USA v. Cundiff

Feb 4: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 05-5469/5905; 07-5630. The case involves an interpretation of the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006) and the definition of wetlands and the “waters of the United States.” By way of background, the Appeals Court explains that after eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362.

The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims.

The Appeals Court indicates that while the original appeal in this case was pending, the Supreme Court issued its "splintered ruling" in Rapanos, which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, the Appeals Court returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. According to the Appeals Court, "The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds."

The Appeals determined that, "the Cundiffs "actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches", thus the Appeals Court said, ". . . they discharged a pollutant under the Act." The Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). The Appeals Court rejects those arguments, and says, "Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" The Appeals Court ruled, ". . . the district court properly granted summary judgment on their liability."

Access the complete opinion (click here). Access multiple postings on the WIMS-eNewsUSA blog relating to the Rapanos decision (click here). [*Water]

Fairbanks Northstar Borough v. U.S. Army Corps of Engineers

Sep 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35545. The Clean Water Act (CWA) makes it unlawful to discharge dredged and fill material into the waters of the United States except in accord with a permitting regime jointly administered by the Army Corps of Engineers (Corps) and the U.S. EPA. In the case, Fairbanks North Star Borough (Fairbanks) seeks judicial review of a Corps’ “approved jurisdictional determination,”which is a written, formal statement of the Agency’s view that Fairbanks’ property contained waters of the United States and would be subject to regulation under the CWA. The Appeals Court affirmed the district court’s dismissal on the pleadings for lack of jurisdiction and said, "The Corps’ approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act (APA), 5 U.S.C. § 704."

By way of background the Appeals Court cites recent noted Supreme Court decisions saying, “The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial.” Rapanos v. United States, 547 U.S. 715, 721 (2006) (plurality opinion). . . “The Corps has issued regulations defining the term ‘waters of the United States,’ ” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531U.S. 159, 163 (2001), to include most wetlands adjacent to waters of the United States that are not themselves wetlands, see 33 C.F.R. § 328.3(a)(7).

Following a Corps issued “preliminary” jurisdictional determination finding that Fairbanks’ entire parcel [2.1 acre proposed recreation area] contained wetlands, Fairbanks requested that the Corps provide an “approved” jurisdictional determination. The Corps obliged Fairbanks and said, "the entire parcel described above contains waters of the United States . . . under our regulatory jurisdiction . . . . This approved jurisdictional determination is valid for a period of five (5) years. . ." Fairbanks brought the suit to set aside the Corps’ approved jurisdictional determination contending "that its property could not possibly be a wetland because it is 'underlain by shallow permafrost at a depth of 20 inches' that does not 'exceed zero degrees Celsius at any point during the calendar year.'"

In its opinion, the Appeals Court said, "As a matter of first impression, we hold that the Corps’ issuance of an approved jurisdictional determination finding that Fairbanks’ property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review." The Appeals Court cites Bennett v. Spear, 520 U.S. 154, 177-78
(1997) saying, "As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decisionmaking process -- it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.”

Then, the Appeals Court rules, "The approved jurisdictional determination represented the Corps’ definitive administrative position that Fairbanks’ property contained wetlands. But, . . . it did not ‘impose an obligation, deny a right, or fix some legal relationship'. . . Because finality is a jurisdictional requirement to obtaining judicial review under the APA, the district court correctly dismissed Fairbanks’ action. . . We do not reach the issues of ripeness and statutory preclusion of judicial review."

Access the complete opinion (click here).

Clark v. U.S. Department of Agriculture

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3127. Appellant Dorothy Clark appealed the district court’s refusal to grant a declaratory judgment and set aside a United States Department of Agriculture (USDA) determination that she converted wetlands in violation of the "Swampbuster" provisions of the Food Security Act of 1985. Because the USDA determined she had converted wetlands, Clark became ineligible for certain farm program payments. Clark challenged the USDA’s interpretation of the term “converted wetland” and argues the evidence is insufficient to support the USDA’s determination that she converted wetlands. In addition, she challenged a USDA regulation that placed the burden on her to request, and prove her eligibility for, a “minimal effect” exemption. The Appeals Court said, "Given the deference we owe to the USDA’s regulation, its interpretation of the applicable law, and its factual determinations, we affirm the district court’s denial of relief."

The so-called Swampbuster provisions, designed to deter the conversion of wetlands, authorize the USDA to make determinations as to whether certain lands qualify as wetlands and whether wetlands that have been manipulated qualify as converted wetlands. A person determined to have converted wetlands may become ineligible to receive farm program payments; however, there is an exception to the ineligibility provision for manipulations determined to have only a "minimal effect" upon wetland and biological functions.

In making its ruling, the Appeals Court indicates that, Clark notes that Congress amended 16 U.S.C. § 3822(f) in 1990, replacing the phrase “The Secretary may exempt,” with the phrase “The Secretary shall exempt.” Pub. L. 101-624, Title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573. Clark argued generally that this amendment reflects a legislative desire to curb perceived resistance from the USDA towards issuing such exemptions.

The Appeals Court says, "We do not disagree with this general statement: the amendment clearly deprives the USDA of discretion where discretion previously existed, and following the 1990 amendment the USDA must grant such exemptions where a manipulation is shown to have a minimal effect. The statute, even as amended, however, does not apportion the burden of proof regarding the technical determination of whether a manipulation has more than minimal effect. Nor does it contain any language suggesting the USDA is without authority to impose a burden of proof upon landowners who fail to request a determination prior to taking action likely to hinder the USDA in its assessment of the wetlands’ pre-manipulation function and value."

Access the complete opinion (click here).