Rapanos v. US citings?
What court cases since 2006 have cited the Rapanos v. US case?
- AJLv 76 years agoBest Answer
To date, seven federal appellate courts have been presented with the issue of which Rapanos jurisdictional test is controlling.
- The Fifth Circuit in United States v. Lucas and the Sixth Circuit in United States v. Cundiff ultimately avoided the question, because those courts determined that the evidence presented was adequate to support federal jurisdiction under either standard.
- The Seventh Circuit in United States v. Gerke, the Ninth Circuit in Northern California River Watch v. City of Healdsburg, and the Eleventh Circuit in United States v. Robison held that Justice Kennedy’s opinion (the "significant nexus" test) is controlling.
- The First Circuit in United States v. Johnson and the Eighth Circuit in United States v. Bailey held that jurisdiction may be established under either Rapanos test. One district court has held that the Rapanos plurality opinion (the "continuous surface water connection" test) is controlling.
As Chief Justice Roberts anticipated, the courts adopting the Kennedy standard have done so by invoking Marks. Under Marks, a split decision’s binding legal rule is found in the opinion taken by the concurring justices on the narrowest grounds, which has been interpreted as meaning the opinion that is the “logical subset” of the other opinions in the case. As applied to Rapanos, Marks dictates that if either the plurality or the Kennedy test is a subset of the other, then that test is controlling. The appellate courts that have followed the Kennedy test have concluded that it is a logical subset of the Rapanos plurality test and therefore binding. The appellate courts that have adopted both Rapanos tests—the First and Eighth Circuits—have concluded that the Marks rule does not apply to Rapanos and that both tests are equally valid. The Supreme Court has denied petitions for writ of certiorari in six of the seven circuit court cases addressing the Rapanos split-decision question. (The Bailey appellant did not file a petition). It is therefore unlikely that the Supreme Court will clarify this question in the near future.