Appendix — United States v. Ward
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Gupreme Court, U.& -
FILED
APPENDIX JAN 2 1990
MICHAEL RODAK, JR., CLERK
———
~
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-394
UNITED STATES OF AMERICA,
Petitioner
—
L. O. WARD d/b/a
L. O. WARD OIL AND GAS OPERATIONS
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI FILED SEPTEMBER 7, 1979
CERTIORARI GRANTED NOVEMBER 5, 1979
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-394
UNITED STATES OF AMERICA,
Petitioner
aw) me
L. O. WARD d/b/a
L. O. WARD OIL AND GAS OPERATIONS
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
TABLE OF CONTENTS
Page
Complete Docket Entries of United States District Court
for the Western District of Oklahoma in Civil No. 76-0303.. 2
Complete Docket Entries of United States District Court
for the Western District of Oklahoma in Civil No. 76-0456.. 7
Complete Docket Entries of United States Court of Appeals
for the Tenth Circuit in No. 77-1952 ......... 11
Spill Report Form, Environmental Protection Agency (April
Cee cecdansases nemnence cence 17
Letter to Lou Ward from James J. Doyle, Director, Enforce-
ment Division, Environmental Protection Agency (May
Nee ss sadecheceanneemecereee 19
Attachment A to the letter of May 13, 1975, signed by L.O.
Ward and received by Environmental Protection Agency.. 21
Letter to Commander J. D. Webb, Second U.S. Coast Guard,
District, from Harless R. Benthul, Chief, Legal Branch,
Enforcement Division, Environmental Protection Agency,
a oe rr ee ee 24
Letter to Jones & Gungoll from R. A. Ratti, Chief Counsel,
United States Coast Guard (February 11, 1976) ........... 26
ii TABLE OF CONTENTS
Page
og es, eS eS ER. |, : Seer canner vee 29
Final Judgment (September 6, 1977) _...................00002000000000s--- 34
Excerpts from Transcript of Proceedings of May 9, 1977.... 41
United States Coast Guard Commandant Instruction
CR) Rees sical tance dk ata teamcokeeell lacuaceadanebtelanaaemeanis 38
Order of the Supreme Court Granting the Petition for a
Writ of Certiorari (November 5, 1979) ................... ee 62
1
CIV-76-0303-E
WARD, L. O., PLAINTIFF
COLEMAN, WILLIAM J., JR., individually and as Secretary
of Transportation for the United States of America;
TRAIN, RUSSELL E., individually and as Administrator of
the Environmental Protection Agency of the United
States of America, and
SILAR, ADMIRAL, OWEN W., individually and as Com-
mandant United States Coast Guard, United States
of America, DEFENDANTS
Consolidated W/76-456 8-26-76
CAUSE
32 USC 1821(n); 28 USC 1831, 2201-02, 1833, 1332,
1355—Temp. & perm. Injs. restraining enforcement of
statutes relating to oil pollution of inland water; and
Declaratory Judg. re navigability of “Boggy Creek”
in this Dist.
FOR PLAINTIFF
Stephen Jones & James H. Gungoll, P.O. Box 3339,
Enid, Ok 73701 (405) 233-4321
Harold B. Scoggins, Jr., Independent Petroleum Assn.
of America (Amicus Curiae)
FOR DEFENDANTS
David L. Russell, USA, Roland Campbell, III, & O. B.
Johnston, III, AUSA, 4434 U.S. Cthse, OC, 231-5281
and
Bruce J. Chasan, Atty, Dept of Justice, Wash, D.C.
20530 (202) 739-2793
Earl Salo, Atty, Dept of Justice, Wash, DC 20530
(202) 739-2738
2
DOCKET ENTRIES
DATE PROCEEDINGS
4-13-76 Filed Complaint
4-13-76 Filed prae for & iss’d summons
4-13-76 Filed plf’s Mtn for 3 Judge Ct—ws
4-13-76 Filed plf’s Brief in Sup of Mtn—ws
4-15-76 Filed Order directing dfts to respond to plf’s Mtn
for 3 Judge Ct w/brief, w/i 7 days herefrom in the event
they or either of them desire to contest said mtn (Eu-
banks) ws
4-23-76 Filed Dfts’ Oppo to the Mtn to Convene a 3-Judge
Ct—ws
4-27-76 Filed Dfts’ Mtn for Addl Time to Respond to Plf’s
Mtn for 3 Judge Ct. w/Order grntg a ext of 5 days to
4-27-76 to file its Response (Eubanks) ws
4-27-76 Filed Order that the plf’s mtn for an order of this
ct req’g the Chief Judge of the Circuit to convene a 3-
judge district ct to hear this matter is conditionally
denied (Eubanks) ws
5-18-76 Filed USM’s Ret re Summons: (4)
Served U.S. Attorney General 4-14-76, 2 cert copies
mailed to U.S. Atty Gen 4-13-76
Served William Coleman, Secretary of Transportation
4-22-76 by copy w/Emma Lewis
Served Owen W. Silare, Commandant U.S. Coast Guard
by copy w/J. Collom 4-22-76
Served Russell Train, Adm Environmental Protective
Agency by copy w/Georgia Prapas 5-5-76
6-7-76 Filed plf’s Brief to Sup Mtn to Reconsider Order
Temp Denying Mtn for 3 Judge Ct—ws
6-8-76 Filed plf’s Mtn to Reconsider Order Temp Denying
Mtn for 3 Judge Ct—ws
DATE PROCEEDINGS
6-8-76 Ent Order grntg dfts 15 days to respond to plf’s Mtn
to Reconsider Order Temp Denying Mtn for 3 J udge Ct
(Eubanks) zme ws
6-9-76 Filed Dfts’ Mtn to Dism or, Alt, to Consolidate W/
CIV-76-0456-D w/Memo of Law attach—ws
6-10-76 Ent Order directing plf to respond to dfts’ Mtn to
Dism or, Alt, to Consolidate w/ CIV-76-0456-D w/sup
brief, w/i 10 days hereof (Eubanks) zmec ws
6-24-76 Filed Dfts’ Response to Mtn to Reconsider Order
Temp Denying Mtn for 3 Judge Ct—ws
6-25-76 Filed Pif’s Ans to Mtn to Dism or Alt to Consolidate
W/CIV-76-0456-D—ws
7-1-76 Filed Plf’s Reply to Dfts’ Response to Plf’s Mtn to
Reconsider Order Temp Denying Mtn for 3 J udge Ct—ws
8-18-76 Filed Mr. Chason’s Itr to Ct re outstanding mtns—
ws
8-20-76 Filed Mr. Chason’s ltr to Ct re outstanding mtns
& trans. copy of CCofA’s opinion—ws
8-25-76 Filed Mr. Jones’ Itr to Ct, i.e., response to Mr. Chas-
an’s foregoing ltrs—ws
8-26-76 Filed Memo Opinion & Order; that Plf’s mtn for
reconsideration of this ct’s order conditionally denying
the mtn for a 3 judge ct is grntd & the mtn to convene
a 3 judge ct is unconditionally denied; dft’s mtn to dism
is denied; the alt mtn to consolidate this case w/CIV-
76-456 is grntd; answer in 76-456 to be filed w/i 20 days
hereof (Eubanks) ws
10-4-76 PRETRIAL, November 1, 1976, 10:00 a.m. (Eu-
banks)
11-1-76 Filed pltf’s Mtn for Judg on the Pldgs &/or for
SJ—ws
11-1-76 Filed plif’s Brief in Sup of Mtn—ws
DATE PROCEEDINGS
11-1-76 Ent PT; govt to file brief w/i 20 days to answer
mtn for SJ; to be on the Enid jury dkt; both sides agree
we will have a trial de novo; Ward may reply 7 days
after Govt responds to its mtn for SJ (Eubanks) zmc
11-22-76 Filed Dft US’s Memo in Oppo to Mtn for Judg on
the Pldgs &/or for SJ—ws
11-24-76 Filed Dft USA’s Interrogs—w/s
12-7-76 Filed plf Ward’s Reply Brief to Gov’ts Brief in
Opposition to Ward’s Mtn for Judgm on the Pleadings
&/or S. J.—w/s
12-13-76 Filed Independent Petroleum Association of Amer-
ica’s Mtn for Leave of Ct to file Brief Amicus Curiae—
w/s
12-13-76 Filed Earl Salo’s ltr to Mr. Hawks enclosing a
copy of a Ct’s decision dealing w/the “sheen test’’, re-
questing it be brought to the ct’s attention—w/s
12-22-76 Filed Memo Opinion & Order—that dfts’ mtn for
judgm on the pleadings or for s. j. is denied (Eubanks)
w/s-zmc
1-21-77 Filed Plf’s Answers to Interrogs propounded by the
United States—ws
4-1-77 JURY DOCKET: MONDAY, MAY 9, 1977—9:30
A.M.—EUBANKS
5-3-77 Filed 3 praes for & iss’d subps on behalf of plf for:
Ernie Thomas, Jay Nay, Ray Pickle, Gary Sober, Curley
Corwin, Bill Fisher & Rod Ylitalo
5-4-77 Filed prae for & iss’] 1 subp in blank on behalf of the
dfts
5-9-77 Filed Pretrial Order (Eubanks) ws
5-9-77 Filed Govt’s PT Memo
5-9-77 Ent Jury Trial (Eubanks) zmc
DATE PROCEEDINGS
5-10-77 Filed L.O. Ward’s Req for Instr w/Judge’s Rigs
thereon (Eubanks) ws
5-10-77 Filed Instructions to the Jury (Eubanks)
5-10-77 Filed Note from Jury w/Judge’s Answer thereon
(Eubanks)
5-10-77 Filed Jury’s Interrog finding as follows: that oil did
flow in a visible quantity from the “draw” on the L.O.
