Petition for Writ of Certiorari — Ozark Materials River Rock, LLC, Petitioner v. David Benham

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------OZARK MATERIALS RIVER ROCK, LLC,

Petitioner,

v.

DAVID BENHAM,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------WILL K. WRIGHT, JR.

Counsel of Record

WRIGHT LAW PLC

P.O. Box 982

Claremore, Oklahoma 74018

918.341.1923

wkw@wkwlex.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Whether the doctrine of primary jurisdiction under United States v. Western Pac. R.R. Co. 352 U.S. 59,

64, 77 S.Ct. 161 (1956) applies and the lower courts

should have initially abstained from enforcement of a

citizen suit under section 404 of the Clean Water Act

because the claims contained questions and issues

Congress intended for the Army Corps to address including a jurisdictional determination of wetlands (a

JD) or a section 404 permit even though the Army

Corps issued Letters of No Violation prior to the commencement of the suit.

Whether the lower courts’ decisions are clear error

when the testimonial admission of the citizen’s expert

that he had no evidence to distinguish whether the

deposition of gravel into the alleged wetlands was

caused by Ozark or was deposited and filled in by natural causes such as the deposition of tons of rock and

gravel from upstream flooding.

ii

PARTIES TO THE PROCEEDINGS

Petitioner Ozark Materials River Rock, LLC was

Defendant, and Appellant below. Respondent, David

Benham, was Plaintiff and Appellee below.

RULE 29.6 DISCLOSURE

No parent or publicly owned corporation owns 10%

or more of the membership in Ozark Materials River

Rock, LLC.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

RULE 29.6 DISCLOSURE...................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS ...................................................

1

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

4

REASONS FOR GRANTING THE PETITION ....

10

I.

The Tenth Circuit’s Decision Contravenes

and Misconstrues this Court’s Doctrine of

Referral under Primary Jurisdiction with

the Doctrines of Diligent Prosecution, Exhaustion of Administrative Remedies, Chevron

Deference in the Context of a Citizen Suit

under the Clean Water Act ........................ 12

II.

The Lower Courts Committed Clear Error

by Failing to Accept the Respondent’s Own

Expert’s Testimonial Admission that He Could

Not Determine Specific Causation of Deposition of Gravel into Alleged Wetlands ...... 28

CONCLUSION..................................................... 31

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX

Court of Appeals Opinion .................................... App. 1

District Court Findings of Fact and Conclusions

of Law ............................................................. App. 17

District Court Opinion and Order .................... App. 40

Relevant Statutory and Regulatory Provisions ... App. 52

v

TABLE OF AUTHORITIES

Page

CASES

Allnet Comm. Serv. Inc., v. National Exchange

Carrier Assoc., Inc., 965 F.2d 1118 (D.C. Cir.

1992) ........................................................................26

Anderson v. City of Bessemer, 470 U.S. 564

(1985) .......................................................................29

Far East Conference v. United States, 342 U.S.

570 (1952) .......................................................... 14, 15

General American Tank Car Corp. v. El Dorado

Terminal Co., 308 U.S. 422 (1940) ..........................22

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) ..............................28

Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) ..........24

Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,

230 U.S. 247 (1913) .................................................22

National Communications Ass’n, Inc. v. American

Tel. and Tel. Co., 46 F.3d 220 (2d Cir. 1995) ............15

Port of Boston Marine Terminal Assn. v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62

(1970) .......................................................................23

Public Service Comm. v. Wycoff Co., 344 U.S. 237

(1952) .......................................................................25

Reiter v. Cooper, 507 U.S. 258 (1993)..........................22

Ricci v. Chicago Mercantile Exchange, 409 U.S.

289 (1973) ................................................................23

vi

TABLE OF AUTHORITIES – Continued

Page

Texas and Pacific Railway Co. v. Abilene Cotton

Oil Co., 204 U.S. 426 (1907) .............................. 13, 14

TON Services, Inc. v. Qwest Corp., 493 F.3d 1225

(10th Cir. 2007)................................................ passim

United States Army Corps of Engineers v. Hawkes

Co., 578 U.S. ___, 136 S. Ct. 1807 (2016) ... 15, 16, 23, 25

United States v. Philadelphia Nat’l Bank, 374

U.S. 321 (1963) ........................................................13

United States v. United Gypsum Co., 333 U.S.

364 (1948) ................................................................29

United States v. W. Pac. R.R. Co., 352 U.S. 59, 77

S. Ct. 161 (1956) .............................................. passim

Williams Pipe Line Co. v. Empire Gas Corp., 76

F.3d 1491 (1996) ................................................ 13, 15

STATUTES, REGULATIONS, AND RULES

33 C.F.R. § 320.4(a) .....................................................17

33 C.F.R. § 323.3 .........................................................18

33 C.F.R. § 323.4(a)(6).................................................18

33 C.F.R. § 325 ............................................................16

33 C.F.R. § 325.1(a) .....................................................17

33 C.F.R. § 325.3 .........................................................17

33 C.F.R. § 325.4 .........................................................17

33 C.F.R. § 325.8 .........................................................17

33 C.F.R. § 325.9 ................................................... 16, 17

vii

TABLE OF AUTHORITIES – Continued

Page

33 C.F.R. § 330 ............................................................10

33 C.F.R. § 330.1 .........................................................18

33 C.F.R. § 331 ...................................................... 10, 15

33 C.F.R. § 331.1 ..................................................... 5, 10

33 C.F.R. § 331.2 .........................................................15

40 C.F.R. § 135.3 .........................................................24

5 U.S.C. § 701 ..............................................................23

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 2201 ..........................................................25

33 U.S.C. § 1344 .................................................... 10, 16

33 U.S.C. § 1365(a) .................................................. 1, 23

OTHER AUTHORITIES

Michael Penney Application of the Primary Jurisdiction Doctrine to Clean Air Act Citizen

Suits, 29 B.C. Envt’l L. Rev. 399 (2002) ..................26

U.S. Army Corps of Engineers, Jurisdictional

Determination Form Instructional Guidebook

47-60 (2007) .............................................................16

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Ozark Materials River Rock, LLC, respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit in this matter.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit is reprinted in the Appendix

hereto, pp. 1-16.

