United States v. Robison

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17019 March 27, 2008
_______________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-199-CR-2-RBP

UNITED STATES OF AMERICA

Plaintiff-Appellee,
Cross-Appellant,

versus

CHARLES BARRY ROBISON,

Defendant,

McWANE, INC.,

Defendant-Appellant,

JAMES DELK, MICHAEL DEVINE,

Defendants-Appellants,
Cross-Appellees.

_______________________

Appeals from the United States District Court
for the Northern District of Alabama
_______________________
 ON PETITION FOR REHEARING EN BANC

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.*

O R D E R:

The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

/s/ J.L. Edmondson
_____________________________
CHIEF JUDGE

*
Judge William H. Pryor, Jr., has recused himself and did not participate.

2
WILSON, Circuit Judge, dissenting from the denial of rehearing en banc, in which
BARKETT, Circuit Judge, joins:

The panel in this case vacated the defendants’ convictions for conspiracy

and for substantive violations of the Clean Water Act (“the Act” or “CWA”),

holding that the jury charge was inconsistent with the Supreme Court’s

intervening decision in Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208,

165 L. Ed. 2d 159 (2006). Rapanos was a 4-1-4 decision in which the plurality

and Justice Kennedy set forth different standards for determining whether a water

is within the scope of the Act. The panel held that Justice Kennedy’s opinion

provides the sole controlling standard, notwithstanding that the four Rapanos

dissenters would uphold federal jurisdiction in cases where either test is satisfied.

In my view, the panel’s decision cannot be reconciled with Supreme Court

and Eleventh Circuit precedents addressing the proper application of fractured

Supreme Court decisions. Moreover, the decision fails as a matter of common

sense, as it gives no legal effect to a standard under which eight Justices would

find CWA jurisdiction. This error is one of exceptional importance, implicating

both the jurisdictional scope of the CWA and the interpretation of fragmented

decisions generally. Accordingly, I would grant the United States’ petition for

rehearing en banc.

3
 I. BACKGROUND1

The CWA prohibits the discharge of pollutants into “navigable waters,” 33

U.S.C. §§ 1311(a), 1362(12), which are defined to mean “the waters of the United

States, including the territorial seas,” id. § 1362(7). The defendants were

prosecuted for conspiracy to violate the CWA and for several substantive CWA

violations arising out of the discharge of pollutants into Avondale Creek, a stream

that indirectly feeds into the Black Warrior River. Relying on our decision in

United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997), the district court

instructed the jury that a “water of the United States” includes any stream—

whether it flows continuously or only intermittently—that may eventually flow

into a navigable stream or river. The jury returned guilty verdicts against the

defendants.

Following the defendants’ convictions, the Supreme Court issued its

Rapanos decision. Rapanos involved two consolidated cases in which the Court

construed the terms “navigable waters” and “the waters of the United States” in

relation to wetlands located near ditches or drains that eventually emptied into

traditional navigable waters. See Rapanos, 547 U.S. at 729, 126 S. Ct. at 2219

(plurality opinion). The Court remanded the cases for consideration of whether

1
The factual background and procedural history are set forth in greater detail in the panel
opinion. See United States v. Robison, 505 F.3d 1208, 1211-14 (11th Cir. 2007).

4
the wetlands at issue fell within the scope of CWA jurisdiction. However, the five

Justices comprising the majority were divided as to the proper standard to be

applied in making that determination. Writing for a four-Justice plurality, Justice

Scalia construed the term “the waters of the United States” to include 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 739, 126 S. Ct. at 2225 (alterations in original)

(citation omitted). In the plurality’s view, a wetland must have a “continuous

surface connection” to such a water body in order to be covered by the Act. Id. at

742, 126 S. Ct. at 2226.

In a separate concurrence, Justice Kennedy concluded that a different

standard is applicable. According to Justice Kennedy, a water or wetland is within

the scope of CWA jurisdiction if it “possess[es] a ‘significant nexus’ to waters that

are or were navigable in fact or that could reasonably be so made.” Id. at 759, 126

S. Ct. at 2236 (Kennedy, J., concurring) (citing Solid Waste Agency of N. Cook

County v. Army Corps of Engineers, 531 U.S. 159, 167, 172, 121 S. Ct. 675, 148

L. Ed. 2d 576 (2001)). In Justice Kennedy’s view, wetlands meet this “significant

nexus” test if, “either alone or in combination with similarly situated lands in the

region, [they] significantly affect the chemical, physical, and biological integrity