Ward lease into Boggy Creek /s/ Gary W. Chapman,
Foreman
5-10-77 Ent Further Jury Trial; plf to prepare order; ct.
reduces the amt of penalty to $250.00; ensl for dft to
prepare order in 76-303 (Eubanks) zmec
5-13-77 Filed USM’s Ret re subps (8)
5-18-77 Filed Stephen Jones’ Itr to ct req’g a hrg date—ws
5-20-77 NONJURY: 6-13-77, 9:30 am (Eubanks)
6-7-77 Ent Order striking NJ of 6-23-77, to be reset on the
next Civ NJ Dkt (Eubanks) zme ws
8-2-77 NONJURY: 9-6-77, 9:30 am (Eubanks)
8-19-77 Filed plf’s Response to the Gov’t Mtn to Strike
w/Memo to Sup Response—ws
8-22-77 Ent Order that the Mtn to Strike by USA is o/r
& denied; the cases will remain on the dkt for the pur-
pose of getting judgs settled in these cases (Eubanks)
zmc ws
8-24-77 Filed Ct’s ltr transmitting a portion of the Ct Re
porter’s transcript of what transpired at Enid last
spring, to all cnsl of Record (Eubanks) ws
8-30-77 Filed Stephen Jones’ Itr to Ct dated 8-26-77—ws
8-30-77 Filed Stephen Jones’ ltr to Ct dated 8-26-77, stated
as 2nd ltr—ws
6
PROCEEDINGS
DATE |
8-30-77 Ent Order that such evid as the ptys desire to ‘n-
troduce re the constitutionality of 40 CFR 110.3(b), as
enumerated in parag. 5C of the PTA Order herein, will be
heard on 9-6-77, 9:30 am (Eubanks) zme ws
9-6-77 Ent Evid Hrg; ptys appear by cnsl, make opening
stmts; plf Ward presents evid w/test of witnesses, exhs
admitted, plf rests; closing args; ct finds in favor of govt
who is to prepare JE in ea case today (Eubanks) zmc
9-6-77 Filed plf’s Brief in Sup of the Invalidity of 40 CFR
§ 110.3(b) ws
9-6-77 Filed AND ENTERED Final Judgment—THAT dfts
L.O. Ward and L.O. Ward Oil and Gas Operations are
jointly & severally liable to the US for a civil penalty
of $250. (Eubanks) (CCB #122) (Clerk) (Copies to
parties—zmc)
10-19-77 Filed Notice of Appeal of L. O. Ward, plf, from
final jdgmt entered Sept. 6, 1977 (record due in CCofA
11-28-77)
10-19-77 Filed Clk’s ltr re service of notice of appeal, w/copy
Itr & notice of appeal to counsel & CCofA and copy d.s.
to CCofA
10-19-77 Filed plf’s Designation of Record—w/s
7
CIV-76-0456-E
UNITED STATES OF AMERICA, PLAINTIFF
Warp, L. O. and L. O. WARD OIL AND GAS OPERATIONS,
DEFENDANTS
Consolidated W/76-303 8-26-76
CAUSE
33 USC 1321(n) and 28 USC 1345—Action to recover
unpaid civil penalty assessed against defts.
FOR PLAINTIFFS
David L. Russell, USA & AUSA, 4434 U.S. Cthse,
OC, 231-5281
and
Bruce J. Chasan, Atty, Dept of Justice, Wash, DC
20530 (202) 739-2793
Earl Salo, Atty, Dept of Justice, Wash, DC 20530
(202) 739-2738
Independent Petroleum Assoc. of America (Amicus
Curiae) Harold B. Scoggins, Jr., Atty
FOR DEFENDANTS
Stephen Jones, P.O. Box 3339, Enid, OK 73701
DATE PROCEEDINGS
6-4-76 Filed Complaint
6-4-76 Filed prae for & iss’d summons
6-21-76 Filed USM’s Ret re Summons: (2)
Served L. O. Ward 6-16-76
Served L.O. Ward Oil and Gas Operations by serving
L.O. Ward 6-16-76
6-23-76 Filed dfts’ Mtn for Enlargement of Time to Answer
Compl—ws
8
DATE
PROCEEDINGS >
7-1-76 Filed dft Ward’s Mtn to Enlarge Time in Which to
Answer—ws
7-6-76 Ent Order grntg dft L.O. Ward ext of time of 45 days
from 7-1-76 to answer to otherwise plead (Daugherty)
ve ws
8-23-76 Ent Order transferring case to Judge Enbanks
(Daugherty) ve ws
8-26-76 Filed copy of Memo Opinion & Order filed in 76-303
in which Ct directs that answer be filed w/i 20 days here-
of & this case is consolidated w/76-303 (Eubanks) ws
9-16-76 Filed Mr. Jones ltr to Ct requesting leave of ct to
file answer one week late—w/s
9-16-76 Ent Order—for good cause shown, the defts Ware
are granted 7 days from & after 9-15-76, w/in which
to file their answer herein (Eubanks) zmc
10-4-76 PRETRIAL, November 1, 1976, 10:00 a.m. (Eu-
banks)
9-24-76 Filed dfts’ Answer—ws
11-1-76 Filed dfts’ Mtn for Judg on the Pldgs &/or for
SJ—ws
11-1-76 Filed dfts’ Brief in Sup of Mtn—ws
11-1-76 Ent PT; govt to file brief w/i 20 days to answer
mtn for SJ; to be on the Enid jury dkt; both sides agree
we will have a trial de novo; Ward may reply 7 days after
Govt responds to its mtn for SJ (Eubanks) zmc
11-22-76 Filed plft’s Mmoe in Oppo to Mtn for Judg on the
Pldgs &/or for SJ—ws
11-24-76 Filed pif’s Interrogs—w/s
12-7-76 Filed Plf Ward’s Reply Brief to Government’s Brief
in Opposition to Ward’s Mtn for Judgm on the Pleadings
&/orS. J.
9
DATE PROCEEDINGS
12-13-76 Filed Independent Petro. Assoc of Amer.’s mtn for
lve of ct. to file brief amicus curiae
12-13-76 Filed Earl Salo’s ltr to Mr. Hawks enclosing a
copy of a Ct’s decision dealing with the “sheen test”,
requesting that it be brought to the cts’ attention. ws
12-22-76 Filed Memo Opinion & Order—that dfts’ mtn for
judgm on the pleadings or for s.j. is denied (Eubanks)
w/s—zmc
1-21-77 Filed dfts’ answers to interrogs w/s
4-1-77 JURY DOCKET: MONDAY, MAY 9, 1977—9:30
A.M.—EUBANKS
5-3-77 Filed 3 praes for & iss’d subps on behalf of L. O.
