Publications
South Florida Water Management Dist. v. Miccosukee Tribe of Indians (02-626) and United States v. Galletti (02-1389)
Greetings Court fans!
The Court issued two opinions today, but neither one will make big news.
The first opinion, South Florida Water Management Dist. v. Miccosukee Tribe of Indians (02-626), was basically a punt. While this could have been an interesting Clean Water Act opinion, the Court vacated and remanded for resolution of a factual issue. The facts are somewhat complicated, so I’ll try to simplify. As part of a flood control project in the Everglades, a canal collects groundwater and rainwater from a large area that includes urban, agricultural and residential development. The water from the canal is pumped into an undeveloped wetland, carrying with it contaminants from the developed area (including phosphorus) that alter the wetland ecosystem. Because of the contaminants, the Tribe claimed that the pumping requires a permit under the Clean Water Act. (As relevant here, the CWA prohibits the discharge of pollutants from a “point source” into water without a permit.). The district court granted summary judgment to the Tribe and the appellate court affirmed. The Supreme Court (opinion by O’Connor for everyone but Scalia) vacated and remanded for further proceedings.
O’Connor’s opinion addresses three arguments put forward in support of the proposition that the pumping does not require a permit. (1) The District claimed that it did not need a permit because the permit program only applies when a pollutant originates from a point source and not when a pollutant merely passes through the point source. This argument, according to O’Connor, is untenable. The CWA defines “point source” as a confined and discrete “conveyance,” thus making plain that the point source need not be the source of the pollution. And the Act’s own examples of point sources — pipes, ditches, and tunnels — confirm that many point sources merely transport pollutants. (2) The federal government (as amicus) advanced the “unitary waters” theory in support of the “no permit” position. Under this theory (or at least my characterization of it), all waters covered by the Act are viewed as one water body for permitting purposes. So, no permit is required to transfer polluted water from one water body to another because it’s all the same water anyway. (In an aside, O’Connor notes that the SG claimed this was a longstanding EPA position, but failed to identify any EPA documents setting out this position. Moreover, an amicus brief filed by former EPA officials argued that that agency once took the opposite position.) O’Connor highlights some issues raised by this theory, but doesn’t resolve those issues or the validity of the theory because nobody ever presented the unitary waters theory to the lower courts. This theory is open for discussion on remand, however. (3) The final argument is a factual one. The District claimed that no permit was required because the canal and the wetland are really just two parts of one water body. The Tribe disagreed, arguing that they are distinct water bodies. Even if you don’t understand the hydrology (and I certainly don’t claim to), you can certainly understand that this is a factual dispute that precludes the entry of summary judgment. Because the district court granted summary judgment in error, that decision must be vacated. That’s it. They’ll go back and present evidence on whether it’s one water body or two.
Scalia concurred in part and dissented in part. He agreed with the resolution of argument 1, so concurs in that discussion. He dissents from the unitary waters discussion because he believes that theory was raised and rejected below. Further, he would not vacate for additional factual development because he does not believe that the factual dispute was joined below.
The second opinion, United States v. Galletti (02-1389), is a tax case, but (thankfully!) a relatively simple one. The Internal Revenue Code imposes a 3-year statute of limitations on IRS tax assessments, but once a tax is properly assessed, the IRS has 10 years to collect. In this case, the IRS assessed a tax against a partnership, and several years later attempted to collect the tax from the partners (who, as you may remember from agency law, are liable for the debts of the partnership). The partners claimed that the tax had not been assessed against them within the 3-year window and so it could not be collected from them. Thomas, for a unanimous Court, held to the contrary: The assessment of a tax against the partnership suffices to allow the collection of the tax from the partners during the 10-year extended limitations period. On the theory that most of you don’t really care how they got to this conclusion, I’ll just stop there for the night.
Thanks for reading!
Sandy
From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin