United States v. Gary Bailey

Jul 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1908. According to the Appeals Court, Gary Bailey constructed a road on a parcel of wetlands in Lake of the Woods County (County), Minnesota, without obtaining a permit under Section 404 of the Clean Water Act (Act). The United States Army Corps of Engineers (Corps) ordered Bailey to restore the land to its previolation condition. Bailey refused, and the United States brought an action under Section 309(b) of the Act to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland.

Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment.

In what the Appeals Court called "a most comprehensive, thorough opinion (from which we have borrowed extensively)," the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976). United States v. Bailey, 516 F. Supp. 2d 998 (D.Minn. 2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F. Supp. 2d 977 (D. Minn. 2008).

Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He
also argues that the restoration order is arbitrary and capricious. The Appeals Court affirmed the district court opinion.

According to the Appeals Court summary, "The wetlands in question met the substantial nexus test announced in Justice Kennedy's concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) because they were adjacent to the Lake of the Woods in Minnesota, and the district court did not err in finding it had jurisdiction to hear the United States' complaint under Section 309(b) of the Clean Water Act; the district court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; the district court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious; restoration order was not a violation of Bailey's equal protections rights under the Fourteenth Amendment.

Access the complete opinion (click here).