5
of other covered waters more readily understood as ‘navigable.’” Id. at 780, 126

S. Ct. at 2248.

Justice Stevens dissented in an opinion joined by three other Justices. The

dissenters would have deferred to the Army Corps of Engineers’ interpretation of

the Act as encompassing the wetlands at issue. Id. at 788, 126 S. Ct. at 2252

(Stevens, J., dissenting). The dissent specifically noted that all four Justices who

joined in the opinion would uphold CWA jurisdiction “in all other cases in which

either the plurality’s or Justice Kennedy’s test is satisfied.” Id. at 810, 126 S. Ct.

at 2265. The dissent further indicated that, although Justice Kennedy’s standard

likely would be controlling in most cases, “in the unlikely event that the plurality’s

test is met but Justice Kennedy’s is not, courts should also uphold the Corps’

jurisdiction.” Id. at 810 n.14, 126 S. Ct. at 2265 n.14.

The defendants in this case argued on appeal that the district court’s jury

instruction was erroneous in light of Rapanos and that Avondale Creek is not a

“navigable water” within the meaning of the CWA. The panel noted that there is a

circuit split over which Rapanos opinion provides the controlling definition of that

term. United States v. Robison, 505 F.3d 1208, 1219-20 (11th Cir. 2007).

Ultimately, the panel relied on Marks v. United States, 430 U.S. 188, 97 S. Ct.

990, 51 L. Ed. 2d 260 (1977), for the proposition that, in determining Rapanos’s

6
holding, it was not free to consider the views of the Justices who dissented. Id. at

1221. Instead, the panel believed that it must determine “which of the positions

taken by the Rapanos Justices concurring in the judgment is the ‘narrowest,’ i.e.,

the least ‘far-reaching.’” Id. (citations omitted) (emphasis in original). The panel

concluded that Justice Kennedy’s “significant nexus” test fits that description

because, “at least in wetlands cases such as Rapanos, [it] will classify a water as

‘navigable’ more frequently than Justice Scalia’s test.” Id. Therefore, the panel

adopted Justice Kennedy’s test as the governing definition of “navigable waters.”

Id. at 1222.

Applying that standard, the panel held that the jury instruction failed to

comport with the “significant nexus” test and thus was erroneous. Id. The panel

determined that this error was not harmless because the government presented no

evidence about the possible chemical, physical, or biological effect that Avondale

Creek may have on the Black Warrior River. Id. at 1223. Accordingly, the panel

vacated the defendants’ convictions and remanded the case for a new trial.

The panel recognized that “[t]his case arguably is one in which Justice

Scalia’s test may actually be more likely to result in CWA jurisdiction than Justice

Kennedy’s test.” Id. Therefore, the panel noted, “the decision as to which

Rapanos test applies may be outcome-determinative in this case.” Id. at 1224.

7
Although the jury instruction was also erroneous under the plurality’s test, the

error “may well have been harmless” under that standard because a government

witness “clearly and unambiguously testified that there is a continuous,

uninterrupted flow between Avondale Creek and the Black Warrior River.” Id.

Nevertheless, in light of its conclusion that Marks required it to adopt Justice

Kennedy’s test, the panel determined that the harmless error analysis should be

based on that standard alone. Id. For the same reason, the panel instructed the

district court to apply Justice Kennedy’s test on remand. Id.

II. DISCUSSION

A.

In Marks, the Supreme Court held: “When 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.’” 430 U.S. at 193, 97

S. Ct. at 993 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909,

2923 n.15, 49 L. Ed. 2d 859 (1976) (plurality opinion)). However, the Court has

recognized that the Marks test is “more easily stated than applied” in certain cases,

and that it has “baffled and divided the lower courts that have considered it.”

Nichols v. United States, 511 U.S. 738, 745-46, 114 S. Ct. 1921, 1926-27, 128 L.

8
Ed. 2d 745 (1994); see also Grutter v. Bollinger, 539 U.S. 306, 325, 123 S. Ct.

2325, 2337, 156 L. Ed. 2d 304 (2003) (quoting Nichols); Rapanos, 547 U.S. at

758, 126 S. Ct. at 2236 (Roberts, C.J., concurring) (citing Grutter’s discussion of

Marks). I conclude that the Marks framework is ill-suited as a guide to

determining the holding of Rapanos. As the First Circuit explained in United

States v. Johnson, 467 F.3d 56 (1st Cir. 2006), cert. denied, — U.S. —, 128 S. Ct.

