Petition for Writ of Certiorari — Larkins v. United States

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Supreme Court, US.

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88-1025) ,

DEC 16 1988

vlor nF. Sr AN Ly JR,

———

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

THOMAS R. LARKINS AND

HERBERT M. LARKINS,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

104 N. Sth Street

Murray, Kentucky 42071

(502) 753-8900

Counsel for Petitioners

QUESTIONS PRESENTED

I. Whether an isolated and unrepeated instance of the

presence of vegetation that requires saturated soil conditions

for growth and reproduction is sufficient, in and of itself, to

satisfy the criteria of "normal circumstances" necessary to

classify an area as "wetlands?"

II. Whether a row crop farmer, tree farmer, or rancher, or,

as in this case, a farmer who must wear all three hats to sur-

vive, may change from one wetland farming or ranching ac-

tivity to another wetland farming or ranching activity without

the necessity of obtaining a Section 404 permit from the Corps

of Engineers?

PARTIES TO THE PROCEEDINGS

IN THE UNITED STATES

SIXTH CIRCUIT COURT OF APPEALS

The following is a list of all parties to the proceeding in

the United States Sixth Circuit Court of Appeals whose judg-

ment is sought to be reviewed:

1. Thomas R. Larkins and Herbert M. Larkins (individuals

and petitioners herein);

2. United States of America (respondent herein).

TABLE OF CONTENTS

Questions Presented

Parties to the Proceeding in

the United States Sixth Circuit

Court of Appeals

Table of Contents

Table of Authorities

Official Reports of Opinions

Delivered in the Courts Below

Jurisdiction

Statutes and Regulations Involved

Statement of the Case (with basis

for Federal Jurisdiction in Court

of First Instance)

Reasons For Granting the Writ:

1. Lack of clarity in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct.

455, 88 L.Ed.2d 419 (1985) has led to confusion

in the lower courts as to whether the presence of

wetland vegetation need be shown to be a "normal

circumstance" of the land before that land can be

designated "wetlands."

2. Aconflict exists among the United States Circuit

Courts as to whether a farmer may change from one

wetland crop (tree farming and harvesting) to

another wetland crop (maize, corn, soybeans)

PAGE

i

‘i

ili - iv

V-vi

2

2

3-4

4-11

11-16

without a Section 404 permit from the Corps of

Engineers.

Conclusion

Appendix:

Appendix A - Memorandum Opinion and

Order of Judgment of the United States

District Court, Western District

of Kentucky, Paducah Division

Appendix B - Opinion of the United

States Court of Appeals for the

Sixth Circuit

Appendix C - Order Denying Rehearing of

the United States Court of Appeals

for the Sixth Circuit

16 - 20

21

Al - A27

Aal - Aa3

Bl - B17

Ci - C2

TABLE OF AUTHORITIES

PAGE

CASES

Avoyelles Sportsmen’s League, Inc. v. Marsh,

Fe te I wictekenrctecitecetnccctaaaneaann 7,10

12,19

United States v. Akers, 785 F.2d 814 (9th Cir. 1986)............. 17

United States v. Cumberland Farms, 826 F.2d 1151

CBOE ity UTD weit tbsocacesnuntetatantheietistoaelleae he ot oe 15

|! >

474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419

(Io icniitcrpiticndcenesisics tine cite eee ae 10, 11

12, 14

15, 16

STATUTES

SD UB Be irtiiticettceete ea ee 3

SO UAE. Biss iii ee 6

BS UTA. Ie ctintiarinsiceeadennea eee 3,7

REGULATIONS

33 C.F.R. 328.3(b) [formerly 33 C.F.R. 323.2(c)].....cc00000 7

11,14

15

BS C.B.R. FBBA(E) cccccccrcorsscrscrcccsssecnsensssscscsceesonsssssssocsncassoneees 3,4

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

THOMAS R. LARKINS AND

HERBERT M. LARKINS,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

To the Honorable, The Chief Justice and Associate Justices

of the Supreme Court of the United States:

Thomas R. Larkins and Herbert M. Larkins, the Petitioners

herein, pray that a Wnit of Certiorari issue to review the judg-

ment of the United States Court of Appeals for the Sixth Cir-

cuit entered in the above-entitled case on July 22, 1988,

rehearing denied September 19, 1988.

OFFICIAL REPORTS OF OPINIONS

DELIVERED IN THE COURTS BELOW

The Memorandum Opinion and Order of Judgment, U.S.

District Court, dated January 16, 1987 (Documents No. 75 and

76), printed in Appendix A hereto, infra, p. Al, is reported in

657 F. Supp. 76. The Opinion of the Circuit Court of Appeals

is printed in Appendix B hereto, infra, p. B1. The Order of the

Circuit Court of Appeals denying petitioners’ Motion for

Rehearing, is printed in Appendix C hereto, infra, p. C1.

JURISDICTION

The judgment of the Circuit Court of Appeals was entered

on July 22, 1988 (Appendix B, infra). A timely Petition for

Rehearing was denied on September 19, 1988 (Appendix C,

infra). The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

STATUTES AND REGULATIONS INVOLVED

This Petition concerns the Clean Water Act, 33 U.S.C. Sec-

tions 1251 et seq. dealing with the farm, ranch, and silvicul-

ture exemption contained in 33 U.S.C. Section 1344(f)(1)(A),

the 1977 definition of wetlands in 33 C.F.R. Section 323.2(c)

(1978), and the applicability of the 1982 Regulation, 33 C.F.R.

Section 323.4(c) to a violation alleged to have occurred in

1980.

33 U.S.C. Section 1344(f):

"(1) Except as provided in paragraph (2) of

this subsection, the discharge of dredged or fill

material -

(A) from normal farming, silviculture, and

ranching activities such as plowing, seeding,

cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or

upland soil and water conservation practices;

* * *

is not prohibited by or otherwise subject to regulation

under this Section..."

33 C.F.R. 328.3(b) [formerly 33 C.F.R. 323.2(c)]:

"(b) The term ‘wetlands’ means those areas

that are inundated or saturated by surface or

ground water at a frequency and duration

sufficient to support, and that under normal

circumstances do support, a prevalence of vege-

tation typically adapted for life in saturated soil

conditions. Wetlands generally include swamps,

marshes, bogs, and similar areas."

33 C.F.R. 323.4(c) adopted July 22, 1982:

"[A] permit will be required for...the conversion

of a wetland from silviculture to agricultural use

when there is a discharge of dredged or fill

materials into waters of the United States in

conjunction with the construction of dikes,

drainage ditches or other works or structures

used to effect such conversion."

STATEMENT OF THE CASE

Petitioners are life-long farmers engaged in all phases of

farming, including the growing and harvesiing of row-crop,

timber, cattle, hogs, and pond-fish (H. Larkins at Tr. 4-27).

In 1976 petitioners purchased approximately 550 acres in

Western Kentucky for use in their farming activities (T. Larkins

at Tr. 4-78). Approximately 110 acres were in a bottomland

area adjacent to a small creek known as Obion Creek which

would occasionally overflow but would generally drain off

within a 12-hour period (Mix at Tr. 4-186). Such bottomland

had continuously been used as farmland, including growing

and harvesting of crops and timber from 1924 until the late

1960’s or early 1970's (Mix at Tr. 4-185).

Beaver, unnatural to the area but imported by State offi-

cials, first appeared in the area in question in approximately

1972 and gradually began interfering with the drainage in the

bottomlands along Obion Creek (Tyler at Tr. 4-179; Mix at Tr.

4-187, 188, D. Ex. 16).

In the Winter of 1976, petitioners observed that a 10-12

acre area near the center of the bottomland had water backed

up on it as a result of the beaver dams interfering with the

natural drainage and causing upland trees of hickory, oak, ash

and sycamore to begin dying (T. Larkins at Tr. 4-79, 80). This

conclusion of beaver activity causing damage was also made

by the State forestry service (H. Larkins at Tr. 4-27).

In December, 1976, petitioners hand-dug a 60- 70-foot

ditch, successfully drained all of the bottomland area and

revealed the offending beaver dams (H. Larkins at Tr. 4-33,

34) which were then removed by dynamite and the natural

drainage of the area was restored (H. Larkins at Tr.4-37, 38).

The temporary obstruction was removed and good natural

drainage completely restored and continuously maintained,

free from such artificial obstructions, for four years before

petitioners allegedly deposited materials in "wetlands".

In 1977, petitioners continued the historical use of the

land in harvesting timber, including that timber damaged by

the beaver but still commercially saleable (T. Larkins at Tr. 4-

85).

As commercial timber was harvested and sold from an

area, petitioners made the farming decision based on then cur-

rent tem economics to replant that area in row crops rather

than in timber (T. Larkins at Tr. 4-90, 91). In order to cul-

tivate the row crops, the root wads and stumps of harvested

trees were removed (T. Larkins at Tr. 4-90, 91).

Eight years after the natural drainage of the land had been

restored and row crop farming had been established, and four

years after petitioners built their farm pond, the United States

filed its Complaint against petitioners contending that

petitioners violated the Clean Water Act, 33 U.S.C. Sec.

1311(a) by constructing earthen terraces and levees in 1980 in

the bottomland area of petitioners’ farm adjacent to Obion

Creek, which the United States contended was "wetlands."

Petitioners admitted construction of the pond, its’ terraces

and levees but maintained that at the time of the alleged viola-

tion no "wetlands" existed on their farm. Petitioners con-

tended that the area was well-drained bottomland and did not

meet the criteria for "wetlands" established by the United

States Corps of Engineers as defined in 33 C.F.R. 323.2(c),

infra, and as then interpreted by the then leading case of

Avoyelles Sportsmen's League, Inc, v. Marsh, 715 F.2d 897

(Sth Cir. 1983).

