Petition for Writ of Certiorari — Dave Wayne Erlanson, Sr., Petitioner v. Environmental Protection Agency
Supreme Court briefJun 27, 2024
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APPENDIX TABLE OF CONTENTS
Opinions and Agency Decisions
Memorandum Opinion, U.S. Court of Appeals
for the Ninth Circuit (April 30, 2024).......
la
Memorandum Decision and Order, United States
District Court for the District of Idaho
(October 14, 2022)............................................. 3a
Judgment, United States District Court for
the District of Idaho (October 14, 2022)......... 14a
Order Dismissing Appeal, Environmental
Appeals Board, United States Environmental
Protection Agency (March 5, 2021).................. 16a
Initial Decision and Order, United States
Environmental Protection Agency
(October 7, 2020)................................ .
43a
Other Documents
Idaho State Water Plan, South Fork Clearwater
River Basin, Executive Summary,
Relevant Excerpt.............................................. 133a
Image of the Dredging Operation ........................ 136a
Federal Register, Vol. 78, No. 65
137a
Fed. Reg. 85-FR-23985, Relevant Excerpt
140a
App.la
MEMORANDUM* OPINION, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT
(APRIL 30, 2024)
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVE WAYNE ERLANSON, SR.,
Plaintiff-Appellant,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Defendant-Appellee.
No. 22-35894
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
D.C. No. 4:22-cv-00091-DCN
Submitted April 22, 2024**
Before: CALLAHAN, LEE, and FORREST,
Circuit Judges.
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for deci
sion without oral argument. See Fed. R. App. P. 34(a)(2).
App.2a
Dave Wayne Erlanson, Sr., appeals prose from the
district court’s judgment dismissing for lack of subject
matter jurisdiction his 42 U.S.C. § 1983 action against
the United States Environmental Protection Agency.
We review de novo, Prather v. AT&T, Inc., 847 F.3d
1097, 1102 (9th Cir. 2017), and we affirm.
The district court properly dismissed Erlanson’s
action for lack of subject matter jurisdiction because
Erlanson failed to establish that the United States
waived its sovereign immunity. See Jachetta v. United
States, 653 F.3d 898, 908 (9th Cir. 2011) (explaining
that 42 U.S.C. § 1983 does not waive sovereign immunity
for United States agencies).
AFFIRMED.
App.3a
MEMORANDUM DECISION AND ORDER,
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
(OCTOBER 14, 2022)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID ERLANSON,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
Case No. 4:22-cv-00091-DCN
Before: David C. NYE,
Chief U.S. District Court Judge.
MEMORANDUM DECISION AND ORDER
I.
Introduction
There are several pending motions before the
Court in this case. Plaintiff Dave Erlanson has filed a
Motion for Default Judgment (Dkt. 7); a Motion to
App.4a
Amend Complaintl (Dkt. 8); and a Motion for Summary
Judgment (Dkt. 9). Defendant, United States Environ
mental Protection Agency (“EPA”), has responded with
a Motion to Dismiss (Dkt. 10). Having reviewed the
record and briefs, the Court finds that the facts and
legal arguments are adequately presented. Accordingly,
in the interest of avoiding further delay, and because
the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will
decide the Motion without oral argument. Dist. Idaho
Loc. Civ. R. 7. 1 (d)(1)(B).
Upon review, and for the reasons set forth below,
the Court GRANTS EPA’s Motion to Dismiss and
DENIES Erlanson’s Motions.
II. Background
The facts of this case go back to 2016. See Dkt. 1.
In June of 2016, the EPA filed a complaint against
Erlanson with an Administrative Law Judge (“ALF)
alleging that Erlanson violated Section 301(a) of the
Clean Water Act (“CWA”), 33 U.S.C. § 1311(a).2 The
ALJ issued a decision and order finding Erlanson had,
in fact, violated the CWA and assessed a Class II civil
penalty of $6,600 pursuant to 40 C.F.R. § 22.27 and 33
U.S.C. § 1319(g)(2)(B). See Dkt. 10, at Ex. B. Erlanson
appealed the decision to the Environmental Appeals
Board (“EAB”). Id. The EAB dismissed the appeal on
procedural grounds while also noting that if they were
1 The amended complaint added a damage calculation. Dkt. 8.
The Motion, however, is moot given that the Court is dismissing
Erlanson’s § 1983 claim.
2 Subsection (a) states, in relevant part, that “the discharge of
any pollutant by any person shall be unlawful.”
App.5a
to consider the merits, “the ALJ’s determination is
well-reasoned and well-supported by the record as to
both liability and penalty.” Id.
On February 26, 2022, Erlanson filed the instant
action pursuant to 42 U.S.C. § 1983, seeking “to defend
his 9th Amendment right to his State privileges and
immunities.” Dkt. 1, at 3. Moreover, it is Erlanson’s
“belief that the Article 3 judge will find here at least
one Constitutional nexus upon which to adjudicate
the matter.” Id.
On May 31, 2022, Erlanson filed a Motion for
Default Judgement. Dkt. 7. That same day, he filed an
Amended Complaint. Dkt. 8. On June 8, 2022,
Erlanson filed a Motion for Summary Judgment
mostly reiterating what was stated in his original
complaint and Motion for Default Judgment. Dkt. 9.
On July 29, 2022, the EPA responded with a Motion
to Dismiss. Dkt. 10. The EPA cited Federal Rules of
Civil Procedure 12(b)(1), (5), and (6) as grounds to
dismiss the complaint.
The Court agrees with the EPA—there are grave
procedural shortcomings which warrant the dismissal
of Erlanson’s suit. For one, Erlanson has not requested,
nor issued, a summons to the EPA as required under
Fed. R. Civ. P. 4(i)(l). Moreover, there is no indication
that he properly served the EPA. He sent a copy of the
complaint to the D.C. office of the EPA, but failed to
serve the United States. See Fed. R. Civ. P. 4(i)(2)
(when serving an agency, “a party must serve the
United States and also send a copy ... to the agency”).
Lastly, to the extent that Erlanson wishes to appeal
the ALJ’s decision regarding the Class II violation, he
is required to file an appeal with either the District of
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Columbia Circuit or the Ninth Circuit^—not with this
Court. 33 U.S.C. § 1319(g)(8).
III. Legal Standard
A. Rule 12(b)(1)
When subject matter jurisdiction is challenged
pursuant to Federal Rule of Civil Procedure 12(b)(1),
the plaintiff bears the burden of persuasion. Indus.
Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th
Cir. 1990) (citing McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). A party who brings a
Rule 12(b)(1) challenge may do so by referring to the
face of the pleadings or by presenting extrinsic evi
dence. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000) (“Rule 12(b)(1) jurisdictional attacks can be
either facial or factual. . . . ”).
If the jurisdictional attack is facial, the challenger
asserts that the allegations contained in a complaint
are insufficient on their face to establish federal juris
diction. Safe Air for Everyone v. Meyer, 373 F.3d 1035,
1039 (9th Cir. 2004). When considering this type of
jurisdictional attack, a court must consider the allega
tions of the complaint to be true and construe them in
the light most favorable to the plaintiff. Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1988).
3 The Court is aware of a recent filing by Erlanson with the
Ninth Circuit. See Dkt. 14. Erlanson filed a Writ of Mandamus
to the Ninth Circuit seeking an expediated decision by this Court.
Id. The Court assumes the Circuit will dismiss the writ for lack of
jurisdiction. Regardless, it is not something the Court need
address at this time.
App.7a
“By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by them
selves, would otherwise invoke federal jurisdiction.”
Meyer, 373 F.3d at 1039. In resolving a factual attack
on jurisdiction, the court need not presume the truth
fulness of the plaintiffs allegations and may review
evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judg
ment. Id.
B. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits
a court to dismiss a claim if the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” “A
Rule 12(b)(6) dismissal may be based on either a ‘lack
of a cognizable legal theory’ or ‘the absence of suffi
cient facts alleged under a cognizable legal theory. “‘
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d
1116, 1121 (9th Cir. 2008) (citation omitted). Federal
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” in order
to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.”
See Bell Ad. Corp. v. Twombly, 550 U.S. 544, 554
(2007). “This is not an onerous burden.” Johnson, 534
F.3d at 1121.
A complaint “does not need detailed factual alle
gations,” but it must set forth “more than labels and
conclusions, and a formulaic recitation of the elements.”
Twombly, 550 U.S. at 555. The complaint must also
contain sufficient factual matter to “state a claim to
relief that is plausible on its face.” Id. at 570.
App.8a
In deciding whether to grant a motion to dismiss,
the court must accept as true all well-pleaded factual
allegations made in the pleading under attack. Ashcroft
v. Iqbal, 556 U.S. 662, 663 (2009). A court is not, how
ever, “required to accept as true allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In cases decided after Iqbal and Twombly, the
Ninth Circuit has continued to adhere to the rule that
a dismissal of a complaint without leave to amend is
inappropriate unless it is beyond doubt that the com
plaint could not be saved by an amendment. See Harris
v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).
C. Rule 12(b)(5)
Federal Rule of Civil Procedure 12(b)(5) permits
a court to dismiss a claim for insufficient service of
process. Pursuant to Federal Rule of Civil Procedure
4(m), it is a plaintiffs duty to serve each defendant in
the case within 90 days after filing the complaint, or
to request a waiver of service under Rule 4(d). Fed. R.
Civ. P. 4(m).
In the Ninth Circuit, a motion to dismiss based
on a plaintiffs failure to abide by Rule 4(m) requires
a two-step analysis: “First, upon a showing of good
cause for the defective service, the court must extend
the time period. Second, if there is no good cause, the
court has the discretion to dismiss without prejudice
or to extend the time period.” In re Sheehan, 253 F.3d
507, 512 (9th Cir. 2001) (internal citations omitted).
With respect to the first step, the Ninth Circuit
has clarified that showing “good cause” is the equivalent
App.9a
of demonstrating “excusable neglect,” and that, to
establish good cause, a Plaintiff may also be required
to show “(a) the party to be served personally received
actual notice of the lawsuit; (b) the defendant would
suffer no prejudice; and (c) plaintiff would be severely
prejudiced if his complaint were dismissed.” Boudette
v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (citing
Hart v. United States, 817 F.2d 78, 8081 (9th Cir.
1987)).
The Ninth Circuit has declined to “articulate a
specific test that a court must apply in exercising its
discretion” under the second step of the Rule 4(m)
analysis. In re Sheehan, 253 F.3d at 513. However, it
has noted that if a Plaintiff cannot establish good
cause, the Court’s discretion to nevertheless extend
the prescribed time period for the service of a complaint
“is broad.” Id. Finally, if a court declines to extend the
time period for the service of process, it must dismiss
the complaint without prejudice. See U.S. v. 2,164
Watches, More or Less Bearing a Registered
Trademark of Guess'?, Inc., 366 F.3d 767, 772 (9th Cir.
2004).
IV. Discussion
A. Lack of Subject Matter Jurisdiction
In its Motion to Dismiss, the EPA first argues
that the Court should dismiss Erlanson’s claims for
lack of subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). It makes two principle arguments: First, it
claims the Court should dismiss the suit because
there was no waiver of sovereign immunity. Second,
the EPA points out that judicial review of Class II civil
penalties should be brought before either the DC
App.lOa
Circuit Court of Appeals or the Ninth Circuit. See 33
U.S.C. § 1319(g)(8). The Court agrees on both points.
First, it has long been understood that § 1983
does not waive sovereign immunity for agencies of the
United States. See Jachetta v. United States, 653 F.3d
898, 908 (9th Cir. 2011) (holding that § 1983 only
imposes liability upon persons and a federal agency is
not a person); see also Lyndon v. United States, 2020
WL 3405530, at *5 (D. Haw. June 19, 2020) (same).
Section 1983 only allows suits against “persons” and
the EPA is not a person. See Jachetta, 653 F.3d at 908.
Erlanson would have the Court believe differently. He
asserts that the EPA would fall under the definition
of “person.” Dkt. 1, at 4-5. To support this position,
Erlanson notes that the Supreme Court “has adopted
the position . . . that corporations are persons for pur
poses of suit.” Id. at 4. This argument does not hold
any weight. There is no caselaw to suggest that a Fed
eral Agency (i.e., the EPA) is a “corporation” as
defined by the Supreme Court that would, therefore,
fall under the definition of “person.” The Ninth Circuit
has clearly delineated that § 1983 “imposes liability
upon a ‘person’, “and a federal agency is not a
‘person’ within the meaning [of § 1983].” Jachetta,
653 F.3d at 908. This alone bars Erlanson’s suit.
There is a second, perhaps more obvious reason
to dismiss this suit. The EPA has rightly pointed out
that any challenge to a Glass II Civil Penalty falls
under the jurisdiction of either the DC Circuit Court
of Appeals or the circuit in which the person resides.
33 U.S.C. § 1319(g)(8). Congress has spoken about
which court is the proper avenue for challenging a
Class II violation. If Erlanson wishes to challenge the
App.lla
Class II violation, he must go before the appropriate
court.
B. Failure to State a Claim Under Rule 12
(b)(6)
The EPA also asserts that Erlanson has failed to
state a claim upon which relief can be granted. Dkt.
10, at 6-8. The Court agrees. In doing so, the Court is
cognizant of the fact that pro se pleadings are construed
liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, in construing a pro se complaint, a court
may not “supply essential elements of the claim that
were not initially pled.” Pena v. Gardner, 976 F.2d 469,
472 (9th Cir. 1992) (quoting Ivey v. Board of Regents
of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982)).
The EPA contends that “[b]ecause federal agencies
do not act under color of state law, they are facially
exempt from Section 1983 liability.” Dkt. 10, at 8. The
Court agrees. In fact, the Ninth Circuit in Jachetta
dismissed a petitioner’s claims for the very same
reason. 653 F.3d at 903, 908. There, the defendant
brought a motion to dismiss arguing what the EPA is
arguing here—that § 1983 does not waive sovereign
immunity. Id. The Ninth Circuit agreed with the
defendant and dismissed the complaint. Id. There is
no reason to not do the same here. The Court agrees
with the EPA—Erlanson failed to state and articulate
any arguable legal theory to support his constitutional
claim against the EPA.
C. Insufficient Service of Process
There is yet one final reason to dismiss Erlanson’s
claim. He did not abide by the rules governing service
of process to United States Agencies. See Fed. R. Civ.
App.l2a
P. 4(i)(2). When serving a federal agency, a plaintiff is
required to serve a summons and a complaint to both
the United States and the agency. Id. Erlanson never
requested a summons and only served the com
plaint to the EPA without ever notifying the United
States.4 While the Court understands that Erlanson
is filing pro se, this, in and of itself, does not excuse
applicable procedural requirements.
In conclusion, the Court grants the EPA’s Motion
to Dismiss. Erlanson not only brought this challenge
before the wrong Court, he failed to abide by the service
requirements outlined in Rule 4. Moreover, the doctrine
of sovereign immunity bars his § 1983 claim.
V.
Order
The Court HEREBY ORDERS:
1. Dave Erlanson’s Motion for Default Judgment
(Dkt. 7) is DENIED.
2. Dave Erlanson’s Motion for Summary Judgment
(Dkt. 9) is DENIED.
3. EPA’s Motion to Dismiss (Dkt. 10) is GRANTED.5
4 To satisfy Rule 4(i), a plaintiff must serve the United States by
delivering a copy of the summons and complaint “to the United
States attorney for the district where the action is brought” as
well (as “to the Attorney General of the United States at
Washington, D.C.” Fed. R. Civ. P. 4(i)(l)-{2). Here, Erlanson only
served the complaint to the EPA’s DC office.
5 As noted, see infra Section III (B), the Court typically does not
dismiss a case without granting leave to amend. Here, however,
the Court will not allow leave to amend because Erlanson’s
shortcomings are procedural in nature and nothing he does can
change the fact that this is the wrong court for his grievance and
the EPA has not waived immunity. The Court must dismiss with
App.l3a
4. This case is DISMISSED with PREJUDICE
and CLOSED.
5. The Court will enter a separate judgement in
accordance with Federal Rule of Civil Procedure 58.
[SEAL]
/s/ David C. Nve
Chief U.S. District Court Judge
DATED: October 14, 2022
prejudice.
App.l4a
JUDGMENT, UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF IDAHO
(OCTOBER 14, 2022)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID ERLANSON,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
Case No. 4:22-cv-00091-DCN
Before: David C. NYE,
Chief U.S. District Court Judge.
JUDGMENT
In accordance with the Court’s Memorandum
Decision and Order entered concurrently herewith.
NOW THEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that judgment be
entered in favor of Defendant’s and this case closed.
App.l5a
[SEAL]
/s/ David C. Nve_____________
Chief U.S. District Court Judge
DATED: October 14, 2022
App.l6a
ORDER DISMISSING APPEAL,
ENVIRONMENTAL APPEALS BOARD,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
(MARCH 5, 2021)
BEFORE UNITED STATES ENVIRONMENTAL
APPEALS BOARD, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
IN RE: DAVE ERLANSON, SR.
CWA Appeal No. 20-23
Docket No. CWA-10-2016-0109
Before: Aaron P. AVILA, Mary KAY LYNCH, and
Kathir A. STEIN, Environmental Appeals Judges.
ORDER DISMISSING APPEAL
Opinion of the Board by Judge Stein:
I.
Introduction
In October 2020, Administrative Law Judge
Christine Donelian Coughlin (“ALP) issued an Initial
Decision and Order (“Initial Decision”) assessing a
penalty of $6,600 against Mr. Dave Erlanson, Sr.
(“Respondent”) for discharging a pollutant from a
point source into navigable waters, the South Fork
Clearwater River in Idaho, in violation of Clean
Water Act (“CWA”) section 301(a), 33 U.S.C. § 1311(a).
App.l7a
In an earlier Accelerated Decision on liability, issued in
September 2018, the ALJ determined that Respondent
was liable for the alleged violation. Respondent filed
an appeal with the Environmental Appeals Board
(“Board”). For the reasons stated below, the Board
dismisses the appeal.
II. History
A. Statutory and Regulatory History
The CWA’s objective “is to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a).
To achieve that objective, the CWA prohibits the dis
charge of any pollutant into the waters of the United
States by any person unless authorized by a CWA
permit or other specified CWA provisions. CWA
§§ 301(a), 402(a), 33 U.S.C. §§ 1311(a), 1342(a). Section
402(a) of the CWA, 33 U.S.C. § 1342(a), establishes
the National Permit Discharge Elimination System
(“NPDES”), a permitting program that allows for the
lawful discharge of pollutants from a point source pur
suant to the receipt of, and in compliance with, a valid
NPDES permit. CWA § 402(a), 33 U.S.C. § 1342(a).