The orders of the United States District Court for

the Northern District of Oklahoma are reprinted in the

Appendix hereto, pp. 17-51.

------------------------------------------------------------------

JURISDICTION

The judgment of the Court of Appeals was entered

on March 22, 2018. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Relevant statutory and regulatory provisions are

reproduced in the Appendix to this Petition.

------------------------------------------------------------------

2

INTRODUCTION

Congress established a permit system and intended to give the Army Corps authority for regulating

activities within jurisdictional waters and discretion to

issue permits for the placement of dredge or fill material into waters of the United States, including wetlands. The Army Corps has primary jurisdiction to

determine jurisdictional waters and wetlands, administer in its discretion the issuance or non-issuance of

Section 404 permits, and develop policy and guidance

relating to its jurisdictional waters and whether an operator is required or not required to be issued a Section

404 permit.

Here the Army Corps regulated the activities of

Ozark Materials. When questioned by a citizen that

Ozark was violating the Clean Water Act, the Army

Corps conducted a site inspection (and several more after that) and concluded that Ozark was not required to

have a Section 404 permit, that the areas the citizen

suggested were wetlands, were not wetlands, and that

the Army Corps issued a No Violation letter to the citizen and to Ozark.

Not content with the No Violation letter, the citizen filed a Citizen Suit Notice and did not serve it on

the Army Corps. Subsequently, still not content, the

citizen filed a lawsuit alleging among other claims,

that Ozark was discharging dredge and fill material

into the waters of the United States including wetlands without a permit.

3

Prior to the commencement of the citizen suit,

there was no wetland delineation, the Army Corps did

not consider the area to be any wetlands, the Army

Corps did not require, and specifically advised Ozark

that it was not required, to apply for a Section 404

Permit, and the Army Corps never made a final jurisdictional determination (JD) whether affirmative or

negative.

Ozark filed a motion to stay the district court

proceedings and allow the Army Corps to address

the issues for which Congress intended the Army

Corps to address, namely jurisdictional determination

(JD) and whether a Section 404 permit was required

during the pendency of the court case. Ozark maintained that questions and issues such as the issuance

or non-issuance of Section 404 permits and whether

the Army Corps’ final agency action even accepts or rejects the area’s alleged wetlands as jurisdictional wetlands should be initially administered by formal

proceedings at the agency charged by Congress to

make these two decisions. Ozark again requested before trial that the district court stay the proceedings on

grounds of primary jurisdiction in its trial brief.

The lower courts denied Petitioner’s request to

stay the action on grounds of primary jurisdiction. The

lower courts committed error because Respondent’s expert admitted at trial that he could not determine and

had no evidence as to whether the deposition of

4

gravel into the alleged wetlands was from Ozark’s operation or natural causes such as upstream flooding.

------------------------------------------------------------------

STATEMENT OF THE CASE

Ozark conducts a gravel mining operation along

Saline Creek in Mayes County, Oklahoma. Ozark has

a permit issued to it by the Oklahoma Department of

Mines to engage in mining gravel. The United States

Department of Defense Army Corps of Engineers

(Tulsa District) (Army Corps) has been designated by

Congress to regulate and to determine in its discretion

whether wetlands are jurisdictional waters under its

jurisdiction (a JD affirmative or negative) and whether

operations such as Ozark’s require a CWA Section 404

Permit. (App. 2 and 34)

On October 6, 2010 the Army Corps, after receiving a complaint letter from the Respondent, conducted

an on-site inspection of Ozark’s operations, reviewed

the inspection findings, relative to Section 404 of the

CWA and the Sand and Gravel Mining in Oklahoma

Waterways Guidelines for Operators and determined

that “No violations of the CWA or the Guidelines were

observed.” (App. 3 and 26)

In fact, the Army Corps made several onsite inspections of the Ozark mining operation prior to 2010

and during the pendency of the district court lawsuit.

(App. 3 and 25-26) In fact, the Army Corps had previously issued a Section 404 permit to Ozark prior to the

year 2005, but determined that such permit was no

5

longer required. The Army Corps never performed a

wetland delineation and did not make a final jurisdictional determination (“JD”; 33 C.F.R. § 331.1). (App.

25)

Sometime in March 2011, Ozark received from

Benham a Citizen Suit Notice. However, the certificate

of mailing of the notice demonstrates that Benham

never served the Army Corps with the required Citizen

Suit Notice; the agency charged with administering

Section 404 permits and making jurisdictional determinations. (App. 3, 7)

Benham alleged in his notice that certain specific

areas within Ozark’s mining operations were wetlands, including the current and former washing sites

including the roadway used for transporting mining

equipment. (App. 7) Not content with the Army Corps

reply that there were no dredge and fill of wetlands

and thus No Violation (Notice of No Violation) Benham

filed this lawsuit on June 1, 2011. (App. 3)

On June 28, 2012, and during the pendency of this

lawsuit, the Army Corps again inspected Ozark’s operations and concluded that “No violations of the CWA

or the [Sand and Gravel Mining in Oklahoma Waterways] Guidelines [for Operators] were observed.” (App.

