United States v. Johnson

United States Court of Appeals
For the First Circuit

No. 05-1444

UNITED STATES,

Plaintiff, Appellee,

v.

CHARLES JOHNSON, GENELDA JOHNSON,
FRANCIS VANER JOHNSON, and JOHNSON CRANBERRIES, LLP

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and DiClerico,* District Judge.

Malcolm Reed Hopper, with whom Gregory T. Broderick was on
brief for appellants.
John L. Smeltzer, with whom Kelly A. Johnson, Acting Assistant
Attorney General and Ellen Durkee, Attorney, Department of Justice
Environment & Natural Resources Division, were on brief for
appellee.

October 31, 2006

*
Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. Following the panel's decision in

this case, see United States v. Johnson, 437 F.3d 157 (1st. Cir.

2006), appellants moved for rehearing en banc, noting the Supreme

Court's grant of certiorari in United States v. Rapanos, 376 F.3d

629 (6th Cir. 2004). We held their petition in abeyance pending a

decision in that case. Following the decision in Rapanos v. United

States, 547 U.S. ___, 126 S.Ct. 2208 (2006), appellants

supplemented their previous petition. They request that we grant

rehearing en banc to resolve the conflict between the panel

decision and Rapanos, or, alternately, that we vacate the decision

with prejudice on the ground that the evidence in the record

supports a judgment in their favor. The government filed a

response requesting that we vacate our previous decision and remand

to the district court. After careful consideration, we vacate and

remand for further proceedings consistent with Rapanos, as

described below.

I. The Panel Decision

This case began when the United States filed a civil

action alleging that defendants (now appellants), a group of

cranberry farmers in Carver, Massachusetts, had discharged

pollutants into federally-regulated waters without a permit in

violation of § 301 and § 502 of the Clean Water Act ("CWA"), 33

U.S.C. §§ 1311, 1352. In response, appellants contended that the

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United States lacked jurisdiction over the three properties in

question: (1) the Cross Street site; (2) the Fosdick Street site;

and (3) the Forest/Fuller Street site (collectively, the "target

sites").

In separate rulings on liability and remedy, the district

court granted summary judgment in favor of the government. The

district court denied appellants' motion for reconsideration,

stating that "there is a sufficient basis for the United States to

exercise jurisdiction because the undisputed evidence shows that

the three wetlands are hydrologically connected to the navigable

Weweantic River by nonnavigable tributaries."

In an appeal to this court, appellants challenged the

district court's judgment that the jurisdiction of the CWA extends

to the target sites. First, they asserted that their property is

not covered by the Environmental Protection Agency ("EPA")

regulation promulgated to carry out the CWA. In the alternative,

appellants argued that, if their property is covered by the

regulation, either the regulation exceeds the authority granted by

the CWA, or the CWA exceeds Congress's authority under the Commerce

Clause.

We affirmed the trial court's judgment in a divided

decision, with two members of the panel concurring in the judgment

for different reasons, and one member dissenting. One member of

the majority concluded that the hydrological connection between the

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target sites and the Weweantic River establishes a "significant

nexus" between the sites and the river, sufficient to establish

jurisdiction under the CWA without creating constitutional issues

under the Commerce Clause. For two of the target sites, in the

view of this judge, the hydrological connection depended on

diffusion of water through wetlands. See 437 F.3d at 162.

The other member of the majority read the record

differently to conclude that the hydrological connection was a

system of tributaries, some of which happened to flow through

wetlands or other bogs. See id. at 182. The concurring panelist

thus concluded that it was unnecessary to decide whether the

diffusion of water through wetlands was a sufficient hydrological

connection to support a "significant nexus." Id.

