The Alaska Contractor: Fall 2006

Even so, the impacts on judicial decision-making were
almost immediate and favorable. A federal District Court in
Texas was considering a case where the Chevron Pipe Line
Company was being fi ned by federal regulators for spilling
oil into a dry creek bed. Although the spill was cleaned up,
as required by state law, and the nearest free fl owing river
was almost 25 miles from the spill.
To make its decision on whether there was federal jurisdiction,
the District Court considered the differing opinions
in Rapanos, and found that Justice Kennedy’s “signifi cant
nexus” approach advanced “an ambiguous test” that left no
guidance on how to determine what is “signifi cant.” The
judge in this case relied instead on the opinion of the other
four Justices, authored by Justice Scalia, that federal jurisdiction,
under the Clean Water Act, does not extend to drainage
ditches used for rain fl ow.
This may be an excellent start, but it is only just that – a
start. Other courts in other federal circuits are likely to apply
the Rapanos decision differently. In fact, the Ninth Circuit
recently opted to follow the Kennedy application to
defi ne Clean Water Act jurisdiction. It is unlikely then that
the Corps will reduce its permit demands except perhaps
in those situations where the land or water body is wholly
isolated from downstream waters. Even there it is likely the
Corps will continue to “fudge” on its authority.
The full impact of Rapanos in Alaska is as yet unknown,
but interpretive cases are moving forward. Fairbanks North
Star Borough v. Corps of Engineers Pacifi c Legal Foundation
is challenging claims by the Corps that land frozen solid 12
months of the year is actually a jurisdictional wetland. The
Corps, acting on an appeal to itself, has upheld its own earlier
jurisdictional determination.
In every state except Alaska wetlands permitting jurisdiction
is determined by the Corps using the congressionally
mandated 1987 Wetlands Delineation Manual. The Alaska
District of the Corps, however, developed its own jurisdictional
standard, called The Alaska Rule, which confers jurisdiction
to the Corps over areas of permafrost like that found
in North Star Borough.
As the lawsuit to reverse the jurisdictional claim to frozen
tundra moves forward, PLF will be asking the court to
remand the Alaska Rule back to the Corps with instructions
that it must follow the United States Supreme Court’s ruling
in Rapanos and be made compatible with the 1987 Manual
used elsewhere.
Federal agencies like the Corps of Engineers have been
expanding their powers over local land use issues for decades.
It is unreasonable to believe this trend can be reversed
in one or two cases. This is why Pacifi c Legal Foundation
continues to press a comprehensive legal attack on illegal
federal regulation across the nation.
M. Reed Hopper is a Principal Attorney at Pacifi c Legal
Foundation and represented John Rapanos in Rapanos v. United
States in his successful appeal in the United States Supreme Court.
Fall 2006 The Alaska CONTRACTOR 73