CWA section 309(g)(1)(A), 33 U.S.C. § 1319
(g)(1)(A), authorizes the United States Environmental
Protection Agency (“EPA” or “Agency”) to assess civil
penalties for violations of section 301.
B. Relevant Factual and Procedural History
In 2015, Clinton Hughes, a geologist and Certified
Mineral Examiner for the U.S. Forest Service (“Forest
Service”), observed Respondent operating a small
suction dredge in the South Fork Clearwater River
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(“SFCR”) in Idaho. Order on Complainant’s Motion for
Accelerated Decision 13-14 (ALJ, Sept. 27, 2018) (ALJ
dkt. #38) (“Accel. Dec.”); Complainant’s Exhibit (“CX”)
1, at 000002, 000005-6 (Mineral Inspection Report
(July 22, 2015)); CX 2 (Declaration of Clinton Hughes
(Sept. 20, 2016)). Suction dredging is a form of placer
mining that extracts gold or other heavy metals and
minerals from existing stream beds or stream
deposits. CX 4 at 000075 (Fact Sheet, The United
States Environmental Protection Agency (EPA) Plans
To Issue A National Pollutant Discharge
Elimination System (NPDES) General Permit To:
Small Suction Dredge Miners in Idaho) (“Fact Sheet”).
A suction dredge recovers gold from the stream bed
and discharges leftover stream bed materials and
stream water into the waterway. See Id.
The discharge of pollutants into the waters of the
United States associated with the operation of a small
suction dredge in Idaho must be authorized under
either the general NPDES permit in Idaho for small
suction dredging1 or, where necessary and as specified
by the general permit, an individual permit.2 CX 3 at
1 A small suction dredge—also referred to as a recreational
suction dredge—is defined as a dredge with an intake nozzle size
of 5 inches in diameter or less and with equipment rated at 15
horsepower or less. Fact Sheet at 000071. Suspended solids are
specified as the primary pollutant of concern in the discharges
from a small suction dredge. Id. at 000076.
2 NPDES permits may be issued by the EPA or by a State that
is authorized to operate an NPDES program. CWA § 402, 33
U.S.C. § 1342. At the time of the violation at issue here, Idaho
had not received such authorization. Thus, EPA was the relevant
NPDES permitting authority within the State pursuant to CWA
§ 402(a), 33 U.S.C. § 1342(a).
App.l9a
000030-34 (Authorization to Discharge under the
National Pollutant Discharge Elimination System for
Small Suction Dredge Placer Miners in Idaho,
General Permit IDG370000 (Mar. 5, 2013)) (“General
Permit”). The General Permit contains a list of
waterbodies not covered under the permit (unless
certain further requirements are met) due to their
designation as critical habitat under the Endangered
Species Act (“ESA”) and the presence of listed aquatic
species.3 See Id. at 000031-32. The list of such
waterbodies includes the Clearwater River Basin, of
which the SFCR is a part, and in which the alleged
violation occurred. See Id. at 000032 (listing the
Clearwater River Basin); CX 39 at 001535-36 (Appendix
G to the General Permit, listing endangered species
critical habitat areas and including the SFCR); see also
Accel. Dec. at 21 (finding the area of dredging not
covered under the General Permit); Initial Decision and
Order at 6 (ALJ, Oct. 7, 2020) (ALJ dkt. #80) (“Init.
Dec”) (citing ALJ Hearing Transcript at 221-22 (May
14-15, 2019) (ALJ dkt. #70-71) (“ALJ Tr.”)). The U.S.
EPA, Region 10 (“Region”) maintains that
Respondent’s operations in the SFCR were not auth
orized under either the General Permit or an individ
ual permit and that he is liable for the CWA violation
alleged in the complaint. See Complaint
3.1-3.9
(June 20, 2016) (ALJ dkt. #1) (“Compl.”); Accel. Dec. at
21.
3 In order to obtain coverage for a waterbody otherwise excluded
by the General Permit due to the presence of endangered species,
an ESA determination must be made through a separate process
by the Forest Service and submitted to the EPA, along with the
operator’s Notice of Intent. General Permit at 000031.
App.20a
1. Proceedings Before the Administra
tive Law Judge
In its complaint, the Region alleged that Respond
ent unlawfully operated a small suction dredge on the
SFCR on July 22, 2015. See Compl. ft 3.1-3.9. Res
pondent denied most of the allegations in the
complaint and requested a hearing. Answer to Com
plaint (July 18, 2016) (AU dkt. #3) (“Answer”). The
parties engaged in the prehearing exchange of infor
mation between April and June 2017.4 At the time of
the prehearing exchange, Respondent was represented
by counsel. See Respondent’s Attorney’s Notice of
Appearance (Sept. 23, 2016) (ALJ dkt. #10); Notice of
Withdrawal as Representative (Dec. 18, 2018) (ALJ
dkt. #48).
In June 2017, the Region filed a motion for
accelerated decision on both liability and penalty.
Complainant’s Motion for Accelerated Decision and
Memorandum in Support of its Motion for Accelerated
Decision (June 5, 2017) (ALJ dkt. #31) (“Motion”).
Counsel for Respondent timely filed a brief opposing
the Region’s motion along with a document titled:
“Declaration of Dave Erlanson, Sr.” (“Erlanson Decl.”
or “Declaration”).5 Respondent’s Brief in Opposition to
Motion for Accelerated Decision, app. A (Aug. 2, 2017)
(ALJ dkt. #34) (“Resp. to Mot.”). As relevant here, a
4 See Second Prehearing Order (Feb. 24, 2017) (ALJ dkt. #19);
Complainant’s Initial Prehearing Exchange (April 7, 2017) (AU
dkt. #23); Respondent’s Prehearing Exchange (May 8, 2017) (AU
dkt. #26) (“Resp’t Prehearing Exchange”); Complainant’s
Rebuttal Prehearing Exchange (June 5, 2017) (AU dkt. #30).
5 As set forth below in part III.B.2, Respondent later argues that
his attorney submitted a fraudulent declaration.
App.21a
violation of CWA § 301(a), 33 U.S.C. § 1311(a), occurs
when (1) a person; (2) discharges a pollutant; (3) from
a point source; (4) into a navigable water; (5) without
authorization under a NPDES permit.
During the prehearing exchange, Respondent,
through his counsel, accepted stipulations6 that Res
pondent is a “person” as defined by section 502(5) of
the CWA and that the SFCR is a “water of the United
States” and is therefore a “navigable water” in accord
ance with section 502(7) of the CWA. Respondent Prehearing Exchange at 6, 12 (May 8, 2017) (ALJ dkt.
#26) (“Resp’t Prehearing Exchange”). He also acknow
ledged that he did not have an NPDES permit. Id. at
12-13. Further, during the prehearing exchange, Res
pondent maintained that whether a suction dredge is a
point source depends on whether the operation
resulted in the discharge of a pollutant.7 Id. at 11-12.
The crux of Respondent’s argument on liability
before the ALJ was that no NPDES permit was re
quired for his suction dredging activity because it did
not involve the discharge of a pollutant within the
meaning of the CWA. Id. at 4-5; Resp. to Mot. at 14,
6 Respondent first denied that he is a person and that the SFCR
is a water of the United States in the Answer to the Complaint,
then later accepted stipulations proffered by the Region regard
ing these allegations during the prehearing exchange through
his counsel. Answer THf 3.1-3.2 (denying 3.1-3.2 of the complaint);
Resp’t Prehearing Exchange at 6, 12. The ALJ acknowledged Res
pondent’s Answer to the Complaint and subsequent stipulations in
the prehearing exchange and concluded that there was no genuine
issue of material facts as to these elements. Accel. Dec. at 6, 21, 22.
7 Respondent’s arguments conflate the elements of whether a
suction dredge is a point source with whether the operation of
suction dredge resulted in the discharge of a pollutant.
App.22a
16. That is, Respondent argued that the discharge of
materials from the streambed of the SFCR into the
waterway could not be considered an “addition” of a
pollutant and therefore, could not be considered a dis
charge of a pollutant under the CWA.8 Resp’t Prehearing Exchange at 5, 6-11; Resp. to Mot. at 14-16.
Respondent additionally argued that the discharge was,
at most, “incidental fallback” and therefore did not re
quire a NPDES permit. Resp’t Prehearing Exchange at
5, at 8-9; Resp. to Mot. at 16-23. Respondent also ques
tioned the reliability of the photographic and
testimonial evidence offered in support of the Region’s
claim that his operation of a suction dredge resulted
in the discharge of a pollutant. Resp. to Mot. at 10-12.
The AU concluded there was no genuine issue of
material fact on this question and that the record
demonstrated that Respondent’s operation of a suction
dredge released suspended solids into the SFCR.
Accel. Dec. at 11-16. The AU further held that the
release of suspended solids constitutes an “addition of
any pollutant” and, thus, a “discharge of a pollutant” as
a matter of law. Id. at 16-20.
By Order dated September 27, 2018, the ALJ
granted the Region’s motion for accelerated decision
as to liability, but denied the motion as to penalty. Id.
at 1, 25. On December 18, 2018, Respondent’s
Counsel withdrew as Respondent’s representative.
Notice of Withdrawal of Representative at 1. Thereafter,
8 The CWA defines “discharge of a pollutant” to include “any
addition of any pollutant to navigable waters from any point
source.” CWA § 502(12), 33 U.S.C. § 1362(12). The CWA defines
“pollutant” as including, among other things, dredged spoil, rock,
and sand. Id. § 502(6), 33 U.S.C. § 1362(6).
App.23a
Respondent proceeded pro se, i.e., without a lawyer,
and represented himself.
The AU held a hearing on penalty on May 14 and
15, 2019. Init. Dec. at 1. The Region presented five
witnesses and numerous exhibits. Id. at 1-2. Respond
ent did not present any evidence (documentary or
testimonial) and chose not to testify. Id. at 2. He did,
however, cross-examine the Region’s witnesses. Id.
Both parties submitted post-hearing briefs.9 On Octo
ber 7, 2020, the ALJ issued and served her Initial
Decision and Order, assessing a penalty of $6,600
based on her factual findings, the relevant statutory
factors, and EPA penalty policies. Init. Dec. at 43-44.
The Initial Decision provided that it would become a
final order unless, among other things, “an appeal to
the Environmental Appeals Board is taken within 30
days after this Initial Decision is served upon the
parties pursuant to 40 C.F.R. § 22.30(a).” Id. at 44. The
Region had previously served Respondent with a copy of
Part 22 of the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil
Penalties and the Revocation/Termination or
Suspension of Permits (“CROP’), which includes section
22.30, the requirements for filing appeals with the
Board. Compl. attach 1 (copy of e-CFR version of 40
C.F.R. Part 22, including 40 C.F.R. § 22.30).
9 Complainant’s Initial Post-Hearing Brief (Aug. 9, 2019) (ALJ
dkt. #75); Respondent’s Post-Hearing Brief (Sept. 4, 2019) (ALJ
dkt. #76) (“Resp’t Post-Hearing Br.”); Complainant’s Reply PostHearing Brief (Sept. 20, 2019) (ALJ dkt. #77); Respondent’s
Reply Post-Hearing Brief (Sept. 30, 2019) (ALJ dkt. #78) (“Resp’t
Reply Post-Hearing Br.”).
App.24a
2. Proceedings Before the Environ
mental Appeals Board
On November 3, 2020, Respondent filed a “Request
for Appeal” with the Board.10 The “Request for Appeal”
consisted of two paragraphs. The first stated:
Respondent disagrees with the decision and
order handed down by the administrative
judge in the matter cited above and seeks an
appeal hearing. Respondent sees no reason
to re-litigate the matter here in the petition
for appeal and even a cursory reading of the
record will show any judicially trained mind
that an obvious controversy exists between
the [Respondent [‘]s legal position and the
EPA’s position.
Request for Appeal 1 (Nov. 3, 2020). That was followed
by a one-sentence paragraph, stating that “[t]his
10 The Board issued an order declining to review the case on its
own initiative after the time for appeal had passed. Order
Declining to Exercise Sua Sponte Review (Nov. 12, 2020); see also
40 C.F.R. §§ 22.30(a), (b). The Order stated that no appeal had
been filed and that the Initial Decision and Order would become
final on November 23, 2020. Order Declining to Exercise Sua
Sponte Review at 1. The Board’s statement that no appeal had
been filed was based on misinformation from the EPA Mailroom,
which erroneously informed the Board that no mail had been
received relating to this matter. See Order Vacating Decision
to Decline Sua Sponte Review, Docketing Appeal, and Order to
Show Cause 1 (Nov. 20, 2020). On November 17, 2020, shortly
after the Board issued its order declining to review the matter,
the Board learned that the EPA mailroom had in fact received
Respondent’s request for appeal on November 3, 2020, within the
time allowed for filing an appeal. Id. In light of this information,
the Board vacated its Order declining sua sponte review and
docketed the case. Id.
App.25a
request does not foreclose any other remedies avail
able to [Respondent but only suffices to establish that
the [Respondent is actively seeking to exhaust his
administrative remedies.” Id. Because this document
did not appear to satisfy the filing and content
requirements for appeals to the Board from an Initial
Decision under 40 C.F.R. § 22.30(a)(1), the Board
ordered Respondent to show cause by December 3,
2020 as to why his appeal should not be dismissed. See
Order Vacating Decision to Decline Sua Sponte
Review, Docketing Appeal, and Order to Show Cause
(Nov. 20, 2020) (“Show Cause Order”).
On November 23, after the November 6 deadline
for filing an appeal in this case,11 Respondent filed the
following documents with the Board by regular mail:
(1) an “appellate brief and five attachments; (2) a
“motion to reconsider sua sponte review on the
grounds of ineffective assistance of [counsel] and other
grounds”; and (3) a brief challenging the EPA’s juris
diction in this matter. Appellate Brief (Nov. 23, 2020)
(“Appellate Br.”); Motion to Reconsider Sua Sponte
Review on the Grounds of Ineffective Assistance of
Counsel and Other Grounds (Nov. 23, 2020); Appel
lant Challenge to the Jurisdiction of the U.S. EPA
(Nov. 23, 2020) (“Appellant Jurisdiction Br.”).12 Res
pondent’s appellate brief included a copy of his post11 The ALJ’s Initial Decision and Order was served on October
7, 2020 by regular and electronic mail. The deadline for filing an
appeal where an initial decision is served electronically is 30
days after service. 40 C.F.R. § 22.30(a)(l)(i), .27(c).
12 Because Respondent’s briefs do not contain page numbers, the
Board will cite to the physical page numbers of the filing starting
with the title page.
App.26a
hearing brief submitted before the ALJ, with two addi
tional pages added at the end titled “Rebuttal of Initial
Decision and Order date 10-7-2020.” Compare Appel
late Brief at 1-19 to Respondent Post-Hearing Brief
(Sept. 4, 2019) (ALJ dkt. #76). The second brief
challenged EPA’s, the ALJ’s, and the Board’s jurisdic
tion. See Appellant Jurisdiction Br. at 2, 8, 12.
On November 30, 2020, Respondent filed his
response to the Board’s Show Cause Order. The
response included: (1) a “motion to add post-trial brief
used as appellate brief; (2) a “motion to add final post
trial brief used as appellate brief #2 to ‘show cause”';
(3) a “motion to add: Brief in support of oral argu
ments”; and (4) a document containing fifteen
exhibits “to ‘show cause.’” Appellant Motion to Add
Post-Trial Brief Used as Appellate Brief to Show
Cause (Nov. 30, 2020); Appellant Motion to Add Final
Post-Trial Brief Used as Appellate Brief #2 to Show
Cause (Nov. 30, 2020); Appellant Motion to Add Brief
in Support of Oral Arguments to Show Cause (Nov.
30, 2020); Appellant Motion to Add Exhibits 1
through 15 to Show Cause (Nov. 30, 2020). Contrary to
the Board’s Show Cause Order, and as discussed
below, none of these filings provided any explanation
for the deficiencies in Respondent’s November 3, 2020
‘Request for Appeal,” specifically his failure to file a
notice of appeal and appeal brief in accordance with
the content requirements of 40 C.F.R. § 22.30(a)(1).
On December 11, 2020, the Region submitted its
reply to Respondent’s response to the Show Cause
Order. EPA’s Reply to Appellant’s Response to the
Order to Show Cause (Dec. 11, 2020). On December
15, 2020, the Board issued a scheduling order, clarifying
that the deadline for any response by the Region to
App.27a
Respondent’s appeal briefs that were filed on November
23, 2020 was January 8, 2021. Scheduling Order
(Dec. 15, 2020). The Region submitted its response on
January 8, 2021. EPA’s Response to Appellant’s
Appeal (Jan. 8, 2021).
III. Analysis
A. Respondent’s Appeal Does Not Comply
With 40 C.F.R. § 22.30(a)(1)
Under 40 C.F.R. § 22.30(a)(1), an appeal from an
initial decision requires the filing of a notice of appeal
and an appellate brief with the Board. See 40 C.F.R.
§ 22.30(a)(l)(ii). The rules specify that a notice of the
appeal “shall summarize the order or ruling” that is
being appealed and the accompanying appellate brief
“shall contain” a statement of the issues presented for
review, argument on the issues presented and the
relief sought, among other things. Id. § 22.30(a)(l)(iii).
Rather than identifying his issues and arguments
contesting the Initial Decision, Respondent instead
filed a conclusory statement expressing general
disagreement with the ALJ’s determination and stating
that he saw “no reason to re-litigate the matter.”
Request for Appeal at 1. Thereafter, as stated above,
the Board issued its Show Cause Order. In response
to the Show Cause Order, Respondent filed four
documents.13 None of the documents confront or
13 Appellant Motion to Add Post-Trial Brief Used as Appellate
Brief to Show Cause (Nov. 30, 2020); Appellant Motion to Add
Final Post-Trial brief Used as Appellate Brief #2 to Show Cause
(Nov. 30, 2020); Appellant Motion to Add Brief in Support of Oral
Arguments to Show Cause (Nov. 30, 2020); Appellant Motion to
Add Exhibits 1 through 15 to Show Cause (Nov. 30, 2020).
App.28a
explain why Respondent failed to comply with the
requirements of section 22.30(a)(1).