The dissent concluded that the United States "may not

constitutionally regulate wetlands that are neither themselves

navigable nor truly adjacent to navigable waters." Id. at 187

(internal quotations and citation omitted). Moreover, even if the

EPA's assertion of jurisdiction was constitutional, the dissent

would have held that the government's attempt to assert

jurisdiction over appellants' wetlands is inconsistent with its own

regulations because the system of tributaries linking the target

sites to the Weweantic includes other wetlands. Because the

regulations explicitly exclude wetlands adjacent to waters that are

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themselves wetlands, the dissent argued that the government lacked

jurisdiction under its own regulations. Id. at 187.1

II. Response to the Panel Decision

As noted, appellants filed a petition for rehearing en

banc pursuant to Rule 35 of the Federal Rules of Appellate

Procedure, arguing that the case should be reheard following the

Supreme Court's then-pending decision in Rapanos. We ordered

appellants' petition held in abeyance pending the Supreme Court's

decision in Rapanos. We further stated that appellants could file

a supplemental petition for rehearing en banc within fourteen days

after the decision in Rapanos was issued, and the government could

then respond.

III. Rapanos v. United States

The decision in Rapanos v. United States, 547 U.S. ___,

126 S.Ct. 2208 (2006), resolved two consolidated cases from the

Sixth Circuit. In one case, the United States brought an

enforcement action alleging that property owners and their

affiliated businesses deposited fill materials into wetlands

without a permit, in violation of the CWA. Id. at 2219. In the

1
The regulation states that "waters of the United States"
include "[w]etlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (s)(1)-(6) of this
section." 40 C.F.R. § 230.3(s)(7).

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other, property owners were denied a permit to deposit fill

material in a wetland approximately one mile from a lake and, after

exhausting their administrative appeals, they filed suit. Id.

In both cases, the district court found that there was

federal regulatory jurisdiction over the sites in question, and the

Sixth Circuit affirmed. The Supreme Court then consolidated the

cases and granted certiorari to decide whether these wetlands

constitute "waters of the United States" under the CWA, and, if so,

whether the CWA is constitutional. See id. at 2220.

The Court issued a split decision construing the phrase

"waters of the United States" as used in the CWA. The plurality

concluded that the phrase "waters of the United States" includes

only "relatively permanent, standing or continuously flowing bodies

of water 'forming geographic features' that are described in

ordinary parlance as 'streams[,] . . . oceans, rivers, [and]

lakes.'" Id. at 2225. Thus, for purposes of determining federal

regulatory jurisdiction, "only those wetlands with a continuous

surface connection to bodies that are 'waters of the United States'

in their own right, so that there is no clear demarcation between

'waters' and wetlands, are 'adjacent to' such waters and covered by

the Act." Id. at 2226 (emphasis in original). The plurality

vacated the decision of the Sixth Circuit in both cases and, noting

"the paucity of the record," remanded for further proceedings. Id.

at 2235.

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 Justice Kennedy concurred in the judgment, but rejected

the plurality's rationale. Instead, he concluded that jurisdiction

extends to wetlands that "possess a 'significant nexus' to waters

that are or were navigable in fact or that could reasonably be so

made." Id. at 2236. Justice Kennedy further found that wetlands

"possess the requisite nexus" if "either alone or in combination

with similarly situated lands in the region, [they] significantly

affect the chemical, physical, and biological integrity of other

covered waters more readily understood as 'navigable.'" Id. at

2248. Where the wetlands in question are "adjacent to navigable-

in-fact waters, [the government] may rely on adjacency to establish

its jurisdiction." Id. at 2249. Where the wetlands are adjacent

to nonnavigable tributaries, "[a]bsent more specific regulations

. . . [the government] must establish a significant nexus on a

case-by-case basis." Id. at 2249.

Justice Stevens authored a dissent joined by three other

Justices. In the view of the dissenters, to the extent that the

CWA includes a "significant nexus" requirement, this requirement

"is categorically satisfied as to wetlands adjacent to navigable

waters or their tributaries." Id. at 2263-64. The dissent

concluded by noting specifically that "all four Justices who have

joined this opinion would uphold the Corps' jurisdiction . . . in

all other cases in which either the plurality's or Justice

Kennedy's test is satisfied . . . ." Id. at 2265.

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 IV. Subsequent Motions

Following the Supreme Court's decision in Rapanos,

appellants filed a supplemental petition for rehearing en banc

challenging the view in one of the panel opinions that a

hydrological connection constitutes a jurisdictionally sufficient

"significant nexus." Appellants contend that rehearing is

necessary to resolve the tension between the panel opinion and

Rapanos. They argue that under either the plurality opinion or

Justice Kennedy's concurrence, a hydrological connection is

insufficient to establish jurisdiction, although they also argue

strenuously that the plurality's test alone should apply.