375, 169 L. Ed. 2d 260 (2007), a review of Marks and the cases it relied upon

reveals the limitations of the Marks rule in this context.

In Marks, the defendant asserted a due process challenge to his conviction

for transporting obscene materials, arguing that he had been punished retroactively

under a definition of obscenity established after his conduct occurred. The Court

looked to a prior obscenity case, Book Named “John Cleland’s Memoirs of a

Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.

Ct. 975, 16 L. Ed. 2d 1 (1966), to determine the state of the law at the time of the

offense. In Memoirs, the Court reversed a state court’s finding that a book was

obscene and thus unprotected under the First Amendment, but the Justices in the

majority offered different rationales in support of the judgment. Writing for

himself and two other Justices, Justice Brennan concluded that the book would not

be protected if it were deemed obscene under a correct interpretation of the

9
applicable legal standard. Memoirs, 383 U.S. at 418-19, 86 S. Ct. at 977 (plurality

opinion). Justice Stewart concurred based on his view that the First Amendment

permits suppression of hardcore pornography only. Id. at 421, 86 S. Ct. at 979

(Stewart, J., concurring). And Justices Black and Douglas concurred on the

grounds that the First Amendment provides an absolute shield against

governmental action aimed at suppressing obscenity. Id. at 421, 86 S. Ct. at 979

(Black, J., concurring); id. at 426, 86 S. Ct. at 981 (Douglas, J., concurring). The

Marks Court determined that the position articulated in Justice Brennan’s opinion

represented the “narrowest grounds” for the judgment, and therefore that opinion

constituted the holding of the Court. Marks, 430 U.S. at 194, 97 S. Ct. at 994.

The source of Marks’s “narrowest grounds” language, Gregg v. Georgia,

was a death penalty case in which the Court considered its prior fragmented

decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346

(1972). In Furman, five Justices agreed that the imposition of the death penalty in

the cases before the Court constituted cruel and unusual punishment. However,

Justice Brennan and Justice Marshall would have reached the conclusion that

capital punishment is per se unconstitutional. Id. at 305, 92 S. Ct. at 2760

(Brennan, J., concurring); id. at 369-70, 92 S. Ct. at 2793 (Marshall, J.,

concurring). The other three Justices agreed that the statutes at issue were invalid,

10
but left open the question whether capital punishment ever may be imposed.

Among these Justices, Justice Stewart and Justice White believed that the statutes

violated the Eighth Amendment because they permitted the death penalty to be

imposed arbitrarily and capriciously. Id. at 306, 92 S. Ct. at 2760 (Stewart, J.,

concurring); id. at 310-11, 92 S. Ct. at 2763 (White, J., concurring). Justice

Douglas deemed the statutes unconstitutional on the grounds that they were

applied disproportionately against minorities and the poor due to their

discretionary aspect and the ability of wealthier defendants to obtain superior

counsel. Id. at 255-57, 92 S. Ct. at 2734-36 (Douglas, J., concurring). In Gregg, it

was determined that the position taken by Justices Stewart and White represented

the narrowest grounds for the judgment and thus constituted the Court’s holding.

Gregg, 428 U.S. at 169 n.15, 96 S. Ct. at 2923 n.15 (plurality opinion).

As these cases indicate, the Marks framework makes sense only in

circumstances in which one Supreme Court opinion truly is “narrower” than

another—that is, where it is clear that one opinion would apply in a subset of cases

encompassed by a broader opinion. In Memoirs, for example, the Justices taking

the absolutist view of the First Amendment would always rule in favor of

protecting speech, while the Justices who believed that only non-obscene speech is

protected would reach the same conclusion in a subset of those cases. Similarly,

11
in Furman, the Justices who believed that capital punishment is per se

unconstitutional would invalidate death sentences in all future cases. The Justices

who limited their decisions to the death penalty statutes before the Court would

agree with that result in a subset of such cases. In each instance, the “narrower”

opinion “fit entirely within a broader circle drawn by the others.” King v. Palmer,

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). In other words, the Justices

supporting the broader position would always agree with the result reached by the

author of the narrower opinion in cases where the latter’s test was satisfied.

Several of our sister circuits have recognized this limitation on Marks’s

scope. See, e.g., Johnson, 467 F.3d at 64 (“[T]he ‘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 would require the same outcome

in a subset of the cases that the more sweeping opinion would.”); King, 950 F.2d

at 781 (“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.”); United States v. Carrizales-Toledo, 454 F.3d 1142, 1151

(10th Cir.) (same), cert. denied, — U.S. —, 127 S. Ct. 692, 166 L. Ed. 2d 536

(2006); United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003)

12
(same); see also Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir.