In the alternative and assuming wetlands meeting the

Corps’ written criteria could be shown in the area, petitioners

contended that their activities in changing from one crop to

another did not require a permit under the farm exemption of

33 U.S.C. Sec. 1344(f), infra. Since the land in question had

been continuously used for the raising and harvesting of food,

fiber, and forest products, the continued use of such land by

petitioners in either of these three categories fell within the

explicit terms of the farm exemption.

As proof of the evidence of wetlands on the property in

1980, the District Court in a bench trial (decided January 16,

1987), stated that it relied exclusively on aerial photographs

and soil analysis for it’s determination of vegetation and

hydrology (M.O. at p. 6) apparently excluding all testimony of

farmers who had lived on the property and neighboring

farmers who had been familiar with the property for ap-

proximately 50 years.

The aerial photographs, taken at one instant on one day in

1980, showed certain pot holes and scattered low areas to con-

tain water. The Corps was neither aware how long the water

had been on the property nor how quickly it drained off after

the photograph was taken (Keller at Tr. 3-49).

No evidence was introduced as to what were the "normal

circumstances" experienced by that area. (No evidence of the

extent of rainfall in the area and no evidence of any flooding

in the area other than petitioners’ witnesses who testified that

flooding was only occasional during wet years and that

natural drainage took off all surface water within a matter of

hours (Mix at Tr. 4-186)).

The District Court found the government had proven "that

a prevalence of the plants growing on the site prior to 1980

were adapted to saturated soil conditions" (M.O. 12). This

conclusion was based solely upon the "signature thing" in

which respondent’s witnesses noted "similarities" in color, tex-

ture, shade, and tint between aerial photographs of the subject

property and other areas which the Corps had designated wet-

lands, but without being abie to identify what types of vegeta-

tion were actually prevalent (Parsons at Tr. 4-8, 9).

Although all of the evidence indicated that petitoners con-

tinually used the property for silviculture, ranching and row

cropping from 1976 through and including 1980, the date of

the alleged violation, the District Court found that the row-

crop farming activity in 1980 was a use to which the land had

not previously been put and thus denied petitioners the

protection of the farm exemption (M.O. 14, 15).

Petitioners appealed, first, on the ground that some

evidence of hydrology showing "normal circumstances" of the

area must be presented to show that the presence of wetland

vegetation is not merely abnormal growth in otherwise well-

drained farm land.

Petitioners also appealed on the ground that the uncon-

tradicted evidence of farm use of the land, regardless of the

TYPE of crop, from 1976 through and including 1980, the date

of the alleged violation, removed the objection that the use in

1980 was "a use to which the site was not previously subject"

(M.O. 14).

The court below affirmed the findings of the District Court

on the first ground utilizing the authority of United States v,

Riverside Bayview Homes, Inc., infra., for the proposition that

evidence of hydrology and normal circumstances no longer

need be considered in determining what is or is not wetlands,

and, for the second ground, utilized Avoyelles Sportsmen's

League, Inc. v. Marsh, supra, and 33 C.F.R. Section 323.4(c) as

authority for the prohibition against converting silviculture to

10

agricultural use which regulation was not adopted by the

Corps until 1982, two years AFTER the alleged violation.

REASONS FOR GRANTING THE WRIT

1. The elimination by this Court in United States v. River-

side Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct 455, 88

L.Ed.2d 419 (1985) of the qualifying term "under normal cir-

cumstances" as it previously existed under the definition of

“wetlands” (33 C.F.R. Section 328.3(b)) has resulted in bring-

ing millions of additional square miles of land under the juris-

diction of the Corps of Engineers.

District Courts and Federal Courts of Appeals had consis-

tently approved the "three-prong test" for determining the

presence of wetlands: (1) The type of soil, (2) the degree and

frequency of inundation and saturation, and (3) the type of

predominant vegetation.

11

The second criteria was set forth logically in Avoyelles

Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir.

1983), supra, at page 913:

"Similarly, the definition provides that a

wetland is an area that ‘under normal

circumstances (does) support’ vegetation

typically adapted for life in ‘saturated soil

conditions.’ It would seem that the logical

method for determining whether this require-

ment is met is to examine whether the soil is

or is likely to be frequently saturated."

The importance of evidence of hydrology to the determina-

tion of what the normal circumstances are is also set forth on

page 913:

"The definition speaks of areas that are in-

undated or saturated ‘at a frequency and

duration sufficient to support’ the wetland

indicators. We fail to understand how the

agency may determine whether a tract is

such an area without examining its hydrology."

This Supreme Court considered the importance of hydrol-

ogy in Riverside Bayview Homes, supra, and, apparently in an

effort to emphasize the deletion of the requirement of "peri-

odic inundation" or "frequent flooding" also deleted any

12

reference to the "normal circumstances" of the area. At page

129, this Supreme Court stated:

"Indeed, the regulation could hardly state more

clearly that saturation by either surface or ground

water is sufficient to bring an area within the

category of wetlands, provided that the saturation

is sufficient to and does support wetland vegetation."

As an apparent reinforcement of the fact. that the normal

circumstances of hydrology are of no concern in a determina-

tion of wetlands, this Court stated at page 130:

"The District Court found that respondent's property

was ‘characterized by the presence of vegetation that

requires saturated soil conditions for growth and

reproduction, App. to Pet. for Cert. 24a, and that

the source of the saturated soil conditions on the

property was ground water. There is no plausible

suggestion that these findings are clearly erroneous,

and they plainly bring the property within the

category of wetlands as defined by the current

regulations."

However, this definition is contrary to the Court’s specific

recitation of that current regulation set forth on page 7 of the

Opinion:

"Wetlands, in turn, are defined as lands that are

‘inundated or saturated by surface or ground water

at a frequency and duration sufficient to support,

AND THAT UNDER NORMAL CIRCUMSTANCES

DO SUPPORT, a prevalence of vegetation typically

13

adapted for life in saturated soil conditions.’ 33

CFR Section 323.2(c) (1985)." (Emphasis

supplied)

"Normal circumstances", while not "requiring inundation

over a record period of years" (41 Fed. Reg. 37128, Corps’

reference to the reason for deleting a requirement of "periodic

inundation") must require some showing of normalcy of the

circumstances which are found to exist. Whether the growth

of wetlands vegetation in an area is "normal" or "abnormal" is

derived from a showing of what has been regularly occuring in

that area. If it is normal for a prevalence of wetland vegeta-

tion to be present then some evidence of regeneration should

be shown. If it is normal for wetland vegetation to be present,

then its prevalence for at least more than one season should

be shown.

The Riverside Bayview Homes case, supra, has been ac-

cepted by the Sixth Circuit as tantamount to deleting all

reference to "normal circumstances" in the Corps’ definition of

wetlands. As stated by that Circuit in its Opinion of the in-

stant case at page 6:

14

" In United States v, Riverside Bayview Homes,

Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419

(1985), the Supreme Court rejected the notion

that 33 C.F.R. Section 328.3(b) required that land

be frequently inundated to be considered wetlands

and concluded that the regulation’s only require-

ment was that ‘the saturation is sufficient to and

does support wetland vegetation.’ 474 U.S. at 130,

106 S.Ct. at 461. The presence of vegetation that

requires saturated soil conditions for growth and

reproduction on land adjacent to a body of navi-

gable water is sufficient to bring the land under

the regulation’s definition of ‘wetlands.’ 474 U.S.

at 130-31, 106 S.Ct. at 461."

The First Circuit in United States v. Cumberland Farms,

826 F.2d 1151 (1st Cir. 1987) has also deleted the "normal cir-

cumstances" requirement on the authority of Riverside

Bayview Homes, supra. At page 1154 the First Circuit stated:

"In 1977, the Corps further extended its jurisdiction

over wetlands by eliminating the requirement that

the wetland be periodically inundated, requiring

only that it be inundated or saturated by surface or

groundwater at a sufficient frequency to support

vegetation adapted for life in saturated “_ Id.

at 458; 33 C.F.R. Section 323.2(c)(1978).

Riverside Bayview Homes, the Supreme teal

upheld the Corps’ expanded view of its regulatory

authority over freshwater wetlands under the

Clean Water Act. Id. at 465."

15

As pointed out in the concurring opinion of Circuit Judge

Merritt in the instant case on page 10, referring to the River-

side Bayview Homes decision:

"There we said: ‘Under such a construction [as

proposed by the Corps of Engineers] low lying

backyards miles from a navigable waterway would

become wetlands........ .A farmer's low lying farmland

or a homeowner's low lying backyard - adjacent to a

small stream or creek but many miles from any

navigable waterway - has apparently been

converted into government property no longer

subject to control or improvement by the owner

without government permission. A statute that

does not mention ‘wetlands’ has apparently been

read to include simply ‘moist land adjacent to a

creek.’

"The framers of the Constitution were solicitous

of the rights of landowners - especially small

farmers struggling for survival - not to have

land appropriated by the government."

2. There exists conflicting decisions among the Federal

Courts of Appeal relating to the provisions of the "farm exemp-

tion" under the Clean Water Act, resulting in confusion and

leading farmers into potential unknowing violations of law.

While it was uncontradicted that these petitioners were

harvesting and selling their timber from the property in ques-

tion during 1977 and later, and that the property had been

16

ieee

historically used for silviculture, the District Court found that

the change to another crop constituted "a use to which the site

was not previously subject." (M.O. 14) The Sixth Circuit cited

33 C.F.R. Section 323.4(c) which excluded from the farm ex-

emption the right to convert from wetland tree farming to wet-

land crop farming, which Regulation was not adopted until

two years after the alleged violation by these defendants (i.e.