Alternatively, appellants contend that the evidence in the record

is sufficient to support a finding in their favor under the

standards in Rapanos, and urge that we vacate the decision and

direct the district court to enter judgment for them.

The United States opposes the petition for en banc review

and urges us instead to vacate the panel's decision and remand the

case to the district court. The government argues that additional

factfinding is necessary before the legal principles articulated in

Rapanos can be applied in this case. Moreover, the government

asserts that on remand it should be allowed to establish CWA

jurisdiction under either the Rapanos plurality's test or Justice

Kennedy's test.

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 V. Remand to the District Court

We agree with the government that remand to the district

court for application of the Rapanos standards is appropriate. The

parties presented their cases in the district court without any

awareness of the standards that now apply. They should now have an

opportunity to develop their positions in the district court with

an awareness of these standards. However, the question of what

legal standard to apply is one of some complexity, and other courts

have taken varying approaches to the issue. We conclude that the

United States may assert jurisdiction over the target sites if it

meets either Justice Kennedy's legal standard or that of the

plurality. We explain our reasoning.

A. Other Courts’ Application of Rapanos

In the months since Rapanos, four courts have applied its

legal standards - two district courts and two courts of appeals.

1. Decisions of District Courts

In United States v. Evans, 2006 WL 2221629 (M.D. Fla. Aug. 2,

2006), the Middle District of Florida adopted Justice Stevens's

suggestion to apply either the plurality’s or Justice Kennedy’s

standard. That court cited the Supreme Court's decision in Marks

v. United States for the proposition that "[w]hen a fragmented

Court decides a case and no single rationale explaining the result

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enjoys the assent of five Justices, the holding of the Court may be

viewed as that position taken by those Members who concurred in the

judgments on the narrowest grounds." Evans at *19 (citing Marks v.

United States, 430 U.S. 188, 193 (1977)). The court noted that

"'narrowest grounds' is understood as the 'less far-reaching'

common ground," Evans at *19 (citing Johnson v. Bd. of Regents of

the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001)), but found

that because the plurality and Justice Kennedy articulated

different standards for application on remand it was unclear which

would control. Hence, the court adopted Justice Stevens's

approach. Evans at *19.

The Northern District of Texas used a sharply contrasting

approach in United States v. Chevron Pipe Line Co., 437 F.Supp.2d

605 (N.D. Tex. 2006), determining that because of the lack of a

clear legal standard in Rapanos, it would instead rely on precedent

within its own circuit. The court noted that "the Supreme Court

failed to reach a consensus of a majority as to the jurisdictional

boundary of the CWA." It added that Justice Kennedy "advanced an

ambiguous test--whether a 'significant nexus' exists to waters that

are/were/might be navigable. This test leaves no guidance on how

to implement its vague, subjective centerpiece. That is, exactly

what is 'significant' and how is a 'nexus' determined?" Id. at 613

(internal citation omitted). The court then concluded:

Because Justice Kennedy failed to elaborate on the
'significant nexus' required, this Court will look to the

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 prior reasoning in this circuit. The Fifth Circuit, as
discussed above, has interpreted 'the waters of the United
States' narrowly under the OPA. Without any clear direction
on determining a significant nexus, this Court will do exactly
as Chief Justice Roberts declared--'feel [its] way on a case-
by-case basis.’

Id. The court did not discuss Justice Stevens’s instruction.

2. Decisions of Courts of Appeals

The Ninth Circuit, the first circuit court to apply Rapanos,

concluded without analysis that Justice Kennedy’s concurrence

provides the controlling test. No. Cal. River Watch v. City of

Healdsburg, 457 F.3d 1023 (9th Cir. 2006). The court stated:

Justice Kennedy, constituting the fifth vote for reversal,
concurred only in the judgment and, therefore, provides the
controlling rule of law. See Marks v. United States, 430 U.S.
188, 193 (1977) (explaining that “[w]hen a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”).

Id. at 1029. Without further discussion, the Ninth Circuit applied

Justice Kennedy’s test. The court did not acknowledge Justice

Stevens’s instruction.