Ward, for: Ernie Thomas, Jim Nay, Ray Pickle, Gary
Sober, Curley Corwin, Bill Fisher, Rod Ylitalo
5-4-77 Filed prae for & iss’d 1 subp in blank on behalf of
the plf
5-9-77 Filed Pretrial Order (Eubanks) ws
5-9-77 Filed Govt’s PT Memo
5-9-77 Ent Jury Trial (Eubanks) zmc
5-10-77 Filed L.O. Ward’s Req for Instr w/Judge’s Rigs
thereon (Eubanks) ws
5-10-77 Filed Instructions to the Jury (Eubanks)
5-10-77 Filed Note from Jury w/Judge’s Answer thereon
(Eubanks)
5-10-77 Filed Jury’s Interrog findings that oil did flow in a
visible quantity from the “draw” on the L.O. Ward
lease into Boggy Creek /s/Gary W. Chapman, Foreman
5-10-77 Ent Further Jury Trial; plt to prepare order; ct
reduces the amt of penalty to $250.00 cnsl for dft to
prepare order in 76-303 (Eubanks) zmc
5-13-77 Filed USM’s Ret re Subps (8)
5-18-77 Filed Stephen Jones’ Itr to Ct req’g a hrg date—ws
10
DATE PROCEEDINGS
5-20-77 NONJURY: 6-13-77, 9:30 am (Eubanks)
6-7-77 Ent Order striking NJ of 6-13-77, to be reset on the
next Civ NJ Dkt (Eubanks) zmc ws
8-2-77 NONJURY: 9-6-77, 9:30 am (Eubanks)
8-16-77 Filed USA’s Mtn to Strike w/Brief in Sup—ws
8-22-77 Ent Order that the Mtn to Strike by USA is 0/r
& denied ; the cases will remain on the dkt for the purpose
of getting judgs settled in these cases (Eubanks) zmc
ws
8-24-77 Filed Ct’s ltr transmitting copy of Ct Reporter’s
portion of transcript of what transpired at Enid last
spring (Eubanks) ws
8-30-77 Ent Order that such evid as the ptys desire to in-
troduce re the constitutionality of 40 CFR 110.3(b), as
enumerated in parag. 5C of the PT Order herein, will
be heard on 9-6-77, 9:30 am (Eubanks) zmc ws
9-6-77 Ent Evid Hrg; ptys appear by cnsl, make opening
stmts; plf Ward presents evid w/ test of witnesses, exhs
admitted, plf rests; closing args; ct finds in favor of
govt who is to prepare JE in ea case today (Eubanks).
zmc
9-6-77 Filed dfts’ Brief in Sup of the Invalidity of 40 CFR
§ 110.3(b) ws
9-6-77 Filed AND ENTERED Final Judgment—THAT dfts
L. O. Ward and L.O. Ward Oil and Gas Operations are
jointly & severally liable to the US for a civil penalty
of $250. (Eubanks) (COB +122) (Clerk) (Copies to
parties—zmc)
10-19-77 Filed Notice of Appeal of dfts from final jdgmt
entered Sept 6, 1977 (record due in CCofA 11-28-77)
10-19-77 Filed Clk’s ltr re service of notice of appeal, w/copy
Itr & notice of appeal to counsel & CCofA and copy 4d.s.
to CCofA
10-19-77 Filed dfts’ Designation of Record—w/s
11
GENERAL DOCKET
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Civil Case No. 77-1952
Appeal from the United States District Court
For the Western District of Oklahoma
598 F.2d 1187 (1979)
L. O. WARD, PLAINTIFF-APPELLANT
Vs.
WILLIAM G. COLEMAN, JR., individually and as Secre-
tary of Transportation for the United States of Amer-
_ lea, RUSSELL E. TRAIN, individually and as Adminis-
trator of the Environmental Protection Agency of the
United States of America, and ADMIRAL OWEN W.
SILAR, individually and as Commandant United States
Coast Guard, United States of America, DEFENDANTS-
APPELLEES
and
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
Vs.
L. O. WARD and L. O. WarD OIL and GAS OPERATIONS,
DEFENDANTS-APPELLANTS
OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION,
AMICUS CURIAE
INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA,
AMICUS CURIAE
ENERGY CONSUMERS AND PRODUCERS ASSOCIATION, INC.,
AMICUS CURIAE
MOUNTAIN STATES LEGAL FOUNDATION, INDEPENDENT
PETROLEUM ASSOCIATION OF THE MOUNTAIN STATES,
and RocKy MOUNTAIN OIL and GAs ASSOCIATION
12
ATTORNEYS FOR APPELLANT
(a) Stephen Jones (Ward)
Jones & Gungoll
P.O. Box 3339
Enid, Oklahoma 73701
(405) 233-4321
For Independent Petroleum Association
of America
(a) Harold B. Scoggins, Jr.
1101 16th Street, N.W.
Washington, D.C. 20036
(202) 466-8240
ATTORNEYS FOR APPELLEE
For Okla. Independent Petroleum Assn.
as Amicus Curiae
(a) Terry R. Doverspike
W. Bland Williamson
Pray, Scott, Williamson & Marlar
2910 Fourth National Bldg.
Tulsa, Oklahoma 74119
(918) 583-1366
For Energy Consumers & Producers Assn.
Amicus
(a) Fred Gipson
P.O. Box 1641
Seminole, Oklahoma 74368
(405) 382-5555
For Mountain States Legal Foundation, et al:
Kea Bardeen
(a) James G. Watt
1845 Sherman Street
Denver, Colorado 80028
(303) 861-0244
13
DATE PROCEEDINGS
11/22/77 Cause docketed; docketing statement, orig. & 9
ce.
11/30/77 Copy of Dist. Ct. order extending time to file
record to 12/28/77.
12/3/77 Appearance—Appellant (Ward)—Jones
12/23/77 Record on apeal, Vol. I, II (pleadings) (686 pp.),
Vols. III, IV (exhibit) (17 pp.), Vols. V, VI (transcript)
(208 pp.), orig. (911 pp.)
12/19/77 Appearance—Appellee, Moorman, Strass, McCord
12/29/77 Order—Assigned to Calendar B—Appellant’s brief
due 1/19/78—Seth
1/16/78 Appellant’s (Ward) motion for ext to 2/16/78 to
file brief—Orig. only, Order: Appellant GRANTED
to 2/16/78 to file brief—HKP—cons] ntfd.
4/4/78 Mot of Okla. Independent Petroleum Assn. for leave
to file brief amicus curiae w/consent, O & 13 cc, c/s
(replaced by mot filed 4/5/78)
Brief of Okla. Independent Petroleum Assn. as Amicus
Curiae, O & 13 cc, c/s (RECEIVED) (replaced by brief
attached to mot filed 4/5/78)
4/5/78 Mot of Okla. Independent Petroleum Assn. for leave
to file brief amicus curiae w/consent, w/brief attached,
O & 13 ce, c/s, replacing mot filed 4/4/78 w/brief
attached (to panel) BRIEF FILED 4/17/78
Appearance—Amicus Curiae—W. Bland Williamson,
Terry R. Doverspike
4/14/78 Appellee (U.S.A.) mot for ext to 5/1/78 to file
brief, O & 8 cc, c/s
Order—appellee (U.S.A.) GRANTED to 5/1/78 to file
brief—HKP—cnsl notf
14
DATE PROCEEDINGS
4/17/78 Order—motion for leave to file a brief amicus curiae
by Oklahoma Independent Petroleum Association is
granted; brief ordered filed as of 4/17/78—Lewis, Mc-
Williams
Amicus’ brief O & 25 cc, c/s (Energy Consumers & Pro-
ducers Assn)
5/1/78 Appellee’s (U.S.A.) mot for ext to 5/11/78 to file
brief, O & 3 cc, c/s
Mot of Independent Petroleum Assn. for leave to file
brief amicus curiae & for ext to 5/1/78 to file brief,
O & 4 cc, c/s (to panel 5/3/78)
Brief of Independent Petroleum Assn. as amicus curiae,
O&4cc
5/2/78 Order—appellee (U.S.A.) GRANTED to 5/11/78
to file brief—HKP—cns] note
5/8/78 Order: Upon consideration, Independent Petroleum
Association of America is GRANTED leave to file a brief
amicus curiae. Brief is ordered filed as of May 1, 1978.
Appellees’ consent to filing brief amicus curiae by Energy.
Consumers & Producers Assn, O only
5/15/78 Appellee’s (U.S.A.) mot for ext to 5/22/78 to file
brief, O & 3 cc, c/s
Order—appellee GRANTED to 5/22/78 to file brief. No
further extension will be granted—RLH—cns! notf’d
5/17/78 Appearance—Amicus Energy Consumers—Fred
Gipson
5/30/78 Appellee’s (USA) brief, O & 9 cc, c/s
6/2/78 Appellant’s mot for ext to 6/30/78 to file reply brief,
0 &38cc
Order—appellant GRANTED to 6/30/78 to file reply
brief—RLH—<cns]l
6/8/78 Appellee’s correction to brief, orig. & 9 cc.
15
DATE PROCEEDINGS
6/12/78 Appearance—Independent Petroleum Association—
Scoggins
6/23/78 Motion for leave to appear and file brief of amici
curiae and leave to participate in oral argument, orig.