July 22, 1982).

The Ninth Circuit Court of Appeals in United States vy,

Akers, 785 F.2d 814, 816 (9th Cir. 1986) considered an in-

junction suit by the United States against a farmer "..who

seeks to farm his wetlands more productively..". The farmer

defended on the basis of the farm exemption which the Ninth

Circuit quoted in pertinent part at page 819:

"To fall under this exemption, the activities...must

be part of an established (i.e., on-going) farming,

silviculture, or ranching operation."

Although affirming the injunction based on its unique

facts, the Court stated at page 820:

"Responding to our inquiries, government counsel

asserted that the Corps would require Akers, and

17

other farmers like him, to obtain a Section 404

permit before switching from one TYPE of wet-

land crop to another, if the new crop had not

been farmed previously. For example, if Akers

desired to plant wild rice, a wetland crop, the

Corps would require a permit since rice has not

been farmed in Big Swamp in the past.

"eenieonil we do not endorse the government’s

authoritive position. We do not believe that

Congress intended to place the burden of Corps

permit regulation on farmers who desire merely

to change from one wetland crop to another."

In the instant case all of the uncontradicted testimony was

to the effect that the site had continuosly been used for sil-

viculture with crops interspersed in areas where trees had not

been replanted. Further, such testimony indicated that

petitioners did nothing more than continue the normal sil-

viculture activities with the exception that instead of replant-

ing in trees after normal harvesting, the economic decision

was made to go to a new crop of maize, corn, and soybeans,

all of which flourished under natural conditions as well or bet-

ter than commercial timber. The Corps offered no testimony

to rebut that conclusion.

18

The District Court ignored petitioners’ use of the area for

cropland from 1977 until the alleged violation of 1980 and

stated without any supporting evidence whatsoever that the

site had not been previously used for cultivation until the

pond and dikes were constructed in 1980.

The Sixth Circuit rested its decision on the basis that when

petitioner farmers harvested timber it was not a "normal har-

vesting of timber," but rather an activity of clearing timber as

in Avoyelles Sportsemen’s League, Inc. v. Marsh, supra.

However, the Fifth Circuit in Avoyelles, supra, in relating

the facts of "clearing timber" noted at page 901:

"Consequently, they began a program of large-

scale deforestation in June of 1978. Using bull-

dozers with shearing blades that ’floated’ along

the ground, the defendants cut the timber and

vegetation at or just above ground level. The

trees were then raked into windrows, burned,

and the stumps and ashes were disced into the

ground by other machinery.....The court allowed

the private defendants to engage in normal culti-

vation on the more than 10,000 acres that had

been cleared, but ordered them to apply for a

permit with respect to the area already designated

by the government as a wetland...."

19

While the Ninth Circuit does not agree with the Corps’

conclusion that a wetland crop may not be changed to another

wetland crop, the Sixth Circuit adopts a variation of the Corps’

conclusion as it applies to changing from timber cultivation in

wetland to cultivating another type of wetland crop (33 C.F.R.

Section 323.4(c)).

Although the "farm exemption" permits all silviculture,

agricultural, and ranching uses, farmers in the Ninth Circuit

can change crops in wetland areas, while farmers in the Sixth

Circuit have limitations placed upon the type of crops to which

they may change without applying for and receiving a Corps

Section 404 Permit.

20

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the United States Court

of Appeals for the Sixth Circuit.

Respectfully submitted,

¢ William Philli

104 N. Sth Street

Murray, Kentucky 42071

(502) 753-8900

Counsel for Petitioners

21

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

UNITED STATES OF AMERICA,

PLANTIFF,

V. CIVIL ACTION

No. 84-0044-P(J)

THOMAS R. LARKINS and

HERBERT M. LARKINS,

DEFENDANTS.

MEMORANDUM OPINION

This action arises out of alleged violations of Section 301

(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311 (a),

which prohibits the discharge of pollutants into "navigable

waters” -- defined as the "waters of the United States" and in-

cluding freshwater wetlands adjacent thereto! -- unless

authorized by a permit issued by the Army Corps of Engineers

(Corps) pursuant to Section 404, 33 U.S.C. § 1344. The

United States contends that Defendants Thomas R. and Her-

1 33 U.S.C. § 1362(7); see note 2, infra.

A-1

bert M. Larkins, brothers who own and operate a farm in Car-

lisle County, Kentucky, constructed earthen dikes and levees

on wetlands adjacent Obion Creek without a permit, damaging

aquatic environment and causing harm to fish and wildlife

resources.2 In remedy of these violations, the United States

2 The property in question, which is described in Book 70, page 332, Office

of the Clerk of Carlisle County, Kentucky, lies north of Obion Creek, south of

Highway 80 and approximately three mile east of U.S. Highway 51, and is

within the flood plain of Obion Creek, a tributary of the Mississippi River.

Tributaries of navigable rivers are "waters of the United States" over which

the Corps exercises jurisdiction for the purpose of enforcing the CWA. 40

C.F.R. § 230.3(s)(S). The term "waters" also encompasses wetlands adjacent

e* — like Obion Creek. United States v. Riverside Bayview Homes,

-, 106 S. Ct. 455, 461-466 (1985). Consequently, if the property on

rows the Larkins constructed dikes and levees contained wetlands, the

Corps had authority to regulate the discharge of any pollutants thereon.

In an Order entered January 8, 1986, this court found that the Larkins

erected dikes and levees with earthmoving equipment. Earthmoving

equipment constitutes a "point source" -- i.e., an instrumentality through

which poliutants can be introduced into waters of the United States -- under

Section 502(14) of the CWA, 33 U.S.C. § 1362(14). The court further found

that the dikes and levees were made of earth. Earth, when used as a fill

material in the construction of structures such as impoundments or dikes on

wetlands, constitutes a "pollutant" under the CWA. See Section 502(6), 33

U.S.C. § 1362(6); 33 C.F.R. § 323.2(k) and (1); United States v. Weisman,

489 F. Supp. 1331, 1336-1337 (M.D. Fla. 1980), affd 632 F. 2d 891 (Sth

Cir. 1980). See also Minnehaha Creek Watershed District v, Hoffman, 597 F.

2d 617, 625-626 (8th Cir. 1979). Consequently, if the Larkins’ property

contained wetlands, the use of earthmoving equipment to construct earthen

dikes and levees thereon constituted a discharge of pollutants into waters of

the United States, an act prohibited without a permit unless statutorily

exempted from the Corps’ control. See page 15, infra.

Although the Larkins deny their property contained wetlands, they have

not challenged the legal consequences of such a finding. Consequently, if

their property contained wetlands, and if construction of dike and levees

thereon does not qualify for a permit exemption, the Larkins are liable for

violations of the CWA.

A-2

a

seeks restoration of the site, a permanent injunction against

future violations of the CWA, and imposition of a $20,000

penalty under 33 U.S.C. § 1319(b), (d).

The Larkins, who acquired title to the site in 1976, do not

deny constructing the dikes and levees. Nor do they claim ig-

norance of the permit requirement.3 Rather, they argue that

the property in question does not contain wetlands as defined

by 33 C.F.R. § 323.2(c)4, and that even if it does, their use of

the land qualifies for a permit exemption under 33 U.S.C. §

1344(f).5

This matter was tried before the court without a jury on

January 14-15, 1986. At trial, the United States called six wit-

nesses qualified as experts in soil analysis, surveying, forestry,

wildlife biology, and wetland delineation. The defense called

the defendants, two neighboring farmers, and an expert

3 The Government's complaint alleges that permit violations began in 1978

when the Larkins were arguably unaware of the CWA’s permit requirement.

In pretrial stipulations, however, the parties agreed that the instant action

addresses only those violations alleged to have occurred in or after 1980 by

which time the Larkins were fully aware of the Act.

4 See page 5, infra.

> See page 15, infra.

A-3

botanist. Approximately 50 exhibits were introduced includ-

ing correspondence between the parties, photographs of the

disputed site, experts’ reports, and technical materials used by

the Corps in identifying wetlands. The court, having studied

the parties’ arguments and reviewed the evidence, enters these

findings of fact and conclusions of law in accordance with

Rule 52(a) of the FEDERAL RULES OF CIVIL PROCEDURE.

To the extent that these findings of fact constitute conclusions

of law, they are adopted as such, and to the extent that the

conclusions of law constitute findings of fact, they are so

adopted.

I. FINDINGS OF FACT

A. HISTORY OF THE SITE

The record contains a detailed history of the parcel on

which the Larkins constructed their dikes and levees. The ~

Larkins acquired the site in 1976 with the purchase of a 550

acre tract lying along Obion Creek. At the time of purchase,

Thomas Larkins observed that as many as 10 to 12 acres of the

A-4

site were covered knee-deep with water. He noted the

presence of oak, hickory, and other bottomland hardwoods,

but also observed cypress on the site. After inspecting the in-

undated parcel, Larkins concluded that beaver, reintroduced to

the area in 1950 by the Kentucky Department of Fish and

Wildlife Resources, were responsible for poor drainage.

After acquiring the property, the defendants dug drainage

ditches, cut back dead and damaged timber, blasted out beaver

dams and lodges, and began filling gullies and washouts. Site

improvements continued without interruption until May 9,

1979, when Mr. L.D. Blanchard, an attorney for the Corps, re-

quested permission to make an inspection. Blanchard’s verbal

request was followed by a written one (Plantiffs Exhibit 3) to

which Defendant Thomas Larkins responded in writing on

June 28, 1979: "We will let two men from the Corps come on

a part of our land if one of them is the BOSS [and if] he can

answer my questions.” Plantiff's Exhibit 4.