Most recently, in United States v. Gerke Excavating, Inc.,

2006 WL 2707971 (7th Cir. Sept. 22, 2006), the Seventh Circuit also

found that Justice Kennedy’s test is controlling without discussing

Justice Stevens’s instruction. The court paraphrases Marks v.

United States:

When a majority of the Supreme Court agrees only on the
outcome of a case and not on the ground for that outcome,
lower-court judges are to follow the narrowest ground to which

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 a majority of the Justices would have assented if forced to
choose. In Rapanos, that is Justice Kennedy’s ground.

Id. at *1 (citing Marks, 430 U.S. at 193). Curiously, without

explanation, the court equates the “narrowest opinion" with the one

least restrictive of federal authority to regulate. It states:

The plurality Justices thought that Justice Kennedy’s ground
for reversing was narrower than their own, because they
concluded their extensive and in places harsh criticism of the
concurrence by saying that ‘Justice Kennedy tips a wink at the
agency [i.e., the Corps of Engineers], inviting it to try its
same expansive reading again.’
. . .
[Justice Kennedy’s] test is narrower (so far as reining in
federal authority is concerned) than the plurality’s in most
cases, though not in all because Justice Kennedy also said
that 'by saying the Act covers wetlands (however remote)
possessing a surface-water connection with a continuously
flowing stream (however small), the plurality's reading would
permit applications of the statute as far from traditional
federal authority as are the waters it deems beyond the
statute's reach.'

Id. at *1, *2 (quoting Rapanos, 126 S.Ct. at 2234 n.15 & 2246)

(emphasis added). Gerke concludes by acknowledging the following

anomaly: If Justice Kennedy finds federal jurisdiction over a

particular site using the “significant nexus” test the four

dissenters would also find jurisdiction. However, if Justice

Kennedy does not find federal jurisdiction, there could be

instances where both the plurality and the dissent disagree with

his conclusion. Id. at *2. In other words, there could be a case

in which Justice Kennedy

would vote against federal authority only to be outvoted 8-to-
1 (the four dissenting Justices plus the members of the
Rapanos plurality) because there was a slight surface
hydrological connection. The plurality’s insistence that the

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 issue of federal authority be governed by strict rules will on
occasion align the Justices in the plurality with the Rapanos
dissenters when the balancing approach of Justice Kennedy
favors the landowner.

Id. However, Gerke writes off this “rare case,” concluding that

“as a practical matter the Kennedy concurrence is the least common

denominator.” Id.

B. Interpretation of Marks

The Marks directive that "[w]hen a fragmented Court decides a

case and no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be viewed as

that position taken by those Members who concurred in the judgments

on the narrowest grounds," Marks, 430 U.S. at 193 (internal

citation omitted), has proven troublesome in application for the

Supreme Court itself and for the lower courts. Therefore, the

genesis of that directive and its application require scrutiny.

In Marks, the defendant raised a Due Process challenge to his

obscenity conviction on the grounds that he had been punished

retroactively under a definition of obscenity laid out in Miller v.

California, 413 U.S. 15 (1973), when he had actually engaged in the

punished conduct prior to the Miller decision. The “narrowest

grounds” approach emerged when the Court examined Miller’s

predecessor, Memoirs v. Attorney General of the Commonwealth of

Massachusetts, 383 U.S. 413 (1966), to determine whether the law

had provided fair warning at the time of the defendant’s conduct.

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Marks, 430 U.S. at 193-94. In Memoirs, a majority of the Supreme

Court found that a lower court erred in finding a book obscene and

thus unprotected by the First Amendment. However, three Justices

felt that materials would not be protected by the First Amendment

if they were deemed obscene, Memoirs, 383 U.S. at 418 (Brennan,

J.), while two other Justices insisted that the First Amendment

provides an absolute shield against government action aimed at

suppressing obscenity. Id. at 421 (Black, J., concurring); id. at

426 (Douglas, J., concurring). Marks concluded that the opinion

excluding obscene materials from First Amendment protection was the

“narrowest grounds” for the judgment in Memoirs.