3) (Aplt. App. 10th Cir. 241)

Again and during the pendency of this present litigation on July 3, 2013, Ed Parisotto of the Army Corps

conducted an on-site inspection, all relative to Section

404 of the CWA and the Sand and Gravel Mining in

Oklahoma Waterways Guidelines for Operations dated

6

May 20, 2010 and determined that there were no violations.

During the lawsuit and upon request of the Army

Corps, Ozark hired a firm to conduct a Preliminary

Wetland Delineation and identified four areas (areas

w1, w2, w3, and w4) that likely, but not formally, be

identified as .46 of acre possible jurisdictional wetlands (none of these areas were identified in the Citizen Suit Notice and none of these areas were accepted

as jurisdictional wetlands by the Army Corps). (Aplt.

App. 10th Cir. 176) (App. 23-24)

Notwithstanding and after reviewing the Enercon

information, Mr. Parisotto of the Army Corps conducted a fifth on-site inspection of the Ozark mining

operation and expressed the following findings in his

report. (Aplt. App. 10th Cir. 146, 245)

I inspected the areas of potential CWA violation referenced in the NOI [Citizen Notice

of Intent to Sue] as areas 1 thru 4. I found no

evidence any discharge of dredge or fill in

these areas. No disturbance was found within

areas previously identified in the November 1,

2011 Preliminary Jurisdictional Determination as potential special aquatic sites completed by Enercon Services, Inc. These areas

are currently supporting good vegetation

growth. I also noticed changes to previously

existing gravel bars, specifically the gravel

bar [the roadway] connecting the east mining

site to the abandoned west mining site (referenced in the NOI as area #1. Large portions of

this gravel bar are now gone. Apparently, high

7

spring flows eroded these features downstream or into Lake Hudson. I also inspected

the stream channel where recent gravel excavation has occurred. Incidental fall back of

gravel was present in the area, but no excessive amounts, as compared to normal excavation activities, were found. Overall, I found no

CWA violations during the site inspection.

Even assuming arguendo, the .46 of the preliminary wetland delineation area was a jurisdictional

wetland (which the Army Corps did not make a determination), the Army Corps did not find any evidence of

the placement of dredge and fill material in these areas. (Aplt. App. 10th Cir. 147) The only areas identified

in the Citizen Suit Notice as wetlands were the former

sorting site (which was admitted at trial it was not a

wetland), the current sorting site (which was admitted

at trial it was not a wetland), and the gravel bar or

roadway (which was admitted at trial it was not a wetland).(Aplt. App. 10th Cir. 167-68)

And Benham failed to amend his Citizen Suit

Notice before the trial so as to include any other

alleged violations or any other specified wetland areas,

specific dates, or specific amounts of fill into any additional alleged possible jurisdictional wetlands. (Aplt.

App. 10th Cir. 166) The District Court acknowledged

that Benham abandoned his allegations in his Citizen

Suit Notice. (Aplt. App. 10th Cir. 176)

At trial, Mr. Patterson, Benham’s own expert, testified under oath he did not have any evidence as to

whether Ozark discharged dredge or fill material into

8

w1, w2, w3, or w4, (areas that were not even identified

in the Citizen Suit Notice (Aplt. App. 10th Cir. 162)) let

alone any scientific evidence that proved it was Ozark

and not any natural cause such as flooding. (Aplt. App.

10th Cir. 151-57)

Mr. Patterson failed to record any acreage of

gravel that was allegedly deposited into any of the alleged possible wetlands 1, 2, 3, or 4 or whether such

was deposited there by natural causes such as flooding

and did not distinguish or determine the actual cause

of what he observed. (Aplt. App. 10th Cir. 155-59)

Q. You didn’t record the amount of gravel

that you allege was actually deposited

into any of the wetlands 1, 2, 3 or 4, did

you?

A. No. * * *

Q. You didn’t monitor or record any tonnage

of debris that Saline Creek carries onto

the Eastman property, did you?

A.

No.

Mr. Patterson admitted that Saline Creek does

carry tons of gravel and rock from upstream and deposits it onto Ozark’s mining operation and into the alleged wetlands. He admitted that the Army Corps has

not accepted his mapping of potential jurisdictional

wetlands. (Aplt. App. 10th Cir. 158-62)

Patterson failed to observe Ozark removing any

wetlands and has no evidence that Ozark removed or

was operating in a wetland. He alleged that there was

9

.10 of a wetland that was gone (wetland 4); but he

failed to determine whether or not the wetland was actually still there but just flooded at the time he was

conducting his inspection and report. He failed to determine any acreage of impact or disturbance to wetlands 3, 2, or 1. (Aplt. App. 10th Cir. 158-62)

He admitted that his allegations of erosion, channel modification, scarping and headcutting were not

identified in the Plaintiff ’s Citizen Suit Notice. He admitted that even wetland 1, 2, 3, and 4 were not identified in the Plaintiff ’s Citizen Suit Notice. (Aplt. App.

10th Cir. 162) He admitted and understood that the

only specific areas identified in the Notice were in fact

not wetlands. Patterson testified that only a .10 of acre

was gone, also known as wetland 4 and that he did not

have any evidence that Ozark caused the loss of the .10

acre of wetland 4. (Aplt. App. 10th Cir. 151-52)

After a bench trial, the district court found that

there were jurisdictional wetlands requiring an individual permit. (App. 9) It also found that even though

the citizen’s expert admitted under oath that he could

not distinguish the deposition of fill from natural

causes or from the operations of Ozark, the court still

found Ozark liable. The district court ordered Ozark to

pay a civil penalty of $35,000, ordered Ozark to file an

application for Section 404 permit with the Army

Corps, and ordered a restoration plan. Respondent citizen has also filed for an award of attorneys’ fees and

costs in excess of $200,000 that is currently pending

before the district court.