1994) (finding that concurring opinion provided controlling rule under Marks

because that opinion “set forth as its standard a coherent subset of the principles

articulated in the plurality opinion”).

B.

Neither the Rapanos plurality’s nor Justice Kennedy’s test is a subset of the

other. The two tests simply set forth different criteria for determining whether a

water is within the scope of the CWA. Unlike the Justices in Memoirs and

Furman, neither the plurality nor Justice Kennedy necessarily would agree with

the outcome reached by the other in any given case. In many instances, Justice

Kennedy’s test would result in a finding of CWA jurisdiction where the plurality’s

test would not. In others, however, the plurality would find jurisdiction even if

Justice Kennedy reached the opposite conclusion. See Johnson, 467 F.3d at 64

(noting that Rapanos plurality would find jurisdiction in cases involving small

surface water connection to stream or brook, but Justice Kennedy might not find

significant nexus); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th

Cir. 2006) (per curiam) (same), cert. denied, — U.S. —, 128 S. Ct. 45, 169 L. Ed.

2d 12 (2007). The present case may fall within this latter category. As the panel

recognized, the record here arguably establishes CWA jurisdiction under the

13
plurality’s test but not Justice Kennedy’s. Robison, 505 F.3d at 1223. It thus is

difficult to understand how either test can be characterized as “narrower” than the

other, at least as that term is understood in Marks.

Nevertheless, the panel concluded that Justice Kennedy’s test is narrower

than the plurality’s because, “at least in wetlands cases such as Rapanos, [it] will

classify a water as ‘navigable’ more frequently.” Id. at 1221. The panel based

this conclusion on the fact that Justice Kennedy rejected two “limitations”

imposed by the plurality’s test: “the requirement that ‘navigable waters’ must be

‘relatively permanent, standing or flowing bodies of water’ and the requirement of

a ‘continuous surface connection.’” Id. at 1221-22 (citations omitted). However,

Justice Kennedy’s test imposes a limitation that is absent under the plurality’s test:

the showing of a “significant nexus” between the water at issue and “waters that

are or were navigable in fact or that could reasonably be so made.” Rapanos, 547

U.S. at 759, 126 S. Ct. at 2236 (Kennedy, J., concurring). Furthermore, Justice

Kennedy rejected the plurality’s test in part because he deemed it overinclusive in

certain respects. See id. at 769, 126 S. Ct. at 2242 (Kennedy, J., concurring)

(stating that, under plurality’s test, “[t]he merest trickle, if continuous, would

count as a ‘water’ subject to federal regulation”); id. at 776-77, 126 S. Ct. at 2246

(“[B]y saying the Act covers wetlands (however remote) possessing a surface-

14
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.”). Thus,

Justice Kennedy’s test is not uniformly narrower than the plurality’s, and Justice

Kennedy did not regard it as such.

Moreover, the Marks rule does not turn on the frequency with which a given

test will be satisfied. Under Marks, the “narrowest” ground is that which reflects a

common denominator implicitly supported by the Justices concurring in the

judgment. See King, 950 F.2d at 781. As discussed, there is no such common

denominator in Rapanos. Thus, however frequently it may result in CWA

jurisdiction, Justice Kennedy’s test is not “narrower” than the plurality’s approach

for purposes of Marks; it is a different standard altogether.

For these reasons, I agree with the First Circuit that Marks provides little, if

any, guidance as to the proper interpretation of Rapanos. See Johnson, 467 F.3d

at 64 (noting “the shortcomings of the Marks formulation in applying Rapanos);

see also Carrizales-Toledo, 454 F.3d at 1151 (“We do not apply Marks when the

various opinions supporting the Court’s decision are mutually exclusive.”). The

panel acknowledged these limitations, see Robison, 505 F.3d at 1221 n.14 (noting

that “Marks does not ‘translate easily’ to Rapanos”) (quoting Johnson, 467 F.3d at

15
64), but nonetheless concluded that Marks barred it from considering the views of

the dissenting Justices in identifying Rapanos’s holding. As discussed below,

however, that conclusion is inconsistent with later Supreme Court and Circuit

precedents approving the consideration of such views in circumstances similar to

those involved here.

C.