On July 31, 1979, the Corps dispatched Colonel William H.

Reno to meet with the Larkins and a group of neighboring

A-5

landowners in Carlisle County. After explaining the Corps’ en-

forcement responsibilities under the CWA, Reno renewed the

inspection request. The Larkins refused, informing Reno that

they would consider the request only after he divulged the

identity of the person responsible for reporting their activities

to the Corps. Reno rejected the Larkins’ terms and, on Novem-

ber 23, 1979, informed them that the matter had been turned

over to the Justice Department. Plantiffs Exhibit 8.

In 1980, ignoring the Corps’ still pending inspection re-

quest, the Larkins began construction of a series of earthen

dikes and levees. On February 1, 1982, the Corps notified

Thomas Larkins that aerial inspection had revealed “un-

authorized deposition of material into water of the United

States," a violation of the CWA. Plantiffs Exhibit 10. Dis-

regarding the Corps’ objections, the Larkins completed con-

struction of the dikes and levees, forming an 18 acre

impoundment designed to capture upland drainage. Before

construction of the dikes and levees, upland runoff often inun-

dated the low lying lands adjacent to Obion Creek.® By creat-

A-6

ing the impoundment, the Larkins were able to cultivate

formerly inundated lowlands.7

On February 10, 1984, after completion of the dikes and

levees and almost five years after the Corps made its initial in-

| spection request, the Justice Department filed an action

against the Larkins in this court. Thereafter, the court ordered

two on-site inspections of the Larkins’ property, the first on

August 30, 1984, and the second on May 29, 1985. The

results of those inspections are discussed below.

© See.

Plaintiffs Exhibit 19: aerial photograph made by the Soil Conserv-

ation Service in 1964. In this photograph, taken 16 years before

construction of the dikes and levees, the future impoundment area

appears less forested than the surrounding acreage.

Plaintiffs Exhibit 20: aerial photograph made by the Corps in 1972

again showing reduced density of mature timber on the lowland

areas adjacent Obion Creek.

Plaintiffs Exhibit 22A and B: aerial photographs made by the

Corps in 1979 showing the inundation of the site immediately be-

fore the construction of the disputed dikes and levees.

Plaintiffs Exhibit 23A, B, C.D: aerial photographs made in 1980.

Pooled water and dying timber readily apparent.

Plaintiffs Exhibit 244, B.C, D: aerial photographs showing inund-

ation of the site in December of 1981.

7 See:

Defendants’ Exhibit 33: photograph, made in August 1984, show-

ing successful cultivation of soybeans in a formerly inundated are

Plaintiffs Exhibit 25: aerial photograph made in September of

1984 showing completed dikes and levees and the impoundment

area created thereby. The photograph also reveals cultivation of

fields adjacent the impoundment area.

A-7

B. IDENTIFICATION OF WETLANDS

In 1972, with passage of the Federal Water Pollution Con-

trol Act Amendments, 86 Stat. 816, Congress empowered the

Corps to issue regulations for enforcement of the CWA. The

Corps’ current regulations, which have survived scrutiny by the

Supreme Court,8 define wetlands as:

those areas that are inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence

of vegetation typically adapted for life in satu-

rated soil conditions.

33 C.F.R. § 323.2(c).? This definition centers on two essential

indicia of wetlands: hydrology and vegetation.

In most instances of alleged violations of the CWA involv-

ing land adjacent to waters of the United States, the Corps is

immediately admitted to the site to conduct hydrological and

vegetation studies, thus enabling it to make a timely deter-

mination of whether wetlands are present. In a few instances,

8 United States v, Riverside Bayview Homes, --U.S.--, 106 S. Ct. 455 (1985).

9 This definition is quoted from regulations issued in 1982. The language is

identical to that used in the 1977 regulations which were in force at the time

of the Corps’ first contact with the Larkins.

A-8

——————————-”~~—~~—~—SC

however, vegetation is removed and drainage patterns are al-

tered before the Corps can make an on-site inspection. In such

instances, of which this case is one, other means must be

called upon to determine whether wetlands were present on a

site prior to the commencement of landowner improvements.

Two of those means are soil analysis -- for determining the

likely hydrology of a site prior to landowners alterations!° --

and aerial photography -- for memorializing drainage patterns

and vegetation types when a timely on-site inspection is not

possible.11 Because the Larkins refused to allow an on-site in-

spection before completion of the dikes and levees, the court’s

findings of fact regarding hydrology and vegetation are based

on soil analysis and aerial photography.

1. HYDROLOGY

10 See Newling testimony, Transcript, Vol. 1, p. 51.

11 Aerial photography has been recognized as a reliable substitute for

on-site "prefill” vegetation tallies, United States v. Robinson, 570 F. Supp.

1157, 1161 (M.D. Fla. 1983), and has been used as a means of memorial-

izing wetland growth for future comparison. Barcelo vy. Brown, 478 F. Supp.

646, 685 (D.P.R. 1979), affd in part, vacated in part, 643 F. 2d 835 (1st Cir.

1981), revd on other grounds, 456 U.S. 305, 102 S. Ct. 1798 (1982).

A-9

Evidence of soil saturated by surface or ground water is es-

sential for wetland identification. At trial, the Corps’ experts

testified that the impoundment area and areas east, northeast,

and southwest thereof possess this hydrological characteris-

tic.12

Aerial photographs, described supra note 6, attest to

repeated inundation of the property prior to construction of

the dikes and levees.13 Soil analysis by Charles Newling, an

expert presently in charge of training Corps personnel in the

use of soil analysis for wetland identification, revealed that the

impoundment area and the area lying southwest thereof con-

12 the appropriate location, shape, and size of the areas to the east,

northeast, and southwest of the impoundment are depicted on Plaintiffs

Exhibit 29. The impoundment and outlying areas affected by the dikes and

levees encompass about 110 acres. Transcript, Vol. 4, p. 20.

13 See, e.g., Plaintiffs Exhibit 24A, which shows water standing on the site

of the impoundment area and also on the area east of the impoundment with

water pooled on the area northeast of the impoundment. Plaintiff's Exhibit

24C shows water pooled on area southwest of impoundment.

The defendants argue that the Corps’ investigation of the hydrological

characteristics of their property is incomplete because the Corps’ experts

failed to determine the frequency and duration of inundation of the site. The

Corps’ regulations do not require such a finding; rather, the Corps need only

prove that an area is "saturated...at a frequency and duration sufficient to

support” a prevalence of wetland vegetation. 33 C.F.R. § 323.2(c) (emphasis

added). In other words, if an area is sufficiently saturated to support

wetland vegetation, the frequency and duration of the inundations which

created the saturated conditions are irrelevant.

A-10

tained hydric soil. Hydric soil is a wetland soil type which is

low in oxygen and formed under saturated conditions.14 Be-

cause wetland plants, which require less oxygen than their

upland rivals, are uniquely adapted for growth in hydric soil,

Newling’s soil analysis is a strong, though not conclusive, in-

- dicator that the impoundment and southwest areas are wet-

lands.15 Although Newling was unable to perform soil tests in

14 The Memphis District's Wetland Identification and Classification Guide-

lines for Section 301 of the Clean Water Act of 1977, as revised by the Corps

in December 1980, states that "wetland soils are hydric soils [which], for a

significant portion of the growing season, are virtually free of dissolved

oxygen in the major portion of the root zone.... Hydric soils thus tend to

support vegetation typically adapted for life in saturated soil conditions.”

Defendants’ Exhibit "Keller B" at 11; Transcript, Vol. 2, p. 10.

During the August 30, 1984, inspection, Newling made ten soil tests

around the perimeter of the impoundment area. Tests on the north, east,

and west sides of the impoundment --holes A, B, C, D, H, I, and J on

Plaintiffs Exhibit 25-- revealed hydric soil. Tests along the southern side of

the impoundment --holes E, F, and G-- uncovered non-saturated soils. The

characteristics of soil change very slowly, see infra note 15; consequently,

the presence of non-saturated soil on the southern border of the

impoundment does not necessarily exclude the site from classification as a

wetland. Aerial photographs show that the site was often inundated. If the

inundations were of sufficient frequency to support wetland vegetation, the

southern side of the impoundment was wetland.

During the May 29, 1985, inspection, Newling made nine additional soil

tests centered on the area southwest of impoundment area. Only one of ten

suggested non-saturated soil. Newling observed silt marks on the trunks of

trees in this area indicating flooding. Transcript Vol. 1, p. 66. And, on cross-

examination, Thomas Larkins confirmed that, prior to erection of the levee

which separates the southwestern area from the impoundment, run-off water

from the northeastern area would flood the southwestern area. Transcript,

Vol. 4, p. 70-71.

15 On cross-examination, Mr. Newling admitted that soil composition

A-11

the areas east and northeast of the impoundment, a soil

analysis by Thomas Welborn, an expert for the Environmental

Protection Agency (EPA), revealed that the eastern area con-

tained hydric soil, and a soil survey made by the United States

Department of Agriculture’s Soil Conservation Service in 1937

attests that hydric soil types dominate the northeastern area.16

Although the defendants presented no expert challenge to

the Corps’ soil analysis, the defendants did present testimony

from two individuals -- Messrs. W.R. Tyler and M.H. Mix --

who had witnessed inundation of the property for fifty years.