In Respondent’s motion to reconsider the Board’s
order declining sua sponte review, he stated that he is
“untrained in law and was not aware of the filing
requirements,” that he injured himself, and that he is
able to show ineffective assistance of counsel.14
Motion to Reconsider Sua Sponte Review on the
Grounds of Ineffective Assistance of Counsel and
Other Grounds 1-2 (Nov. 23, 2020).1® These assertions
were not raised in Respondent’s request for appeal or
in response to the Board’s Show Cause Order, and in
any event, they are insufficient to justify Respondent’s
failure to comply with 40 C.F.R. § 22.30(a)(1). The
record shows that Respondent was aware of, or at
least had notice of, section 22.30—the ALJ explicitly
referenced it in the Initial Decision and the Region
included a copy of the CROP when it served Respondent
with the Complaint. Init. Dec. at 44; Compl., attach 1
(copy of e-CFR version of 40 C.F.R. Part 22, including
40 C.F.R. § 22.30(a)(1)). The rules are also readily
14 His allegations of ineffective assistance of counsel do not bear
on his failure to comply with 40 C.F.R. § 22.30(a)(1) and, in any
event, we address his allegations in part III.B.2, below. See also,
n.21, below.
On November 20, 2020, Respondent emailed the Board a doc
ument titled “Motion to Reconsider Sua Sponte Review on the
Grounds of Ineffective Assistance of Counsel and Other Grounds
and Extension for Appeal Filing Deadline.” Except for the title
used in the documents submitted by email and filed by hardcopy,
the substance of both the email and the hardcopy document is
otherwise identical.
App.29a
available on the Board’s16 and ALJ’s17 websites. Addi
tionally, if Respondent needed more time to file an
appeal or a brief due to injury or for other reasons, he
could have asked for an extension in advance of the
due date, which he did not do.18
Respondent’s briefs filed after the expiration of
the appeal deadline do not cure the failure to comply
with 40 C.F.R. § 22.30(a)(1). The Board’s Show Cause
Order was not an invitation to file a more compelling
appellate brief. Rather, the order provided Respondent
with an opportunity to explain why his “Request for
Appeal” did not comply with the filing and content
requirements of 40 C.F.R. § 22.30(a)(1). Show Cause
Order at 2. Respondent failed to do so.
16 The rules can be found on the Board’s website at the following
web address: https://yosemite.epa.gov/oa/EAB Web Docket.nsf/
General+Information/Regulations+G oveming+Appeals?OpenDocument
1<7 The rules can be found on the ALJ’s website at the following
web address: https://www;epa.gov/alj/rules-practice-proceedingsadministrative-law-judges
18 Respondent did not file, in advance of the due date, a motion
for extension of time to submit his appellate briefs. 40 C.F.R.
§ 22.30(e)(3) (stating that any motion for an extension of time
shall be filed sufficiently in advance of the due date so as to allow
other parties reasonable opportunity to respond and to allow the
Board reasonable opportunity to issue an order). The Board has
granted well-grounded requests for extensions of time filed
before but not after the due date, and strictly construes its filing
deadlines. See In re Tri-County Builders Supply, CWA 03-04, at
5 (EAB May 24, 2004) (Order Dismissing Appeal) (“The Board
typically requires strict compliance with the time limits set forth
in the rules of practice governing penalty appeals.”) (citing In re
Roger Antkiewicz & Pest Elimination Prod. OfAm., Inc., 8 E.A.D.
218, 220 n.2 (EAB 1999)).
App.30a
While the Board recognizes Respondent is now
proceeding pro se, a party’s lack of legal representation
or sophistication does not excuse a failure to comply
with regulatory requirements. See In re Robert Wallin,
10 E.A.D. 18, 38 n.16 (EAB 2001) (declining to relax a
pro se litigant’s burden of production); In re Jiffy
Builders, Inc., 8 E.A.D. 315, 320-21 (EAB 1999)
(stating that parties who choose to proceed pro se are
not excused from compliance with the CROP.); In re
Rybond, Inc., 6 E.A.D. 614, 626-27 (EAB 1996) (same).
While the Board endeavors to construe filings by pro
se litigants liberally, and does not expect such filings
to contain sophisticated legal arguments or to employ
precise technical or legal terms, the Board nevertheless
expects filings to provide sufficient specificity to
apprise the Board of the issues being raised and to
articulate supportable reasons for allegations of error.
See In re Sutter Power Plant, 8 E.A.D. 680, 687-88
(EAB 1999) (discussing threshold for pro se litigants
in the context of a permit appeal under 40 C.F.R. part
124); In re To Your Rescue! Services, FIFRA Appeal
No. 04-08, at 3 (EAB Sept. 30, 2005) (Final Order)
(“[T]he Board endeavors to construe objections by pro
se litigants liberally so as to fairly identify the
substance of the arguments being raised.”).
Respondent’s November 3rd Request for Appeal
did not contain any appellate brief or any legal or
factual arguments outlining specific issues or objections
or basis for his challenges to the ALJ’s Initial Decision.
Request for Appeal at 1. It instead rested entirely on
the conclusory statement that a controversy existed
between the parties, giving the Board no insight into
what the issues and arguments in controversy on
appeal might be. Id. Respondent’s failure to comply in
App.31a
any meaningful way with the requirements of
22.30(a)(1) because he saw “no reason to re-litigate the
matter,” disregards the importance of the procedural
requirements. The filing requirements specified in 40
C.F.R. § 22.30 are not merely procedural niceties that
parties are free to ignore. In re Four Strong
Builders, Inc., 12 E.A.D. 762, 772 (EAB 2006); In re
Tri-County Builders Supply, CWA 03-04, at 7 (EAB
May 24, 2004) (Order Dismissing Appeal); see also In
re Louisiana-Pacific Corp., 2 E.A.D. 800, 802 (CJO
1989) (dismissing appeal where Respondent failed to
articulate an explanation for its objections). Rather,
they serve an important role in helping to bring repose
and certainty to the administrative enforcement
process as well as efficient use of the Board’s resources
and processing of appeals. Tri-County Builders, CWA
03-04, at 7; see also Four Strong Builders, 12 E.A.D.
at 772.
Appeals that lack the identification of legal or
factual issues and arguments that do not contain the
specificity necessary to adjudicate a dispute impede
the Board’s ability to adjudicate appeals efficiently
and fairly. Part 22 is explicit, “[i]n exercising its duties
and responsibilities under these Consolidated Rules of
Practice, the Environmental Appeals Board may do all
acts and take all measures as are necessary for the
efficient, fair and impartial adjudication of issues
arising in a proceeding,” including denying all relief to
a party who, without adequate justification, fails or
refuses to comply with the CROP or with an order of
the Environmental Appeals Board. 40 C.F.R.
§ 22.4(a)(2). Under these circumstances, because of
the failure to comply with section 22.30(a)(1), the
Board dismisses Respondent’s appeal.
App.32a
B. The ALJ’s Determinations on Liability
and Penalty are Supported By the Record
While a dismissal for failure to meet the filing
requirements of section 22.30(a)(1) ends the Board’s
inquiry, under the unusual combination of circum
stances presented here the Board, on its own initiative,
reviewed the record in order to further explain a few
points for the benefit of all parties. And, as we explain
below, even if we were to further consider this case,
the Board would find that the ALJ’s determination is
well-reasoned and well-supported by the record as to
both liability and penalty. Accordingly, we address
below a few points belatedly asserted by Respondent.
1. The ALJ’s and the Board’s Subject
Matter Jurisdiction
Section 309(g), 33 U.S.C. § 1319(g), of the CWA,
which establishes EPA administrative penalty assess
ment authority for, among other things, violations of the
section CWA section 301, and the CROP,
promulgated at 40 C.F.R. part 22 provide the ALJ and
Board with subject matter jurisdiction for this pro
ceeding.19 In relevant part, the CROP specifies the
administrative adjudicatory process for the assessment
of penalty under CWA section 309(g). See 40 C.F.R.
§§ 22.1(a)(6),.4. The CROP authorizes the ALJ to
conduct and adjudicate hearings regarding the assess
ment of penalties arising under various federal
19 Respondent also challenges the EPA’s permitting and
regulatory authority. Appellant Jurisdiction Br. at 8. Because
Respondent’s challenges to the EPA’s authority do not relate to
the Board’s subject matter jurisdiction, we address these argu
ments in part III.B.3 and n.24, n.26, below, regarding liability.
App.33a
environmental laws, including the CWA violation
assessed here. Id. §§ 22.1 (listing scope of review), .4(c)
(explaining powers and duties of presiding officers). And
the CROP provides that the Board is to rule on
appeals from the initial decision, rulings, and orders
of a Presiding Officer, such as an ALJ. Id. § 22.4(a)
(explaining powers and duties of the Board). Pursuant
to the CROP, a respondent waives its right to judicial
review unless it exhausts its administrative remedies
by appealing to the Board. Id. § 22.27(d). Thus, both
the ALJ and the Board have jurisdiction in this
matter.20
2. Respondent’s Claim that the
Declaration Filed by Respondent’s
Former Counsel Was Fraudulent
In the copy of his post-hearing brief filed with the
Board, Respondent asserts, without factual support, that
his former counsel submitted a fraudulent declaration
before the ALJ and that this merits reversal of the
AU’s Accelerated Decision regarding liability. See
Appellate Br. at 7-8. The Declaration was attached to
Respondent’s “Brief in Opposition to Motion for
Accelerated Decision” filed on Respondent’s behalf on
August 2, 2017. See Resp. to Mot. attach. A. Respond
ent did not object to the Declaration until the second
day of the hearing on penalty held on May 15, 2019,
nearly twenty-one months after its submission and eight
20 Following an appeal to, and decision by, the Board, a party
may seek judicial review in the appropriate federal court. See
Administrative Procedure Act, 5 U.S.C. § 704 (providing a right
of judicial review of “Agency action made reviewable by statute
and final agency action for which there is no other adequate
remedy in a court * * * .”).
App.34a
months after issuance of the Accelerated Decision. See
Init. Dec. at 24. The ALJ rejected Respondent’s belated
attempt to recant his duly submitted Declaration and
declined to alter her liability finding on that basis.21
Id. at 24-25.
Moreover, Respondent does not explain how
excluding the Declaration would have materially
altered the ALJ’s liability determination. In fact, the
statements in the Declaration that the ALJ relied
upon in the Accelerated Decision can be readily
confirmed independently in the record. The Accelerated
Decision relies on the following undisputed facts in
the Declaration:
(1) Respondent owns a mining claim on the
[SFCR] located in the Nez Perce — Clear
water National Forest of north-central Idaho.
Erlanson Decl. Tf 2. It is a region of numerous
mineral resources, including gold. Id. f 3.
(2) The [SFCR] ultimately flows to the Snake
River. [Id.] t 3.
(3) Respondent engages in the business of gold
mining on his claim. [Id.] 1 3. His interest in
mining is not recreational but professional. Id.
(4)
On July 22, 2015, Respondent was mining for
gold on his claim using an apparatus known
as a suction dredge. See [Id.]
10, 23.
21 The ALJ held that Respondent is bound by his attorney’s
actions. See Init. Dec. at 24-25; see also In re Burrell, 15 E.A.D.
679, 688-90 (EAB 2012) (stating that a party “cannot avoid the
consequences of the acts or omissions of its freely selected
agent”).
App.35a
(5) While operating his suction dredge, Respond
ent encountered and conversed with Clinton
Hughes, an employee of the United States
Forest Service, who subsequently prepared
a Mineral Inspection Form documenting his
observations of Respondent’s activities. See
[Id.] 11 23, 28.
Accel. Dec. at 5. The record supports the accuracy of
the statements relied upon by the AU even absent
the Declaration. See, e.g., CX 1 at 000002, 000005-6
(Clinton Hughes’s Inspection Report documenting his
encounter with Respondent on July 22, 2015); CX 2
(Clinton Hughes’s declaration regarding his encounter
with Respondent); ALJ Tr. at 46-52, 57-60 (Clinton
Hughes’s testimony regarding his encounter with Res
pondent); ALJ Tr. at 35 (Respondent stating on July
22, 2015, he was using a recreational suction dredge);
AU Tr. at 36 (Respondent stating that he conducted
this activity on his mining claim in the SFCR);
Answer 1 4.8 (Respondent admitting that he received
gold as economic benefit from dredging); Resp’t
Prehearing Exchange at 12 (Respondent accepting
Region’s stipulation that the SFCR is a navigable
water);22 CX 14 (Region’s jurisdictional analysis for the
SFCR, which was uncontested by Respondent); Resp’t
Post-Hearing Br. at 7 (Respondent listing Clinton
Hughes’s testimony as a “non-disputed fact”).
In addition, although the AU cited to the Decla
ration in her assessment of how a suction dredge
22 Although Respondent now claims that the SFCR is not
navigable due to boulders that interrupt its flow, he has not
contested that the SFCR flows to the Snake River. Appellate Br.
at 9.
App.36a
operates, a disputed fact at the time, her assessment
was ultimately based on, and supported by, other evi
dence in the record that is not currently disputed by
Respondent. See Accel. Dec. at 12-16. Under these cir
cumstances, the record independently supports the
ALJ’s conclusions even if we were to consider the
liability determination without the Declaration Res
pondent claims was fraudulent. See, e.g., In re VSS
Inti, Inc., 18 EAD 372, 389-90 (EAB 2020) (rejecting
VSS’s claim that a document it had submitted in
response to a formal agency information request was
incorrect because VSS provided no specific evidence to
overcome the facts it originally provided to the Agency).
3. The Region’s Prima Facie Case of
Liability and the ALJ’s Liability
Determination
The record supports a finding that the Region
established a prima facie case and that the ALJ did
not err in her liability determination. As relevant
here, a violation of CWA section 301(a), 33 U.S.C.
§ 1311(a), occurs when (1) a person; (2) discharges a
pollutant; (3) from a point source; (4) into a navigable
water; (5) without authorization under a NPDES
permit.
The record reflects that the Region addressed
each element and established its prima facie case for
Respondent’s liability. In particular, the Region
proffered that: (1) Respondent is an individual, and
thus, a person as defined by the CWA, Compl. If 3.1;
Complainant’s Initial Prehearing Exchange at 11
(April 7, 2017) (ALJ dkt. #23) (“Region Prehearing
Exchange”); (2) Respondent operated a suction dredge,
as witnessed by Clinton Hughes, and such operation
App.37a
resulted in a discharge of a pollutant pursuant to the
CWA and various caselaw, Compl. t 3.6, 3.8; Region
Prehearing Exchange at 11-15; (3) the suction dredge’s
waste disposal system constitutes a discrete conveyance
and/or conduit and is thus a point source pursuant to
the CWA, Compl. f 3.7; Region Prehearing Exchange
at 15-16; (4) the SFCR flows to the Snake River, which
flows to the Columbia River, and eventually the
Pacific Ocean, and is thus a navigable water, Compl.
U 3.2; Region Prehearing Exchange at 16-17; see also
CX 14 at 000909-912; and (5) Respondent was not
authorized under the requisite NPDES permit, Compl.
1f 3.4, 3.9; Region Prehearing Exchange 17-18; CX 11
(EPA Letter to David Erlanson (Aug. 7, 2015)). As
noted in Part II.B.l, above, Respondent accepted
stipulations that he is a person and that the SFCR is
a navigable water. Resp’t Prehearing Exchange at 6, 12.
He also acknowledged that he did not have a NPDES
permit and conditioned whether a suction dredge is a
point source on whether its operation resulted in the
discharge of a pollutant. Id. at 11-13. And with respect
to the principal dispute of whether Respondent’s
operation resulted in the discharge of a pollutant
within the meaning of the CWA, the Region offered suf
ficient evidence and established the required elements
of a prima facie case. Motion at 8-15; Complainant’s
Reply in Support of Motion for Accelerated Decision
at 2-9 (Aug. 14, 2017) (ALJ dkt. #35).
The ALJ addressed each element of liability and
the arguments presented by the parties in her
Accelerated Decision23 and found that no genuine
23 Respondent now claims that his due process rights were
violated because he was found “guilty” without a trial. Appellate
Br. at 11. Under the CROP, a Presiding Officer, here an ALJ,
App.38a
issue of material fact existed as to whether Respondent
violated the CWA and that the Region was entitled to
judgment on liability as a matter of law.24 See Accel.
Dec. at 6 (determining that Respondent is a “person”
pursuant to the CWA); Id. at 6-20 (determining that
may at any time render an accelerated decision as to any or all
parts of the proceeding, without further hearing or upon such
limited additional evidence, such as affidavits, as he may re
quire, if no genuine issue of material fact exists and a party is
entitled to judgment as a matter of law. 40 C.F.R. § 22.20.
24 In his various filings before the Board, Respondent asserts
numerous arguments that were not included in the briefings
prior to issuance of the Accelerated Decision on liability, and are
thus deemed waived in the liability context. See Init. Dec. at 23
(ALJ rejecting Respondent’s arguments on liability in her Initial
Decision regarding penalty). A party’s right of appeal is limited
to issues timely raised before the AU and issues concerning sub
ject matter jurisdiction. 40 C.F.R. § 22.30(c); see In re Yeldhuis,
11 E.A.D. 194, 219-20 (EAB 2003) (stating issues not raised
before the ALJ are waived on appeal), pet. for review voluntarily
dismissed, No. 03-74235 (9th Cir. Mar. 8, 2004); In re Woodcrest
Mfg., Inc., 7 E.A.D. 757, 764 (EAB 1998) (citing In re Lin, 5
E.A.D. 595, 598 (EAB 1994)), affd, 114 F. Supp. 2d 775 (N.D. Ind.
1999). The Board addressed subject matter jurisdiction in part
III.B.l, above. Respondent’s assertions that the SFCR is not a
navigable water of the United States because of boulders in the
river and its alleged interrupted flow go to the merits of the
claim, rather than this tribunal’s subject matter jurisdiction. See
Appellate Br. at 9; see In re Fulton Fuel Co., CWA Appeal No. 1003, at 18-19 (EAB Sept. 9, 2010) (Final Decision and Order)
(citing In re Adams, 13 E.A.D. 310, 319 (EAB 2007)). In any
event, while Respondent denied that his actions occurred in a
navigable water in the answer to the complaint, Respondent
subsequently accepted the Region’s stipulation that the SFCR
is a navigable water during the prehearing exchange and did not
present evidence in the record to dispute that the SFCR is a
navigable water before the ALJ. Answer 1 3.2; Resp’t Prehearing
Exchange at 12. The Board finds no merit in Respondent’s argu
ments and further finds these arguments waived.
App.39a
Respondent’s actions resulted in a “discharge of a
pollutant” and discussing her analysis at length); Id.
at 20 (determining that Respondent’s suction dredge
constituted a “point source”); Id. at 21 (determining
that the SFCR is a navigable water);25 Id.