10

During the district court proceedings, Ozark filed

a motion to stay the proceedings on grounds of primary

jurisdiction and the district court denied Ozark’s motion. (App. 47-50)

Petitioner maintains that the decision to issue or

not issue a Section 404 permit and the decision to first

determine which waters are Army Corps jurisdictional

waters (JD) are unequivocally issues Congress intended to be within the jurisdiction of the administrative body. 33 U.S.C. § 1344; 33 C.F.R. § 331.1. Congress

also intended the Army Corps and not the courts to decide whether a Section 404 permit is required. 33

U.S.C. § 1344; 33 C.F.R. §§ 330, 331.

Ozark appealed to the Tenth Circuit. The Tenth

Circuit affirmed the district court.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

The lower courts’ decisions illustrate the confusion the district and circuit courts have regarding

the application of this Court’s doctrine of primary jurisdiction in the context of a citizen suit under the

Clean Water Act or other environmental statutes with

the statutory bar of failure to diligently prosecute, failure to exhaust administrative remedies, Chevron deference, dismissal, and referral. The lower courts erred

by failing to “refer” issues and questions underlying

the citizen’s claims to the Army Corps as it relates to a

determination of jurisdictional waters of the United

States in the context of the Army Corps administrative

11

authority to make decisions identifying jurisdictional

wetlands (JDs).

Here the agency charged by Congress with authority to determine jurisdictional wetlands and unpermitted discharges, Army Corps, instructed the business

that it was not in violation of discharges into wetlands

and issued a Letter of No Violation to the business and

to the citizen prior to commencement of the citizen

suit; upon which the business relied to its detriment.

The nature of these issues makes this case a compelling vehicle by which to provide the lower courts

much needed guidance when there is clear overlapping

jurisdiction between the EPA/Army Corps in the administration of its comprehensive environmental regulatory scheme and the courts.

It is without doubt the Petitioner relied on the

Army Corps’ Letters of No Violation. Whether such

agency Letters of No Violation should be a safe harbor

defense to a citizen suit for alleged violation of the

Clean Water Act for a civil penalty, restoration order

and attorneys’ fee award or mitigation of these court

findings similar to a negative jurisdictional determination presents a compelling question for this Court.

The lower courts also made clear error by finding

a violation of unpermitted discharges when the Respondent’s expert testified under oath that he could

not determine whether the deposition of gravel into the

alleged wetlands or waters was from the activities of

Ozark or from naturally occurring causes of upstream

12

flooding and deposition of gravel directly into the wetlands and the creek.

This Court should grant the petition and reverse

the court below.

I.

The Tenth Circuit’s Decision Contravenes

and Misconstrues this Court’s Doctrine of

Referral under Primary Jurisdiction with

the Doctrines of Diligent Prosecution, Exhaustion of Administrative Remedies, Chevron

Deference in the Context of a Citizen Suit

under the Clean Water Act

The Petitioner, a small business owner, is caught

in the middle of a jurisdictional conflict between the

administrative agency charged with regulating the

business which issued several guidance Letters of No

Violations of the CWA to this Petitioner, and its reliance on the guidance letters on the one hand; and, the

court’s jurisdiction to proceed by means of a citizen suit

on the other hand.

Primary jurisdiction should apply under the circumstances of this case because although the claim

may be cognizable in the courts under the citizen suit

provision, the courts should abstain from making any

final rulings until such time as the agency resolves the

underlying issues Congress intended the agency to resolve under the comprehensive regulatory scheme.

13

The opinion below contravenes not only its own

Tenth Circuit primary jurisdiction precedent, Williams

Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491 (1996)

and TON Services, Inc. v. Qwest Corp., 493 F.3d 1225,

1238-39 (2007), but also conflicts with this Court’s

precedent in United States v. Western Pac. R.R. Co. 352

U.S. 59, 64, 77 S. Ct. 161 (1956). The courts are confused and have loosely and erroneously based denial of

request for invocation of primary jurisdiction on

grounds that primary jurisdiction would “bar” a citizen

or plaintiff from pursuing his claim, or that such request for primary jurisdiction is a request to “defer” to

an agency decision, order or opinion, or as the Tenth

Circuit in this case misconstrued the doctrine by opining that the motion to stay was a request for “exhaustion of a citizen’s administrative remedies” and

therefore primary jurisdiction was somehow improper.

“Primary jurisdiction requires judicial abstention

in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency

which administers the scheme.” United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 353 (1963). This

Court also explained in Texas and Pacific Railway Co.

v. Abilene Cotton Oil Co., 204 U.S. 426 (1907) that the

Interstate Commerce Commission (ICC) alone was

competent to decide whether a carrier rate was unreasonable; and in doing so concluded that rates “might be

found reasonable by the Commission in the first instance and unreasonable by a court acting originally,

and thus a conflict would arise.” Id. at 441. According

to this Court, this conflict would obviate the

14

congressional delegation to the ICC to administer the

statute with uniformity. Id.

This Court also established that even though uniformity might not be a concern, primary jurisdiction is

still appropriate when the expertise of an agency will

minimize the risk of judicial error. Far East Conference

v. United States, 342 U.S. 570 (1952). The court’s rationale was that a decision would implicate considerations generally unfamiliar to the judiciary, but well

understood by the administrative body that is trained

and experienced in the intricate and technical facts. Id.

at 573-74.