The testimony of these witnesses in no way impeached the

conclusions of the Corps’ experts regarding the predominance

of saturated soil types on the site.

changes gradually. So gradually, in fact, that upland soil may be inundated

for centuries without losing its upland chemistry. Transcript, Vol. 2, pp.

24-25, 32-34. By the same token, the hydric soil on the Larkins’ property

could have been cultivated for decades, but it would still appear hydric when

analyzed. Id., p. 23. Given the glacial pace at which soil types change and

the fact that recent changes in land use are not reflected by soil analysis,

Newling’s finding that hydric soil predominates on the Larkins’ property is

not, by itself, a sufficient basis upon which to declare that the impoundment

and surrounding areas are wetlands. A corroborative finding of wetland

vegetation is required.

16 See Plaintiff's Exhibit 26; see also Transcript, Vol. 1, pp. 72-81.

A-12

Where experts present unequivocal, uncontradicted, unim-

peached testimony on a technical matter beyond the com-

petence of lay determination, a court cannot lightly disregard

the experts’ conclusions. Webster v. Offshore Food Service, Inc.,

434 F.2d 1191, 1193 (Sth Cir. 1970); Stafos v. Missouri Pacific

Railroad Company, 367 F.2d 314, 317 (10th Cir. 1966).

When, as here, those conclusions are presented by officials

charged with the administration and enforcement of the CWA,

they are entitled to even greater deference. United States v.

Lambert, 589 F.Supp. 366, 370 (M.D. Fla. 1984). Consequent-

ly, the court finds that the impoundment area and areas east,

northeast, and southwest thereof possessed hydrological

characteristics typical of those associated with wetlands.

2. VEGETATION

The Corps’ regulations state that, under "normal cir-

cumstances," wetlands support "a prevalence of vegetation

typically adapted for life in saturated soil conditions." 33

C.F.R. § 323.2(c). Normal circumstances end when a land-

A-13

owner's activities modify the hydrological conditions of a site,

and ended on the Larkins’ property in 1980 with construction

of the dikes and levees. Thus, to determine whether the

Larkins’ property supported a prevalence wetland vegetation

under normal circumstances, the court must determine what

type of vegetation dominated the site prior to construction of

the dikes and levees.

The Larkins refused to allow inspection of their property

prior to construction of the dikes and levees; consequently, no

on-site vegetation tally exists for the critical period before

1980. There being no prefill, on-site vegetation tally, the

court must rely on aerial photographs to determine what type

of vegetation formerly dominated the site.17

At trial, experts trained in wetland identification and photo

interpretation testified that aerial photographs made in 1980

indicated a prevalence of wetland vegetation on the 110 acre

site affected by the Larkins construction activities. Transcript,

Vol. 3, pp. 24, 112. Although the experts conceded that

17 See notes 6 & 11, supra.

A-14

reece

conclusive identification of particular plant species could not

be made on the basis of the aerial photographs, they informed

the court that the "signature" of the vegetation in the photos --

its color, shading, tint and texture -- indicated a prevalence of

wetland vegetation on the site. Id. Using Plantiffs Exhibit

23B, one of the aerial photographs made in 1980, expert

Martin Keller was able to identify "an area of black willow,

button bush and several species of herbaceous aquatic and

semi-aquatic plants," all typically associated with wetlands.

Transcript, Vol. 3, p. 24. Keller also noted that the photograph

was "typical of the many thousands of similar sites that we

have seen over the last 10 years of areas such as this, and in

every case these areas have been classified as wetlands." Id.

An on-site vegetation tally made by EPA’s Thomas Welborn in

1984 after completion of the dikes and levees confirmed

Keller’s conclusion. During that inspection, Welborn located

an area of undisturbed vegetation north of the impoundinent.

The undisturbed area was dominated by wetland plant species

and its signature matched the signature of the vegetation

A-15

extending "from the impoundment basically up to the east,

northeast of the property" in the 1980 photographs. Tran-

script, Vol. 3, pp. 110,111-112, 116. By these means, plantiffs

experts established that a prevalence of wetland vegetation

grew in the impoundment area and in areas east and northeast

thereof prior to construction of the dikes and levees.

In May 1985, David Parson, a wildlife biologist for the Fish

and Wildlife Service, joined experts Keller and Welborn in

making a vegetation tally for the area lying southwest of the

impoundment. See Transcript, Vol. 3, p. 34-35. With the ex-

ception of two narrow ridges where the predominant vegeta-

tion consisted of trees not generally found in wetlands, the

predominant vegetation on the southwest area was of a type

requiring saturated soul conditions for growth, or which was

adapted to and could tolerate such soil conditions. Id. at 39.

By this means, plantiffs experts established that wetland

vegetation prevailed on the area southwest of the impound-

ment.18

18 At trial, the defendants carefully cross-examined Martin Keller on the

meaning of vegetation tally sheets completed during the 1985 inspection of

A-16

At trial, defendants’ expert Prof. Otto Ohmart, Herbarium

Curator at Southeast Missouri State University, introduced the

results of a detailed floral survey made during an inspection of

the area lying southwest of the impoundment. Transcript, Vol. 3, pp. 69-77;

Plaintiffs Exhibit 15. The plants recorded on the tally sheets were organized

in accordance with wetland identification guidelines authored by Keller. See

note 14, supra. The guidelines divide plants into three groups:

Group 1. These species are considered to be the most water tol-

erant woody species in the District. While the presence of these

species on a site does not insure the presence of wetlands, these

species are generally consistent as to the sites where they are

commonly found (swamps, sloughs, and backwater flats).

Group 2. This group includes those species that, while showing

varying degrees of adaptation to life in saturated soil conditions,

may also be commonly found on more mesic site which would not

be considered wetlands.

Group 3. These species may on occasion be found in wetlands, but

are not considered to be typically adapted for life in saturated soil

conditions (where these species are well established, wetlands are

not present).

Defendants’ Exhibit "Keller B" at 2; Transcript, Vol. 2, p. 64.

The vegetation recorded on the first tally sheet, which is summarized by

group in Defendants’ Exhibit "Keller A", shows a prevalence of Group 2

plants, followed, in order of prominence, by groups 3 and 1. Similar

patterns of prominence were recorded on seven of sixteen additional tally

sheets, but in each case the number of plants i in groups 1 and 2, considered

together, exceeded the number of plants in Group 3. In cross-examining

Keller, the defendants sought to suggest that where Group 3 plants

outnumber Group 1 plants, wetlands are not present, for, quoting, the Corps’,

wetland identification guidelines, “where [Group 3] species are well

established, wetlands are not present.” Defendants’ Exhibit "Keller B" at 2.

In authoring that classification system, however, Keller wrote that both

groups 1 and 2 “include those woody species which are believed to be

typically adapted for life in saturated soil conditions. In other words, tallies

for both groups 1 and 2 should be combined when determining whether a

site supports a predominance of plants adapted for life in saturated soil

conditions. Defendants’ Exhibit "Keller B" at 2; see also Transcript, Vol. 3, p.

75. Applying this standard with due reference to Keller's position as its

author and best interpreter, the tally sheets establish a prevalence of wet-

land vegetation in the area southwest of the impoundment.

A-17

the area southwest of the impoundment on August 26, 1985.

After analyzing five 50-foot-by-50-foot quadrants selected by

the defendants, Ohmart concluded that mesic rather than

saturated soils dominate the site and that "the area consists of

a variety of plants typical of both upland and bottom-

land...[which] can survive in either place." Defendants’ Ex-

hibit 1.

Ohmarrt’s first conclusion -- that mesic soil dominates the

site -- is not based on actual soil analysis, but on an inference

drawn from a reference work entitled Flora of Missouri. That

work lists the preferred habitat of local flora but, by Ohmart’s

own admission, cannot be relied upon for determining the

type of soil in which plants actually grow. Transcript, Vol. 4,

Importantly, the Corps’ guidelines "do not preclude the investigator from

delineating as wetlands sites not dominated by Group 1 species. However,

the field investigator should properly document that presence of hydric soils,

any available background on hydrologic conditions and any other inform-

ation that would support the conclusion reached." Defendants’ Exhibit

"Keller B" at 13. Plaintiffs field experts followed this guideline in confirming

their wetland findings by soil analysis. Thus, although the vegetation tallies

from the area southwest of the impoundment showed a dominance of Group

2 rather than Group 1 species, that area was property delineated as wetlands

supporting a predominance of vegetation adapted to saturated soil

conditions.

A-18

pp. 146, 167-168. Ohmart’s second conclusion -- that much of

the vegetation on the site can survive in both uplands and bot-

tomlands -- is consistent with the Government's findings, for

many plants "adapted for life in saturated soil conditions” can

also survive in unsaturated soils. See note 18, supra. Thus,

the defendants’ expert does not refute the plantiffs evidence

that the area southwest of the impoundment contains wet-

lands.

The Larkins’ failure to establish the hydrological charac-

teristics of the site through soil analysis coupled with their

failure to classify plants on the basis of ability to adapt to

saturated soil conditions rather than on the basis of preferred

habitat belies a failure to understand the Corps’ criteria for

wetland identification, criteria which control the deliberations

of this court. The Larkins’ argument is straightforward:

upland plants prefer well drained soils; the southwest area

contains upland plants; therefore, the southwest area is well

drained and does not support vegetation adapted for life in

saturated soil conditions. In offering the environmental

A-19

preferences of upland plants as conclusive evidence of well

drained soil incapable of supporting wetland vegetation, the

defendants ignore the plantiffs soil analyses and vegetation

tallies.

