Title

Judge Ralph Erickson, '84, Takes Lead Role in Fight Over Waters of the U.S. Rule

Document Type

News Article

Publication Date

11-17-2015

Campus Unit

School of Law

Abstract

With the stroke of his pen, Ralph Erickson catapulted himself to the center of a decadeslong politically charged battle over the country's foremost water law.

The little-known North Dakota federal district judge blocked the Obama administration's contentious Waters of the U.S. rule on Aug. 28, hours before it was scheduled to go into effect.

A George W. Bush appointee, Erickson sided with the challengers' arguments, ruling U.S. EPA and the Army Corps of Engineers overstepped their authority under the Clean Water Act.

Declaring the agencies had developed the rule through a process that was "inexplicable, arbitrary and devoid of a reasoned process," he granted the request of 13 states for a preliminary injunction, halting the rule while the lawsuit plays out.

The rule's foes sought injunctions in lawsuits filed across the country, but Erickson was the only federal district judge to grant one -- though he later limited it to the 13 states in the case before him.

In the months since, Erickson's decision has become ammunition for opponents of the water rule, one of the Obama administration's most significant environmental regulations.

They have wielded it in the legal arena, where challengers used it to persuade a federal appeals court to extend the stay nationwide. On the political front, Erickson's words have been quoted in lobbying letters, in tweets and on the floor of the Senate.

The decision has shined a spotlight on Erickson, a former personal injury lawyer with almost no reputation in Washington, D.C.

And Erickson is poised to continue to play an outsized role.

A federal judicial panel last month declined to consolidate more than a dozen district court challenges to the rule, allowing them to move forward on parallel tracks ( Greenwire , Oct. 13).

The decision could give Erickson -- who has already said that challengers' arguments have "a substantial likelihood of success" -- the first crack at ruling on whether the regulation is legal.

The Department of Justice has been trying to wrest the case from Erickson's courtroom. DOJ contends that all the litigation belongs in a federal appeals court, not district court -- a question that is pending before an appellate court in Cincinnati.

But the challengers are already pressing Erickson to move ahead with his case now, contending that he has already decided that authority rests with him. And yesterday, Erickson's court agreed to move forward with the case quickly.

While any opinion is likely to be appealed, Erickson's moves could set the stage for what is likely to be years of legal battles.

It's a high-stakes role for a North Dakota judge who is well-respected locally as a no-nonsense, hardworking and at times talkative judge with limited experience on environmental and administrative law cases.

But he's no stranger to complex and high-profile litigation. In 2007, he presided over a death penalty case that garnered national attention.

"I have no reason to believe that the current case would cause him any problems that he has not faced in other litigation," said North Dakota Supreme Court Justice Daniel Crothers, who has known Erickson for years.

Erickson's also considered right of center with a "strict constructionist" view of the Constitution that may come into play in reviewing the water rule.

Still, lawyers who have practiced before him generally find him evenhanded.

"He has one of the best judicial demeanors of any judge I have ever been in front of," said Ward Johnson, an attorney who has argued in front of Erickson. "He is not a hothead. But he demands respect in his courtroom. He doesn't allow sloppy law practice."

Erickson, 56, declined to comment for this story.

Born in Thief River Falls, Minn., he grew up in Rugby, a town of fewer than 3,000 people in central North Dakota.

Erickson attended Jamestown College in North Dakota, then the University of North Dakota School of Law. After graduating in 1984, he joined a local law firm, primarily focusing on personal injury, workers' compensation and divorce cases. He also handled a large medical malpractice suit that he lost, local attorneys say.

According to a 2007 profile in his law school alumni magazine, North Dakota Law, Erickson is a recovering alcoholic who at that time had been sober for 17 years.

He returned to the law when he became a magistrate judge in 1993. He was elected to be a state trial judge the following year.

Since then, Erickson has developed a strong record, especially on juvenile and drug cases, said Mary Muehlen Maring, a former North Dakota Supreme Court justice.

Very few of his cases ended up at the state's high court -- an indication that he ran a fair courtroom, she said.

"We didn't very often get appeals from him, and we didn't very often reverse him when he was a state trial court judge," she said. "He takes his job very seriously."

'Worst day of my life'

At the end of the Clinton administration, two federal judgeships in North Dakota opened.

Erickson pursued a nomination, which came in 2003 after George W. Bush was sworn into the White House.

Known as a "Chamber of Commerce Republican," according to one attorney, Erickson is well-regarded in North Dakota's small legal community.

He presided over complicated tobacco liability trials as well as complex commercial litigation.

His most high-profile case, however, came soon after his appointment. The case concerned the 2003 murder of a University of North Dakota student. It was the first death penalty case in North Dakota since 1913.

North Dakota does not have the death penalty, but because the body was found in Minnesota, the case was transferred to federal court and prosecutors sought capital punishment under federal statutes.

According to the profile in his alumni magazine, the case weighed heavily on Erickson. A religious man, Erickson's views on the death penalty were likely shaped by the Catholic Church's opposition to it.