(determining that Respondent was not authorized to
discharge pollutants by any NPDES permit).26 As to
whether Respondent’s actions resulted in the dis
charge of a pollutant, the ALJ found that, based on the
evidence in the record, Respondent’s operation of a
suction dredge resulted in the discharge of suspended
solids into the SFCR in the form of a plume of turbid
water. Id. at 16. The ALJ further found that the
suction dredge’s release of suspended solids, even if it
came from the streambed of the waterway itself,
resulted in an “addition of a pollutant” and therefore, a
“discharge of a pollutant” pursuant to the CWA. Id. at
16-20. As noted by the ALJ, the case most pertinent to
25 At the time of the violation, “waters of the United States” was
defined to include, inter alia, “waters which are currently used,
were used in the past, or may be susceptible to use in interstate
or foreign commerce, including all waters which are subject to
the ebb and flow of the tide” and tributaries to those waters. 40
C.F.R. § 122.2; 40 C.F.R. § 232.2.
26 Respondent asserts several belated arguments that he is
exempt from EPA’s NPDES permitting authority by the State of
Idaho and federal laws. Appellant Jurisdiction Br. at 3-6, 8-9. As
these arguments were not raised before the ALJ regarding
liability, they are deemed waived. See n.24, above. As noted in
footnote 2, above, at the time of the violation at issue here, EPA
was the relevant NPDES permitting authority within the State
pursuant to CWA § 402(a), 33 U.S.C. § 1342(a). Further, with
respect to enforcing CWA violations, the CWA authorizes EPA to
bring an enforcement action against any person in violation of,
inter alia, section 301. CWA § 309(g)(1)(A), 33 U.S.C. § 1319
(g)(1)(A).
App.40a
this matter is Rybachek v. EPA, a Ninth Circuit case
which addresses the type of mining at issue here and
where the Court found that “even if the material dis
charged originally comes from the streambed itself,
such resuspension may be interpreted to be an addi
tion of a pollutant under the [CWA.]” Id. at 16;
Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990).
The ALJ also found that the nature of Respondent’s
activities here to be distinguishable from “incidental
fallback.” Accel. Dec. at 19-20. The Board finds that
the ALJ conducted a thorough analysis of the factual
and legal issues and did not err in her liability deter
mination.
4. The AL J’s Penalty Determination
The Board finds that the ALJ did not err in her
assessment of the penalty amount. The statutory
penalty factors for a CWA violation include “the
nature, circumstances, extent, and gravity of the vio
lation”; the violator’s “ability to pay, any prior history
of such violations the degree of culpability, economic
benefit or savings (if any) resulting from the violation[;] and such other matters as justice may require.”
CWA § 309(g)(3), 33 U.S.C.§ 1319(g)(3). Pursuant to
the CROP, the Presiding Officer, here the ALJ, shall
determine the amount of the recommended civil penalty
based on the evidence in the record, in accordance
with any statutory penalty criteria, and any civil
penalty guidelines.27 40 C.F.R § 22.27(b). The CWA
27 The Agency has not developed a penalty policy specific to the
CWA. In re City of Marshall, 10 E.A.D. 173,189 n.28 (EAB 2001).
However, in assessing penalties under the CWA, the agency
often relies on EPA’s two general penalty policies: (1) U.S. EPA,
EPA General Enforcement Policy #GM-21, Policy on Civil
App.41a
does not prescribe a precise formula to compute the
relevant penalty factors and judges are afforded
significant discretion in setting penalties. In re Phoenix
Constr. Serv., Inc., 11 E.A.D. 379, 394 (EAB 2004). For
a violation assessed under CWA § 309(g)(2)(B)
occuring after December 6, 2013, through November
2, 2015, the EPA is authorized to assess an adminis
trative civil penalty in an amount not to exceed
$16,000 per day for each day during which the viola
tion continues, and up to a maximum of $187,500.
CWA § 309(g)(3), (g)(2)(B), 33 U.S.C. § 1319(g)(3),
(g)(2)(B); 40 C.F.R. § 19.4. Based on the factors detailed
above, the Region calculated and sought a total penal
ty of $6,600. Init. Dec. at 30-31.
In determining the penalty, the ALJ fully
explained her factual findings based on the record,
including hearing testimony, and set forth how her
factual findings applied to the relevant penalty factors.
Id. at 22, 25-43. The ALJ found the penalty sought by
the Region to be appropriate based on the record, stat
utory criteria, and relevant penalty guidance. See Id.
at 4, 33-43; 40 C.F.R § 22.27(b). The AU’s Initial Deci
sion assessing penalty is well-supported by the record.
III. Conclusion
For the foregoing reasons, the Board dismisses
the appeal. Accordingly, Respondent is ordered to pay
the full amount of the civil penalty assessed by the
ALJ, $6,600, within thirty (30) days of receipt of this
Order. Payment shall be made by submitting a
Penalties (Feb. 16, 1984) and (2) TJ.S. EPA, EPA General
Enforcement Policy #GM-22, A Framework for Statute-Specific
Approaches to Penalty Assessments (Feb. 16, 1984). Id.
App.42a
certified or cashier’s check in the requisite amount,
payable to “Treasurer, United States of America,” and
mailed to:
U.S. Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
P.O. Box 979077
St. Louis, MO 63197-9000
A transmittal letter identifying the subject case and
EPA docket number (CWA-10-2016-0109), as well as
the Respondent’s name and address, must accompany
the check. Respondent may also pay by one of the
electronic methods described at the following webpage:
https://www.epa.gov/financial/additional-instructionsmaking-payments-epa. If Respondent fails to pay the
penalty within the prescribed statutory period after
entry of this Order, interest on the penalty may be
assessed. See 31 U.S.C. § 3717; 40 C.F.R. § 13.11.
App.43a
INITIAL DECISION AND ORDER,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
(OCTOBER 7, 2020)
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF: DAVE ERLANSON, SR.,
Respondent.
Docket No. CWA-10-2016-0109
Before: Christine DONELIAN COUGHLIN,
Administrative Law Judge, U.S. EPA.
INITIAL DECISION AND ORDER
I.
Procedural Background
The Director of the Office of Compliance and
Enforcement at the United States Environmental
Protection Agency (“EPA” or “Agency”), Region 10
(“Complainant”), initiated this proceeding on June 20,
2016, by filing a Complaint against Dave Erlanson, Sr.
(“Respondent”), pursuant to Section 309(g)(2)(B) of the
Federal Water Pollution Control Act, commonly
referred to as the Clean Water Act (“Act” or “CWA”),
33 U.S.C. § 1319(g)(2)(B). The Complaint alleged that
on July 22, 2015, Respondent unlawfully discharged
pollutants from a point source into a navigable water
App.44a
without authorization under a National Pollutant Dis
charge Elimination System (“NPDES”) permit, in vio
lation of Section 301(a) of the CWA, 33 U.S.C.
§ 1311(a). See Complaint
3.1-3.9. On July 18, 2016,
Respondent filed an Answer denying the charge and
requesting a hearing on the matter. Answer at 1.
Thereafter, the parties engaged in the prehearing
exchange of information process. Specifically,
Complainant filed its Initial Prehearing Exchange on
April 7, 2017; Respondent filed his Prehearing
Exchange on May 8, 2017; and Complainant filed its
Rebuttal Prehearing Exchange on June 5, 2017. Also
on June 5, 2017, Complainant filed a Motion for
Accelerated Decision in which it sought entry of an
accelerated decision as to Respondent’s liability for
the violation alleged in the Complaint and the civil
administrative penalty proposed for the charged vio
lation.1 On September 27, 2018,1 issued the Order on
Complainant’s Motion for Accelerated Decision (“Order
on AD”), in which I granted Complainant’s motion as
to Respondent’s liability for the charged violation but
denied the motion as to the civil administrative penal
ty proposed for the violation, allowing for further
development of the issue of penalty, particularly with
regard to the degree of harm caused by the violation,
at an evidentiary hearing.2 Thereafter, the parties
1 Together with the Motion for Accelerated Decision, Complainant
filed a memorandum in support. Respondent timely filed its Brief
in Opposition to Motion for Accelerated Decision on August 2,
2017, to which Respondent attached the Declaration of Dave
Erlanson, Sr. Complainant timely filed its Reply in Support of
Motion for Accelerated Decision on August 14, 2017.
2 See 40 C.F.R. § 22.20(b)(2).
App.45a
engaged in an extensive motions practice in
anticipation of hearing, and orders were issued in
advance of the scheduled hearing resolving the subject
of each motion.3
On May 14 and 15, 2019,1 conducted a hearing in
Rigby, Idaho.4 Complainant presented the testimony of
five witnesses: 1) Clint Hughes, a geologist and
mineral examiner and administrator with the U.S.
Department of Agriculture (“USDA”) Forest Service;
2) Tara Martich, a CWA enforcement specialist with
the EPA, Region 10, Office of Compliance and Enforce
ment; 3) Cindi Godsey, an environmental engineer
with the EPA, Region 10, NPDES permitting section
within the division of Water, who was qualified as an
expert witness in suction dredge mining permitting,
specifically, and CWA permitting, generally5; 4) Daniel
3 See Order on Complainant’s Motion to Compel Additional
Discovery and Compliance with Second Prehearing Order,
Complainant’s Motion in Limine, and Respondent’s Motion to
Appeal, dated March 18, 2019, and Order on Motions, dated May
2, 2019.
4 See Notice of Hearing, dated November 5, 2018; Order
Rescheduling Hearing, dated January 31, 2019; Notice of
Hearing Location, dated March 21, 2019; and Service of Orders
by Certified Mail to Respondent Erlanson, dated March 22, 2019.
It should be noted that a hearing in this matter was originally
scheduled to begin on February 12, 2019; however, due to a lapse
of appropriations, Agency operations ceased from December 29,
2018, until January 28, 2019, which interrupted the orderly
processing of motions and other logistical arrangements neces
sary for the hearing to proceed as originally scheduled. Conse
quently, the hearing was rescheduled. Citations to the corrected
transcript of the proceedings are made in the following format:
“Tr. [page].”
5 See Tr. 238-241; CX 31.
App.46a
Kenney, a North Zone Fisheries Biologist with the
USDA Forest Service, who was qualified as an expert
witness in Endangered Species Act (“ESA”)-listed
species in the South Fork Clearwater River (“SFCR”)
and the impacts of suction dredge mining on those
species, as well as the ESA consultation process6; and 5)
David Lee Arthaud, a Fisheries Biologist with the
National Marine Fisheries Service (“NMFS”) of the
National Oceanic and Atmospheric Administration
within the Department of Commerce, who was qual
ified as an expert witness in ESA-listed species in the
South Fork Clearwater River and the impacts of
suction dredge mining on those species.7 Complainant’s
Exhibits 1, 1A, IB, 1C, 2-4, 6-10, 12, 16-22, 27-29, 31,
33-35, and 37-39 were offered and admitted into evi
dence.8 Respondent did not present any evidence (doc
umentary or testimonial) on his own behalf and chose
not to testify, but he did cross-examine
Complainant’s witnesses.
On June 26, 2019, the parties were provided with
a certified transcript of the hearing, and on that same
day I issued an Order Scheduling Post-Hearing
Submissions that established various post-hearing
filing deadlines. Consistent with those deadlines, a
Motion to Conform the Transcript was filed and
6 See Tr. 260, 270; CX 34.
7 See Tr. 418; CX 33.
8 The copies admitted into evidence were Bates-stamped. For
simplicity, citations to Complainant’s Exhibits (“CX”) utilizing
the Bates stamp number (“BSN”) will eliminate the preceding
zeros contained in the number and be made in the following
format: “CX [exhibit number] at BSN [number].”
App.47a
granted by Order dated July 31, 2019.9 Additionally,
the parties timely filed their respective initial post
hearing briefs and reply post-hearing briefs.10
II. Provisions of Applicable Law
A. Prohibition on Discharging a Pollutant
Without a Permit
Codified at 33 U.S.C. §§ 1251-1388, the CWA was
enacted by Congress to “restore and maintain the
chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance
of this objective, Section 301(a) of the CWA provides
that “[ejxcept as in compliance with this section and
sections 302, 306, 307, 318, 402, and 404 of this Act
[33 U.S.C. §§ 1312, 1316, 1317, 1328, 1342, 1344], the
discharge of any pollutant by any person shall be
unlawful.” 33 U.S.C. § 1311(a). Of particular relevance
to this proceeding, Section 402 of the CWA establishes
the National Pollutant Discharge Elimination System
(“NPDES”) permit program, which allows EPA and
states qualified by EPA to issue permits for the dis
charge of pollutants, notwithstanding the prohibition set
9 An additional correction is hereby made, sua sponte, to identify
Mr. Moore, rather than Mr. McLaren, as the EPA counsel who
conducted direct examination of Daniel Kenney on May 14 and
15, 2019. See Tr. 258-400.
10 Complainant’s Initial and Reply Post-Hearing Briefs will be
cited to, respectively, as “Comp. In. Br.” and “Comp. Rep. Br.”
and Respondent’s Initial and Reply Post-Hearing Briefs will be
cited to, respectively, as “Resp. In. Br.” and Resp. Rep. Br.” I note
that neither Respondent’s Initial Post-Hearing Brief nor Reply
Post-Hearing Brief contains numbered pages, thereby
necessitating references to physical page numbers.
App.48a
forth in Section 301(a). 33 U.S.C. § 1342(a)-(b). Thus,
those sections of the Act operate to bar any person
from discharging a pollutant “without obtaining a
permit and complying with its terms.” EPA v.
California, 426 U.S. 200, 205 (1976).
For purposes of the relevant provisions of the
CWA, the phrase “discharge of a pollutant” is defined
by the CWA to include “any addition of any pollutant
to navigable waters from any point source.” 33 U.S.C.
§ 1362(12). The CWA proceeds to define the term
“pollutant” as including, among other meanings,
dredged spoil, rock, and sand discharged into water.
33 U.S.C. § 1362(6). In turn, the term “navigable
waters” is defined as “waters of the United States.” 33
U.S.C. § 1362(7). The term “point source” is defined as
“any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are or
may be discharged.” 33 U.S.C. § 1362(14). The term
“person” is defined to include an individual. 33 U.S.C.
§ 1362(5). Finally, regulations promulgated to imple
ment the CWA defined the phrase “waters of the
United States” at the time of the violation to include
“[a] 11 waters which are currently used, were used in
the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are sub
ject to the ebb and flow of the tide,” and tributaries of
those waters. 40 C.F.R. § 122.2 (1983).11
The Agency has since engaged in rulemaking that amends the
definition of the phrase; however, it did not alter the language
quoted herein. See The Navigable Waters Protection Rule:
Definition of “Waters of the United States,” 85 Fed. Reg. 22,250
App.49a
B. Penalty for Violations of that Prohibition
The CWA authorizes the Administrator of EPA,
upon finding that a person has violated Section 301 of
the statute, to assess a civil administrative penalty in
an amount not to exceed $16,000 per day for each day
during which the violation continues, up to a maxi
mum of $187,500, for violations occurring after
December 6, 2013, through November 2, 2015. 33
U.S.C. § 1319(g)(1)(A), (g)(2)(B); 40 C.F.R. § 19.4.12
For purposes of determining the appropriate
amount of penalty to impose, the CWA requires the
Administrator to consider the following factors: the
nature, circumstances, extent, and gravity of the vio
lation; the violator’s ability to pay, prior history of
such violations, degree of culpability, and economic
benefit or savings resulting from the violation; and
“such other matters as justice may require.” 33 U.S.C.
§ 1319(g)(3). As observed by the Environmental
Appeals Board (“EAB” or “Board”), however, “[t]he Act
does not.. . ‘prescribe a precise formula by which these
factors must be computed’ nor does it provide any gui
dance regarding the relative weight to be given to any
of them.” Phoenix Constr. Servs., 11 E.A.D. 379, 394
(EAB 2004) (quoting Advanced Elecs., Inc., 10 E.A.D.
385, 399 (EAB 2002)). Accordingly, penalty
(April 21, 2020). In any event, any post-violation amendment to
the definition does not affect my analysis.
12 The amounts stated herein are those shown in Table 1, 40
C.F.R. § 19.4, reflecting the statutory penalty amounts adjusted
pursuant to Section 4 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. § 2461 (note), as amended by
the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701
(note).
App.50a
calculations under the CWA are “highly discretion
ary.” Tull v. United States, 481 U.S. 412, 426-27
(1987).
The Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the
Revocation/Termination or Suspension of Permits
(“Rules of Practice”) that govern this proceeding, in
turn, require this Tribunal to determine the appropri
ate amount of penalty to assess based on the evidenti
ary record and in accordance with any penalty criteria
set forth in the applicable statute, and to consider any
civil penalty guidelines issued under the applicable
statute in making its determination. 40 C.F.R.
§ 22.27(b). To that end, Complainant utilized and
offered into evidence two Agency guidance documents
contained in a single proposed exhibit, CX 35. Specif
ically, CX 35 included the Policy on Civil Penalties,
EPA General Enforcement Policy #GM-21 and A
Framework for Statute-Specific Approaches to Penalty
Assessments: Implementing EPA’s Policy on Civil
Penalties, EPA General Enforcement Policy #GM-22
(collectively referred to as the “Penalty Policy”)- Tr. 130;
CX 35. I admitted CX 35 into evidence at the hearing
and considered it in my penalty evaluation and
assessment.13
13 I note, as a point of clarification, that the guidance document
titled A Framework for Statute-Specific Approaches to Penalty
Assessments: Implementing EPA’s Policy on Civil Penalties, EPA
General Enforcement Policy #GM-22, was separately proposed as
CX 36 but not offered into evidence. As previously stated, this
guidance document is also contained within CX 35, which was
admitted into evidence and considered in this decision. Tr. 13132; CX 35, BSN 1439-69.
App.51a
III. Summary of Factual Findings
As noted above, in my Order on AD, I concluded
that no genuine issue of material fact existed and that
Complainant was entitled to judgment as a matter of
law with respect to each element of statutory liability
for the charged violation. Specifically, I determined
that (1) Respondent is a “person,” as that term is
defined by Section 502(5) of the CWA, 33 U.S.C.
§ 1362(5); (2) his operation of a suction dredge in the
SFCR on July 22, 2015, resulted in the “discharge of a
pollutant” within the meaning of Section 502(12) and
(6) of the CWA, 33 U.S.C. § 1362(12) and (6); (3) the
suction dredge constituted a “point source” of the
given pollutants, as that term is defined by Section
502(14) of the CWA, 33 U.S.C. § 1362(14); (4) the
SFCR is a “navigable water,” as that term is defined
by Section 502(7) of the CWA, 33 U.S.C. § 1362(7); and
(5) Respondent’s operation of the suction dredge was
not authorized under any NPDES permit. Thus, I
concluded that Respondent’s activity constituted a
violation of Section 301(a) of the CWA, 33 U.S.C.
§ 1311(a). With liability established, the outstanding
issue to be resolved is limited to the appropriate
monetary penalty to be ^assessed for the established
violation, which was the subject of the evidentiary
hearing in this matter. While the factual summary
below relates to my consideration of the monetary
penalty to be assessed for Respondent’s violative
conduct, certain included facts might also be relevant
to liability; however, they are included purely for
contextual purposes and to guide my analysis.
