site) are adjacent to the Laguna de Santa Rosa, a tributary of the Russian River, which is a navigable water of the United States under the Clean Water Act (CWA).2 When the Schellingers began to develop the Site in 2003, the U.S. Army Corps of Engineers (Corps) designated 1.84 acres of the Site adjacent to the Laguna de Santa Rosa as wetlands subject to the CWA. In so doing, the Corps qualified that particular portion of the Schellingers’ wetlands as “navigable waters” and therefore, “waters of the United States” under the CWA. In 2005, while on a walk along the Site’s wetlands, Robert Evans, an amateur naturalist, discovered what he believed to be the endangered plant species Sebastopol meadowfoam.3 After this discovery, the California Department of Fish and Game Habitat (CDFG) Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site’s development Scott Schellinger, visited the Site to further investigate, at which time Wilcox confirmed the presence of Sebastopol meadowfoam on the Site’s wetlands. Wilcox lifted the plants and their substrates out of the wetland to determine whether the plants were rooted in the soil and thus naturally occurring. Because the CDFG employees suspected that the plants were not naturally occurring, Cooley later returned to the Site to gather evidence, whereupon he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office. In 2006, Evans and Northern California River Watch (collectively River Watch) filed a complaint against Wilcox and Cooley4 (collectively Wilcox) in the Northern District of California, alleging that the CDFG employees’ treatment and removal of the plants violated ESA § 9(a)(2)(B), which makes it unlawful to remove, damage, or destroy an endangered plant species in “areas under Federal jurisdiction.”5 Although the Site is privately owned, River Watch argued that because the area was regulated wetlands under the CWA, the area was under federal jurisdiction and thus subject to the ESA prohibition.6 Wilcox argued that the term “areas under Federal jurisdiction” only applied to land owned by the Federal government. The district court granted Wilcox’s motion for summary judgment, concluding that River Watch could not prevail on its § 9(a)(2)(B) claims because, as a matter of law, River Watch could not establish that the wetlands qualified as “areas under Federal jurisdiction.”7 River Watch appealed. Discussion In reviewing an agency’s interpretation of a statute, a court performs a two step analysis outlined in a U.S. Supreme Court case, Chevron v. Natural Resources Defense Council.8 First, a court looks at whether Congress’s intent is clear from the statutory language. If not, the next step is to consider whether the agency permissibly interpreted the statute. River Watch and Wilcox argued that the text of § 9(a)(2)(B) was clear and plainly supported their respective positions. The United States, as amicus curiae,9 urged the court to conclude that the text was ambiguous and that FWS’s construction of the ESA was entitled to Chevron deference.10 Under step one of Chevron’s analytical framework, determining whether the intent of Congress is clear, the court turned to statutory construction, engaging first in a textual analysis and second in a review of legislative history. In its textual analysis, the court determined that the meaning of “areas under Federal jurisdiction” was not immediately clear, nor explicitly defined in the ESA. Turning to legislative history, the court reviewed two committee reports that discussed the extension of the ESA’s protection to plants.11 The court concluded that the committee reports did not necessarily aid its interpretation because the reports used the term “federal land” in lieu of the statutory text “areas under Federal jurisdiction” and failed to define “federal lands.” In short, the court concluded that the meaning of the term “areas under Federal jurisdiction” was not plainly clear from the text of the ESA nor was Congress’s intent with regard to that term clear in the ESA’s legislative history. The court, therefore, agreed with the United States that the term was ambiguous. As the agency responsible for the protection and recovery of endangered plant species, the FWS “has the authority to interpret the ESA in rules carrying the force of law.”12 Under step two of the Chevron analysis, determining if an agency’s interpretation of a statute is a reasonable construction of the law at issue, the court determined that the FWS had not explicitly interpreted the term “areas under Federal jurisdiction” and therefore no agency interpretation existed to which the court must defer under Chevron.13 In other words, the court held that although the FWS had the authority to interpret the ESA through the promulgation of rules