In Western Pac. R.R. Co., this Court reversed the

court of claims refusal to suspend the action holding

that the issues should first be referred to the ICC, and

in doing so it outlined the framework of primary jurisdiction:

Primary jurisdiction . . . applies where a claim

is originally cognizable in the courts, and

comes into play whenever enforcement of the

claim requires the resolutions of issues which,

under a regulatory scheme, have been placed

within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such

issues to the administrative body for its views.

The Tenth Circuit explained in TON Services, that

the purpose of the doctrine is to allow the agencies to

render opinions on issues underlying and related to

the cause of action that is pending in the court and

15

within its particular area of expertise before returning

jurisdiction to the court. Id. citing Williams Pipe Line,

76 F.3d at 1496. The doctrine exists for the proper distribution of power between judicial and administrative

bodies. Id. It is concerned with promoting proper relationships between courts and administrative agencies

charged with particular regulatory duties. Id. citing

Western Pac. R.R. Co., 352 U.S. at 63. Courts should apply the doctrine of primary jurisdiction involving questions and issues that Congress has assigned to a

specific agency. National Communications Ass’n, Inc. v.

American Tel. and Tel. Co., 46 F.3d 220, 223 (2d Cir.

1995) citing Far East Conference, 342 U.S. at 574.

Petitioner maintains that Congress intended and

conferred authority on the EPA/Army Corps through a

comprehensive regulatory scheme to make jurisdictional determinations (JDs) and issue permits for the

discharge into waters and wetlands of the United

States.

The Army Corps “specifies whether particular

property contains ‘waters of the United States’ by

issuing ‘jurisdictional determinations’ (JDs).” United

States Army Corps of Engineers v. Hawkes Co., 578 U.S.

___, 136 S. Ct. 1807 (2016); 33 C.F.R. § 331. Preliminary JDs (and also preliminary wetland delineations)

merely advise a property owner that there may be

waters of the United States on a parcel, while approved

JDs definitively state the presence or absence of such

jurisdictional waters. Id. See 33 C.F.R. § 331.2. An approved JD clearly marks the consummation of the

Army Corps decision making process. Id. “It is issued

16

after extensive fact-finding by the Corps regarding the

physical and hydrological characteristics of the property, see U.S. Army Corps of Engineers, Jurisdictional

Determination Form Instructional Guidebook 47-60

(2007). . . .” Id.

A recipient of a jurisdictional determination (JD)

(assuming it is affirmative and not negative) who

elects to proceed with discharges on his property may

also seek judicial review of the CWA coverage issue if

he is the subject of an agency-initiated enforcement

proceeding. The definitive nature of approved JDs also

give rise to direct and appreciable legal consequences.

Hawkes Co., 136 S. Ct. 1807 (syllabus 2). A negative JD

(an approved JD stating the property does not contain

jurisdictional waters) creates a five-year safe harbor

from civil enforcement proceedings and limits the potential liability a property owner fares under the CWA.

Id.

Indeed, the Army Corps could have formally determined a negative JD which would have provided a definitive five-year “safe harbor” to Ozark. The Army

Corps issues thousands of JDs each year and should

have in this instance.

With regards to the Section 404 permitting process for discharges into jurisdictional wetlands, under

33 U.S.C. § 1344 and 33 C.F.R. § 325, the Army Corps has

comprehensive procedures in place to conduct public

hearings in the evaluation of proposed permit actions.

33 C.F.R. § 325.9 expressly provides authority to determine jurisdiction. “District engineers are authorized to

17

determine the area defined by the terms “navigable

waters of the United States” and “waters of the United

States.” Id. 33 C.F.R. § 325.8 expressly provides the

Secretary of the Army has authorized the Chief of Engineers to issue or deny permits . . . for the discharge

of dredged and fill material into waters of the United

States pursuant to Section 404 of the Clean Water Act.”

“District engineers will add special conditions to Department of the Army permits when such conditions

are necessary to satisfy legal requirements or to otherwise satisfy the public interest.” Id. at § 325.4. “The

public notice is the primary method of advising all interested parties of the proposed activity. . . .” Id. at

§ 325.3. And “If the activity would involve the discharge of dredged or fill material into the waters of the

United States . . . the public notice shall also indicate

that the evaluation of the impact of the activity on the

public interest will include application of the guidelines promulgated by the Administrator or EPA. . . .”

Id. The public has the right to object. Id. at (3). And

“the processing procedures . . . apply to any Department of the Army permit.” Id. at § 325.1(a).

Under Section 320.4(a), the first section includes a

provision for public interest review. Subsequent sections require comprehensive evaluation and the

agency’s balance of public and private needs, effect on

wetlands, effect on fish and wildlife, effect on water

quality, effect on historic, cultural, scenic, and recreational values, consideration of property ownership,

floodplain management, and economics among other

issues. Id.

18

The comprehensive procedures for evaluating nationwide permits are contained in 33 C.F.R. § 330.1 et

seq. The comprehensive procedures and policies that

relate to discharges that require other permits is contained in 33 C.F.R. § 323.3, and for exemptions of discharges not requiring permits such as construction or

maintenance of farm roads, forest roads or roads for

moving mining equipment (specifically implicated

here), where such roads are constructed and maintained in accordance with best management practices.

33 C.F.R. § 323.4(a)(6). Subsection (6) specifically exempts discharges related to gravel roadways that are

used for moving mining equipment.

The Army Corps is the agency with regulatory authority to decide jurisdictional waters (JD) and then

based on that decision whether a Section 404 permit is

necessary; both such decisions are intended by Congress to be completed by the Army Corps; thus primary

jurisdiction lies with the agency charged by Congress

to perform its regulatory functions.

The Army Corps actively regulated Ozark for

many years and engaged in regular site inspections. In

fact, the Army Corps has in the past issued a Section

404 permit to Ozark. The Army Corps actually took action upon notice that Ozark was operating in violation

of its Section 404 permit in 2005 and issued a cease

letter to Ozark and required Ozark as a result of the

2005 violation to engage in remediation at the Ozark

mining site.