App.52a
A. Suction Dredge Operations on South Fork
Clearwater River
The SFCR is located in north-central Idaho, a
region that contains numerous mineral resources,
including gold. Order on AD at 5. The SFCR is
designated as a “critical habitat” under the ESA for
Snake River Basin Steelhead Trout, Snake River Fall
Chinook Salmon, and Columbia Basin Bull Trout, all
listed as threatened under the ESA, and it is designated
as an “essential fish habitat” for Pacific Coast Coho
Salmon and Snake River Fall Chinook Salmon. Tr. 321,
419-21, 426; CX 17, 18. As a “critical habitat,” it is
sensitive to sediment, the pollutant at issue in this
proceeding. Tr. 137, 221. Sediment is also discussed,
in the context of suction dredging, as turbidity in the
water. Tr. 182-84, 199-200, 428. Additionally, the
Agency at times has referred to sediment as suspended
solids, a more broad and technical term and one that
is captured by the limited terminology available to it
in its data system. Tr. 182-84, 199-200.
The SFCR has been designated as “impaired” for
sediment, meaning that it does not meet state water
quality standards with regard to that pollutant.14
Tr. 137-38, 222. To address the exceedance of those
standards, the state of Idaho developed a total maxi
mum daily load (“TMDL”) for sediment for the SFCR.
Tr. 137-38, 222-23; CX 6. The TMDL establishes a limi
tation on “inputs to the [SFCR] ... to attempt to bring
that river back to meeting water quality standards at
some later date.” Tr. 138.
14 A waterway is listed as “impaired” pursuant to Section 303(d)
of the CWA, 33 U.S.C. § 1313(d).
App.53a
Within the TMDL, the state “developed waste
load allocations that were applicable to suction
dredging.” Tr. 222-23. These waste load allocations
were then considered in the development of a general
NPDES permit entitled “Authorization to Discharge
Under the National Pollutant Discharge Elimination
System for Small Suction Dredge Placer Miners in
Idaho, General Permit No.: IDG370000” (“General
Permit”), which took effect on May 6, 2013. Tr. 119120, 217-18, 223-24; CX 3. This General Permit
pertains to Idaho operators of placer mining operations
using small suction dredge equipment, meaning an
intake nozzle size of five inches in diameter or less,
and authorized discharges from a maximum of 15
small suction dredge operations in specific waters in
Idaho. Tr. 119-120, 217-18, 223-24; CX 3.
The General Permit states that “[authorization
to discharge requires written notification from EPA
that coverage has been granted to the operation.” CX
3, BSN 30. Further, it makes clear that “[discharges
from suction dredges are not covered by this general
permit in habitat designated as critical habitat (see
Appendix G) under the Endangered Species Act
(ESA),” which includes the Clearwater River Basin,
unless certain requirements are met. CX 3, BSN 3132. An appendix to the General Permit lists designated
critical habitats under the ESA that were conditionally
closed under the permit, including the SFCR. Tr. 22021; CX 39, BSN 1535. Thus, authorization to discharge
under the General Permit did not extend to the SFCR.
Tr. 120-21, 232; CX 3, BSN 31-32. To reopen such a
conditionally closed area for purposes of small suction
dredge operations, an ESA consultation must first be
conducted. Tr. 221-22; CX 3, BSN 31. This
App.54a
consultation, which can be a long process, was not
completed at the time of the violation in this case.
Tr. 222, 271. Although discussions between involved
government entities-namely, the NMFS and the U.S.
Fish and Wildlife Service (“FWS”)—had been started,
a biological assessment had yet to be completed.
Tr. 271. Thus, as of the date of the violation in this
case, coverage under the General Permit was not
available for any small suction dredge operators on
the SFCR. See Tr. 232.
B. Respondent’s Actions Prior to Date of
Violation
Respondent owns a mining claim on the SFCR.
Order on AD at 5. He engages in the business of gold
mining on his claim, and his interest in mining is pro
fessional, not recreational. Tr. 151-53; CX10, BSN 859;
Order on AD at 5.
On February 10, 2014, roughly nine months after
the General Permit took effect, Respondent filed a
Joint Application for Permits (“Joint Application”) with
the U.S. Army Corps of Engineers (“ACE”), the Idaho
Department of Water Resources (“IDWR”), and the
Idaho Department of Lands, in which he identified
himself as a professional dredger with 20 years of
experience mining under five state permits, including
Idaho. CX 10, BSN 859. In his Joint Application, Res-pondent sought approval of anticipated dredging
activities to take place in two waterbodies, the SFCR
and McCoy Creek, to begin on June 15, 2014, and last
until September 15, 2014. Tr. 151-53; CX 10. In
response, by letter dated February 11, 2014 (“ACE
Letter”), the ACE notified Respondent that “EPA has
the lead for recreational suction dredging in Idaho
App.55a
under the Clean Water Act” and that the ACE sent
Respondent’s application “to EPA for their review and
processing.” CX 9, BSN 855; see also Tr. 154, 156. The
ACE further informed Respondent that his “suction
dredging project in the South Fork Clearwater River is
located in an area which is designated as critical
habitat for bull trout and also has been known to sup
port bull trout and Snake River Basin steelhead which
are protected under the Endangered Species Act of
1973, as amended.” CX 9, BSN 855; see also Tr. 155.
Thus, the ACE suggested to Respondent that he
“contact the US Fish and Wildlife Service and the
National Marine Fisheries Service before Pie] begin
any work at this site to ensure that [he] complies]
with provisions of the Endangered Species Act.” CX 9,
BSN 855; see also Tr. 155-56.
By letter dated October 3, 2014 (“EPA Letter”),
EPA replied to Respondent and informed him that the
SFCR “contains critical habitat for bull trout,
steelhead, and Chinook salmon, requiring an
Endangered Species Act (ESA) determination before
suction dredging can be permitted (see Part I.D.4 of
the [General Permit] on page 5).” CX 8, BSN 853-54;
see also Tr. 156-57. EPA provided Respondent with
the contact information for Clint Hughes to “inquire
about ESA Consultation and the U.S. Forest Service’s
requirements for submitting a Notice of Intent (NOI)
and/or Plan of Operations for the South Fork
Clearwater River within the Nez Perce-Clearwater
National Forests.” CX 8, BSN 854. Further, EPA
advised, “Please be aware, permit coverage from the
EPA and the Idaho Department of Water Resources
(IDWR) is required in order to operate a small suction
App.56a
dredge in Idaho. The EPA and IDWR do not share the
exact same list of open and closed waterbodies.” Id.
On May 13, 2015, the IDWR issued an “Idaho Re
creational Mining Authorization (LETTER PERMIT)”
(“IDWR Letter Permit”) to Respondent. CX 29. The
IDWR Letter Permit authorized him “to operate
recreational mining equipment to alter a stream
channel” in the waterways he identified, which
included the SFCR, in accordance with local rules and
instructions. CX 29, BSN 1415-16. Under a section
identified as “Special Conditions,” the IDWR Letter
Permit specified that it did “not serve in lieu of other
permits that may be required by federal or other state
agencies or in any way constitute an exemption of
other permit requirements.” CX 29, BSN 1415. Fur
ther, in bold font, the IDWR Letter Permit cautioned
that “[t]he US Environmental Protection Agency
(EPA) now requires an NPDES general permit for
small scale suction dredging in Idaho” and added that
“[t]he EPA should be contacted on their requirements
in Idaho.” Id.; see also Tr. 163-64.
On May 17, 2015, Respondent completed a form
titled “Appendix A, Notice of Intent (NOI) Information
Sheet, NPDES General Permit IDG370000, Small
Suction Dredge” (“NOI”), which was stamped as
received by EPA on May 29, 2015. Tr. 159; CX 12. In
that document, Respondent identified several water
bodies, including the SFCR, in which he intended to
conduct suction dredge operations using equipment
with a suction dredge nozzle of five inches and an
equipment rating of 13 horsepower [a small suction
dredge]. CX 12. For the SFCR specifically, he identified
the dates of operation as July 20, 2015, to August 15,
2015. Id.
App.57a
C. Events on Date of Violation
On July 22, 2015, Respondent mined for gold with
his “small suction dredge” on the SFCR.15 Respondent
did not possess an individual NPDES permit
authorizing any discharges from his suction dredge
into the SFCR on July 22, 2015, nor were such dis
charges authorized under the General Permit in effect
at that time. Tr. 221-22, 232; CX 27.16 Respondent’s
actions were observed by Clint Hughes (“Mr. Hughes”),
a geologist and mineral examiner and administrator
with the USDA Forest Service, who subsequently
prepared a Mineral Inspection Form (“Hughes Report”)
documenting his observations of Respondent’s activi
ties. Tr. 41-42, 45-47; CX l.17 Notably, Mr. Hughes’
inspection was triggered by information shared about
a month earlier from an American Mining Rights
Association website posting. Tr. 46-47. Additionally,
he received reports from individuals driving along the
river, about two days prior to the incident, that
dredgers were present. Tr. 47. From these reports,
Mr. Hughes was under the impression that there were
six to 12 dredgers along the river. Tr. 47. Upon
inspection on July 22, 2015, Mr. Hughes observed 11
dredgers on the river. Id.
Respondent’s suction dredge constituted a “point source” within
the meaning of the CWA, and his operation of that dredge in the
SFCR resulted in the “addition of a pollutant” to the waterway in
the form of suspended solids appearing as a plume of turbid
water that dispersed the solid materials downstream, such that
a “discharge of a pollutant” occurred within the meaning of the
CWA. See Order on AD at 20.
See also Order on AD at 5, 21-22.
17 See also Order on AD at 5.
App.58a
In the Hughes Report, Mr. Hughes documented
his observations of Respondent actively dredging in
close proximity to another dredger, including photo
graphs of what he observed, and he identified “Site #2”
as the location of such dredging in the SFCR. Tr. 4851, 59; CX 1, BSN 2, 5-8; CX 1A-C. Mr. Hughes
described Site #2 in the Hughes Report as follows:
This site had two dredges working is [sic]
close proximity to each other and were both
5” dredges, which was confirmed by the
dredgers themselves. The dredgers were
[RJR] (upstream dredge with green pontoons)
and [Respondent] operating the dredge with
blue pontoons. These two were observed
actively dredging with the plume from the
upstream dredge mixing with the plume of
the downstream dredge. Both of these gentle
men were given a [Notice of Non-Compliance]
letter (see photos).
CX 1, BSN 2. Mr. Hughes reiterated at the hearing
that he observed a large, plume emanating from both
dredges, and he estimated the distance between the
dredges to be approximately 50 feet.18 Tr. 52, 70, 84.
Mr. Hughes described the plume “coming off’ of
Respondent’s dredge, as shown in a photograph he
took from the riverbank looking out over the area, as
“a little white speck on the top of the water . . . where
the water [was] being disturbed by the water flowing
18 Although Respondent was not authorized to discharge from
his dredge, notably, neither state nor federal permits allow for a
mere 50-foot separation between small suction dredges. Rather,
the IDWR requires at least 100 feet and the General Permit
mandates 800 feet. Tr. 70-71, 216; CX 3, BSN 40.
App.59a
over the dredge and back into the river.” Tr. 60-61
(referring to CX 1, BSN 5). He explained that a plume
“is constantly changing” depending upon the materials
being drawn into the dredge at a given moment.
Tr. 67. Behind Respondent’s dredge, Mr. Hughes noted,
“there [was] a lot of sediment. . ., a lot of gravel,” and
he observed “water . . . actively flowing over the
dredge” and “some sediment coming across . . . the
sluice box on the dredge” and exiting from the back of
the dredge. Tr. 67. Mr. Hughes explained that the
sediment and gravel that exits behind a dredge
creates what is referred to as a “dredge pile,” the
formation of which necessitates continuous movement
of the dredge to open areas so that the flow of the
sediment and gravel through and out of the dredge is
not impeded. Tr. 102-03. Mr. Hughes “followed the
plume downriver . . . for about 220 [feet]” until the
plume “went around the bend of the river” and he was
blocked by vegetation and unable to continue to follow
the its path. Tr. 67-68. He estimated the width of the
plume to be anywhere from five to 15 feet depending
upon its proximity to the dredge, as the plume “starts
spreading out fairly quickly once it leaves the back of
the dredge.” Tr. 69.
At the conclusion of his inspection, Mr. Hughes
issued Respondent a Notice of Non-Compliance. Tr. 71.
According to Mr. Hughes, Respondent did not appear
to be “all that surprised” by this notice. Id.
D. Notice of Violation and Request for
Information
Thereafter, on January 22, 2016, EPA notified
Respondent, via certified mail, of a Notice of Violation
(“NOV”) and Request for Information (“RFT’) concerning
App.60a
his dredging activity on July 22, 2015, on the SFCR.
See CX 27. Specifically, the Agency notified Respondent
of an alleged violation under the CWA for Respondent’s
discharge of pollutants from a suction dredge, owned
or controlled by Respondent, in the SFCR without
authorization under a NPDES Permit, and it requested
additional information from Respondent concerning
his activities. Tr. 126; CX 27. EPA referenced the
earlier October 2014 letter it had sent to Respondent
(CX 8) and reiterated much of the pertinent content
contained therein regarding the SFCR’s critical habitat
for threatened species and impaired condition for
sediment and temperature. CX 27, BSN 1408. Addi
tionally, the Agency noted that while the U.S. Forest
Service had initiated a “combined environmental analy
sis for small-scale placer mining (suction dredging) in the
[SFCR],” it had not yet completed its consultation with
the FWS and NMFS, which is a necessary
prerequisite for the U.S. Forest Service to approve the
Plan of Operations required of suction dredgers
operating along streams that contain threatened or
endangered species within the Nez Perce-Clearwater
National Forest. CX 27, BSN 1408-09. Accordingly,
the Agency advised, suction dredging within the
SFCR could not be covered under the General Permit.
CX 27, BSN 1409. Further, EPA pointed out that Res
pondent had not, as an alternative to the General
Permit, applied for an individual NPDES permit for
his operation on the SFCR. Id.
Aside from notifying Respondent that the dis
charge of pollutants from a suction dredge into a
water of the United States without authorization
under an NPDES permit is a violation of the CWA and
App.61a
that such violations may “result in liability for statu
tory civil or administrative penalties,” the Agency
sought information from Respondent to evaluate
whether Respondent had complied with the CWA
requirements. CX 27, BSN 1409. To that end, EPA
requested certain details about Respondent’s dredging
activities on the SFCR in July and August 2015 and
established a 45-day deadline within which to provide
the requested information. Id. Respondent replied in
a letter received by EPA on February 4, 2016, in which
Respondent challenged the legal and factual bases for
EPA’s NOV and did not respond to the RFI. Tr. 12829; CX 28.
E. Daniel Kenney’s Opinion
In early February 2016, Daniel Kenney (“Mr.
Kenney”)—a Fisheries Biologist with the USDA Forest
Service who, as previously noted, was deemed an
expert in fisheries species, including ESA-listed species
in the SFCR, suction dredge mining impacts on such
ESA-listed species, and the ESA consultation process—
issued an investigative report entitled “An Investigation
of Stream Channel Modifications at Unauthorized
Suction Dredging Sites on the South Fork Clearwater
River, October 7 and 8, 2015” (“Kenney Report”).
Tr. 272-73; CX 37. Mr. Kenney undertook this investi
gation to evaluate suction dredging, including unauthor
ized dredging, on the SFCR and to evaluate its
subsequent effects through later evaluations in 2016
and 2017. Tr. 264-65, 273-74; CX 37, 38. In 2015, Mr.
Kenney was in the process of developing an Environ
mental Assessment regarding suction dredging on the
SFCR, as well as a Biological Assessment for such
dredging, and he expected that the information gained
App.62a
from his investigation would be useful in the develop
ment of those assessments. Tr. 264, 273-74, 320-21.
Mr. Kenney and his technicians identified 14
different unauthorized dredging areas during their
site visits to the SFCR on October 7 and 8, 2015.
Tr. 280; CX 37, BSN 1505. Utilizing the GPS
coordinates and photos contained in the Hughes
Report, Mr. Kenney identified Respondent’s unauth
orized dredging site (labeled in the Hughes Report as
“Site #2”) and labeled it as “Site # 14” in his report.
Tr. 280-83; CX 37, BSN 1519,1523. Specific to the area
Respondent dredged on July 22, 2015, Mr. Kenney
identified the “dredge hole” that Respondent created as
“Hole #5” and the “tailings pile” that Respondent
created as “Tailings Pile #7.” Tr. 284-86; CX 37, BSN
1519, 1523. As used by Mr. Kenney, the term “dredge
hole” is “what a miner constructs to try to find gold,”
which is “[g]enerally . . . towards the bottom and
perhaps even on or within the bedrock.” Tr. 275-76. A
miner will use his “hands and the dredge to move the
bottom substrate to get down to the bottom,”
essentially “digging a hole in the stream substrate.”
Tr. 276. Thus, the “dredge hole” is effectively a “hole
in the stream bottom” that is “wider at the top than it
is at the bottom, and [with] edges.” Id. A dredge
creates a “dredge hole” when the miner, through the
use of a gasoline-powered pump, generates suction
through a hose, the nozzle of which is then placed on
the substrate. Tr. 276. The substrate is then sucked
through the hose and across the sluice box of the
dredge, which is designed to capture any gold con
tained therein, and the remaining substrate then
exits from the end of the dredge back into the
waterway. Tr. 276-77. This exiting material, or “mine
App.63a
tailings,” is typically comprised of sand and gravel,
and it creates the “tailings pile.” Tr. 277. Respondent
stipulated, during the evidentiary hearing, that he
indeed created Hole #5 and Tailings Pile #7.19 Tr. 38283.
During their site visits to the SFCR, Mr. Kenney’s
technicians took measurements and photographs of
Hole #5 and Tailings Pile #7, from which Mr. Kenney
made certain calculations. Tr. 292-96. In particular,
Mr. Kenney calculated Hole #5 to be 5.6 meters in
length, 4.3 meters in width, 1.1 meters in depth (from
the water surface to the deepest portion of the hole),
and a roughly calculated volume of 15.4 cubic meters.
Tr. 292, 294; CX 37, BSN 1519. Mr. Kenney calculated
Tailings Pile #7 to be eight meters in length, 7.8
meters in width, and a roughly calculated volume of
five cubic meters. Tr. 295-96; CX 37, BSN 1519.
Based on the information that he and his team
collected regarding Hole #5 and Tailings Pile #7, Mr.