C. FINAL FINDING OF FACT

As discussed earlier, Congress empowered the Corps to

issue regulations establishing criteria for wetland identifica-

tion.!19 A court must faithfully apply those criteria and may

not substitute its own or those of a defendant when consider-

ing a question of wetland delineation. See Chevron, U.S.A,

Inc. v. Natural Resources Defense, 467 U.S. 837, 843-844, 104

S. Ct. 2778, 2782 (1984). The United States has proved each

of the wetland elements described in 33 C.F.R. § 323.2(c) for

each of the four areas affected by construction of the dikes

and levees in 1980. The Larkins, however, have not chal-

lenged the plantiffs expert soil analyses, nor have they

presented evidence which overcomes the Government's proof

19 ‘See page 6, supra.

A-20

eee

that a prevalence of the plants growing on the site prior to

1980 were adapted to saturated soil conditions and that a

prevalence of such vegetation still exists on the area southwest

of the impoundment. Accordingly, the court finds that the

United States has proved, by a preponderance of the

evidence29 that the impoundment area and the areas east,

northeast, and southwest thereof are wetlands.

Il. CONCLUSIONS OF LAW

The property on which the Larkins constructed the dikes

and levees and the adjoining property affected by that con-

struction are wetlands. Wetlands are a part of the waters of

the United States which are protected by the CWA. United

States v. Riverside Bayview Homes, --U.S.--, 106 S. Ct. 455, 461-

466 (1985). The CWA prohibits discharges of pollutants into

waters of the United States without a permit from the Corps,

20 The burden of persuasion on the Government in a wetlands case is proof

by a preponderance of the evidence. United States vy, Lambert, 589 F. Supp.

366, 370 (M.D. Fla. 1984), citing United States v, Ward, 448 U.S. 242, 248,

100 S. Ct. 2636, 2641 (1980) and United States vy, Regan, 232 U.S. 37, 47,

34 S. Ct. 213, 216, (1914).

A-21

OOO |

33 U.S.C. § 1311(a). The use of earthmoving equipment to

construct earthen dikes and levees on wetlands constitutes a

discharge of pollutants into waters of the United States for

which a permit is required.21 The Larkins did not secure a

permit prior to construction of the dikes and levees which

formed the impoundment. Consequently, that construction

qualifies for a statutory exemption to the permit requirement,

the Larkins violated the CWA.

Ill. THE FARM EXEMPTION

The United States has proven a prima facie violation of

Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a).

The burden of proof now shifts to the defendants22 to show

21 See note 2, supra.

22 Although no court has ruled on which party bears the burden of proof

when an exemption is claimed under 33 C.F.R. § 323.4, a review of federal

cases reveals that the burden of proving an exemption to a regulatory statute

is consistently placed on the party who claims the exemption. See Lawson vy,

Valente, 456 U.S. 228, 255 n.30, 102 S. Ct. 1673, 1689 n.30 (1982) (parties

claiming an exemption from regulatory statutes may be required to prove

they qualify); U.S. v. An Article of Device, 731 F. 2d 1253, 1262 (7th Cir.

1984) (burden of proving an exemption is on the defendant if government

access to information has been limited); Ray vy. Tumer, 587 F. 2d 1187, 1194

(D.C. Cir. 1978) (government bears burden of proving exemption from

provisions of Freedom of Information Act); Gen’) Life of Missouri vy.

A-22

that their construction activities qualify for an exemption

under 33 U.S.C. § 1344(f), which states:

(1) Except as provided in paragraph (2) of this sub-

section, the discharge of dredged or fill material --

(A) from normal farming, silviculture,

and ranching activities such as plowing, seeding,

cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or

upland soil and water conservation practices;

[or]

onder te Seti! cana scape te

(C) for the purpose of construction and

maintenance of farm or stock ponds or irrigation

ditches, or the maintenance of drainage ditches;

is not prohibited by or otherwise subject to

regulation under...section 301 (a)...of this Act....

(2) Any discharge of dredged or fill material into

the navigable waters incidental to any activity

. having as its purpose bringing an area of the

navigable waters into a use to which it was

not previously subject; where the flow or

circulation of navigable waters may be im-

paired or the reach of such waters be reduced,

shall be required to have a permit under this

section.

Shamburger, 546 F. 2d 774, 781 (8th Cir. 1976) (defendant bears burden of

proving statutory exemption from provisions of a remedial statute). Given

the limited access plaintiffs experts had to the Larkins’ property and

acknowledging the remedial nature of the Clean Water Act --"The objective

of the Act is to restore and maintain the chemical, physical, and biological

integrity of the nation’s waters,” 33 U.S.C. § 1251 (a) --the burden of proving

an exemption falls on the defendants.

A-23

The Larkins claim exemptions for harvesting forest pro-

ducts, for promoting upland soil conservation, and for con-

struction of a stock pond. They are not entitled to those

exemptions. They constructed the dikes and levees for the

purpose of bringing the wetlands adjacent Obion Creek under

cultivation, a use to which the site was not previously sub-

ject.23 In clearing and cultivating that acreage, the defendants

reduced the reach of wetlands, thereby reducing the reach of

the navigable waters of the United States.24 Consequently,

the defendants’ activities do not qualify for a farm exemption,

23 The Corps’ regulations clarify a question raised in the defendants’ post

trial briefs: If the wetlands were cultivated or logged before beaver entered

the region and interfered with drainage of the property, are cultivation and

silviculture not uses to which the land was previously subject? The answer is

no, for activities subject to the farm exemption qualify for exemption only if

they are established and "on-going". 33 C.F.R. § 323.4(a)(1)(ii). Activities

cease to be established when the property on which they were once

conducted "has been converted to ve use s_anaennee ae eae

Ay Id. comand added). a the poses of the Obion watlinde

required modification of the site’s hydrological regime. Consequently, even if

the wetlands had a history of farm use, that use was no longer established at

the time the Larkins’ built the dikes and levees, and "reclamation" of the site

brought "an area of the navigable waters into a use to which it was not

previously subject.” 33 U.S.C. § 1344(f)(2). Cf. 33 C.7.R. § 323.4(a) (1) (iii)

(C)(2).

24 See note 2, supra.

A-24

for they exceeded the limiting conditions imposed by 33 U.S.C.

§ 1344(f) (2).

IV. REMEDIES

The court finds that the construction of dikes and levees

without a permit on wetlands adjacent Obion Creek violated

33 U.S.C. 1311(a), and further finds that the defendants’ ac-

tivities do not qualify for a farm exemption under 33 U.S.C.

1344(f). Having found a violation of the Clean Water Act, the

court must order appropriate relief. The United States asks for

restoration of the site, a permanent injunction against future

violations, and imposition of a $20,000 penalty under 33

U.S.C. § 1319(b),(d).

The United States is entitled to restoration of the site. The

Larkins were aware of the permit requirement before they

began construction of the dikes and levees. Nevertheless, they

elected to deny the Corps access to their property and

proceeded with construction of the dikes and levees over the

Corps’ objections. The Larkins incur no liability for exercising

A-25

their nght to refuse the Corps’ entry onto their land; rather,

they incur liability for acting in violation of the CWA, a viola-

tion which could have been adverted had they cooperated with

the Corp.

Wetlands are: considered an invaluable but dwindling

natural resource. They improve the water quality of our

streams, lakes. and rivers by trapping sediment, sewage, and

other pollutants, and help stabilize erosion and support

wildlife. Congress has determined that "the systematic

destruction of the Nation’s wetlands is causing serious, per-

manent ecological damage," damage so egregious that wet-

lands merit protection by laws like the CWA which promotes

the restoration and maintenance of wetland resources. STAFF

OF SENATE COMM. ON THE ENVIRONMENT, 95TH CONG.,

2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN WATER

ACT OF 1977, 869-870 (Comm. Print 1978) (Statement of

Sen. Muskie). For these reasons, the court concludes that in-

terests of public policy will be served best by restoration of the

site.25 Accordingly, the court shall order the defendants to

A-26

Asia | tee <p s

carry out the restoration plan described by Plantiffs Exhibit

30.26 The court will also impose a monetary penalty for viola-

tion of the CWA and will enter a permanent injunction

prohibiting future modification of the site without permission

from the Corps. An appropriate Order of Judgement encom-

passing these remedies shall be entered with this Memoran-

dum Opinion.

DATED 1-16-87

(s) Edward H. Johnstone, Chief Judge

United States District Court

25 There are numerous precedents for restoration. United States v. Tull.

615 F. Supp. 610, 626-627 (E.D.Va. 1983), affd, 769 F. 2d 182 (4th Cir.

1985); eeeet. Sates. 2. nena. 541 F. dal 884, 886 — 1982);’

Supp. 267, 275- 276: Tash tecien %. Wieiomen, 489 F. Supp. 1331, 1349

(M.D. Fla. 1980).

26 The plan depicted by Plaintiffs Exhibit 30 calls for the following: (1)

removal of the dike around the impoundment by pushing it into the

surrounding ditch; (2) removal of culverts from the bank of Obion Creek;

(3) removal of most of the levee extending from the southeastern side of the

impoundment by pushing it into a parallel ditch; (4) breaching the levee

which extends southwest from the impoundment with 10-foot wide gaps

every 100 feet; and (5) placement of any excess material in a non-wetland

area.

A-27

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

UNITED STATES OF AMERICA,

PLAINTIFF,

v. CIVIL ACTION

No. 84-0044-P(J)

THOMAS R. LARKINS and a

HERBERT M. LARKINS,

DEFENDANTS.