and regulations, the FWS had not yet done so, making the application of Chevron deference inappropriate. Lacking any agency interpretation of “areas under Federal jurisdiction,” the court proceeded to interpret the term. The court held River Watch’s proposed construction of § 9(a)(2)(B) to be untenable because of potential overbreadth, arguing that River Watch’s reading could be “expanded to apply to private lands which are subject to any sort of federal regulatory jurisdiction by any federal statute, i.e. everywhere.”14 Furthermore, River Watch had not established that the plain language of the ESA mandated that “waters of the United States” were “areas under Federal jurisdiction,” and ultimately interpreted “areas of Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its regulations. Therefore, the court affirmed the district court’s ruling and granted summary judgment to Wilcox. Conclusion The court reiterated that while its decision was binding law, the agency remains the authoritative interpreter of the term “areas under Federal jurisdiction.” In ruling that “areas under Federal jurisdiction” do not include all of the “waters of the United States” as defined by the CWA, the court is inviting the FWS to issue regulations or guidance specifically addressing the interpretation of the term, especially to achieve the objective of the ESA—protecting and conserving endangered species and their ecosystems. Until the FWS does interpret the term through the promulgation of rules and regulations or guidance materials, however, those privately-owned wetlands subject to the CWA are not susceptible to the authority of ESA § 9(a)(2)(B). Endnotes 1. Northern Cal. River Watch v. Wilcox, —- F.3d —- 2010 WL 3329681 (9th Cir. 2010). 2. 33 C.F.R. § 328.3(a)(7). Further, the CWA prohibits discharges of pollutants—including dredged soil, rock, sand, and cellar dirt—into the “navigable waters of the United States” without a special permit. 33 U.S.C. §§ 1311(a), 1344, 1362(6). Because their development plans of the Site included filling in and paving over parts of the Site designated as wetlands, the Shellingers applied for a special permit. Northern Cal. River Watch, 2010 WL at 2. 3. Northern Cal. River Watch, 2010 WL at 2. Evans notified a local biology professor who determined that, while Evans had identified only the common meadowfoam, Sebastopol meadowfoam plants were on the Site’s wetlands. Id. 4. River Watch also named Robert Floerke, another CDFG employee as a defendant, and in 2007, filed a second amended complaint adding the Schellingers as defendants in violation of ESA § 9(g). Id. at 12, n. 7. 5. Northern Cal. River Watch, 2010 WL at 3. See also 16 U.S.C. § 1538(a)(2)(B). 6. Northern Cal. River Watch, 2010 WL at 5. 7. Id.* at 3. 8. 467 U.S. 837 (1984). 9. Amicus curiae is literally “a friend of the court,” a person or entity who is not a party to a lawsuit but may file a brief due to a strong interest in the subject matter. 10. Id.* The United States argued that “areas under Federal jurisdiction” does not include privately-owned lands that are merely subject to regulatory jurisdiction under a federal statute. Id. 11. Northern Cal. River Watch, 2010 WL at 6. The two committee reports were (1) a House Conference Report that preceded the passage of the 1982 Amendments to the ESA, and (2) a Senate Report that preceded the passage of the 1988 Amendments to the ESA. Id.* 12. Northern Cal. River Watch, 2010 WL at 7. 13. Id.* at 8. The United States argued that three FWS rules and a guidance manual provided an interpretation of “areas under Federal jurisdiction,” triggering Chevron* deference. The court was not persuaded, convinced that the rules did not address the issue and that the handbook lacked the force of law. Id. at 8-9. 14. Id. at *11.
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SandBar 9:4, October, 2010
Recommended citation: Mary McKenna, Privately-Owned Wetlands and the ESA, 9:4 SandBar 12 (2010).

Mary McKenna, 2011 J.D. Candidate, University of Mississippi School of Law

Recently, after an endangered plant species was discovered on and removed from privately-owned wetlands, the Ninth Circuit considered whether privately-owned wetlands situated adjacent to navigable waters and their tributaries were considered “areas under Federal jurisdiction” for the purposes of the Endangered Species Act regulation.1 Although the court found the term “areas under Federal jurisdiction” ambiguous, it was unconvinced that the U.S. Fish and Wildlife Service (FWS) had interpreted the term, ultimately holding that “areas under Federal jurisdiction” did not include the privately-owned land at issue, thereby affirming the district court’s ruling and the granting of summary judgment to the defendants.