19

The district court stated that the citizen’s main

contention was that the Army Corps is simply wrong

in its failure to recognize a violation of the CWA. (App.

48) The problem is that the citizen did not have a prior

basis to allege a violation as the citizen did not have a

prior wetland determination (as there was none); and

it was merely suspicion and not a clear violation of the

CWA. Also, the citizen did not allege that the operator

was in violation of already issued permit. Moreover,

the Army Corps issued a Letter of No Violation prior to

the commencement of the lawsuit.

This matter is not as if the agency had determined

that a permit was required and Ozark had not yet complied. And it is not as if the agency had made a final

jurisdictional determination (JD), and yet Ozark continued to operate in contravention of the agency’s determination of a clear violation. And it is not as if

Ozark had been issued a Section 404 permit and yet

Ozark was violating the terms or scope of the permit;

and it is not as if the agency decided not to pursue an

enforcement action.

Rather, here, there was no wetland delineation

prior to the commencement of the citizen suit, the

agency specifically found no violation prior to the citizen suit; and there was no final jurisdictional determination (JD), affirmative or negative, upon which to

base an allegation of a clear violation; thus, there were

no grounds for agency enforcement action prior to the

commencement of the citizen suit.

20

Contrary to the Tenth Circuit ruling, this is not a

matter of failure of the agency to diligently prosecute

under the citizen suit provision. Here, the underlying

grounds for such an “alleged” violation of the CWA by

the citizen necessarily relied on whether the alleged

surface areas were jurisdictional wetlands under the

Army Corps jurisdiction in the first instance; and,

whether activity required a Section 404 permit in the

second instance. In fact, the alleged wetland areas

were not and had never before prior to the commencement of the citizen suit been deemed jurisdictional

wetlands.

Contrary to the Tenth Circuit’s opinion (App. 1516) Ozark does not contest the subject matter jurisdiction of the citizen suit, or whether Benham should

be barred or prohibited from bringing his citizen

suit; or that the suit be dismissed on grounds of primary jurisdiction. Ozark’s request to stay is not based

on an exhaustion of administrative remedies or on the

diligent prosecution statutory bar. (App. 16) (the Tenth

Circuit explaining that “Section 505 contains the ‘diligently prosecuting’ requirement, not an administrative exhaustion requirement”) The Tenth Circuit

misconstrued the doctrine of “primary jurisdiction”

with “exhaustion of administrative remedies” and with

the “diligent prosecution statutory bar.”

As this Court explained in United States v. W.Pac.

R.R. Co., 352 U.S. at 63-64 and the Tenth Circuit did in

TON Services, 493 F.3d at 1238-39 “exhaustion of administrative remedies” is quite distinct doctrine from

a request to invoke “primary jurisdiction.” They are

21

two distinct and separate doctrines, and exhaustion of

administrative remedies is not in play. Ozark never requested or suggested that the citizen failed to exhaust

his administrative remedies. The citizen was not himself seeking a permit, was not himself denied a permit,

and was not himself subject to agency action. That is

not what Ozark requested in the district court.

Also contrary to the court of appeal decision,

Ozark’s request to stay on grounds of primary jurisdiction does not relate to whether the agency is diligently

prosecuting. Diligent prosecution of a clear violation is

quite distinct from the doctrine of primary jurisdiction.

Again the Tenth Circuit misconstrues the doctrine of

primary jurisdiction and Ozark’s contention.

Likewise the district court misconstrued Ozark’s

primary jurisdiction argument by suggesting Ozark

was seeking “deference” to the agency. (App. 49)

(“Hence there is in essence no agency action to which

the Court should defer.”) Ozark simply moved the

district court to stay the proceedings to allow the

agency to render opinions on issues underlying and related to the cause of action. The Tenth Circuit in TON

Services previously explained that invoking primary

jurisdiction is a “referral” of questions and issues related to the agency’s comprehensive authority; it is not

a question of “deference” (at least not at the point of

the request to invoke primary jurisdiction). “When the

primary jurisdiction doctrine is invoked, ‘the judicial

process is suspended pending referral of such issues to

the administrative body for its views.’ ” TON Services,

Inc., 493 F.3d at 1238-39. “Referral does not

22

automatically divest the court of jurisdiction.” Id. at

1239. “Referral” to the agency is quite distinct from

Chevron deference to the agency. Deference is a legal

doctrine that may come after referral and after an

agency opinion on the underlying issues.

But in this case with regard to the motion to stay

under the doctrine of primary jurisdiction the below

courts erroneously misconstrued and confused the doctrines of “failure to diligently prosecute,” “statutory

bar”, “exhaustion of administrative remedies,” “deference” and “referral and temporary abstention.”

In an attempt to distinguish exhaustion and referral in Reiter v. Cooper, 507 U.S. 258 (1993) Justice

Scalia explained primary jurisdiction:1

It requires the court to enable a “referral” to

the agency, staying further proceedings so as

to give the parties reasonable opportunity to

seek an administrative ruling. See Western

1

See also fn. 3 in Reiter v. Cooper, 507 U.S. 258 (1993): “Use

of the term ‘referral’ to describe this process seems to have originated in Western Pacific, which asserted that, where issues within

the special competence of an agency arise, ‘the judicial process is

suspended pending referral of such issues to the administrative

body for its views.’ ” United States v. Western Pac. R.R. Co., 352

U.S. 59, 64 (1956). At the conclusion of that passage, the Western

Pacific Court cited General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940), which in turn cited

Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247

(1913). Mitchell Coal spelled out the actual procedure contemplated, holding that further action by the district court should “be

stayed so as to give the plaintiff a reasonable opportunity within

which to apply to the Commission for a ruling as to the reasonableness of the practice.” Id. at 267.