& 9 cc, c/s (to
Amici Curiae brief, orig. & 9 cc., c/s (to panel 6/27/78)
6/28/78 Appellant’s mot for ext to 7/15/78 to file reply
brief, O & 4 cc
Order—appellant granted to 7/15/78 to file reply brief
—RLH—cnsl
7/6/78 Order—Mountain States Legal Foundation, Inde-
pendent Petroleum Association of the Mount States,
Rocky Mountain Oil and Gas Association granted leave
to file amici curiae brief; brief to be filed at 6/23/78;
motion for leave to participate in oral argument denied
without prejudice to right to renew motion when case is
set for oral argument.—Lewis, McWilliams
7/19/78 Appellant’s letter mot to file reply brief out of time,
O only
Appellant’s reply brief, O & 14 cc, c/s
Order—appellant granted leave to file reply brief out of
time
2/16/79 HRG. SET Hearing set for March, 1979, Term—
Denver, Colorado
2/27/79 M.PTP.ARG.F Amici’s motion participate in oral
argument file copies, c/s.
M.ADD.TM.ARG.F Amici’s motion for additional time
for oral argument filed, 4 copies, c/s.
2/28/79 M.PTP.ARG.SUB Amici’s motion to participate in
oral argument submitted
M.ADD.TM.ARG.SUBM Amici’s motion for additional
time for argument submitted (to panel).
16
DATE PROCEEDINGS |
3/5/79 M.ADD.TM.ARG.DISP. Granted Amici’s motion for
additional time for argument disposed of by Holloway
3/8/79 ADD.AUTH.F Appellee’s additional authorities filed,
10 copies,
ADD.AUTH.SUBM Appellee’s additional authorities sub-
mitted (to panel).
3/14/79 CS.ARG.SUBM—case argued and submitted—
Holloway, Barrett, McKay
5/10/79 OPN.F—published signed opinion filed by Hollo-
way, Barrett, McKay. Writing judge is Barrett.
JM.DISP—Judgment reversed and remanded by pub-
lished signed opinion of Holloway, Barrett, McKay
5/24/79 SCOST. ISS. Issued statement of costs in favor of
appellants against appellees in the amount of $65.00
6/1/79 MDT.ISS—Mandate issued to District Court
6-4-79 ROA.RMK. Letter re record sent to Judge Barrett
6-8-79 MDT.RCPT.F. Mandate receipt filed.
7/3/79 ROA.RTN.DC. Record on appeal returned to District
Court (Vol. I-VI)
7-10-79 ROA.RCPT.F. Record on appeal receipt filed
9/13/79 P.WRIT.CERT.F—appellee’s petition for writ of
certiorari filed 9/7/79—Supreme Court No. 79-394
11/8/79 P.WRIT.CERT.DISP—petition for writ of certio-
rari granted order of Supreme Court 11/5/79
17
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19
CERTIFIED MAIL: RETURN RECEIPT REQUESTED
(819436)
Lou Ward
Box 1187
Enid, Oklahoma 73701
e
Gentlemen:
The Environmental Protection Agency has received a
report that your company was involved in the discharge
of a harmful quantity of oil, estimated to be 840 gallons
into waters of the United States, to wit: An unnamed
tributary of Boggy Creek near Enid, Garfield County,
Oklahoma on or about March 23, 1975 from a facility
which you own (or operate).
The 1972 Amendments to the Federal Water Pollution
Control Act (hereinafter, the “Act’’) prohibits the dis-
charge of oil or a hazardous substance into or upon the
waters of the United States in harmful quantities [33
U.S.C. 1821(b) (3)]. Any owner or operator of a vessel
or facility from which oil or a hazardous substance is
discharged shall be assessed a civil penalty by the Coast
Guard of not more than $5,000 [33 U.S.C. 1321 (b) (6) }.
The definition of harmful quantities of oil appears in
Title 40, Code of Federal Regulations, Section 110.3.
In order for this Agency to carry out its responsibilities
under the Act, you are required under authority of Sec-
tion 308 of the Act (33 U.S.C. Section 1318) to submit
a letter of explanation including the specific information
listed in Attachment A.
The letter of explanation must be submitted to: Mr.
Ralph Corley, 1600 Patterson, Suite 1100, Dallas, Texas
75201, within fourteen (14) days of receipt of this let-
ter. It must be signed by a duly authorized official of the
corporation or company. The information submitted will
be considered in evaluating whether the oil spill violated
Section 311. [Please note that your reply in no way
constitutes immediate notification of a spill to the ap-
propriate Federal agency, as required by Section 311
(b) (5).] Section 309 of the Act (33 U.S.C. Section
20
1319) provides civil and criminal penalties for failure to
submit information required under Section 308 and crimi-
nal penalties for knowingly making a false statement in
any submission under Section 308.
6AEEL:RCorley :x2142:WPC :sh: AEEL-11 :x3855:
5/13/75
6AEEL Benthul
[Illegible] 5/29/75
If you have any questions, please contact Ralph Corley,
Attorney, Legal Branch, Enforcement Division, at (214)
749-2142.
Sincerely yours,
Original Signed by
James J. Doyle
Director
Enforcement Division
Attachment
21
ATTACHMENT A
The following information is submitted concerning F7S-
1. Time and date of discharge: Time unknown, March
23, 1975.
2. Location of discharge, including:
A. Name of Municipality and State: Enid, Okla-
homa.
B. Name and address of industry or commercial
establishment at which the discharge oc-
curred: L. O. Ward, Operator, Blansit #2
Well SL/4 Section 17-22N-6W, Garfield
County, Oklahoma.
C. Distance from receiving waterway: Esti-
mated 100 yards.
D. Name of receiving waterway, or first named
waterway into which it flows: Boggie Creek.
. Type of material discharged: Oil.
. Quantity discharged: 20 bbl. or 840 gallons.
. Quantity of material which eventually reached the
receiving waterway, and date and time it was dis-
covered: Estimated 5-15 bbl. (Approximately 10-15
bbl. recovered.) Discovered PM March 24, 1975.
- Type of vessel or facility (Ship, Barge, Storage
Tank, Tank Truck, ete.) in which the oil was origi-
nally contained: Open earth working pit. (Pits
used during drilling operations. )
. Describe in detail what actually caused the discharge:
Oil had been produced during a short isolated test
from a second zone in the well. The test volume of
oil remained in the working pit for 90 days after the
completion crew had been released. Unusually high
rainfalls, accompanying extremely turbulent weather
filled the pits and caused overflow which floated down
10.
11.
12.
13.
22
to the run off tributary. Company personnel were
unaware, at the time, of pit filling due to the unac-
cessable location during the inclement weather.
Name and address of owner of facility causing the
discharge:
L. 0. Ward, Operator et al
Box 1187, Enid, Oklahoma 73701
Name and address of operator of facility causing the
discharge: Same as above.
Describe damage to the environment: Environment
affected was Native Grass. No damage to the vegeta-
tion or other environment. Vegetation is growing as
normal.
Described steps the above named owner or operator
took to clean up the spilled oil and dates and time
steps were taken: March 24. Upon discovery of the
spill, teams of men were immediately dispatched to
the spill area. Outside help was employed along with
company personnel. They employed barriers made
of wood and straw, plus tank trucks to pick up any
available free oil. The oil soaked straw and alfalfa
were transported from the area for separate contain-
ment. This activity lasted for three days. For sev-
eral days straw and alfalfa dams were replaced
daily to insure all oil being retrieved. Then a power
wash unit was employed to wash residue which ad-
hered to the grass and bruch. This fluid was also
picked up. It was later advised we burn any residue
debris. The clean operation was successful in full
restoration of the area.
Action by company to mitigate damage to the envi-
ronment: See 11. above.
Measures taken by your company to prevent future
spills: The pits were filled with a dozer. Straw and
absorbents are stored for emergency use. Dikes are
being used in facility to restrain migration.
23
14. Was water flowing into receiving waterway during
15.
16.
spill or clean-up?: Yes, Boggie Creek is a continuous
flowing body of water.
List the Federal and State Agencies to which the
owner or operator named in 8. and 9. above reported
this discharge:
Agency Location Official
EPA, Federal Agency _ Dallas, Texas David Curtis
Oklahoma Corp. Comm. Kingfisher, Lloyd Barrier
State of Oklahoma Oklahoma
City of Enid, Oklahoma Enid, Oklahoma Monty Montgomery
County Health Dept.