In considering its own prior fragmented decisions, the Supreme Court has

frequently analyzed dissents in combination with other opinions to identify the

legal principles that have the support of a majority of the Justices. See, e.g.,

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, —, 126 S. Ct. 2594,

2607, 165 L. Ed. 2d 609 (2006) (citing concurring and dissenting opinions to

establish majority support for legal proposition); Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 17, 103 S. Ct. 927, 937, 74 L. Ed. 2d 765

(1983) (finding that four dissenting Justices and concurring Justice formed

majority to reaffirm controlling legal standard); see also Waters v. Churchill, 511

U.S. 661, 685-86, 114 S. Ct. 1878, 1893, 128 L. Ed. 2d 686 (1994) (Souter, J.,

concurring) (analyzing plurality, concurring, and dissenting opinions to identify

legal test to be applied by lower courts); Alexander v. Sandoval, 532 U.S. 275,

281-82, 121 S. Ct. 1511, 1517, 149 L. Ed. 2d 517 (2001) (noting agreement

16
between Justice who joined plurality and four dissenters). In the panel’s view,

however, the authority to consider dissenting opinions is confined to the Supreme

Court. Lower courts, the panel believed, “do not have that luxury.” Robison, 505

F.3d at 1221.

However, the Supreme Court has expressly approved the consideration of

dissenting Justices’ views by a court of appeals. In Moses H. Cone (a post-Marks

case), the petitioner argued that the Colorado River test2 governing the entry of a

stay of federal court proceedings had been overruled by a subsequent case, Will v.

Calvert Fire Insurance Co., 437 U.S. 655, 98 S. Ct. 2552, 57 L. Ed. 2d 504

(1978). The Court rejected this argument, noting that the opinion announcing the

judgment in Will garnered the support of only four Justices. Justice Blackmun

provided the fifth vote for reversal but agreed with the dissenters that the

Colorado River test was controlling. Thus, the Court in Moses H. Cone noted:

“On remand, the Court of Appeals correctly recognized that the four dissenting

Justices and Justice Blackmun formed a majority to require application of the

Colorado River test.” 460 U.S. at 17, 103 S. Ct. at 937.

We have followed the same approach in interpreting fractured Supreme

Court decisions. For example, in Martin v. Dugger, 891 F.2d 807 (11th Cir.

2
See Colorado River Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236,
47 L. Ed. 2d 483 (1976).

17
1991), overruling on other grounds recognized in Johnson v. Singletary, 991 F.2d

663, 667 (11th Cir. 1993) (per curiam), we held that the district court had

improperly relied on the plurality view in Kuhlmann v. Wilson, 477 U.S. 436, 106

S. Ct. 2616, 91 L. Ed. 2d 364 (1986), to determine the showing necessary for a

court to consider the merits of a successive habeas petition. Instead, we looked to

both the plurality opinion and the dissenting opinions in Kuhlmann to ascertain the

legal principle agreed upon by a majority of the Court. See Martin, 891 F.2d at

808-09 & n.2. After analyzing these various opinions, we concluded:

Thus, a majority of the court agrees that a showing of innocence is a
factor that may be appropriately considered. Although in Kuhlmann the
premise that factual innocence is one of the grounds to be considered
commands a “majority” only by grouping justices who disagree as to the
result, nonetheless we believe this situation is sufficiently analogous to
that of . . . Marks v. United States to warrant deference to the common
ground among members of the fragmented Court. This is especially true
as the three dissenting justices made explicit their agreement with the
more limited premise (that factual innocence was one of the factors to
consider), which was encompassed by the position of the four justice
plurality.

Id. at 809 n.2 (citations omitted).

As in Kuhlmann, the dissenters in Rapanos explicitly stated their agreement

with the narrower premises advocated by the Justices supporting the judgment.

That is, they agreed that waters described by either the plurality’s or Justice

Kennedy’s test are within the scope of CWA jurisdiction. See Rapanos, 547 U.S.

18
at 810, 126 S. Ct. at 2265 (Stevens, J., dissenting). We thus do not need to

speculate whether these Justices would find jurisdiction in this case if the record

indicates that the plurality’s test has been satisfied. They have stated

unequivocally that they would do so.

Our decision in McCullough v. Singletary, 967 F.2d 530 (11th Cir. 1992),

likewise took dissenting opinions into account as part of its analysis. In

McCullough, we agreed with the Fifth Circuit’s interpretation of Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), a fractured

decision involving a defendant’s Eighth Amendment challenge to his sentence on

grounds of proportionality. See McCullough, 967 F.2d at 535 (citing McGruder v.