23

Pac. R.R., 352 U.S., at 63-64; Ricci v. Chicago

Mercantile Exchange, 409 U.S. 289, 291, 302

(1973); Port of Boston Marine Terminal Assn.

v. Rederiaktiebolaget Transatlantic, 400 U.S.

62, 65, 68 (1970). “Referral” of the issue to the

administrative agency does not deprive the

court of jurisdiction; it has discretion either to

retain jurisdiction or, if the parties would not

be unfairly disadvantaged, to dismiss the case

without prejudice. (citations omitted)

After “referral” and once the agency addresses the

factual and legal issues requested by the court, and

should the facts demonstrate at that point, then the

citizen can pursue the enforcement action or challenge

the decision in court under the citizen suit provisions

or alternatively, under the Administrative Procedures

Act, 5 U.S.C. § 701 et seq.; 33 U.S.C. § 1365(a); United

States Army Corps of Engineers v. Hawkes Co., 578 U.S.

___, 136 S. Ct. 1807 (2016) (This Court concluded that

a final JD by the Army Corps is subject to the APA).

The court of appeal decision that a citizen is not an affected person without recourse for an internal agency

appeal of a denial of permit has nothing to do with

whether the court retains subject matter jurisdiction

over the issues that the agency is charged with first

addressing before a final decision by the court.

Moreover, this is not a case where the agency or

administrator identified a violator of the CWA and issued a compliance order. Nor is this a case where the

agency because it issued such compliance order failed

to assess or otherwise seek civil penalties or other remedial remedies for the alleged discharge into

24

wetlands. In fact, just the opposite occurred here. Thus,

the notice of intent to sue in this instance directly conflicted with the Army Corps October 2010 Letter of No

Violation sending conflicting messages to the business

prior to the citizen issuing a notice of intent to sue and

prior to the commencement of this lawsuit.

The district court explained that under 40 C.F.R.

§ 135.3 the purpose of the notice to the alleged violator

is to give it an opportunity to bring itself into compliance and render a citizen suit unnecessary. (App. 35)

Id. citing Karr v. Hefner, 475 F.3d 1192, 1200 (10th Cir.

2007). However, under these facts here such premise

begs the question how does one bring itself into compliance when the administrative agency instructs it

that it is in compliance and that no permit is necessary

as there was no evidence that the specific areas the citizen complained of in the notice were jurisdictional

wetlands (and as it turned out the areas were not jurisdictional wetlands and the citizen’s expert admitted

this at the trial).

Assuming that the district court had invoked primary jurisdiction upon request of Ozark and assuming

the agency did its job by making a final wetland jurisdictional determination and assuming it issued a compliance order or assuming it issued an acceptance or

rejection of an application for a Section 404 permit,

then the need for the trial of this suit would not have

been necessary unless Ozark failed to comply with an

agency compliance order and the agency failed to diligently prosecute a clear violation.

25

Additionally, because the Respondent citizen requested an injunction and declaratory judgment, the

posture of such suit strengthens the case for primary

jurisdiction. Federal declaratory judgments are available as a matter of judicial discretion, not as of right,

and are not to be used to preempt and prejudge issues

that are committed for initial decision to an administrative body or special tribunal. Public Service Comm.

v. Wycoff Co., 344 U.S. 237, 241 (1952); 28 U.S.C. § 2201

(“any court of the United States . . . may declare the

rights and other legal relations of any interested party

seeking such declaration”).

The Petitioner’s reliance on the Letters of No

Violation before the commencement of the citizen suit

and during the proceedings should also strengthen the

case for demonstrating that the lower courts erred by

failure to refer the questions to the Army Corps for

clarification and further determination of jurisdiction

waters (JD). Moreover, the question of reliance on the

agency Letters of No Violation should provide the business a defense to civil enforcement proceedings or safe

harbor no different than if the Army Corps had issued

a “negative” JD or at least provide a mitigation that

the district court failed to address. See United States

Army Corps of Engineers v. Hawkes Co., 578 U.S. ___,

136 S. Ct. 1807 (2016) (Syllabus: A “negative” JD – i.e.,

an approved JD stating that property does not contain

jurisdictional waters – creates a five year safe-harbor

from civil enforcement proceedings brought by the

Government and limits the potential liability a property owner faces for violating the Clean Water Act.)

26

The question is not whether the citizen can bring

his suit in the first instance, or whether the district

court has subject matter jurisdiction. Petitioner does

not contend that the citizen suit is barred as a result

of an enforcement action being brought by the agency

(because there was none). But rather the question is

whether primary jurisdiction should apply under the

circumstances of this case because although the claim

may be cognizable in the courts under the CWA citizen

suit provision, the courts should abstain from making

any final rulings until such time as the agency resolves

issues Congress intended the agency to resolve under

the comprehensive regulatory scheme.2

If assuming the court had invoked primary jurisdiction and referred questions to the agency; and then

the agency made an affirmative JD, and the business

failed to bring itself in compliance by failing to apply

for and/or acquire a Section 404 permit; and then if the

agency chose not to pursue an enforcement action (after it first made the determination of an affirmative JD

and issued a compliance order) then the citizen suit

may commence. Thus, a stay would not have prejudiced

or unfairly disadvantaged the citizen.