ORDER OF JUDGEMENT

For the reasons stated in the Memorandum Opinion this

day entered, the court has found that Defendants Thomas R.

and Herbert M. Larkins have violated Section 301(a) of the

Clean Water Act, 33 U.S.C. § 1311(a), and that the United

States is entitled to relief therefrom. Accordingly:

1. The defendants are permanently enjoined from making

modifications to the wetland sites adjacent Obion Creek in

Carlisle County, Kentucky without first securing an appro-

priate permit from the Army Corps of Engineers in accordance

with 33 U.S.C. § 1344.

Aa-1

ren

2. The defendants shall, within six months from date,

complete the restoration plan depicted on Plaintiffs Exhibit

30. The plan requires removal of the dike which forms the im-

poundment by pushing it into a surrounding ditch, removal of

culverts from the bank of Obion Creek, removal of most of the

levee extending from the southeastern side of the impound-

ment by pushing it into an existing parallel ditch, breaching

the levee which extends southwest from the impoundment

with 10-foot wide gaps every 100 feet, and placement of any

excess material in a non-wetland area. The defendants shall

consult with the plaintiff should they need further clarification

of the plan.

3. The defendants are fined the sum of forty thousand dol-

lars ($40,000.00), payable six months from date, provided,

however, that the penalty will be lifted if the defendants com-

plete the above ordered restoration plan before payment is

due.

IT IS SO ORDERED AND ADJUDGED

DATED 1-16-87

(s) Edward H. Johnstone, Chief Judge

United States District Court

APPENDIX B

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

No. 87-5300

UNITED STATES COURT OF APPEALS

FOR THE SIXTH COURT

United States of America,

Plaintiff-Appellee,

On Appeal from the

V. United States District

Court for the Western

Thomas R. Larkins and Herbert District of Kentucky.

M. Larkins,

Defendants-Appellants.

Decided and Filed July 22, 1988

Before: MERRITT, KENNEDY AND KRUPANSKY, Circuit

Judges.

The court delivered a PER CURIAM opinion. MERRITT,

Circuit Judge, (pp. 9-11) delivered a separate concurring

opinion.

PER CURIAM. Defendants-appellants Thomas R. Larkins

and Herbert M. Larkins (defendants) appealed from the dis-

trict court’s order permanently enjoining them from modifying

"wetlands"! adjacent to the Obion Creek in Carlisle County,

Kentucky, ordering them to restore wetlands they had earlier

destroyed, and imposing a penalty of $40.000.2 The record

disclosed the following facts.

This action arose out of alleged violations of Section

301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a),

which prohibits the discharge of pollutants, including fill dirt,

into navigable waters of the United States and the fresh water

wetlands adjacent thereto without first obtaining a permit

from the Secretary of the Army, Army Corps of Engineers. 33

1 The United States Army Corp of Engineers’ regulations defines wet-

lands as follows:

(b) The term "wetlands" means those areas that are inundated

or saturated by surface or ground water at a frequency and duration

sufficient to support, and that under normal circumstances do sup-

port, a prevalence of vegetation typically adapted for life in

saturated soil conditions. Wetlands generally include swamps,

marshes, bogs, and similiar areas.

33 C.F.R. 328.3(b) (formerly 33 C.F.R. 323.2(c)).

2 Under the district court’s order of March 16, 1987, the penalty will be

lifted if defendants complete the restoration within six months of this court’s

disposition of this appeal.

B-2

nen

U.S.C. § 1344(a). The defendants, brothers, acquired 550

acres of land in the flood plain of Obion Creek, a tributary of

the Mississippi River? in Carlisle County, Kentucky in 1976.

When they purchased the land, Thomas Larkins noted that 10-

12 acres were covered with knee deep water. After acquisition

of the land, the defendants dug drainage ditches, cut timber,

blasted beaver dams, and began filling low spots. In 1980, the

defendants began constructing dikes and levees on the land.

On February 1, 1982 the Corps notified the defendants that its

aerial inspection disclosed that the defendants had been dis-

charging materials into approximately 110 acres of the land

which the Corps believed were classified as wetlands subject to

the CWA. The defendants nevertheless completed the dikes

and levees. The levees formed an 18 acre impoundment or

3 Under the CWA, the term “navigable waters’ means waters of the

United States...." 33 U.S.C. § 1362(7). In regulations promulgated by the

Environmental Protection Agency and the Army Corps of Engineers, "waters

of the United States" are defined to include tributaries of navigable waters

and the wetlands adjacent to such tributaries. 33 C.F.R. § 328.3(a)(S) &

(7) (formerly 33 C.F.R. § 323.2(a)(5) & (7)). See also 40 C.F.R. § 2.3

(s)(S) & (7). Because the defendants did not argue that the CWA does not

permit the Army Corps of Engineers to exercise its regulatory jurisdiction

over wetlands ‘adjacent only to tributaries of navigable waters, this court

does not decide that issue.

B-3

pond, which collected much of the water that previously

saturated the land.

On February 10, 1984, the United States commenced the

present action in the United States District Court for the

Western District of Kentucky alleging CWA violations as a

result of the construction of the dikes and levees. At trial, the

government introduced a number of aerial photographs show-

ing standing water on the land where the impoundment was

eventually constructed and the land northeast thereof. The

defendants acknowledged that much of this land was covered

by standing water, but attributed that condition to beaver ac-

tivity. Photographs taken in 1972 and 1979 also revealed that

this area was forested and contained numerous sloughs and

depressions which collected standing water.

The government presented three expert witnesses to iden-

tify the vegetation depicted in the various aerial photographs.

These experts had been trained in identifying vegetation from

aerial photographs by its "signature," i.e., the color, shade, tint,

and texture of the vegetation. Martin Keller (Keller) testified

B-4

————

that the area was "an area of black willow, buttonbush and

several different species of herbaceous aquatic and semi-

aquatic plants." Keller further testified that a 1980

photograph was "typical of the many thousands of similar sites

that we have seen over the last 10 years of areas such as this,

and in every case these areas have been classified as wetlands."

Thomas Welborn (Welborn) of the U.S. Environmental

Protection Agency, testified that he had inspected the land in

1984 and discovered an undisturbed area of vegetation con-

sisting of spike rush, wild millet, and nut sedge, all vegetation

indicative of wetland conditions. Welborn testified that in a

1980 aerial photograph the signature of this area was the

same as the area where the impoundment is now located and

the land northeast thereof. Welborn therefore concluded that

the entire area was wetlands in 1980.

In 1980, a forested area was located due east of what is

now the impoundment which forest was subsequently cleared

by the defendants. Expert David Parsons (Parsons) examined

aerial photographs of this area and concluded that it was

B-5

"palustrum forested broadleaf deciduous seasonally inundated

wetlands.”

Another government expert witness, Charles Newling

(Newling), dug soil samples in 1984 in the northeast area and

concluded from the reduced amount of oxygen in the-soil that

in the past 2,000 years the soil had developed under wetlands

conditions. Parsons acknowledged that this oxygen test was

incapable of disclosing whether the area had been wetlands

for the last 200 years. Welborn took a soil sample east of the

impoundment and reached a similiar conclusion. An official

Carlisle County Soil Survey compiled by the U.S. Department

of Agriculture in 1937 indicated that the entire area north and

east of the impoundment was composed of Waverly and

Falaya soils which are "hydric" or wetland soil types.

With regard to the land southwest of the impoundment,

Newling testified that during a court ordered inspection of the

land in May, 1985, he observed water marks or silt marks on

the trees approximately 30 inches above ground level. Keller,

Welbom, and Parsons all conducted a vegetation survey of this

B-6

area and discovered that the predominant vegetation in this

area was that which thrived in saturated soil ("group 1 vegeta-

tion") and that which could tolerate saturated soil ("group 2

vegetation").4

Newling conducted soil tests on this area of land and con-

cluded that this soil also developed under wetlands conditions.

Newling also observed that water filled the sample holes while

he was taking samples in this area.

| The defendants introduced the testimony of two local

{ farmers who stated that flood waters on the property tended

to drain away quickly. On cross-examination, both witnesses

4 The Corps’ Memphis District Guidelines, developed by Keller, divided

vegetation into three groups:

Group 1. These species are considered to be the most water

tolerant woody species in the District. While the presence of

these species on a site does not insure the presence of wetlands,

these species are generally consistent as to the sites where they are

commonly found (swamps, sloughs and backwater flats).

j Group 2. This group includes those species that, while showing

varying degrees of adaptation to life in saturated soil conditions,

may also be commonly found on more mesic sites which would

not be considered wetlands.

Group 3. These species may on occasion be found in wetlands but

are not considered to be typically adapted for life in saturated soil

conditions (where these species are well established, wetlands are

not present).

B-7

agreed that, before being purchased by the defendants, the

land tended to be covered by standing water.

Following a bench trial, the district court found that the -

110 acres in dispute were indeed wetlands subject to regula-

tion under the CWA. The court further concluded that the

defendants’ construction activities were not entitled to the

"farm exemption" under 33 U.S.C. 1344(f) which exempts nor-

mal farming activity from the permit requirement so long as

no "discharge of dredged or fill material into the navigable

waters incidental to any activity [has] as its purpose bringing

an area of the navigable waters into a use to which it was not

previously subject...." 33 U.S.C. § 1344(f)(2). The court deter-

mined that the defendants "constructed the dikes and levees

for the purpose of bringing the wetlands adjacent to Obion

Creek under cultivation, a use to which the site was not pre-

viously subject," and that they were not therefore entitled to

the exemption. Their failure to obtain a permit before con-

structing the dikes and levees was, therefore, in violation of

the CWA. United States v. Larkins, 657 F. Supp. 76 (W.D. Ky.