The jury sentenced the killer to death, but Erickson was required to formally impose the penalty.

"It was the worst day of my life," Erickson told the alumni magazine of the day he handed down the sentence in February 2007, "and I have lived through some days that I thought were bad."

Erickson has handled at least one water case. In March 2010, he upheld a lower-court ruling that a North Dakota farmer was guilty of improperly draining wetlands covered by a Fish and Wildlife Service easement.

The farmer had for years contested the easement, repeatedly draining the land. Erickson found the farmer in violation of his probation and upheld a $10,000 fine.

Soggy landscape

Wetland regulations are particularly contentious in North Dakota, a farm state where the land is wetter than usual these days.

North Dakota's landscape is naturally soggy. When glaciers retreated at the end of the last ice age 10,000 years ago, they scoured the prairie with shallow depressions called "potholes" that collect and store water.

But the Prairie Potholes Region is soggier than usual at the moment, with the past 23 years constituting the longest wet period on record. The potholes are overflowing.

Major changes in federal policies have affected the state as well, most notably relinking federal farm bill benefits to conservation standards that prevent the draining of wetlands and farming of highly erodible land -- a change fiercely opposed by North Dakota's agricultural community (E&E Daily, May 15).

All this primed the state's farm community and industries to be wary of the new Waters of the U.S. rule.

The regulation is aimed at clearing up confusion about which streams and wetlands fall under the protection of the Clean Water Act -- an area of enormous legal confusion following two muddled U.S. Supreme Court decisions in 2001 and 2006.

EPA and the Army Corps, which jointly administer the Clean Water Act, say the rule is simply a clarification and estimate that it would lead to a modest 3 percent increase in the number of waters that fall under federal regulation.

But farm groups and states opposing the rule say the government is acting far beyond the authority granted by the Clean Water Act, attempting to regulate wetlands and headwater streams that more properly belong to the states.

When dozens of lawsuits poured in the day the new water rule was finalized, North Dakota's attorney general was at the head of the pack.

The cases will likely hinge on a handful of key issues, including whether the rule abides by Supreme Court Justice Anthony Kennedy's stand-alone opinion in the 2006 wetlands case Rapanos v. United States, where the justices split 4-1-4, and whether the agencies properly abided by the Administrative Procedure Act in developing the rule.

Erickson has already signaled his sympathy for opponents' arguments, writing in his order granting the injunction that the challengers have shown a "substantial likelihood of success" on their arguments.

The rule's critics filed lawsuits in district courts across country, asking about a dozen judges for preliminary injunctions. All but Erickson either declined to halt the rule or decided they didn't have authority over the issue.

Erickson stood alone in ruling that he has jurisdiction over the case and that an injunction was appropriate.

"The Rule," Erickson wrote, "allows EPA regulation of waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water" (Greenwire, Aug. 28).

But he didn't go all the way.

The challengers pressed Erickson to expand the injunction nationwide, but he declined to do so, limiting it to the 13 states in the case: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming and New Mexico's state engineer.

Local attorneys said both of Erickson's decisions -- to grant the injunction but not expand it -- seemed in line with his judicial philosophy.

"I wasn't particularly surprised at his ruling on the Clean Water Act case," said one North Dakota attorney who didn't want to be quoted on the record because he frequently argues cases in Erickson's court.

"I think all the North Dakota farm groups were against it. He would get in line," the attorney said. "Ralph is never going to be one to get too far in front of the parade. He's the ultimate go-along guy."

Whether Erickson's injunction will stick, though, depends on where the cases ultimately end up -- district court or appellate court.

An answer to that question could come soon: A 6th Circuit panel is slated to hear arguments in Cincinnati on Dec. 8 over where the case belongs.

However, Erickson's court yesterday denied the Justice Department's bid to put the North Dakota case on hold until the 6th Circuit rules. It also granted the challengers' motion to move forward swiftly with the case, setting a schedule that begins before the 6th Circuit is likely to make a decision on the jurisdiction question.

And the order hinted that even if the 6th Circuit rules that is has jurisdiction over the case, Erickson's court may not automatically dismiss the case before him.

'Strict constructionist'

If the case does stay with Erickson, both sides will be dealing with a largely unknown entity.

Crothers, the state Supreme Court justice, said Erickson "reads the law and applies it within constitutional bounds."

The constitutional question will be significant in the water case.

Opponents of federal water regulation have for decades argued that under the Constitution's Commerce Clause, EPA may not regulate a body of water that lies entirely within one state and has minimal effect on interstate commerce.

Johnson, the North Dakota attorney, cautioned against labeling Erickson "conservative" but did say he believes Erickson has a "strict constructionist" view of the Constitution -- meaning he follows the text of the Constitution as it's written.

"I would not say that he's conservative," Johnson said. "I truly believe this guy has taken on the mantle of United States judge. I think he'll make the decision that is in the best interest of the United States. And I think he takes that very seriously."

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