Background
William and Frank Schellinger own 21 acres of private property comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, and vernal swales in Sebastopol, California. Their 21 acres (the Site) are adjacent to the Laguna de Santa Rosa, a tributary of the Russian River, which is a navigable water of the United States under the Clean Water Act (CWA).2
      When the Schellingers began to develop the Site in 2003, the U.S. Army Corps of Engineers (Corps) designated 1.84 acres of the Site adjacent to the Laguna de Santa Rosa as wetlands subject to the CWA. In so doing, the Corps qualified that particular portion of the Schellingers’ wetlands as “navigable waters” and therefore, “waters of the United States” under the CWA.
      In 2005, while on a walk along the Site’s wetlands, Robert Evans, an amateur naturalist, discovered what he believed to be the endangered plant species Sebastopol meadowfoam.3 After this discovery, the California Department of Fish and Game Habitat (CDFG) Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site’s development Scott Schellinger, visited the Site to further investigate, at which time Wilcox confirmed the presence of Sebastopol meadowfoam on the Site’s wetlands. Wilcox lifted the plants and their substrates out of the wetland to determine whether the plants were rooted in the soil and thus naturally occurring. Because the CDFG employees suspected that the plants were not naturally occurring, Cooley later returned to the Site to gather evidence, whereupon he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office.
      In 2006, Evans and Northern California River Watch (collectively River Watch) filed a complaint against Wilcox and Cooley4 (collectively Wilcox) in the Northern District of California, alleging that the CDFG employees’ treatment and removal of the plants violated ESA § 9(a)(2)(B), which makes it unlawful to remove, damage, or destroy an endangered plant species in “areas under Federal jurisdiction.”5 Although the Site is privately owned, River Watch argued that because the area was regulated wetlands under the CWA, the area was under federal jurisdiction and thus subject to the ESA prohibition.6 Wilcox argued that the term “areas under Federal jurisdiction” only applied to land owned by the Federal government. The district court granted Wilcox’s motion for summary judgment, concluding that River Watch could not prevail on its § 9(a)(2)(B) claims because, as a matter of law, River Watch could not establish that the wetlands qualified as “areas under Federal jurisdiction.”7 River Watch appealed.

Discussion
In reviewing an agency’s interpretation of a statute, a court performs a two step analysis outlined in a U.S. Supreme Court case, Chevron v. Natural Resources Defense Council.8 First, a court looks at whether Congress’s intent is clear from the statutory language. If not, the next step is to consider whether the agency permissibly interpreted the statute.
      River Watch and Wilcox argued that the text of § 9(a)(2)(B) was clear and plainly supported their respective positions. The United States, as amicus curiae,9 urged the court to conclude that the text was ambiguous and that FWS’s construction of the ESA was entitled to Chevron deference.10 Under step one of Chevron’s analytical framework, determining whether the intent of Congress is clear, the court turned to statutory construction, engaging first in a textual analysis and second in a review of legislative history. In its textual analysis, the court determined that the meaning of “areas under Federal jurisdiction” was not immediately clear, nor explicitly defined in the ESA.
      Turning to legislative history, the court reviewed two committee reports that discussed the extension of the ESA’s protection to plants.11 The court concluded that the committee reports did not necessarily aid its interpretation because the reports used the term “federal land” in lieu of the statutory text “areas under Federal jurisdiction” and failed to define “federal lands.” In short, the court concluded that the meaning of the term “areas under Federal jurisdiction” was not plainly clear from the text of the ESA nor was Congress’s intent with regard to that term clear in the ESA’s legislative history. The court, therefore, agreed with the United States that the term was ambiguous.