Relatedly, the “narrowest grounds” language of Marks is itself

a quotation from a previous Supreme Court case, Gregg v. Georgia,

428 U.S. 153 (1976). Gregg discusses Furman v. Georgia, 408 U.S.

238 (1972), which examined the constitutionality of the death

penalty as imposed under a Georgia statute. In Furman, five

Justices agreed that the death penalty was unconstitutional as

imposed in the case. However, two of these Justices believed that

capital punishment was unconstitutional per se, while the other

three Justices felt that the death penalty was unconstitutional

under the conditions present in the cases before the court but did

not necessarily agree that capital punishment was per se

unconstitutional. Gregg concluded: “Since five Justices wrote

separately in support of the judgments in Furman, the holding of

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the Court may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds . . . .” 428

U.S. at 169 n.15.

In sum, the cases on which Marks directly relies both involve

situations in which the “narrowest ground” was also the ground

least restrictive of federal jurisdiction, as the Seventh Circuit

indicated in Gerke. However, this coincidence does not necessarily

mean that the Supreme Court in Marks equated the "narrowest

grounds" of decision in a case with fragmented decisions to the

grounds least restrictive of the assertion of federal authority.

Such an equation leaves unanswered the question of how one would

determine which opinion is controlling in a case where the

government is not a party. Moreover, given the underlying

constitutional question presented by Rapanos, it seems just as

plausible to conclude that the narrowest ground of decision in

Rapanos is the ground most restrictive of government authority (the

position of the plurality), because that ground avoids the

constitutional issue of how far Congress can go in asserting

jurisdiction under the Commerce Clause. See Rapanos, 126 S.Ct. at

2224 (plurality opinion). The appellants argue for that result

here.

As an alternative to the Seventh Circuit’s reading of Marks,

one might sensibly conclude, as one court has, that the "narrowest

grounds" are simply understood as the "less far-reaching-common

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ground." Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d

1234, 1247 (11th Cir. 2001); see also Mark Alan Thurmon, Note, When

the Court Divides: Reconsidering the Precedential Value of Supreme

Court Plurality Decisions, 42 Duke L.J. 419, 420-21 (1992) (quoting

Linda Novak, Note, The Precedential Value of Supreme Court

Plurality Decisions, 80 Colum. L. Rev. 756, 763 (1980) ("One way to

determine the 'narrowest grounds' is to look for the opinion 'most

clearly tailored to the specific fact situation before the Court

and thus applicable to the fewest cases, in contrast to an opinion

that takes a more absolutist position or suggests more general

rules.'"). This reading is also consistent with Memoirs and

Furman: in both cases, the opinion deemed “narrowest” was the one

more closely tailored to the specific situation the Court

confronted.

Even if we take this more sensible approach to Marks, however,

the case still poses problems in the situation before us. As the

D.C. Circuit held in an en banc opinion, “Marks is workable - one

opinion can be meaningfully regarded as ‘narrower’ than another -

only when one opinion is a logical subset of other, broader

opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en

banc). In other words, the “narrowest grounds” approach makes the

most sense when two opinions reach the same result in a given case,

but one opinion reaches that result for less sweeping reasons than

the other. When applied to future cases, the less sweeping opinion

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would require the same outcome in a subset of the cases that the

more sweeping opinion would. For example, in Furman, the Justices

who concluded that capital punishment was per se unconstitutional

would always strike down future death penalty sentences, but the

Justices who found only that the death penalty was unconstitutional

as administered in Furman would only strike down capital sentences

in a subset of future capital cases. Similarly, in Memoirs, the

absolutist view of the First Amendment held by two Justices would

always require a ruling in favor of protecting speech, but the view

of three other Justices that only non-obscene speech is protected

would extend First Amendment protection only to a subset of such

cases. Thus, the less sweeping opinion in each case represents the

"narrowest grounds" for the decision.

This understanding of "narrowest grounds" as used in Marks

does not translate easily to the present situation. The cases in

which Justice Kennedy would limit federal jurisdiction are not a

subset of the cases in which the plurality would limit

jurisdiction. As Gerke points out, in cases where there is a small

surface water connection to a stream or brook, the plurality’s

jurisdictional test would be satisfied, but Justice Kennedy’s

balancing of interests might militate against finding a significant

nexus. In such a case, if Justice Kennedy’s test is the single

controlling test (as advocated by the Seventh and Ninth Circuits),

there would be a bizarre outcome -- the court would find no federal

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jurisdiction even though eight Justices (the four members of the

plurality and the four dissenters) would all agree that federal

authority should extend to such a situation. This possibility

demonstrates the shortcomings of the Marks formulation in applying

Rapanos.