Puckett, 954 F.2d 313 (5th Cir. 1992)). The Fifth Circuit “appl[ied] a head-count

analysis” of Harmelin—one that included consideration of the views of the four

dissenting Justices—and concluded that “seven members of the Court supported a

continued Eighth Amendment guaranty against disproportional sentences.”

McGruder, 954 F.2d at 316.

In light of this authority, I believe that the panel erred in basing its harmless

error analysis exclusively on Justice Kennedy’s test. The panel also should have

considered whether the district court’s erroneous jury instruction was harmless

under the plurality’s test. This “simple and pragmatic” approach, Johnson, 467

19
F.3d at 64, would have given recognition to the indisputable fact that there is

majority support among the Justices for both the plurality’s and Justice Kennedy’s

tests. Moreover, it might have avoided the bizarre outcome created by the panel

decision: that this case has been remanded for a new trial even though, as the

panel acknowledges, the current record may well establish jurisdiction under the

plurality’s test, which eight Justices agree encompasses waters covered by the Act.

Had the panel concluded that the instructional error was not harmless under the

plurality’s test, it should have instructed the district court that the government may

prove jurisdiction on remand under either the plurality’s or Justice Kennedy’s test.

See Rapanos, 547 U.S. at 810 n.14, 126 S. Ct. at 2265 n.14 (Stevens, J.,

dissenting).

D.

The panel’s error, I believe, is of sufficient magnitude as to warrant en banc

consideration. Review by the full court is appropriate where a panel decision

constitutes a “precedent-setting error of exceptional importance” and is “in direct

conflict with precedent of the Supreme Court or of this circuit.” 11th Cir. R. 35-3.

For the reasons discussed above, I conclude that the panel’s decision conflicts

with the Supreme Court’s decision in Moses H. Cone and with our decisions in

Martin and McCullough. The exceptional importance of this error is apparent in

20
view of the geography of the states in the Eleventh Circuit and the frequency with

which CWA cases are likely to arise in this Circuit in the future. The large

number of water bodies and wetlands in the region, coupled with the significant

pace of development, suggests that later disputes over the scope of federal

authority under the Act may occur with some regularity.3

An additional consideration supporting en banc review is the fact that the

panel’s opinion goes farther than the other circuit court decisions that have found

Justice Kennedy’s test to be the applicable Rapanos standard. No other circuit has

held that the plurality’s test is never applicable, even where, as here, that test may

result in a finding of jurisdiction. Thus, the Ninth Circuit amended its original

opinion in Northern California River Watch v. City of Heraldsburg to note that

Justice Kennedy’s concurrence provided “the controlling rule of law for our case”

and that it is “the narrowest ground to which a majority of the Justices would

assent if forced to choose in almost all cases.” 496 F.3d 993, 999-1000 (9th Cir.

2007) (emphasis added), cert. denied, — U.S. —, — S. Ct. —, 76 U.S.L.W. 3438

(U.S. Feb. 19, 2008) (No. 07-625).4 The Seventh Circuit in Gerke held that Justice

3
The United States notes in its petition for rehearing en banc that many tributaries in this
Circuit flow year-round and thus would readily satisfy the plurality’s test.
4
The court’s initial opinion discussed Rapanos in more categorical terms. See N. Cal.
River Watch v. City of Healdsburg, 457 F.3d 1023, 1029 (9th Cir. 2006) (“Justice Kennedy,
constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides
the controlling rule of law.”).

21
Kennedy’s test “must govern the further stages of this litigation,” 464 F.3d at 725,

but did not hold that his test applies in all cases. In fact, the court arguably

suggested to the contrary. See id. (noting that in a case involving a slight

hydrological connection, Justice Kennedy might vote against a finding of

jurisdiction “only to be outvoted 8-to-1.”). Thus, the panel’s decision not only

conflicts with the First Circuit’s ruling in Johnson; it also announces a more

sweeping interpretation of Rapanos than that adopted by any other circuit.

Finally, I note that the reach of the panel’s decision will not be confined to

CWA cases. The decision will have relevance across a range of future cases

involving the interpretation of a fractured Supreme Court decision. To ensure that

our case law conforms to the Court’s teachings on that issue and provides

consistent guidance to courts in this Circuit, en banc review would have been

proper in this case.

For these reasons, I respectfully dissent from the denial of rehearing en

banc.

22