Kenney offered an opinion as to whether Respondent’s
dredging activities caused direct injury to fish and
invertebrates. See Tr. 296. First, Mr. Kenney opined
as follows:
[T]he construction of the hole required the
basically disassembly of the stream bottom
down-presumably down to the bedrock of the
size hole I mentioned. This was habitat
undoubtedly for many hundreds or more of
aquatic invertebrates, such as aquatic insects.
I9 While Respondent stipulated that he created Hole #5 and
Tailings Pile #7, he later, while reiterating his stipulation,
appeared also to question the existence of evidence to establish
that he “completed” Hole #5 and Tailings Pile #7. See Tr. 390-91.
App.64a
It’s possible that there could have been small
fish within that area that was dredged, al
though I can’t say for certain about that.
Similarly, the tailings pile covered up a
relatively small [sic] for the river as a whole,
but a substantial area of what was pre
dominantly cobbles, and potentially either
smothered some invertebrates or at least
filled in some of the interstitial spaces
between the cobbles. And it’s possible that
there could have been fish in that area too
that might have been affected.
Tr. 296-97.
Mr. Kenney then opined that Respondent’s
dredging activities adversely impacted multiple habitats
in the SFCR. Tr. 297. Mr. Kenney identified three in
particular: the first habitat being “in the water
column itself,” a second habitat being “on the surface
of the stream bottom,” and a third habitat being
“below the surface of the stream bottom and into the
substrate for a certain depth.” Tr. 297-98. With regard
to first impacted habitat—the water column—Mr. Kenney
referred to the turbidity created by the operation of
the dredge, as reflected in the Hughes Report and
related testimony, and opined that it created a sub
normal environment for the fish that live and feed in
the water column. Tr. 299-300. Elaborating on this
point, he highlighted the reduction in visibility caused
by the turbidity due to the suspension of clays and fine
sediment. Tr. 300.
As to the second impacted habitat-the surface of
the stream bottom—Mr. Kenney explained that during
the summer months, the dredged area would otherwise
App.65a
be “in an undisturbed state . .. covered with algae
that’s growing” and that it would provide “a place that
aquatic invertebrates live either on top of or among
the cobbles on the surface.” Tr. 298. The area would
“also provide Q at least some habitat for fish.” Id.
Speaking more specifically as to the impacts created
by Respondent’s dredging, Mr. Kenney testified that the
creation of the dredge hole resulted in manual
manipulation of the habitat by Respondent physically
moving and relocating larger cobbles in order to
dredge and by the operation of the dredge itself, which
moves material, including finer sand material,
through the dredge and places it in a different area.
Id.
Finally, with regard to the third impacted
habitat—the stream bottom—Mr. Kenney described
the environment as follows:
[0]n the stream bottom, especially where
there is relatively high stream flow velocities
during certain parts of the year, the material
that remains are relatively large cobbles and
small boulders. And so, since they don’t fit
together exactly, there are spaces as these
cobbles and boulders are piled up [referred to
as interstitial spaces and habitat], and so
there are fishes and aquatic invertebrates
that live within these spaces.
Tr. 299. As to the impacts on this habitat from
dredging activity, Mr. Kenney opined that these
interstitial spaces were “moved in the creation of the
[dredge] hole in the first place, and then there were
also the potential filling in of these interstitial spaces
App.66a
with the fine fines20 mostly in the form of sand that
created the tailings pile.” Id.
Mr. Kenney opined that the reductions in these
habitats can, in turn, impact ESA-listed species, par
ticularly juvenile steelhead trout that are regularly
found in the SFCR. Tr. 300. These juveniles (at the
“fry” or “parr” stages of development) find refuge “along
the stream banks or in eddies or in weed debris piles,”
as well as in interstitial spaces. Id. Additionally, Mr.
Kenney explained, the prey species upon which ESAlisted species rely are impacted by the modification or
removal of the subject habitats insomuch as those
changes result in “less space for these aquatic
invertebrates to live” and/or direct injury to those
species during the process. Tr. 301.
Mr. Kenney continued to opine that the process
of suction dredging causes a disruption to the stream
bottom “armor,” which he described as larger substrates
like cobbles and small boulders on the surface of the
stream bottom that remain in place despite seasonal
water flows and that keep the finer material present
underneath from being swept away by the higher flow
lines. Tr. 301-02. By causing such a disruption, Mr.
Kenney testified, the dredging activity creates an
adverse environmental impact by potentially destabil
izing the stream channel, particularly around the area
of the dredge hole, due to the finer materials now
exposed by the dredging activity being picked up and
moved farther downstream by high flows, “where those
fine materials can then potentially affect the
interstitial spaces and the surfaces of materials of
20 Mr. Kenney explained that the term “fines” means “fine sedi
ment in the forms of clay particles and silt particles.” Tr. 305.
App.67a
larger substrate downstream, or accumulate in areas
where these fines accumulate and get even thicker.”
Tr. 303. Noting that such fine sediments are considered
problematic in the SFCR, Mr. Kenney reiterated that
“the destabilization of the stream channel has the
potential to adversely affect the fine sediment load
downstream of the site.” Tr. 304. The movement of
these finer materials by virtue of dredging activity
leads to their infiltration into interstitial spaces that
“will reduce the potential for both the fish to have a
sheltering habitat and for the macro invertebrates to
live.” Id. Additionally, more “fines” are then potentially
put into steelhead spawning habitat, “which is an
adverse thing for the incubation of the eggs and the
fry in the steelhead nest.” Id.
Aside from these impacts, the data that Mr.
Kenney collected also led to his conclusion that Res
pondent’s dredging activity caused turbidity in the
SFCR. Tr. 304-05. Referring to photographic evidence in
the Kenney Report, Mr. Kenney noted “light areas”
downstream of two large in-stream boulders that
likely were comprised of “small fines in the form of
small sand and some silt,” as well as “substrate ... of
a finer quality” around the edges of the dredge pile (as
compared to “farther on up”), which is consistent with
the gravel and sand dropping out before the fines
downstream of the sand. Tr.306-07 (referring to CX
37, BSN1523). He also referred to the photographs con
tained in the Hughes Report, highlighting the visibility
of “white water” discharging from both RJR’s green
dredge and Respondent’s blue dredge and the exis
tence of two separate plumes of turbidity by that
dredging activity. Tr. 307-11 (referring to CX 1, BSN 5;
CX IB). According to Mr. Kenney, such increased
App.68a
turbidity impacts the ESA-listed species in the SFCR,
especially young steelhead trout, which are primarily
“visual feeders” that “pickQ . . . little invertebrates out
of the water column as the water flows past them.”
Tr.311. The increased turbidity “can impair their
ability to see and catch these food items and, in that
manner, reduce at least potentially their growth and
inevitably . . . their survival long-term.” Tr. 311-12.
Where, as in this case, the plumes of turbidity are
“relatively discrete and narrow” and thus easier for
fish to avoid, the turbidity still reduces the area in
which they can feed. Tr. 312.
On May 12, 2017, Mr. Kenney issued an addendum
(“Kenney Addendum”) to the Kenney Report that
described observations of Site #14 during a subsequent
site visit conducted on September 13, 2016, and how
the conditions of Site #14 in 2016 compared to those
in 2015. Tr. 312-13; CX 38. As with the initial site visit
in 2015, measurements of Hole #5 and Tailings Pile
#7 were taken during the 2016 site visit, from which
certain calculations were made and compared to the
2015 calculations. Tr. 313-18; CX 38. From the 2016
measurements, Mr. Kenney calculated Hole #5 to be
5.8 meters in length, 3.6 meters in width, with an
adjusted depth of 0.8 meters. Tr. 313; CX 38, BSN
1526. After making adjustments “for the ambient
water level and for the non-square shape of the hole,”
Mr. Kenney determined that about 55 percent of the
hole remained in 2016. Tr. 315. In turn, Mr. Kenney
calculated Tailings Pile #7 to be 7.8 meters in length
and 5.2 meters in width. Tr. 313; CX 38, BSN 1526.
Mr. Kenney then determined that “about 63 percent
of the area of that tailings pile was still visibly
evident.” Tr. 315. Acknowledging the roughness of
App.69a
those determination, he ultimately estimated that
about half of Hole #5 and Tailings Pile #7 remained in
2016. Id.
Mr. Kenney determined that “[a] comparison of
measurements and photographs shows that the
modifications of the stream channel at Site #14 caused
by unauthorized suction dredging in the summer of 2015
had substantially reverted toward the pre-dredging
condition by September 2016.” CX 38, BSN 1524. As
evinced by “both the measurements and photos,” Mr.
Kenney noted that “[t]he area and volume of the dredge
holes was generally reduced, presumably because
small and moderate-sized substrate particles in the
form of bedload at high flow velocity had been swept
into and lodged into the holes.” Id. With regard to the
tailings pile, Mr. Kenney noted:
The area and density of fine sediment (sand
and small gravel) in the areas identified in
2015 . . . was reduced in 2016 (presumably,
again, because of interim occasions of high
flow velocity), particularly the ubiquity of
the fine sediment within the tailings pile
areas and any apparent depth to these fines.
Id. He concluded that “the channel modifications
caused by the unauthorized dredging at Site #14 in
2015 recovered toward their pre-dredging condition
somewhat in the following year, but were still
observable.” Id. Further, he projected that “[s]ubsequent peak flow events will likely continue to
change substrate conditions at the site, but because
stream channel conditions are naturally unstable to a
v- greater or lesser extent, the site is unlikely to ever
return to the pre-dredging state.” Id. When asked at
the hearing for the rationale behind this conclusion,
App.70a
Mr. Kenney explained, “I believe that the way that the
hole is being refilled by high flows is not going to result
in the same level of stability as . . . was present prior
to the dredging.” Tr. 318.
In October 2018, Mr. Kenney returned to the
same site and observed that “the hole had been com
pletely filled in” and that “no visible sign of the
tailings pile” was left. Tr. 318. While Mr. Kenney
suspected that “a higher level of interstitial fines [was
still] left over,” he explained that “at-depth sampling”
would need to be performed to confirm his suspicions.
Tr. 319. Mr. Kenney found that Respondent’s
dredging activities on July 22, 2015, likely continued
to cause adverse impacts in 2018, but to a lesser
extent than the level of adverse impact in 2015 and
2016. Id. He summarized that while “the changes may
never completely recover,” there likely were
incremental improvements in the conditions from
year to year. Id.
The Biological Assessment (“BA”) that Mr. Kenney
began in 2015, prior to his investigation of Respondent’s
dredge site, was completed and issued on April 6,
2016. Tr. 320; CX 21. The BA was produced on behalf
of the USDA Forest Service to meet obligations under
the ESA to analyze potential effects of certain activi
ties on ESA-listed species, Tr. 320-21, and its focus
was on the “proposed suction dredging activities
during the 2016 through 2025 mining seasons within
a specified area of the mainstem of the [SFCR],” CX
21, BSN 1128. Mr. Kenney concluded in the BA that
the proposed suction dredging activities would be
likely to adversely affect Snake River Basin Steelhead
Trout by harming or harassing individuals of that
species. Tr. 321; CX 21, BSN 1162. In particular, he
App.71a
found that the proposed suction dredging in the SFCR
created the “potential to directly harm juvenile
steelhead,” as well as modify “steelhead habitat, both
for juveniles and spawning habitat.” Tr. 322; see also
CX 21, BSN 1162. In consideration of such potentially
adverse effects, the BA discussed that the number of
suction dredge operations on the SFCR be limited to
15 operations on an annual basis, and it also included
“specific conditions regarding mitigation measures,
monitoring, and reporting for proposed suction dredge
mining” that were to be followed and that were
intended to mitigate the harm caused by suction
dredging activities. CX 21, BSN 1138; see also Tr. 33233.
Although Respondent’s suction dredging activities
on the SFCR on July 22, 2015, were not authorized,
Mr. Kenney noted that Respondent failed to meet
various Mitigation Measures (“MMs”) contained in
the BA that would have otherwise been required.
Tr. 333-39; CX 21, BSN 1138-41. In particular, Mr.
Kenney addressed MMs #1, 3, 7-9, 13, and 15.
Tr. 333-339. MM #1 requires that each miner submit
a plan of operations, including various specifications
regarding their mining plan, and agree to abide by all
MMs and other terms and conditions. Tr. 333; CX 21,
BSN 1139. MM #3 requires a USDA Forest Service or
Bureau of Land Management biologist to inspect the
proposed dredge operation site prior to any mining to
protect against or mitigate any potential harm to ESAlisted species and other sensitive fish and
invertebrate species in the area. Tr. 334; CX 21, BSN
1139. The harm being mitigated by this measure, Mr.
Kenney explained, is that mining activities inherently
disrupt habitat and sometimes the actual bodies of
App.72a
organisms due to the digging up of the stream bottom
and discharge of materials to a different place in the
stream channel. Tr. 334-35. MMs #7-9 require, among
other things, that dredge holes be filled with the
material that was removed (manually or by use of the
suction dredge), and that tailings piles be treated to
reduce the amount of stream bottom that they cover
by, for example, suctioning the finer tailings and
returning them to the dredge hole. Tr. 335-37; CX 21,
BSN 1139-40. Mr. Kenney explained that the
intention behind these measures is to “have the miner
restore the site to as close to the ... original condition
as possible ... to reduce the long-term impacts of the
dredging.” Tr. 336. MM#13 requires operators to
“visually monitor the stream for 150 feet downstream
of the dredging or sluicing operation,” CX 21, BSN
1140, in order to monitor and minimize turbidity and
cease operations as necessary to reduce the volume of
any plume, Tr. 338; CX 21, BSN 1140. MM#15 re
quires operators to “maintain a minimum spacing of
at least 800 linear feet of stream channel between
active mining operations.” CX 21, BSN 1140. Mr.
Kenney explained that the intention behind this
measure is to “reduce the cumulative effects of the
mining” and to “space things out such that the effects
are not concentrated.” Tr. 339. Mr. Kenney opined that
failing to comply with these and other MMs would
lead to increased harm to ESA-listed species in the
SFCR. Tr. 340.
In addition to the BA, Mr. Kenney also contributed
to the development of the Environmental Assessment
(“EA”) issued in June 2016 that addressed small scale
suction dredging in the SFCR. Tr. 266-67; CX 22. Spe
cifically, he “did all the aquatics analysis and
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biological analysis, and [he] also provided a lot of the
proposed mitigation measures and research analysis.”
Tr. 266-67. Similar to the BA, the EA proposed a limit
of 15 suction dredging operations in the SFCR and
various mitigation measures to reduce the harm
caused by suction dredging activities. CX 22, BSN
1226, 1269-76.
F. David Lee Arthaud’s Opinion
David Lee Arthaud (“Mr. Arthaud”)—a Fisheries
Biologist with the NMFS of the National Oceanic and
Atmospheric Administration who, as noted above, was
deemed an expert in ESA-listed species in the SFCR
and the impacts of suction dredge mining on those
species—reviewed the evidence presented in this case,
as well as “dozens of. . . primary literature on
scientific literature on sediment, sedimentation,
turbidity, [and] those types of things,” in forming his
expert opinion that was offered in this matter. Tr. 410.
Mr. Arthaud has authored 15 biological opinions—all
relating to the impacts of particular activities on
salmonids—as well as letters of concurrence that,
collectively, were utilized in the ESA Section 7
consultation process, and he has published scientific
papers on such topics. Tr. 413-16, 418, 438-40; CX 16,
17, 19, 20.
Notably, one such biological opinion prepared as
part of the ESA consultation process was issued on
June 14, 2016, and addressed the effects of the SFCR
suction dredging program (“BiOp”). Tr. 415, 475-77;
CX 17. As Mr. Arthaud recounted, the purpose of this
BiOp was “to summarize the existing science and
knowledge on an issue that could have adverse effects
to fish and to provide our opinion on it and offer ways
App.74a
to mitigate the harms, the potential harms and
adversity and those usually fall under terms and con
ditions in the monitoring plan.” Tr. 419.
Mr. Arthaud explained that the entire main stem
of the SFCR, as well as most of the tributaries and
links to them, have been designated as endangered
species “critical habitat” for Snake River Basin Steelhead Trout, an ESA-listed species with “threatened”
status. Tr. 420-22; CX 17, BSN 977, 1004; CX 18. Use
of the term “critical habitat” signifies that the species
needs such areas “to maintain [its] population
numbers . . . and for [its] recovery.” Tr. 422. In the
SFCR, this critical habitat is considered to be
“degraded” by factors that impose limitations on the
habitat—namely, riparian and floodplain conditions,
temperature, migration barriers, sediment, and habitat
complexity-all of which embody excesses of sediment
that contribute to their limiting nature. Tr. 422-24;
CX 17, BSN 1007. Mr. Arthaud noted that the SFCR
“has a high amount of sediment from legacy mining,
placer mining that has occurred in the past and that
has taken 50 to 100 years to begin to recover.” Tr. 42425. Aside from its designation as a critical habitat, the
entire SFCR watershed is also classified as an
“essential fish habitat,” or “EFH,” for Pacific Coast
Coho Salmon and Snake River Fall Chinook Salmon.
Tr. 426; CX 18. As explained by Mr. Arthaud, it
carries this classification because the area is
deemed “essential” for these species’ “productivity and
survival.” Tr. 426.
Mr. Arthaud opined that, in general, suction
dredge mining causes adverse environmental impacts
in the SFCR. Tr. 426, 443; CX 18. In particular, he
concluded that such mining causes direct disturbances
App.75a
to the river’s substrate and to the organisms in the
area, Tr. 426-428; the suspension of sediments and
sedimentation affecting aquatic invertebrates and
habitat of ESA-listed species, Tr. 428-33; and fluvial
geomorphic impacts, Tr. 434-35. Mr. Arthaud elabor
ated on each of these adverse environmental impacts
as follows.
First, suction dredging is a repetitive activity
that involves heavy movement across the substrate,
disturbing gravels, aquatic invertebrates, small fish,
and eggs. Tr. 426-27. The creation of a dredge hole has
a direct effect on the once intact, functioning habitat
that existed there prior to the creation of the hole, and
the very process of suction dredging—that is, digging
through the substrate and suctioning a “slurry of
mixed cobbles and stones and sand” that is then raised
above the water and dropped onto other functioning
habitats-“causes [the] crushing of invertebrates and
small fish” and results in “a burial and suffocation
from the clogging of interstitial spaces” of impacted
habitats. Tr. 427; see also CX 17, BSN 1014-17; CX 18,
BSN 1065. According to Mr. Arthaud, scientific studies
that have examined this direct disturbance to
substrate and organisms by suction dredging have
generally concluded that such disturbances are
“highly lethal to eggs and the very young embryos,
larval fish,” as well as to “younger stages of aquatic
invertebrates like first instars and the very young
larvae.” Tr. 428.