Garfield County,
Oklahoma (see attached letter)
List the names and addresses of persons you believe
have knowledge of the facts surrounding this in-
cident:
Curly Corwin Bill Fisher Rod Ylitalo
2135 Sundown Circle 1310 Gannon 138 Margaret Circle
Enid, Oklahoma Enid, Oklahoma Enid, Oklahoma
Submitting this report does not constitute an ac-
knowledgement of violation of any rules, regulations
or laws of the Environmental Protection Agency.
The undersigned believes the occurrence was unfor-
tunate, but that the quantity involved did not con-
stitute a hazardous material. The undersigned also
believes that the incident was handled prudently and
responsibly.
The above answers are true to the best of my knowl-
edge and belief.
Date of Signature: [illegible]
Signature of person completing this report
/s/ [L. O. Ward]
Case No.: F7S-652
24
[SEAL]
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION VI
1600 Patterson
Dallas, Texas 75201
[Received Aug. 15, 1975]
Commander J. D. Webb (MEP)
Second U.S. Coast Guard District
Federal Building
1520 Market Street
St. Louis, Missouri 63103
Re: Our File F75-652
Dear Commander Webb:
Transmitted herewith is evidence which documents vio-
lation of 33 USC 1321(b) (3) by L. O. Ward, Box 1187,
Enid, Oklahoma 73701. We request that a civil penalty
be assessed against L. O. Ward pursuant to 33 USC 1321
(b) (6).
The alleged violation resulted from an oil spill into
Boggie Creek, Garfield County, Oklahoma, on or about
March 28, 1975. Approximately 10 barrels of oil were
discharged into Boggie Creek. All information trans-
mitted herewith was submitted by discharger pursuant
to 33 USC 1318.
We recommend that a civil penalty in the range of
$500 to $1000 would be appropriate for this spill. Our
recommendation is based upon an evaluation of the
gravity of the violation, an assumption that a penalty
with the suggested range will not have a significant effect
upon L. O. Ward to continue in business, and upon our
judgment that such a penalty is appropriate considering
the size of the company.
Please keep this office advised of the progress of this
ease. If you need assistance or additional information,
25
please contact Mr. Ralph Corley at (214) 749-2142 in
Dallas, Texas.
Sincerely yours,
/s/ Harless R. Benthul
HARLESS R. BENTHUL
Chief, Legal Branch
Enforcement Division
Enclosure (s)
26
[SEAL]
DEPARTMENT OF TRANSPORTATION
UNITED STATES COAST GUARD
Mailing Address:
U.S. Coast Guard (G-LMI/81)
Washington, D.C. 20590
Phone: 202-426-1527
5830/5-2
11 Feb. 1976
[Ree’d Feb. 16]
Jones & Gungoll
Attention: Stephen Jones, Esq.
P.O. Box 3339
Enid, Cklahoma 73701
Gentlemen:
The Commander, 2nd Coast Guard District, St. Louis,
Missouri, has forwarded the file in Penalty Case No.
2P50770, including your appeal on behalf of Mr. L. O.
Ward, owner of the oil drilling facility involved. The
appeal is from the action of the District Commander in
assessing a penalty of $500.00 against the company un-
der the authority of section 1321(b) (6) of Title 33, U.S.
Code (section 311(b) (6) of the Federal Water Pollu-
tion Control Act) for violation of section 1321(b) (3)
which prohibits the discharge of oil in harmful quantities
into or upon the waters of the United States. The as-
sessment was based on the finding that a harmful quantity
of oil, estimated at 840 gallons was discharged from the
facility into Boggie Creek, Garfield County, Oklahoma,
on 23 March 1975. The discharge occurred when a oil
drilling facility overflowed during a heavy rainfall. Your
appeal is denied for the reasons stated below.
First, you contend that the statute upon which the pro-
ceeding is based and the requirement to submit a written
statement to report a discharge is unconstitutional.
27
You further argue that the penalty assessed is contrary
to the weight of the evidence and that the penalty is
excessive.
The constitutionality of various provisions of the Act is
not, of course, a matter which can be decided by the
Coast Guard.
It is the mandate of Congress as expressed in the Federal
Water Pollution Control Act that there shall be no dis-
charges of oil into or upon the waters of the United
States. The Act provides that a penalty of not more
than $5,000.00 shall be assessed against the owner or
operator of any vessel or facility from which oil is dis-
charged in harmful quantities. The statute requires that
the following factors be considered in determining the
amount of the penalty to be assessed: the appropriate-
ness of the penalty to the size of the business of the
owner or operator; the effect on the owner’s or operator’s
ability to continue in business; and the gravity of the
violation. It is not necessary to find intent or negligence,
as the law prohibits any discharge of a harmful quantity
of oil.
In all oil pollution incidents it is incumbent upon the
person in charge to immediately notify the Coast Guard
of such discharges. A failure to do so is a criminal act
subjecting such persons (which includes an individual,
firm, corporation, association or partnership), to a fine
of not more than $10,000.00 or imprisonment for not
more than one year, or both.
It is felt that there is sufficient evidence shown in the
record to warrant the penalty assessed in this case. The
entire record has been reviewed and the penalty assess-
ment is considered fair and reasonable.
To carry out the intent of the law it is the policy of the
Coast Guard to assess a pénalty at or near the maxi-
mum unless a lesser penalty is clearly justified. I have
reviewed the arguments raised in your appeal and find
that proper consideration has been given to the applicable
28
provisions of law in evaluating the facts in this case.
The assessed penalty of $500.00 is approved.
The penalty of $500.00 is due and must be paid within
30 days from the date of receipt of this letter. Payment
should be made by check or money order payable to the
U.S. Coast Guard and forwarded to the Commander, 2nd
Coast Guard District (dl), Federal Building, 1520 Mar-
ket Street, St. Louis, Missouri 63103. Failure to make
payment within the period prescribed will result in the
ease being forwarded by the District Commander to the
U.S. Attorney for appropriate action.
Sincerely,
/3/ R. A. Ratti
R. A. RATTI
RADM, U.S. Coast Guard
Chief Counsel
ee
29
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKALHOMA
[Filed May 9, 1977]
No. CIV-76-0303-E
L. O. WARD, PLAINTIFF
v8.
WILLIAM G. COLEMAN, JR., individually and as
Secretary of Transportation, et al., DEFENDANTS
No. CIV-76-0456-E
UNITED STATES OF AMERICA, PLAINTIFF
vs.
L. O. WARD and L. O. WARD
OIL and GAS OPERATIONS, DEFENDANTS
PRE TRIAL ORDER
As a result of the pre trial conference held herein,
where Plaintiff was represented by Stephen Jones and the
Defendant United States of America by Richard Camp-
bell, their attorneys of record, the following issues of
fact and law were framed, stipulations made, and other
matters considered and ordered as follows:
1. The contentions of the United States of America
are as follows:
A. On or about March 23, 1975, an estimated twenty
barrels (840 gallons) of oil and drilling mud overflowed
from an open earth pit at a drilling site owned and
operated by L. O. Ward near Boggy Creek, Garfield
County, Oklahoma. That a harmful quantity of oil and
drilling mud, approximately ten barrels, flowed from the
30
discharge site into Boggy Creek, Garfield County,
Oklahoma.
B. Boggy Creek is a navigable water of the United
States within the meaning of 33 U.S.C. § 1862(7).
C. That the aforesaid discharge was a violation of
33 U.S.C. § 1321 (b) (3).
D. That the United States Coast Guard through
Commander J. D. Webb assessed an appropriate and rea-
sonable fine against L. O. Ward in the nature of a
penalty and that said Commander Webb reviewed all of
the material in his file in order to consider the size of
Defendant’s business, the affect of the penalty on De-
fendant’s ability to continue in business and the gravity
of the violation.
E. L. O. Ward has not paid the $500.00 civil penalty
imposed by Commander J. D. Webb after due demand has
been made.
2. L.0O. Ward’s contentions are as follows:
A. That the provisions of 33 U.S.C. § 1818(a) (4)
(A) (ii), 88 U.S.C. § 1819(c) (1), 83 U.S.C. § 1821 (b)
(5) (6) and 40 C.F.R. §110.1(L) and 110.4(b) are un-
constitutional as being violative of the Fifth Amendment
of the United States Constitution.
B. Boggy Creek is not a navigable stream within the
meaning of the Act.
C. Acting pursuant to the above mentioned statutes,
L. O. Ward submitted to the Environmental Protection
Agency, and its agents, a written report of the alleged
oil spill. Said report being prepared and filed pursuant
to the provisions of 33 U.S.C. § 1818(a) (4) (A) (ii).