C. The Rapanos Dissent's Approach

Justice Stevens foresaw the possibility that the plurality

might find jurisdiction in some cases where Justice Kennedy does

not. His instruction to find jurisdiction where either test is

satisfied provides a simple and pragmatic way to assess what

grounds would command a majority of the Court. Justice Stevens

observes:

I assume that Justice Kennedy’s approach will be controlling
in most cases because it treats more of the Nation’s waters as
within the Corps’ jurisdiction, but in the unlikely event that
the plurality’s test is met but Justice Kennedy’s is not,
courts should also uphold the Corps’ jurisdiction. In sum, in
these and future cases the United States may elect to prove
jurisdiction under either test.

Rapanos, 126 S.Ct at 2265 n.14. Following Justice Stevens's

instruction ensures that lower courts will find jurisdiction in all

cases where a majority of the Court would support such a finding.

If Justice Kennedy's test is satisfied, then at least Justice

Kennedy plus the four dissenters would support jurisdiction. If

the plurality's test is satisfied, then at least the four plurality

members plus the four dissenters would support jurisdiction. Other

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circuits have previously taken this common sense approach to

fragmented opinions. See, e.g., Tyler v. Bethlehem Steel Corp.,

958 F.2d 1176, 1182 (2d Cir. 1992) ("In essence, what we must do is

find common ground shared by five or more justices."); United

States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (“We need

not find a legal opinion which a majority joined, but merely a

legal standard which, when applied, will necessarily produce

results with which a majority of the Court from that case would

agree.” (internal quotation marks and citations omitted)).

We note that one circuit court has previously reached a

conclusion at odds with the position Justice Stevens now advocates.

In King v. Palmer, the D.C. Circuit stated that "we do not think we

are free to combine a dissent with a concurrence to form a Marks

majority." 950 F.2d at 783. King discussed Pennsylvania v.

Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711

(1987) (Delaware Valley II), in which the Supreme Court considered

the availability and amount of contingency fees under federal fee-

shifting statutes. In Delaware Valley II, the Court ultimately

issued a plurality opinion signed by four Justices, a dissent

signed by four Justices, and a concurrence by Justice O'Connor.

The D.C. Circuit refused to examine the points of commonality among

Justice O'Connor's opinion and that of the dissent, relying mainly

on a literal reading of Marks's language that the holding is the

position of the Justices "who concurred in the judgments on the

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narrowest grounds," Marks, 430 U.S. at 193 (emphasis added), as

well as the fact that the Supreme Court had not explicitly applied

Marks to situations where concurring and dissenting votes would be

combined. King, 950 F.2d at 783.

However, the situation in King is different from the case

before us. In Delaware Valley II, Justice O'Connor and the

dissenting Justices simply took different approaches to the

question of how to calculate a contingency enhancement, with the

result that it is not immediately obvious how their views could be

combined to form a five-Justice majority. In Rapanos, Justice

Stevens states that whenever either the plurality or Justice

Kennedy would find jurisdiction, the Rapanos dissenters would

agree. Moreover, the Third Circuit took a position opposite to

that of the D.C. Circuit in interpreting Delaware Valley II,

holding that "[b]ecause the four dissenters would allow contingency

multipliers in all cases in which Justice O'Connor would allow

them, her position commands a majority of the court." Student Pub.

Interest Research Group of N.J., Inc. v. AT&T Bell Labs., 842 F.2d

1436, 1451 (3d. Cir. 1988). Therefore, we do not share the

reservations of the D.C. Circuit about combining a dissent with a

concurrence to find the ground of decision embraced by a majority

of the Justices.