Next, the suspension of sediments created by
suction dredging forms “a plume or cloudy turbidity
plume below the dredge.” Tr. 428. As the dredge hole
is being excavated to access bedrock under the stream
bed in the miner’s search for gold, a mixture of
App.76a
cobbles, sand, and fines are lifted out of the water,
moved through the sluice box, and emptied off the end
of the dredge. Id. While the larger, heavier, and
denser material remains at the exit point to form the
“tailings,” the “finer particles are caught by the
current and ... do not fall out of suspension immedi
ately,” thereby forming the turbid plume. Id. This
suspension of sediments causes behavioral changes in
some aquatic invertebrates, the preferred food for
salmonids, and it affects the salmonids themselves,
which are “highly sensitive to suspended solids and
suspended grains of sand,” as well as algae. Tr. 429.
Increasing levels of turbidity cause increasingly intense
behavioral impacts, like more fish leaving the plume
and more detrimental effects, such as coughing or
development of mucous of the gills, to the fish that
remain within it. Tr. 429-30. Sedimentation, which
occurs when the sediments fall out of suspension in
the water column and rest on “cobbles or fill up
interstitial spaces,” can impact mollusks and snails
and even cause mortality in those species. Tr. 430-31.
Sedimentation can also impact plant life—namely,
algae, which “cling[s] to rocks very tightly along the
cobbles”—when “the turbidity shades their photo
synthesis [and] reduces their primary production and
growth.” Tr. 431. This, in turn, impacts the amount of
algae available as a food source for those species that
feed upon it, which then impacts other species “up the
food chain to fish.” Tr. 432. The most intensive effects
that sedimentation has upon ESA-listed species is to
incubating eggs, which are dependent upon subsurface
water flow for aeration and oxygenation. Tr. 432; CX
18, BSN 1064. Sedimentation “reduces a diffusion
across the membranes for the eggs to even breathe
App.77a
oxygen,” thereby reducing their growth and survival.
Tr. 432-33; see also CX 18, BSN 1064.
Turning to the fluvial geomorphic impacts of
suction dredge mining, Mr. Arthaud explained that
the term “fluvial” means “running water” and the
term “geomorphic” relates to the properties of the
channel through which the water flows, which can
include the type, shape, substrate, and bedrock.
Tr. 434. He opined that suction dredge mining causes
fluvial geomorphic impacts as follows:
It digs right into the geomorphology of the
stream. It digs holes, excavates down to
bedrock. It exposes bedrock that wasn’t
exposed before. It piles. The holes can entrain
current laterally and against the bank and
cause erosion. The tailings piles can be piled
up, and they form dams and can drop
increased sedimentation above them, where
they slow the velocity of the water, and they
can also steer laterally the current.
Tr. 434-35. Mr. Arthaud then characterized these
impacts as adverse because “they are unnaturally
caused, oftentimes during low-flow base flow seasons,”
noting that “if they would have been caused by
natural flows, they would have been sorted and
graded by the flood.” Tr. 435. He also found that
suction dredge mining effectively simplifies a habitat,
meaning that “instead of having naturally deep pools
and naturally shallow riffles of various sizes and
diversity of rocks and other types of cover,” the habitat
“just becomes a medium glide of sand like a sandbox,”
with its form simple in appearance from above and
below. Tr. 442-43.
App.78a
From past search studies specific to salmon pop
ulations that Mr. Arthaud conducted, and from which
research papers or articles were produced that he
authored or co-authored, he learned that “any
degradation or improvement of early rearing, spawning,
early rearing and the first year of over-wintering
habitat are very important for survival of salmon.”
Tr. 438-42 (referring to CX 19, 20). He concluded that
suction dredging in the SFCR “simplifies early rearing
and spawning habitat” and “clogs . . . the interstitial
spaces.” Tr. 442. Noting that during “the first year or
two of overwintering, the juveniles have to go under
the ground all day long every day of the winter, and
then . . . come out at night [to] feed,” he explained that
if sediment or sand has created a bridge over
interstitial spaces, even if not entirely clogging those
spaces, then the juveniles may be prevented from
accessing them, resulting in a very low survival rate.
Tr. 442. He elaborated that the juveniles “will either
have to move and find habitat that’s clean enough to
get under the cobbles for a whole winter or they will
die.” Id.
Based upon his personal visits to Respondent’s
dredge site in the SFCR beginning in August 2014
with subsequent visits every year thereafter, review
of photographs of the location, and review of the
Hughes Report and related testimony, Mr. Arthaud
concluded that the location in which Respondent
conducted his operations on July 22, 2015, was an
area that could serve as habitat for endangered
species and that the species present were highly likely
to have been impacted by Respondent’s dredging activ
ities. Tr. 444-45, 467-68 (referring to CX 1; CX 1A-C).
In particular, Mr. Arthaud noted the photographic
App.79a
evidence of “primary production” in the form of algae
on the rocks, which serves as a “food base and refugia
habitat for invertebrates,” as well as a “good mix of
large cobbles throughout the area,” which “provide
some stability and physical structure in a sand run
stream” and increase the likelihood of mussels and
fish being present. Tr. 456-57, 467-68 (referring to CX
1B-C). As for the plumes depicted in the photographic
evidence, Mr. Arthaud described the plume generated
by RJR’s dredging activity as “quite turbid” and
estimated its level of turbidity as 30-40 Nephelometric
Turbidity Units (“NTUs”), while he estimated the level
of turbidity of the plume generated by Respondent’s
dredging activity as 25-30 NTUs, each exceeding the
threshold at which more serious displacement
occurs. Tr. 429-30, 457-61 (referring to CX 1A-C),
464-66. For context, Mr. Arthaud explained that as
turbidity exceeds 20 NTUs and approaches 50 NTUs,
there are increasingly intense sublethal impacts.
Tr. 430.
As to the impacts from the size of the dredge hole
that Respondent created (Hole #5), Mr. Arthaud
explained that the excavation of roughly 15 cubic
meters of material adversely impacted the species
that were present in the excavated area and that the
excavated material was then released from the dredge
to form the tailings pile and to be suspended in the
water column, creating turbid conditions, which then
traveled downstream with the current. Tr. 466-68
(referring to CX 38, BSN 1527). As to the impacts from
the tailings pile that Respondent created (Tailings Pile
#7), Mr. Arthaud explained that the area covered by
the tailings, about five cubic meters in adjusted
volume, had been a functioning habitat before being
App.80a
covered and that the tailings created a “damQ or a
barrier for a portion of the stream” given that the pile
“extended] above the surface of the water.” Tr. 469-70
(referring to CX 38, BSN 1527). Mr. Arthaud elaborated
that such a barrier creates an impediment to the flow
of water through that area and redirects it. Tr. 471
(referring to CX 38, BSN 1527). He further explained
that the tailings pile also created an adverse impact
wherever its depth exceeded one inch, as such depths
result in higher mortality of mussels. Tr. 471. Mr.
Arthaud then proceeded to note that Hole #5 and
Tailings Pile #7 “take up roughly half the width of the
stream,” and when taken together with other dredge
holes and tailings piles in that stretch of the SFCR, he
considered “over half of the stream [to have] been
disturbed in this reach.” Tr. 472-73 (referring to CX
37, BSN 1519). Noting that this area and habitat is
already only in “fair” condition and still recovering, he
explained that “each new activity is a successive
degradation of a degraded habitat ... making the
overall vehicle of a functioning habitat go further
downward.” Tr. 473.
While Mr. Arthaud agreed with Mr. Kenney that
by 2018 some restoration of the dredged area had
taken place, his review of the photographs taken by
Mr. Kenney that year led him to conclude that there
was still “a higher proportion of fines and sand mixed
in with those gravels” than what would have
otherwise existed had the channel remained open and
the dredging had not occurred. Tr. 474. Mr. Arthaud
testified that the continued presence of those fine
sediments, even an increase of just one percent, “can
reduce egg survival by 16 percent.” Id. Further, “all
successive broods that come in to spawn for a number
App.81a
of years will be affected and have lower egg survival
and lower early rearing survival.” Tr. 474-75.
In addressing the BiOp, Mr. Arthaud recounted
that with proper protective measures in place, a
monitoring plan implemented, and specified terms
and conditions followed, it was the conclusion of the
NMFS that allowing suction dredging on the SFCR
would not likely jeopardize the continued existence of
Snake River Basin steelhead and Snake River fall
Chinook salmon and would not likely destroy or
adversely modify designated critical habit for Snake
River Basin steelhead. Tr. 475-78 (referring to CX 17).
He also concurred with Mr. Kenney’s opinion that Res
pondent, while dredging in the SFCR without permit
authorization, failed to mine in a manner that was
consistent with specified mitigation measures. Tr. 477.
G. Tara Martich’s Calculation of the Proposed
Penalty
Utilizing the Agency’s Penalty Policy, the goals of
which are to deter violations, provide fair and
equitable resolution of any violations, and provide
equitable treatment of the regulated community,
Tara Martich (“Ms. Martich”) calculated the proposed
penalty for the charged violation in this matter.
Tr. 118, 129, 131-32; CX 35. She described the general
process of calculating a proposed penalty pursuant to
the Penalty Policy as follows. First, a preliminary
deterrence amount is established, which is derived
from two components, namely, an economic benefit
component and a gravity component. Tr. 132-33; CX
35, BSN 1438, 1443-44. Each of those components has
sub-components for consideration. For example, the
economic benefit component includes, inter alia, an
App.82a
examination of any benefit from delayed or avoided
costs from the noncompliance. CX 35, BSN 1448-50.
In measuring the seriousness of the violation, the
gravity component includes an examination of
considerations such as the actual or possible harm
from the noncompliance, as well as the importance to
the regulatory scheme. Tr. 134; CX 35, BSN 1444.
Once a preliminary deterrence amount is determined,
then various adjustment factors are considered and,
as appropriate, applied to the valuation of the gravity
component, to reach an end result that is termed the
initial penalty target figure. CX 35, BSN 1443, 1458.
These adjustment factors, which may lead to an
increase or decrease in the overall penalty amount,
include an examination of the degree of willfulness
and/or negligence of the violator; the extent of
cooperation, or lack thereof, by the violator; any
history of noncompliance; the violator’s ability to pay
the penalty; and any other unique factors. Tr. 146-47;
CX 35, BSN 1444-45. The adjustment ranges consist
of a zero to 20 percent adjustment of the gravity
component based on usual circumstances and the dis
cretion of the Agency case developer, that is, Ms.
Martich. Tr. 148; CX 35, BSN 1458. The remaining
adjustments of 21 to 30 percent or in excess of 30
percent are reserved for unusual and extraordinary
circumstances, respectively. Tr. 148; CX 35, BSN 1458.
Following this process, Ms. Martich calculated the
proposed penalty in this case as follows. In determining
the preliminary deterrence amount, she first considered
the economic benefit component. Since she did not
have any information concerning what, if any, economic
benefit Respondent gained from his noncompliance,
she applied a “zero” for that component and, in doing
App.83a
so, gave Respondent the benefit of doubt that he did
not obtain any benefit. Tr. 133-34.
In evaluating the gravity component, Ms. Martich
considered the actual or possible harm from Respond
ent’s noncompliance. Tr. 134. To that end, she
considered several factors in evaluating actual or
possible harm, namely, factors including the amount
and toxicity of the pollutant(s), sensitivity to the
environment, the duration of the violation, and the
size of the violator. Id. In the absence of any additional
information previously requested but not supplied
from Respondent,21 Ms. Martich relied on the Hughes
Report to determine that the amount of sediment-the
pollutant at issue—was a moderate amount, and while
not considered highly toxic, sediment can be harmful
when introduced into the environment in high
quantities. Tr. 135-36. With regard to sensitivity to the
environment, Ms. Martich considered the fact that the
SFCR is listed as an impaired waterbody for sediment
and has a developed TMDL for inputs into that
waterbody in an effort to bring the river back to
meeting water quality standards, as well as the fact
that ESA-listed species are present in the SFCR.
Tr. 137-42 (referring to CX 6,18). This information led
her to conclude that the SFCR “is a particularly
sensitive water body, especially for discharge of
sediment. ...” Tr. 140. As to the duration of the vio
lation, the Hughes Report documented one day of vio
lation, On July 22, 2015, so Ms. Martich used one day
for the duration period in her penalty assessment.
Tr. 142-43. Regarding the size of the violator, Ms.
Martich recognized that Respondent is an individual
21 See Tr. 135; CX 27, 28.
App.84a
and accounted for such in her penalty evaluation.
Tr. 144.
In evaluating the gravity component, Ms. Martich
also considered the importance to the regulatory
scheme and any harm done to it by the noncompliance.
Tr. 144. She explained that the applicable regulatory
scheme that is involved is the NPDES program, spe
cifically the General Permit under that program,
which became effective on May 6, 2013, but did not
extend to the SFCR.22 She testified that the Agency
had provided public notice of the General Permit in
2010 and had conducted educational outreach to the
regulated community, including holding workshops,
to notify the community of the requirement for a
permit, how to apply for coverage under the General
Permit, and how to comply with its conditions. Tr. 14445. In reaching the preliminary deterrence amount of
penalty, she thus considered the eroding impacts that
unauthorized dredging in the SFCR has on the
NPDES regulatory scheme. Tr. 145. According to Ms.
Martich, although the statutory maximum would
have permitted a preliminary deterrence amount of
$16,000, she determined “a more conservative amount”
of $5,500 to be appropriate given that Respondent “is
an individual,. . . that there was one day of violations,
and [that] EPA had an interest in settlement in this
case.” Tr. 146.
From this preliminary deterrence amount of
$5,500, Ms. Martich next considered the adjustment
factors, namely, the degree of cooperation and
willfulness, that she found to be relevant to this case.
22 See CX 3.
App.85a
Tr. 146-47, 149. In so doing, she considered Respond
ent’s “failure to respond to any of the questions that EPA
had presented him” in the RFI. Tr. 149. However, in
an effort to encourage settlement, this lack of
cooperation did not lead Ms. Martich to make an
adjustment to the proposed penalty. Id.
As to the willfulness factor, Ms. Martich
considered:
how much control [Respondent] had over the
violations, his foreseeability for knowing
that they were violations, whether [Respond
ent] took reasonable precautions against viola
ting, whether [Respondent] knew or should
have known the hazards associated with the
violation, his level of sophistication, and
whether [Respondent] knew of the legal
requirement that was violated.
Tr. 149-50 (referring to CX 35, BSN 1459). As part of
her consideration, Ms. Martich reviewed various doc
uments. Specifically, Ms. Martich considered the
Joint Application in which Respondent identified
himself as a professional dredger who had been
“mining in at least five different states for the past 20
years,” which collectively suggested to Ms. Martich
that Respondent would have known about the
regulatory requirements governing the necessary
permits to suction dredge. Tr. 152-53 (referring to CX
10, BSN 859). Additionally, Ms. Martich considered
the ACE Letter that, in February 2014, alerted Res
pondent to the regulatory requirements for dredging in
the SFCR, noted the presence of ESA-listed species
within that river, and directed Respondent to other
agencies, including EPA, for any dredging-related
App.86a
activities. Tr. 153-56 (referring to CX 9. Further, in
the EPA Letter in 2014, Ms. Martich noted:
EPA was very explicit in this letter, letting
[Respondent] know that dredging in the
[SFCR] was not available under the [General
Permit], and explaining that the [SFCR] also
contained endangered species, and that... an
additional process ... needed to happen before
permitting would be allowed under the
[General Permit].
Tr. 156-57 (referring to CX 8). Ms. Martich also
considered the NOI that Respondent submitted to
seek coverage under the General Permit, which
suggested to her that he was aware of the obligation
to apply for permit coverage in the SFCR. Tr. 158-59
(referring to CX 12). The IDWR Letter Permit that
was issued to Respondent close to the time of the vio
lation and that put Respondent on notice that EPA re
quires NPDES general permit coverage for all smallscale suction dredging in Idaho was also considered by
Ms. Martich. Tr. 162-64 (referring to CX 29).
Considering all this information, Ms. Martich
determined that an upward adjustment of 20 percent
was warranted in this case and both reasonable and
conservative given the particular circumstances of the
case and the degree of willfulness on the part of Res
pondent. Tr. 165-66 (referring to CX 35, BSN 1458).
Even though Ms. Martich found Respondent’s degree
of willfulness to be “extraordinary,” she did not seek a
greater upward adjustment in the interest of potential
settlement of the case. Tr. 165-66. She noted that in
all of the CWA cases she had developed, she had not
previously come across a case “where the entity was
notified several times by different agencies of their
App.87a
legal requirement to obtain permit coverage and yet
proceeded with the activity of discharging without a
permit.” Tr. 165-66. Nevertheless, adhering to a 20
percent upward adjustment, she determined the
Initial Penalty Target Figure of $6,600 to be appro
priate. Tr. 166.
IV. Penalty Discussion
A. Preliminary Matters
Prior to addressing the penalty-related arguments
advanced by the parties, it is necessary to first address
certain other matters raised in the post-hearing
briefing for purposes of reiterating the scope of this
decision and that which will be considered in reaching
this decision.
First, Respondent attempts to introduce new evi
dence during post-hearing briefing by referring to pur
ported scientific studies that were not introduced at
hearing, making arguments based on those purported
studies, and by making reference, for the first time, to
purported statements of another agency.23 See Resp. In.
Br. at 16-19. Complainant objects to the introduction
of new evidence at this stage, citing multiple prior
rulings by this Tribunal that provided Respondent
23 I note that Respondent’s reference to a study he was not per
mitted to introduce at hearing appears to refer to another pur
ported study from 1988, the contents of which Respondent stated
he lacked, save the Conclusion. See Resp. In. Br. at 18. In the
absence of having the entire study available for possible review
by the expert witness testifying at the time, Mr. Arthaud,
Complainant’s objection to Respondent cross-examining Mr.
Arthaud about this purported study was sustained. See Tr. 50507.
App.88a
with the opportunity to submit proposed evidence
prior to an evidentiary hearing, as well as rulings
explaining the limited scope of the hearing. See Comp.
Rep. Br. at 5. The extensive procedural history of this
case and numerous orders issued prior to hearing
illustrate that Respondent was given ample opportu
nity to prepare for hearing and to submit proposed evi
dence for consideration in advance of hearing.24 The
Rules of Practice specifically set forth requirements for
the parties to exchange proposed evidence in advance of
hearing,25 and provide notice to a party that the fail
ure to do so may result in the exclusion of such undis
closed proposed evidence at hearing, absent certain
exceptions in 40 C.F.R. § 22.22(a) that I found
inapplicable here. Respondent was specifically and
repeatedly reminded of these provisions in various
prehearing orders,2*? and he has not provided a com
pelling rationale to support his attempt to introduce
24 See, for example, the following orders: Second Prehearing
Order, dated February 24, 2017; Order on Complainant’s Motion
to Compel Additional Discovery and Compliance with Second
Prehearing Order, Complainant’s Motion in Limine, and Res
pondent’s Motion to Appeal, dated March 18, 2019; and Order on
Motions, dated May 2, 2019.