D. The only material furnished to the Coast Guard
and the only basis upon which the penalty was deter-
mined against Mr. Ward was the material that Ward had
previously submitted to the United States Environmental
Protection Agency as outlined above.
E. That the statutes and procedures relied upon by the
United States of America and the Defendants in case
number CIV-76-0303 are violative of the Fifth Amend-
ment to the Constitution of the United States.
F. That the spill was caused by an act of God or
other acts beyond the control of L. O. Ward and that no
31
penalty should be assessed against him on the grounds
that Ward is without fault in the premises.
G. That upon notice of the spill Ward undertook all
proper steps to remove oil from water, prevent it from
going to a navigable stream and otherwise safeguard the
surrounding environment.
3. Admitted facts:
A. The identification of the parties, the venue, juris-
diction, residence, and citizenship is admitted except that
William Coleman is no longer Secretary of Transportation
but that the position has been filled by the Honorable
Brock Adams.
B. L. O. Ward is engaged in a business operation as
an independent oil and gas producer with his place of
business at 1420 Lahoma Road, Enid, Oklahoma.
C. On or about March 23, 1975, a drilling facility
owned and operated by L. O. Ward sustained a dis-
charge of oil.
D. Thereafter, notification was made of the spill to
the United States Environmental Protection Agency by
L. O. Ward or his agents. On or about June 24, 1975,
Ward submitted to the Environmental Protection Agency
and its agents a written report of the alleged oil spill.
Said report was prepared as required by law.
EK. Thereafter, on August 15, 1975, agents of the De-
fendant Train, acting pursuant to law, notified J. D.
Webb, Commander, Second United States Coast Guard
District, in St. Louis Missouri, of the alleged violation
by Ward of 33 U.S.C. § 1821(b) (ec). The United States
Environmental Protection Agency, headed by the Defend-
ant Train, and acting pursuant to his directions, requested
of the Coast Guard that a civil penalty be assessed
against the Plaintiff L. O. Ward pursuant to 33 U.S.C.
§ 1821 (b) (6).
F. On December 19, 1975, Commander J. D. Webb act-
ing on behalf on the Commandant of the Coast Guard
assessed a penalty of $500.00 against L. O. Ward be-
— of a finding of a violation of 33 U.S.C. § 1821 (b)
G. Thereafter, L. O. Ward notified J. D. Webb of his
desire to appeal and the appeal was subsequently denied.
32
H. At all material times herein, L. O. Ward has as-
serted as a defense that the statute upon which the pro-
ceedings were based is unconstitutional, that the require-
ment that he submit a written statement to report any
violations was unconstitutional and that the penalty of
$500.00 was contrary to the rate of the evidence and the
imposition was unconstitutional.
I. L. O. Ward exhausted all administrative remedies
prior to the filing of this suit. |
4. Was the spill which occurred on March 23, 1975,
the result of negligence by L. O. Ward or his agents
and servants or was it caused by events beyond his con-
trol and/or an act of God.
B. Did a harmful quantity of the discharge reach
Boggy Creek, Oklahoma.
C. The amount of the fine to be imposed, if any.
5. Contested issues of fact and law to be determined
by the Court:
A. Boggy Creek is a tributary of Skeleton Creek which
is a tributary of the Cimarron River which is a tributary
of the Arkansas River.
B. Are the statutes and procedures set forth above
and relied upon by the United States of America and the
Defendants in CIV-76-0303 violative of the Constitution
of the United States of America. |
C. Are the provisions of 40 C.F.R. 110.3(b) which
provides in part that a discharge of oil which causes a
“film or sheen or discoloration of the surface of the
water” constitutes a harmful quantity, arbitrary, un-
fair, capricious, and contrary to the intent of the Con-
gress, and therefore, an unreasonable exercise of the dele-
gated power and inconsistent with 33 U.S.C. § 1321 (b)
(6) and in violation of the Constitution of the United
States of America.
6. The parties are directed to exchange witness lists
by May 2, 1977, and the same is to be part of the pre
trial order as though fully copies at length herein. The
parties are to furnish the Court requested instructions
and trial briefs by May 5, 1977. All discovery is to be
completed by May 5, 1977. This matter is ordered for
33
trial on the civil jury docket beginning May 9, 1977, at
9:30 A.M. in the United States Courthouse at Enid,
Oklahoma, 115 West Broadway.
7. All exhibits to be introduced are to be marked in
advance and to be available for inspection by opposing
counsel at least six days before the trial date: to wit,
May 3, 1977. The exhibits of all parties thus marked
and produced for inspection may be received in evidence
if otherwise admissible without further authentication,
it being admitted that each is what it purports to be.
Should either party object to stipulating to authenticity
and identification of the exhibit, it will notify the other
party at least five days before trial in writing: to wit,
May 4, 1977.
The foregoing pre trial order has been approved by
both parties hereto, as evidenced by the signatures of
their counsel hereon, and this order is hereby entered, as
a result of which the pleadings passed out of the case
and the issues as joined herein be the issue to be tried,
and this pre trial order shall not be amended, except
by order of the Court pursuant to agreement of the
parties or to prevent manifest injustice.
Dated in Oklahoma City, this 6 day of May 1977.
/s/ (Tllegible]
United States District Judge
Approved as to form:
/s/ Stephen Jones
STEPHEN JONES
Attorney for Plaintiff
/s/ Richard Campbeli
RICHARD CAMPBELL
Attorney for Defendant
34
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
Civil No. 76-0456-E
Consolidated
[Filed Sep. 6, 1977]
L. O. WARD, PLAINTIFF
—vs.—
WILLIAM G. COLEMAN, JR., individually and as Secretary
of Transportation for the United States of America,
RUSSELL E. TRAIN, individually and as Administrator
of the Environmental Protection Agency of the United
States of America, and ADMIRAL OWEN W. SILAR, in-
dividually and as Commandant United States Coast
Guard, United States of America, DEFENDANTS
Civil No. 76-0303-E
UNITED STATES OF AMERICA, PLAINTIFF
—vs.—
L. O. WARD & L. O. WARD OIL AND GAS OPERATIONS,
DEFENDANTS
FINAL JUDGMENT
The United States seeks to collect a $500 penalty which
has been administratively assessed against L. O. Ward
by the United States Coast Guard pursuant to 33 U.S.C.
35
§ 1321(b) (6) for an alleged discharge of oil into navi-
gable waters. The Court has already found that the
penalty imposed was civil in nature, that the self-report-
ing provision of 33 U.S.C. § 13821(b) (5) does not violate
the Fifth Amendment’s protection against self-incrimina-
tion, that the imposition of a penalty after notice and
hearing withstands constitutional attack, and that the
definition of “harmful quantities” of oil at 40 C.F.R.
§ 110.3 is a valid regulation under 33 U.S.C. § 1321(b)
(4). Ward v. Coleman, 423 F.Supp. 1352. The case was
tried to a jury on May 10, 1977.
The parties had stipulated that a facility owned and
operated by Ward sustained a discharge of oil on or
about March 23, 1975. At trial, the following additional
facts were established by undisputed testimony. The dis-
charge resulted when the entire contents of a shale pit
connected to Ward’s drilling operations drained out.
Some of the oil reached a small draw near the shale pit.
Some of the oil flowed down the draw, and some was
deposited on the banks of the draw, and on vegetation
in the draw. The draw flows in a northerly direction,
and enters Boggy Creek at a point approximately 2000
feet north of the point where the oil entered the draw.
Some of the oil flowed at least as far as a point about
100 feet from the confluence of the draw with Boggy
Creek. Although defendants’ witnesses denied that any
oil reached Boggy Creek, the Court concluded that the
jury could reasonably find that oil in a harmful quan-
tity’ did reach Boggy Creek. The Court submitted an
interrogatory to the jury. In response, the jury found
that oil did flow in a visible quantity from the draw
into Boggy Creek.
The parties had stipulated that Boggy Creek is a
tributary of Skeleton Creek, which is a tributary of the
Cimarron River, which is a tributary of the Arkansas
River. The Court takes judicial notice that the Arkansas
River is navigable in fact. The Court concludes that
’“Harmful quantity” has been administratively defined to in-
clude discharges which “. . . cause a film or sheen or discoloration
of the surface of the water. . .”, 40 C.F.R. § 110.3(b).
36
boggy creek is a navigable water of the United States for
the purposes of the Federal Waiter Pollution Control Act,
pursuant to 33 U.S.C. 1362(7). Untied States v. Ash-
land Oil and Transportation Co., 504 F.2d 1817 (C.A.