B-8

1987). The defendants thereafter commenced this timely ap-

peal.

On appeal, defendants first asserted that the district court

erred in concluding that the land in question was "wetlands"

as defined in 33 C.F.R. § 328.3(b) prior to 1980 because the

court failed to examine the amount and frequency of the soil’s

saturation, i.e., its "hydrology," in making its determination.

This assignment of error is without merit. In United States v.

Riverside ein Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, 88

L. Ed. 2d 419 (1985), the Supreme Court rejected the notion

that 33 C.F.R. § 328.3(b) required that land be frequently in-

undated to be considered wetlands and concluded that the

regulation’s only requirement was that "the saturation is suffi-

cient to and does support wetland vegetation." 474 U.S. at

130, 160 S. Ct. at 461. The presence of vegetation that re-

quires saturated soil conditions for growth and reproduction

on land adjacent to a body of navigable water is sufficient to

bring the land under the regulation’s definition of "wetlands."

474 U.S. at 130-31, 106 S. Ct. at 461. See also United States v.

B-9

Cumberland Farms of Conn., Inc., 826 F. 2d 1151, 1154 (lst

Cir. 1987). ("([T]he Corps further extended its jurisdiction

over wetlands by eliminating the requirement that the wetland

be periodically inundated, requiring only that it be inundated

or saturated by surface or groundwater at a sufficient frequen-

cy to support vegetation adapted for life in saturated soils."),

cert. denied, 108 S. Ct. 1016, 98 L. Ed. 2d 981 (1988). Accord-

ingly, the district court properly found that the land adjacent

to the Obion Creek was "wetlands" under 33 C.F.R. § 328.3(b)

because it was sufficiently saturated to and did support wet-

land vegetation. Furthermore, given the evidence summarized

above, the finding that the land was sufficiently saturated to

and did support wetland vegetation was not clearly erroneous.

Fed. R. Civ. P. 52(a).

The defendants also argued that the district court er-

roneously concluded that they were not entitled to the "farm

exception" under 33 U.S.C. § 1344(f), which provides, in part:

(1) Except as provided in paragraph (2) of this

sub- section, the discharge of dredged or fill

material-

(A) from normal farming, silviculture,

B-10

and ranching activities such as plowing,

seeding, cultivating, minor drainage, harvesting

for the production of food, fiber, and forest pro-

ducts, or upland soil and water conservation

practices;

xk

is not prohibited by or otherwise subject to

regulation under this Section....

(2) Any discharge of dredged or fill material

into navigable waters incidental to any activity

having as its purpose bringing an area of the

navigable waters into a use to which it was not

previously subject, where the flow or circulation

of navigable waters may be impaired or the reach

of such waters be reduced, shall be required to

have a permit under this section.

(emphasis added) The district court concluded that because

the land had not previously been used as farmland, the defen-

dants were not entitled to the farm exception. Aerial photo-

graphs taken before the dikes and levees were constructed

showed pooled water and inundated areas and that much of

the land was covered by trees. There was no evidence that the

land in question had been cultivated for farming.

Defendants nevertheless asserted the land was used for

"silviculture," i.e., tree farming, and that when they cleared the

land, they were merely harvesting trees. Trees were not re-

B-11

planted, they asserted, because they merely made an economic

decision to plant more profitable crops, i.e., soybeans, after the

trees had been iia This argument is without merit. The

silviculture exception contained in 33 U.S.C. § 1344(f)(1)(A)

applies to the normal harvesting of timber, not to the activity

of clearing timber "to permanently change the area from wet-

lands into nonwetland agricultural tract for row crop cultiva-

tion.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F. 2d

897, 926 n. 46 (Sth Cir. 1983) (citations ommitted). See also

33 C.F.R. § 323.4(c) ("[A] permit will be required for...the

conversion of a wetland from silviculture to agricultural use

when there is a discharge of dredged or fill materials into

waters of the United States in conjunction with the construc-

tion of dikes, drainage ditches or other works or structures

used to effect such conversion."). Consequently, the district

court did not err in determining that the defendants were not

entitled to the farming exception.

This court has considered defendants’ remaining assign-

ments of error and concludes that they are without merit. Ac-

B-12

cordingly, the judgement of the district court is hereby AF-

FIRMED.S

MERRITT, Circuit Judge, concurring. I want to make an

issue clear that the landowner at oral argument expressly

declined to raise. I mention it simply to make it clear that we

do not reach the issue.

The Clean Water Act does not mention "wetlands," nor

does it use any language which explicitly includes "wetlands."

Instead, it defines the pollution jurisdiction of the Corps of En-

gineers as limited to "navigable waters," see § 404 of the Clean

Water Act, 33 U.S.C. § 1344.

In United States v. Riverside Bayview Homes, Inc., 106 S. Ct.

455 (1985), the Supreme Court defined the “navigable waters"

jurisdiction of the Corps to include "wetlands" adjacent to

"navigable" or "open waters," even though the wet area is not

caused by flooding or ground water flowing from adjacent

5 The defendants are free, of course, to move the district court to stay

its order requiring the restoration of wetlands pending their proper applica-

tion for a permit. Such a stay would, in the event that a permit was issued,

prevent the needless destruction of the significant work that went into trans-

forming the wetlands in question into productive farm land.

B-13

waters. 106 S. Ct. at 462. The Supreme Court arrived at this

expansive interpretation by pointing to the legislative history

of § 404, which indicates, in a general way, a desire to adopt

legislation for the "protection of aquatic ecosystems." Id.

The Supreme Court’s actual holding in Riverside Bayview

Homes is limited, however, by the important fact that the "wet-

lands" in question in that case were "located adjacent to a body

of navigable water, since the area characterized by saturated

soil conditions and wetland vegetation extended beyond the

boundary of respondent’s property to Black Creek, a navigable

waterway." Id. at 461 (emphasis added). In footnote 8 of its

opinion, the Supreme Court reserved the question of the juris-

diction of the Corps of Engineers under § 404 over "wetlands

that are not adjacent to bodies of open water." Id. at 461

("[w]Je do not express any opinion on that question").

Had the landowners at oral argument not said that they do

not raise the issue, this case would present the issue the

Supreme Court reserved in Riverside Bayview Homes. Obion

Creek, so far as we can tell from the record before us, is a

B-14

small nonnavigable creek or stream that empties into the Mis-

sissippi River many miles away. The land at issue in this case

is adjacent to Obion Creek. The Corps of Engineers, as plain-

tiff, had the burden in this case of proving that the land in

question is adjacent to a "body of open water,” the phrase used

by the Supreme Court in footnote 8 of Riverside Bayview

Homes.

If this is true, then the Corps has now expanded the defini-

tion of "navigable waters" to include any creek or stream or

moist area. It has arrived at the precise point predicted in our

earlier opinion in the Riverside Bayview Homes case, which the

Supreme Court reversed. There we said: "Under such a con-

struction [as proposed by the Corps of Engineers] low lying

backyards miles from a navigable waterway would become

wetlands." United States v. Riverside Bayview Homes, Inc., 729

F, 2d 391, 401 (6th Cir. 1984), rev’d, 106 S. Ct. 455 (1985).

The Corps’s definition has apparently detached and untied the

"wetlands" jurisdiction of the Corps from any concept of "open

waters" or navigable waters. A farmer’s low lying farmland or

B-15

a homeowner’s low lying backyard - adjacent to a small stream

or creek but many miles from any navigable waterway - has

apparently been converted into government property no

longer subject to control or improvement by the owner

without government permission. A statute that does not men-

tion "wetlands" has apparently been read to include simply

"moist land adjacent to a creek."

The framers of the Constitution were solicitous of the

rights of landowners - especially small farmers struggling for

survival - not to have land appropriated by the government.

They therefore adopted the provision of the Fifth Amendment

of the Constitution prohibiting the taking of private property

for public use without just compensation. Although the

Supreme Court has stated that "[a] requirement that a person

obtain a permit before engaging in a certain use of his or her

property does not itself ‘take’ the property in any sense," 106 S.

Ct. at 459, the injunction the Corps has been granted in this

case will force the Larkins to destroy the terracing work they

have done on their land and to restore the land to its original

B-16

nonagricultural use. Because farming appears to be the only

economically viable use of the land in question, see Agins v.

Tiburon, 447 U.S. 225, 260 (1980), it is arguable that the

Larkins could successfully assert a takings claim if they are not

allowed to keep the work they have already done. See River-

side Bayview Homes, 106 S. Ct. at 460 n.6 ("Because the Corps

has now denied respondent a permit to fill its property,

respondent may well have a ripe claim that taking has oc-

curred.") It is arguable that the injunction issued in this case

constitutes a taking without compensation. Since the land-

owner has not raised this issue and at oral argument expressly

declined to raise any question about whether Obion Creek is

navigable, or constitutes "open waters,” the Court’s opinion

should not be read to decide this issue.

B-17

APPENDIX C

No. 87-5300

UNITED STATES COURT OF APPEALS

FOR THE SIXTH COURT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ORDER

V.

THOMAS R. LARKINS AND

HERBERT M. LARKINS,

a ee ee

Defendants-Appellants.

Before: MERRITT, KENNEDY AND KRUPANSKY, Circuit

Judges

Upon consideration of the petition for rehearing filed by

the appellants, the court concludes that the issues raised there-

in were fully considered upon the original oral argument and

decision of this case.

It is therefore ORDERED that the petition for rehearing be

and it hereby is denied.

C-1

ENTERED BY ORDER OF THE COURT

(s) Leonard Green, Clerk

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