      As the agency responsible for the protection and recovery of endangered plant species, the FWS “has the authority to interpret the ESA in rules carrying the force of law.”12 Under step two of the Chevron analysis, determining if an agency’s interpretation of a statute is a reasonable construction of the law at issue, the court determined that the FWS had not explicitly interpreted the term “areas under Federal jurisdiction” and therefore no agency interpretation existed to which the court must defer under Chevron.13 In other words, the court held that although the FWS had the authority to interpret the ESA through the promulgation of rules and regulations, the FWS had not yet done so, making the application of Chevron deference inappropriate.
      Lacking any agency interpretation of “areas under Federal jurisdiction,” the court proceeded to interpret the term. The court held River Watch’s proposed construction of § 9(a)(2)(B) to be untenable because of potential overbreadth, arguing that River Watch’s reading could be “expanded to apply to private lands which are subject to any sort of federal regulatory jurisdiction by any federal statute, i.e. everywhere.”14 Furthermore, River Watch had not established that the plain language of the ESA mandated that “waters of the United States” were “areas under Federal jurisdiction,” and ultimately interpreted “areas of Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its regulations. Therefore, the court affirmed the district court’s ruling and granted summary judgment to Wilcox.

Conclusion
The court reiterated that while its decision was binding law, the agency remains the authoritative interpreter of the term “areas under Federal jurisdiction.” In ruling that “areas under Federal jurisdiction” do not include all of the “waters of the United States” as defined by the CWA, the court is inviting the FWS to issue regulations or guidance specifically addressing the interpretation of the term, especially to achieve the objective of the ESA—protecting and conserving endangered species and their ecosystems. Until the FWS does interpret the term through the promulgation of rules and regulations or guidance materials, however, those privately-owned wetlands subject to the CWA are not susceptible to the authority of ESA § 9(a)(2)(B).

Endnotes
1. Northern Cal. River Watch v. Wilcox, —- F.3d —- 2010 WL 3329681 (9th Cir. 2010).
2. 33 C.F.R. § 328.3(a)(7). Further, the CWA prohibits discharges of pollutants—including dredged soil, rock, sand, and cellar dirt—into the “navigable waters of the United States” without a special permit. 33 U.S.C. §§ 1311(a), 1344, 1362(6). Because their development plans of the Site included filling in and paving over parts of the Site designated as wetlands, the Shellingers applied for a special permit. Northern Cal. River Watch, 2010 WL at *2.
3.   Northern Cal. River Watch, 2010 WL at *2. Evans notified a local biology professor who determined that, while Evans had identified only the common meadowfoam, Sebastopol meadowfoam plants were on the Site’s wetlands. Id.
4. River Watch also named Robert Floerke, another CDFG employee as a defendant, and in 2007, filed a second amended complaint adding the Schellingers as defendants in violation of ESA § 9(g). Id. at *12, n. 7.
5.   Northern Cal. River Watch, 2010 WL at *3. See also 16 U.S.C. § 1538(a)(2)(B).
6.   Northern Cal. River Watch, 2010 WL at *5.
7.   Id. at *3.
8.   467 U.S. 837 (1984).
9.   Amicus curiae is literally “a friend of the court,” a person or entity who is not a party to a lawsuit but may file a brief due to a strong interest in the subject matter.
10. Id. The United States argued that “areas under Federal jurisdiction” does not include privately-owned lands that are merely subject to regulatory jurisdiction under a federal statute. Id.
11. Northern Cal. River Watch, 2010 WL at *6. The two committee reports were (1) a House Conference Report that preceded the passage of the 1982 Amendments to the ESA, and (2) a Senate Report that preceded the passage of the 1988 Amendments to the ESA. Id.
12. Northern Cal. River Watch, 2010 WL at *7.
13. Id. at *8. The United States argued that three FWS rules and a guidance manual provided an interpretation of “areas under Federal jurisdiction,” triggering Chevron deference. The court was not persuaded, convinced that the rules did not address the issue and that the handbook lacked the force of law. Id. at 8-9.
14. Id. at *11.