6, 1974); United States v. Phelps Dodge Corp., 391 F.
Supp. 1181 (D. Ariz., 1975).
The Court concludes that Ward is liable for a civil:
penalty under 33 U.S.C. § 1821 (b) (6), inasmuch as he
is the owner and operator of an onshore facility from
which oil was discharged in harmful quantities into the
navigable waters of the United States.
The penalty to be imposed is a question for the Court.
United States v. J. B. Williams Co., 498 F.2d 414, 438
(C.A. 2, 1974) ; United States v. ITT Continental Baking
Co., 485 F.2d 16, 21 (C.A. 10, 1973). The Court re-
ceived evidence on two matters that it found relevant to
the reasonableness of the penalty assessed by the Coast
Guard. First, there was evidence concerning the cause
of the discharge. This evidence was inconclusive. Second,
there was undisputed testimony that Ward had his em-
ployees and independent contractors conduct clean-up
operations beginning on March 25, 1975.2 The Court finds
that the cause of the spill is unknown, and that Ward’s
clean-up operations were good, and that $500 is therefore |
an excessive penalty. The Court therefore reduces the
penalty to $250.
The Court granted Ward’s request for a second hear-
ing, over the objections of the United States. At that
hearing, the Court received evidence on the harmful
effects of oil on domestic animals, wildlife, aquatic life
and vegetation. Two expert witnesses called by Ward
denied that the mere presence of a sheen could establish
that an oil discharge was toxic. One of these witnesses
also stated, however, that a quantity of oil that produced
a rainbow sheen might have a harmful effect on aquatic
life. The evidence also showed that the presence of a
sheen demonstrated that a finite amount of oil had been
: The Government objected that evidence of Ward’s clean-up oper-
ations was irrelevant to the size of the penalty, citing United
States v. W. B. Enterprises, 378 F.Supp. 420, 422 (S.D.N -Y., 1974).
37
discharged, and that the minimum amount spilled could
be determined from the size and appearance of the sheen.
Finally, the evidence showed that it would be adminis-
tratively unworkable to require that every discharge of
oil be scientifically analyzed before it could be deemed
“harmful” for the purposes of 33 U.S.C. § 1321. The
Court therefore reaffirms its conclusion that the defini-
tion of harmful quantities at 40 C.F.R. § 110.3, and in
particular, the “sheen test” at 40 C.F.R. § 110.3(b), are
lawful and constitutional. United States v. Boyd, 491
F.2d 1163 (C.A. 9, 1973) ; United States v. Chevron Ol
Co., 9 ERC 1503 (E.D. La., 1976).
IT IS THEREFORE ORDERED AND ADJUDGED
that defendants L. O. Ward and L, O. Ward Oil and Gas
Operations are jointly and severally liable to the United
States for a civil penalty of $250.
/s/ Luther B. Eubanks
United States District Judge
APPROVED AS TO FORM:
/s/ Earl Salo
EARL SALO
Attorney, Department of Justice
Washington, D.C. 20530
/s/ Stephen Jones
STEPHEN JONES
Attorney for L. 0. Ward
P.O. Box 3339
Enid, Oklahoma
38
UNITED STATES COAST GUARD
23 FEB 1973
COMMANDANT INSTRUCTION 5922.11A
Subj: Pollution Law Enforcement
1. Purpose. This instruction promulgates guidance for
the assessment of civil penalties pursuant to Section 311
(b) (6) of the Federal Water Pollution Control Act
(FWPCA).
2. Cancellation. Commandant Instruction 5922.11 is
cancelled.
3. Discussion.
a. It is Coast Guard policy that every reported or
discovered discharge of oil be investigated and that every
discharge in violation of Section 311(b) (6) result in the
assessment of a civil penalty.
b. In cases with extenuating circumstances, mitigation
may be considered upon review and a compromise amount
agreed upon. In those cases, the assessed penalty will
become a matter of record as well as the compromise
action taken.
c. In determining the amount of a penalty, only the
factors set forth in the Act shall be considered. In this
way, it is anticipated that the general level of penalties
will be raised to a more meaningful level.
4. Action.
a. Enclosure (1) shall be used as the guideline for the
assessment of a civil penalties pursuant to Section 311
(b) (6), FWPCA.
A »
39
b. Information contained herein is intended to be used
in conjunction with the National Contingency Plan as
implemented by COMDTINST 3020.3 series.
/s/ J. D. McCann
J. D. MCCANN
Acting Chief
Office of Marine Environment
and Systems
Encl: (1) Coast Guard policy for the application of
Civil penalties under Section 311(b) (6), FWPCA
Enclosure (1) to COMDTINST 5922.11A
23 FEB 1973
COAST GUARD POLICY FOR THE APPLICATION
OF CIVIL PENALTIES UNDER SECTION 311 (b)
(6), FWPCA
Consistent with the language of the Federal Water Pollu-
tion Control Act, Coast Guard policy requires the assess-
ment of a civil penalty for each discharge of oil in vio-
lation of Section 311(b) (3). A maximum penalty of
$5,000 is authorized by Section 311(b) (6) ; however, the
drafters of the Act envisioned lesser penalties in certain
circumstances. Section 311(b) (6) provides that, “In de-
termining the amount of the penalty . . . the appropriate-
ness of the penalty to the size of the business of the
owner or operator charged, the effect on the owner or
operator’s ability to continue in business, and the gravity
of the violation, shall be considered .. .” That is to say
that the penalty might be less than $5,000 for a small
business, for a business which would be forced out of
operation by the maximum penalty, or for a violation of
minor gravity. It should be noted, however, that these
factors are not to be considered in determining whether
a discharge should be investigated or whether a penalty
should be assessed. The statute requires that a civil pen-
alty be assessed for each violation of Section 311(b) (3).
40
It is Coast Guard policy to assume that the penalty will
be at or near the maximum unless a lesser penalty is
clearly justified by one of the factors listed in Section
311(b) (6).
A number of considerations may be made in determining
the gravity of a violation, such as the degree of culpa-
bility associated with the violation, the prior record of the
responsible party, and the amount of oil discharged. Sub-
stantial intentional discharges should result in severe
penalties, as should cases of gross negligence, and so on.
This is not to suggest that other considerations may not
combine to determine the gravity of a violation.
Two factors should not be considered in fixing the amount
of a civil penalty: (1) the responsible party’s removal
effort or expense and (2) a decision by Federal and/or
state authorities to bring criminal action for the same
discharge. Liability for a civil penalty under Section
311(b) (6) attaches at the time of discharge. It is en-
tirely unrelated to the subsequent removal responsibility
for which the discharger must bear the expense, either
directly or by reimbursing the Pollution Fund. In no
case may a responsible party avoid or reduce a civil
penalty by removing the discharged oil. Federal or state
criminal prosecutions for the same discharge do not af-
fect the imposition or amount of a civil penalty. Criminal
prosecutions are brought under separate authority such
as the Refuse Act of 1899. They are neither intended
as substitutes for civil penalties nor do they create a
legal bar to subsequent civil penalties. Civil penalties
should, therefore, be assessed for all violations of Section
311(b) (3) without regard to pending or anticipated
criminal action.
41
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
Case No. CIV-76-0303-E
Consolidated
L. O. WARD, PLAINTIFF
vs.
WILLIAM G. COLEMAN, JR., ET AL., DEFENDANTS
&
Case No. CIV-76-0456-E
UNITED STATES OF AMERICA, PLAINTIFF
vs.
L. O. WARD & L. O. WARD OIL & GAS OPERATIONS,
DEFENDANTS
TRANSCRIPT OF PROCEEDINGS
HAD BEFORE THE
HONORABLE LUTHER B. EUBANKS
UNITED STATES DISTRICT JUDGE,
AND A JURY
ON MAY 9TH, 1977
IN ENID, OKLAHOMA
Reported by:
KEN COURTEMANCHE, C.S.R.
EE ————————eEoE*wem=_ eee ae
42
APPEARANCES
JONES & GUNGOLL, Attorneys and Counsellors at
Law, P.O. Box 3339, Enid, Oklahoma, 73701, BY: MR.
STEPHEN JONES, appearing on behalf of the Plain-
tiff in Case No. CIV-76-0303-E and appearing on behalf
of the Defendant in Case No. CIV-76-0456-E.
MR. EARL SALO, United States Attorney, Depart-
ment of Justice, Washington, D.C., 20530, appearing on
behalf of the Defendant in Case No. CIV-76-0303-E and
on behalf of the Plaintiff in Case No. CIV-0456-E.