Moreover, Justice Stevens's instruction seems particularly

sound given that the Supreme Court itself has moved away from the

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Marks formula. In Nichols v. United States, the court observed

that "[t]his test is more easily stated than applied," adding,

"[w]e think it not useful to pursue the Marks inquiry to the utmost

logical possibility when it has so obviously baffled and divided

the lower courts that have considered it." 511 U.S. 738, 745-46

(1994); see also Grutter v. Bollinger, 539 U.S. 306, 325 (2003)

(quoting Nichols for the same proposition). Since Marks, several

members of the Court have indicated that whenever a decision is

fragmented such that no single opinion has the support of five

Justices, lower courts should examine the plurality, concurring and

dissenting opinions to extract the principles that a majority has

embraced. See Waters v. Churchill, 511 U.S. 661, 685 (1994)

(Souter, J., concurring) (analyzing the points of agreement between

plurality, concurring, and dissenting opinions to identify the test

that lower courts should apply); League of United Latin Am.

Citizens v. Perry, 126 S. Ct. 2594, 2607 (2006) (Kennedy, J.)

(analyzing Vieth v. Jubelirer, 541 U.S. 267 (2004) to find that

agreement among one concurring and four dissenting Justices

establishes majority support for a legal proposition); Alexander v.

Sandoval, 532 U.S. 275, 281-82 (2001) (Scalia, J.) (noting the

agreement of five Justices who joined plurality and various

dissenting opinions). Thus, it is not surprising that Justice

Stevens in his Rapanos dissent explicitly directs courts to examine

the views of dissenting Justices to determine which propositions

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have the support of a majority. This approval is consistent with

the direction that the Court as a whole has taken since Marks.

Moreover, the fact that Justice Stevens does not even refer to

Marks indicates that he found its framework inapplicable to the

interpretation by the lower courts of the divergent tests laid out

by the opinions in Rapanos.

VI. Conclusion

The foregoing considerations lead us to conclude that the

district court should do exactly as Justice Stevens has suggested.

The federal government can establish jurisdiction over the target

sites if it can meet either the plurality's or Justice Kennedy's

standard as laid out in Rapanos.

In light of these standards, the district court may conduct

additional factfinding if it deems it necessary to address the

jurisdictional question. The district court may also address any

other issues it deems necessary in deciding that jurisdictional

issue. As discussed previously, the two members of the majority

each had different interpretations of the record. We urge the

parties and the district court to provide a clear factual record in

the context of applying the new standards.

Accordingly, we vacate our decision in United States v.

Johnson, 437 F.3d 157 (1st Cir. 2006), and remand for further

proceedings. Each party is to bear its own costs.

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So ordered.

- Concurring/Dissenting Opinion Follows -

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 TORRUELLA, Circuit Judge (Concurring in part, Dissenting

in part). I join the majority in remanding the case to the

district court so that the new legal standards developed in Rapanos

v. United States, 547 U.S. ___, 126 S. Ct. 2208 (2006), can be

applied on the first instance by that court after the parties have

had an opportunity to expand the record to the extent necessary

given the new standards. The opportunity to expand the record is

important to both the government and the Johnsons. New evidence is

as likely to militate against federal regulatory jurisdiction over

the Johnsons' property as it is to demonstrate it.

I depart from the majority in interpreting what standards

Rapanos has established. The plurality's "hydrological connection"

test provides the proper constitutional limit on federal regulation

under the Clean Water Act. Although the majority has provided an

able analysis of a thorny issue, I cannot concur that Justice

Kennedy's seemingly opaque "significant nexus" test is a

constitutional measure of federal regulatory jurisdiction.

Extending regulatory jurisdiction to wetlands that "possess a

'significant nexus' to waters that are or were navigable in fact or

that could reasonably be so made . . ." id. at 2236, leaves the

door open to continued federal overreach. The plurality's

restriction of federal jurisdiction to "only those wetlands with a

continuous surface connection to bodies that are 'waters of the

United States' in their own right, so that there is no clear

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demarcation between 'waters' and wetlands, are 'adjacent to' such

waters and covered by the [Clean Water] Act . . ." id. at 2226

(emphasis in original), strikes a constitutional balance between

federal and state regulatory interests, and our nation's interest

in clean water and the individual land owner's right to manage

their property in accordance with their dreams and aspirations,

whether economic or otherwise.

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