25 See 40 C.F.R. § 22.19(a).
25 See, for example, the following orders: Prehearing Order,
dated August 11, 2016; Second Prehearing Order, dated Febru
ary 24, 2017;. Order on Complainant’s Motion to Compel Addi
tional Discovery and Compliance with Second Prehearing Order,
Complainant’s Motion in Limine, and Respondent’s Motion to
Appeal, dated March 18, 2019 (which included the following
warning to Respondent, in bold font: Respondent is warned that
failure to submit documents in compliance with Rule 22.8 may
result in their exclusion from the record.): and Order on Motions,
dated May 2, 2019.
App.89a
new evidence at this stage in the proceedings. Conse
quently, no new evidence will be considered in this
decision.
Second, as reflected in the majority of argument
in his post-hearing briefs, Respondent attempts to
reopen the issue of liability despite repeated instruc
tions through prehearing orders,27 as well as those
provided during the evidentiary hearing,28 that the
issue of liability before this Tribunal was previously
decided in my Order on AD, that the issue of liability
would not be revisited, and that the only outstanding
issue to be decided by this Tribunal is that of the
amount of any assessed penalty. Moreover, in the
Order on Complainant’s Motion to Compel Additional
Discovery and Compliance with Second Prehearing
Order, Complainant’s Motion in Limine, and Res
pondent’s Motion to Appeal, dated March 18, 2019,
Respondent was provided with the regulatory
background found in the Rules of Practice and the
process by which to seek review of my denial of his
Motion for Appeal, but he elected not to seek such
review. Consequently, I will not consider the arguments
raised by Respondent regarding his liability for the
charged violation, as I have previously decided that
issue and any further review rests with the EAB.
27 See, for example, the following orders: Order on Complainant’s
Motion for Accelerated Decision, dated September 27, 2018;
Order on Complainant’s Motion to Compel Additional Discovery
and Compliance with Second Prehearing Order, Complainant’s
Motion in Limine, and Respondent’s Motion to Appeal, dated
March 18, 2019; and Order on Motions, dated May 2, 2019.
28 See, for example, the following citations to the transcript of
proceedings: Tr. 8-9, 14, 62-65.
App.90a
Third, and related to Respondent’s apparent desire
to relitigate the issue of liability, I must address Res
pondent’s Declaration previously filed with this
Tribunal, which was the subject of some discussion at
hearing. As noted in the Order on AD dated Septem
ber 27, 2018, Respondent, through then counsel Mark
L. Pollot (“Mr. Pollot”), filed a responsive Brief in
Opposition to Complainant’s Motion for Accelerated
Decision on August 2, 2017, to which the Declaration
of Dave Erlanson, Sr. (“Respondent’s Declaration” or
“Resp. Decl.”) was attached.
By way of background, the Rules of Practice
require that a response to a motion “shall be
accompanied by any affidavit, certificate, other evi
dence, or legal memorandum relied upon.” 40 C.F.R.
§ 22.16(b). In the context of motions for summary judg
ment in federal court, which are analogous to motions
for accelerated decision in administrative enforce
ment proceedings such as this matter, the Federal
Rules of Civil Procedure29 state that “[a]n affidavit or
declaration used to support or oppose [such] a motion
must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). Consistent
with this guidance, Respondent’s Declaration begins,
“I am the respondent in the above entitled matter and
have personal knowledge of the matters declared
29 As advised by the EAB, the Federal Rules of Civil Procedure
may serve as a source of guidance in this proceeding. See, e.g.,
Euclid ofVa., Inc., 13 E.A.D. 616, 657 (EAB 2008) (“|I]t is appro
priate for Administrative Law Judges and the EAB to consult the
Federal Rules of Civil Procedure and Federal Rules of Evidence
”)■
for guidance
App.91a
herein, and if called upon to testify, can testify com
petently thereto.” Resp. Decl. f 1. It then concludes, “I
hereby declare that the foregoing is true and correct to
the best of my knowledge and recollection under penalty
of perjury of the laws of the United States,” and it is
dated August 1, 2017, and bears the name of Respond
ent on the signature line. Resp. Decl. at 8.
By the submission and filing of Respondent’s Dec
laration to this Tribunal by Respondent, through then
counsel, Mark Pollot, representation was made to this
Tribunal that the contents of Respondent’s Declara
tion were based on personal knowledge, set out facts
that would be admissible in evidence, and show that
Respondent is competent to testify on the matters
stated therein. At the hearing, Respondent, though
sworn early on in the proceeding in anticipation of pro
viding testimony on his own behalf, elected not to
testify or present other evidence, and while under
oath, he chose not to attest to the truthfulness and
accuracy of the contents of Respondent’s Declaration
when Complainant sought its introduction into evi
dence. See Tr. 527-40. Consequently, Respondent’s
Declaration was not accepted into evidence. Noteworthy
is the fact that the contents of Respondent’s Declaration
of August 1, 2017, were not questioned by Respondent
until the second day of hearing, on May 15, 2019, more
than one year and nine months later. Such an
eleventh-hour attempt to recant aspects of Respondent’s
Declaration, which Respondent, through counsel, pre
viously represented to be truthful, is inconsequential to
this decision or my prior determination as to liability.
Indeed, it can only reasonably be construed as purely
self-serving in nature and lacking in merit. In fur
therance of such self-serving goals, Respondent now,
App.92a
in post-hearing briefs, attempts to characterize Res
pondent’s Declaration as a “fraudulent document”
and, relying upon his characterization, suggests that
my previous determination of his liability for the
charged violation now “[lay] in ruin” and is therefore
open to be relitigated. Resp. In. Br. at 2; Resp. Rep.
Br. at 10. Such tactics are unavailing and will not be
entertained. Moreover, the only questions raised by
such recently fabricated claims take aim at Respond
ent’s integrity and credibility, not the legal sufficiency
of the Order on AD.
B. Parties’Arguments
1. Complainant’s Initial Brief
In its initial brief, Complainant argues that the
“testimony and evidence demonstrate that Respondent’s
illegal discharge caused both a significant environ
mental harm and a harm to an integral regulatory
scheme” that justifies the reasonableness of the $6,600
proposed penalty. Comp. In. Br. at 5.
With regard to the gravity component of the
penalty evaluation, specifically as it relates to actual
or possible harm, Complainant argues that it presented
evidence at the hearing to demonstrate that “Respond
ent’s activity resulted in an unpermitted discharge that
caused serious, long-lasting environmental harm.”
Comp. In. Br. at 6. In addressing the “significant
environmental harm” caused by Respondent’s viola
tion, Complainant points out that the violation occurred
in a sensitive environment, the SFCR, which is
impaired due to the failure to meet state water quality
standards for sediment and temperature, necessitating
the establishment of a TMDL to limit the discharge of
App.93a
pollutants into the SFCR so as to bring it into compli
ance with water quality standards. Id. Complainant
further argues that Respondent’s unpermitted dis
charge by his suction dredging activities on July 22,
2015, introduced sediment into the SFCR, thereby
compromising the effort to return it to a level of compli
ance. Comp. In. Br. at 6-7. Additionally, Complainant
highlights that Respondent’s dredging activity occurred
in an area of the SFCR that otherwise provided a
“viable habitat for ESA-listed species,” noting that,
based on expert testimony, sediment is a primary
factor in limiting the population of such ESA-listed
species, and that the introduction of “excess sediment
from mining activity reduces habitat quality, juvenile
rearing, and spawning.” Comp. In. Br. at 7 (citing CX
17, BSN 1007; Tr. 423-25, 455-57, 487.)
Complainant makes the point that sediment,
while not toxic, can nevertheless adversely impact the
environment, particularly through activities like
suction dredge mining. Comp. In. Br. at 8 (citing CX
35, BSN 1444; CX 18; Tr. 135). In particular, recalling
the expert testimony of Mr. Arthaud, Complainant
notes the impacts of suction dredge mining that “often
causes immediate lethal impacts for fish eggs, larval
fish, and acquatic invertebrates that are buried,
crushed, or entrained by the mining process.” Comp.
In. Br. at 8 (citing Tr. 427-28). Further, Complainant
points out that turbidity, that is, the suspension of
sediments in varying levels of concentration caused by
suction dredging, results in behavioral and
physiological changes in fish and invertebrates that
are exposed to such conditions, and that the deposits
of such sediment when it falls out of suspension “can
reduce the growth and survival of fish eggs, limit
App.94a
habitat for rearing juvenile ESA-listed species, and
reduce photosynthesis in plant life, impacting the
production of the entire food web.” Comp. In. Br. at 8
(citing Tr. 428-34). As a supporting reference,
Complainant points to the BiOp that Mr. Arthaud
authored, which outlines the adverse environmental
impacts of suction dredging, as well as the BA
authored by Mr. Kenney. Comp. In. Br. at 9 (citing CX
17; CX 21).
Complainant reiterates that while many of these
potential impacts were described by Mr. Arthaud as
“sublethal,” they nevertheless have serious implications
for populations of ESA-listed species. Comp. In. Br. At
9. In support, Complainant points to two scientific
studies conducted by Mr. Arthaud as demonstrating a
correlation between nursery habitat conditions and
the number of salmon that survive adulthood and
spawn. Comp. In. Br. at 9 (citing CX 19; CX 20; Tr. 43742). In other words, Complainant urges, nursery
habitats degraded by the impacts of suction dredging,
in turn, “inhibit!] juvenile salmon growth, which
reduces migration survival, and ultimately reduces
spawning numbers.” Id. Relying on Mr. Arthaud’s
expert testimony and conclusions drawn from the evi
dence he reviewed, Complainant argues that “it was
‘highly likely’ that species were present to experience
the direct impacts of Respondent’s activity.” Comp. In.
Br. at 9 (quoting Tr. 467-68). Complainant notes that
Mr. Arthaud also “estimated that the turbid plume
caused by Respondent’s dredge was 25 to 30 NTUs,
resulting in displacement and physiological impacts
to nearby fish and invertebrates.” Comp. In. Br. at 9
(citing CX 1C; Tr. 311-12, 459-66). As a result of such
displacement, the impacted fish and invertebrates
App.95a
“are thereafter ‘very vulnerable to predation.”’ Comp.
In. Br. at 9-10 (quoting Tr. 465-66). Complainant then
argues that the extent of turbidity and resulting
adverse effects were exacerbated by the fact that Res
pondent operated within 50 feet of RJR’s dredge, a cir
cumstance that would have violated a best
management practice contained in the General
Permit had Respondent’s operation been covered
under it. Comp. In. Br. at 10 (citing CX IB; CX 3;
Tr. 70, 461).
Turning to Mr. Kenney’s expert testimony,
Complainant contends that the adverse impacts from
Respondent’s dredging activities were long-lasting.
Comp. In. Br. at 10. In support, Complainant points
to the site visits conducted by Mr. Kenney and his
team members in October 2015, and thereafter in
2016 and 2018, that demonstrate that “approximately
55% of Hole #5 and 63% of Pile #7 remained” in 2016,
“nearly 14 months after Respondent’s violation,” and
that the adverse impacts of his dredging continued in
2018, three years after the violative conduct. Comp.
In. Br. at 10-11 (citing CX 38, BSN 1524; Tr. 315, 319,
474-75). Addressing the long-term impacts of excess
sediment from suction dredging on ESA-listed species,
Complainant refers to Mr. Arthaud’s expert testimony
that ‘“all successive broods that come into spawn for a
number of years will be affected and have lower egg
survival and lower early rearing survival than if this
had not occurred.’” Comp. In. Br. at 11 (quoting
Tr. 474-75).
Relying on the expert testimony of Mr. Kenney,
Complainant urges that while the disruption caused
by Respondent’s small-scale individual suction dredging
may appear small “when compared to the entire river
App.96a
system,” the actual impacts, when examined “[a]t the
site-specific level,” are in fact profound. Comp. In. Br.
at 11 (citing CX 37, BSN 1502; Tr. 303, 343-44). Fur
ther, Complainant argues, its “experts agreed that
Respondent eliminated habitat for ESA-listed species
and the invertebrates on which they rely.” Comp. In.
Br. at 10 (citing Tr. 297-301, 469). Specifically,
Complainant asserts that “Respondent reduced habitat
quality, not only in the footprint of Hole #5 and Pile
#7, but also further downstream, because he
‘destabilized the area,’ activating fine sediment that
was once buried and allowing it to infiltrate interstitial
spaces that ESA-listed species use for juvenile
sheltering, incubation, and spawning.” Comp. In. Br. at
10 (quoting Tr. 303-04). Based on the foregoing,
Complainant maintains that Respondent’s violative
conduct “significantly and permanently altered the
area surrounding the dredge activity, impeded the
effectiveness of the TMDL, impacted ESA-listed species,
and accordingly warrant [s] a sufficiently deterrent
penalty.” Comp. In. Br. at 11.
Complainant argues that with regard to other
penalty considerations, such as the amount of pollutant
discharged and the duration of the violation, it was
conservative in its proposed penalty assessment. Spe
cifically, it notes that, in the absence of information
from Respondent, Ms. Martich determined that a
“moderate” amount of pollutant (sediment) was dis
charged after reviewing the Hughes Report and the
photographic evidence contained therein. Comp. In.
Br. at 11-12 (citing Tr. 134-35). Complainant argues that
this determination was also supported by the eviden
tiary record, pointing to, among other evidence, the tes
timony of Mr. Arthaud regarding the “swell factor” of
App.97a
displaced sediment that leads to an increase in its
volume and his testimony as to the harmful
concentration of sediment discharged by Respondent’s
dredge that resulted in a plume estimated to be in the
25-30 NTU range. Comp. In. Br. at 12-13 (citing, e.g.,
CX 1, BSN 5-6; CX 2, BSN 24; Tr. 67-68, 459-60, 46163, 466-67). Further, Complainant points out that it
calculated the proposed penalty using one day of vio
lation—the minimum duration allowed under the
CWA-even though circumstantial evidence suggests
that Respondent dredged in the SFCR before and
after the July 22, 2015 Hughes inspection, and
Complainant explains that it chose this conservative
approach in the interest of settlement and in spite of
the continuing impacts from Respondent’s dredging
activity. Comp. In. Br. at 13-15.
With regard to the second aspect of the gravity
component—importance to the regulatory schemeComplainant argues that “Respondent’s violation
warrants a substantial penalty not just for its adverse
environmental impacts, but also for the harm it
caused to the regulatory scheme.” Comp. In. Br. at 15.
Complainant urges that “one of the most critical
aspects of the CWA statutory scheme is the prohibition
on discharges of pollutants from a point source into
waters of the United States unless expressly authorized
and regulated through the issuance of a CWA permit,”
id. (citing 33 U.S.C. § 1311(a)), and it notes that vio
lations of that prohibition have been recognized by
federal courts and the EAB alike as causing significant
harm to the regulatory program, even where no actual
harm to the environment occurs, id. (citing United
States v. Pozsgai, 999 F.2d 719, 725 (3rd Cir. 1993);
Phoenix, 11 E.A.D. at 400). Here, Complainant argues,
App.98a
Respondent discharged pollutants into the SFCR
without an NPDES permit, and even if he had been
covered under the General Permit, he failed to adhere
to “even the most basic Best Management Practices
listed in the General Permit” by, for example, failing
to maintain the required minimum distance from other
dredging operations. Comp. In. Br. at 15-16. Further,
relying on the testimony of experts witnesses Mr.
Kenney and Mr. Arthaud, Complainant points out that
“Respondent failed to consult with Forest Service
biologists to ensure that the location of his proposed
mining operation did not present an inordinate
potential to harm ESA-listed species; failed to
deconstruct tailing piles and fill dredge holes at the
end of the dredge season to minimize impacts on
habitat and fish migration; and failed to limit his
turbidity plume to 150 feet.” Comp. In. Br. at 16-17
(citing Tr. 333-40, 477-78). Thus, Complainant argues,
“Respondent’s violation was not merely a paperwork vio
lation; instead, he mined in a manner inconsistent with
regulatory programs intended to protect water quality
and ESA-listed species.” Comp. In. Br. at 17.
Moreover, and by way of background, Complainant
explains that “[i]n the years leading up to Respondent’s
violation, the General Permit was relatively new, and
EPA’s implementation met widespread noncompliance.”
Comp. In. Br. at 17 (citing Tr. 145, 232-33). Com
plainant notes the inherent difficulty in regulating
suction dredging given “its portable and temporary
nature,” id. (citing Tr. 235), and recounts that “EPA
made substantial efforts to educate and inform the
mining community regarding their obligations under
the General Permit,” id. (citing Tr. 145, 228-29). In
spite of such efforts, Complainant asserts, “Respondent
App.99a
joined miners from the American Mining Rights Asso
ciations to openly and knowingly violate the General
Permit, arguing that their dredging activities should
not be subject to its terms,” and in doing so exhibited
a “flagrant disregard for the General Permit” and
“frustrated its purpose.” Comp. In. Br. at 17-18 (citing
Tr. 71-73). Given such circumstances, Complainant
argues that its “penalty assessment is reasonable, and
arguably exceptionally conservative, in light of the
harm of Respondent’s violation to the regulatory
scheme.” Comp. In. Br. at 18.
As to the economic benefit component of the
penalty assessment, Complainant asserts that Res
pondent “financially gained from his violation” given
that Respondent treats his mining activity as a pro
fession that he uses to help with paying his bills.
Comp. In. Br. at 19 (citing CX 10, BSN 857, Tr. 36,
152). Further, Complainant argues that “Respondent
benefited through the avoidance of costs associated
with suction dredging without applying for and
complying with an individual NPDES permit and the
associated regulatory measures that are required to
ensure that suction dredge mining is conducted in a
manner that will limit impacts to aquatic resources.”
Comp. In. Br. at 19. Nevertheless, Complainant asserts,
it did not increase the proposed penalty based on the
economic benefit resulting from Respondent’s viola
tion, Comp. In. Br. at 19 (citing Tr. 133-34), a decision
that “resulted in a conservative penalty assessment,”
id. Based on the foregoing, Complainant explains
that the preliminary deterrence amount came to
$5,500. Comp. In. Br. at 18 (citing Tr. 146).
App.lOOa
Turning to the remaining statutory penalty factor
that it considers relevant to this case—namely, Res
pondent’s degree of culpability, which the Penalty
Policy looks to break down into two considerations,
degree of willfulness and degree of cooperation30—
Complainant argues that an upward adjus
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