2

See generally, Allnet Comm. Serv. Inc., v. National Exchange Carrier Assoc, Inc., 965 F.2d 1118 (D.C. Cir. 1992) (agency

“ . . . is best suited to make the initial decision on the issues in

dispute, even though the district court had subject matter jurisdiction. . . . The Commission is clearly in a better position than

we are to resolve any potential conflict between the staff letter

and the . . . order); See generally, Note, Michael Penney Application of the Primary Jurisdiction Doctrine to Clean Air Act Citizen

Suits, 29 B.C. Envt’l L. Rev. 399 (2002)

27

Such process would be consistent with Congressional intent to allow the Army Corps to pursue an enforcement action after deciding on an affirmative or

negative JD, and/or granting or denial of a 404 permit.

Then at that time it would be clear as to whether the

agency was diligently prosecuting a clear violation of

the CWA.

This would promote the twin purposes announced

in Western Pac. R.R. Co., 352 U.S. at 64, to (1) ensure

desirable uniformity in determinations of certain

administrative questions, and (2) promote resorting to

agency experience and expertise where the court is

presented with a question outside its jurisdiction relating to Army Corps Section 404 permitting and jurisdictional determination of waters of the United States.

Id.

Primary jurisdiction balances overlapping jurisdiction in the attempt to promote efficiency, uniformity,

consistency and guidance to all the stakeholders

involved. It does not divest the court of its jurisdiction nor does it divest the administrative agency of its

jurisdiction. It permits the exercise of both in the attempt to resolve a claim for which both have overlapping jurisdiction.

It allows the agency, businesses, private land

owners, farmers, the public, and the courts the basis to

implement the policies and goals of the Clean Water

Act as it relates to citizen enforcement actions with

uniformity and consistency. It promotes efficiency and

balance to the relationship between administrative

28

agencies and courts where their jurisdictions overlap

W. Pac. R.R. Co., 352 U.S. 59, 63; and especially where,

as is the case here, the business owner is directly

caught in the middle of a dispute between the agency

and the courts.

It is one thing for a citizen suit to supplement an

agency’s regulatory authority, and quite another to

supplant it. Congress did not intend for a citizen suit

provision in the CWA or any environmental statute to

supplant an administrative agency’s jurisdiction. See

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,

Inc., 484 U.S. 49, 60 (1987) (noting citizen suits should

“supplement” rather than “supplant” public litigation).

Here, the lower courts supplanted the primary jurisdiction of the agency charged with authority to regulate this business because there was a direct conflict

between what the citizen alleged and what the agency

instructed the business. The lower courts erred by failing to “refer” the issues of jurisdictional determination

(JD) and review of any 404 permit application to the

agency charged with making those decisions.

II.

The Lower Courts Committed Clear Error

by Failing to Accept the Respondent’s Own

Expert’s Testimonial Admission that He

Could Not Determine Specific Causation of

Deposition of Gravel into Alleged Wetlands

Petitioner maintains that the district court’s finding of unpermitted discharges was caused by Ozark is

clearly erroneous as Respondent’s own expert testified

29

under oath that he did not have any evidence and could

not distinguish whether the deposition of gravel into

the alleged wetlands was caused by Ozark or whether

it was naturally caused by upstream flooding. He

simply did not know. United States v. United Gypsum

Co., 333 U.S. 364, 394-95 (1948); Anderson v. City of

Bessemer, 470 U.S. 564 (1985). This is clear error because the Respondent at trial had the burden of proof

and he failed to prove specific causation as his own expert testified under oath that he could not determine

whether the deposition of gravel was caused by Ozark

or upstream flooding.

At the trial Respondent asserted that the areas

identified as w1, w2, w3, and w4 (areas that were not

even identified in the Citizen Suit Notice as those areas were admitted not to be wetlands) were areas that

were alleged to have been filled by Ozark. However, the

Respondent’s own expert, Patterson, failed to determine any acreage of impact or disturbance to alleged

wetlands 3, 2, or 1. And with regard to alleged wetland

4 Patterson observed it was in his words “gone.” He admitted that wetland 4 was simply inundated with water and wetlands do become inundated with water, and

that he failed to determine and did not know whether

the alleged area of wetland 4 was still there or covered

in water. (Aplt. App. 10th Cir. 151, 160-61)

More importantly, however, Patterson testified

that he did not have any evidence that Ozark Materials caused the alleged loss of the .10 acre of wetland 4.

(Aplt. App. 10th Cir. 151-52)

30

Respondent also failed to offer any evidence of the

amount of cubic yards of gravel or percentage of acreage that Ozark allegedly discharged into any other

wetlands. Patterson testified that he did not and could

not testify as to whether Ozark deposited dredge and

fill material into wetland 3; and he did not have any

recorded dates of dredge and fill being deposited into

wetland 3 even assuming there was dredge and fill material, and he did not and could not testify that what

he saw was dredge and fill material in wetland 3. And

to the extent that Patterson testified that he “thought”

it looked like fill had been deposited in wetland 3, he

could not and was not able to testify what date, if and

when any discharge occurred into wetland 3. Patterson

also failed to calculate any acreage or percent of acreage that was dredge and fill material. Patterson does

not know and could not testify to how much of a percentage of the wetland 3 was disturbed, even assuming

it was. Patterson failed to record any tons or acreage of

gravel that was allegedly deposited into any of the alleged possible wetlands 1, 2, 3, or 4; it could have been

a layer of 1 inch; he simply failed to calculate this.

(Aplt. App. 10th Cir. 153-54, 157-59, 160-61)

For these reasons the lower courts’ decisions were

clearly erroneous.

------------------------------------------------------------------

31

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

WILL K. WRIGHT, JR.

WRIGHT LAW PLC

P.O. Box 982

Claremore, Oklahoma 74018

918.341.1923

wkw@wkwlex.com

June 19, 2018