* * * *
[43] THE COURT: If you want the exhibits all re-
ceived at this time, we’ll do it, or as you need them, at
your election.
[44] MR. JONES: We have no objection to his ex-
hibits and I believe he has none to ours, as to identifi-
cation and authenticity.
THE COURT: What are the numbers of them, could
you give us those?
THE CLERK: Plaintiff’s 1 and 2 and Defendant’s 1
thru 7.
MR. JONES: May I have just a minute, Your Honor?
THE COURT: Yes.
MR. JONES: Your Honor, we have no objection to
the identification and authenticity of Plaintiff’s 1, but
because of the issues previously raised, which the Court
is familiar with, involving the Fifth Amendment, we
object to Plaintiff’s Exhibit 1 on the grounds that it’s
in violation of the self-incrimination clause in that this
is a criminal count—or civil count.
THE COURT: Very well. Let me make this obser-
vation to the Jury: I’m going to receive the evidence
over the objection of the Defendant and at the same time
conceding that in my opinion it’s a very, very close ques-
tion. That’s a matter to be ruled on in connection with
the Pretrial Motions, in order to protect his record, and
to keep his position consistent, Mr. Jones must object to
it.
|
;
j
j
/
'
:
43
MR. JONES: I have no objection to the other ex-
hibits.
THE COURT: Fine. Government’s Exhibits 1 and 2
will [45] be received. The Defendant’s Exhibits 1 thru
7 will be received into evidence. Go ahead, Mr. Salo.
GARY SOBER
called as a witness on behalf of the Government, after
having been first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified as follows,
to-wit:
DIRECT EXAMINATION
QUESTIONS BY MR. SALO:
Would you state your full name, please?
Gary Sober.
Where do you live, Mr. Sober?
Right now I live in Edmond.
Could you give the address for the record?
3577 Wagonwheel Road.
All right. Where do you work, Mr. Sober?
I work for the Oklahoma State Department of
Health, Water Quality Division.
Q Do you have a title? A position?
A I guess it would be a Sanitarian or Environmental
Technician.
Q All right. Do you have some degrees that qualify
you for that position?
A I have a BS degree from Oklahoma State Uni-
versity.
Q In what subject?
A Wildlife Management and Zoology.
[46] Q When did you earn that?
A 1969.
Q And, do you have another degree?
A I have a Master’s in Fisheries.
Q Fisheries?
A Yes.
PO PO PO PO
44
Where did you earn that?
At Oklahoma State.
What year did you receive that degree?
’73, I believe.
All right. How long have you been working for
the State Department of Health?
A I started in March of 1974.
Q All right. Could you describe your duties working
for the State Department of Health?
A Well, when I was assigned to Garfield County, I
was assigned as a Sanitarian, and my duties covered the
field of water, air, solid waste, food, restaurant type in-
spections, we had some thirty-something programs that
we cover here in the County.
Q All right. Now, have your duties included inves-
tigating spills of harmful substances into the water?
A When we are—When we are notified of these, our
duties were to investigate these types of spills.
Q All right. Now, if I can take you back to March of
[47] 1975, where were you assigned at that time, to
work?
A I was in Garfield County, assigned to Garfield
County.
Q All right. On March 25 of 1975, did you happen to
observe an oil spill?
THE COURT: Excuse me, just a minute, Mr. Salo.
Mr. Cloudd, you’re the fartherest away, can you hear
the witness all right, is he speaking all right?
JUROR CLOUDD: Yes.
THE COURT: Very well; go ahead.
Q (By Mr. Salo) On March 25 of 1975, did you
happen “to observe an oil spil! as part of your work?
A March 25 of ’75?
Q That’s right.
A Yes.
Q Okay. Could you describe to the Jury how you
happened to observe that spill?
A I was out at the Enid Landfill doing a routine in-
spection of the sanitary facilities. We have to do so
many a year to check out on the program to see if they’re
putting their waste in right and covering it up and
OPO PO
ee < “
45
there is a part that’s open to the public where they have
—they have really divided into two parts, one part for
the City refuse and another part for people cleaning
out their garages, or whatever, and take it over and
dump it into this other part. As I was over there to
check upon the clean-up operations and see how [48]
much trouble they were having, and I noticed an oil
tank car in an oil pit, just down to the South of this
particular area, and there was some oil on the ground
and I went down there further to investigate and this
is where I first saw the spill. When I—When I con-
fronted the man who—When I first saw the spill, I
thought it was—that it was from maybe—maybe they
were changing the oil from their heavy equipment out
there and putting it into this site, and I went and ap-
proached the man who was in charge of the operation
and I asked him about this and he told me that it was
not his site and the City didn’t have anything to do
with it.
Q What man was that that you spoke to?
A This was Nolan Rich. I believe he’s the Director
out there, he’s still out there, I believe.
Q All right. Can you describe now the spill that
you saw?
A Well, it was coming out of the dike. I don’t know
how many of you are familiar with this type of oil re-
tention pit, but if—It was probably eight to ten feet
across and twenty-thirty foot long and they usually
have—most of them generally have—you have a three
foot above the level of the liquid in there to maintain,
you need to maintain this level to keep the runoff and
things in case you get a large amount of rain, to keep
it from falling out. Well, this dike had—I noticed
when I approached it on the East end of it, there was
[49] more or less a V-notch cut in the top and it was
about a foot, maybe a foot and a half deep, where it
looked like somebody had taken something and cut the
top of it out. You find this type in certain areas where
they use—skim the top layer of water off and retain
other things like if you have a sedimentation pond, a
46
lagoon system, domestic type waste. I noticed this be-
cause it was cut in such a way that it looked like it was
done mechanically, and this is what brought me up to
follow the trail of oil out of this site.
Q All right. So, you say there was a trail of oil
leading from that notch?
A There was no oil flowing, there was oil-soaked
ground, oil soaked in the ground where it had flowed
out.
Q Did you follow that?
A I followed it down to this little creek. Well, it
really—It was flowing water that was flowing down—
As Mr. Jones says, it’s a gully, but there was flowing
water in this gully.
Q All right. How far was it from the pit down
to the gully?
A Fixty, sixty feet, maybe more, it’s really hard to
say, hard for me to give an exact number.
Q All right. Did you observe any oil in the gully
itself?
A Well, there was—Like I say, there was water flow-
[50] ing through the gully at this time and there was
oil at various points down the gully.
Q Was the oil on the surface of the water?
A There was oil on the surface of the water, also
oil on some of the vegetation and plants surrounding it.
Q Did you follow the gully to see how far the oil
went?
A Yes, we followed the gully and the course it took
and there is areas where there might be a little buildup
of water and there was oil there and you could follow it
all the way on down into the creek.
Q That’s into Boggy Creek?
A Yes, into Boggy Creek.
Q All right. Did you see signs of oil as far down as
Boggy Creek?
A Yes, there was oil that was in Boggy Creek, in
certain areas of Boggy Creek.
Q Did you see that on the surface of the water in
Boggy Creek?
ee eR ee eee
AT
A You could see it on the surface of the water and
there was some, oh, tree limbs and stuff like this that
were in the Creek that had oil on it, and there was
some oil on the sides of the bank.
Q All right. Did you follow Boggy Creek then to see
how far the oil went?
A Yes, we followed Boggy Creek down to Sixteenth
Street [51] and the oil ran out before Sixteenth Street.
There was no signs of oil any farther than Sixteenth
Street.
Q All right. Now, do you have anyway of knowing
if earlier there had been signs of oil further down on
Sixteenth Street?
A No.
Q All right. When you were investigating this path
of oil, did you see any signs of salt that would have
been deposited with the oil?
A It would be hard to say if—It would be hard to
say, it was definitely from that.
Q Did you see salt at this time on March 25?
A There was a few places there that did show some
salt deposits, but you couldn’t—you couldn’t bring any
connection in—I couldn’t tell where they came from.
Q I see. Could you describe the oil that we are talk-
ing about, could you be at all specific about how it looked?
A Well, to me it looked like waste oil, like after you
would change the oil in your car and put it out some-
where, oil—It didn’t have the dark color characteristics
of crude as far as being raw crude oil, but it had char-
acteristics of being oil that was—oh, diluted with water,
you know, oil that has water in it and it would be sort
of a milkier type of color than just what regular raw
crude would be.
Q All right. Now, in your work for the Health De-
part-[52]ment, do you regard spills of oil like the one
you have just described as being harmful to the en-
vironment?
MR. JONES: I object to that as leading and sug-
gestive and no proper foundation laid and the witness
not qualified to answer such a question and is beyond
the scope of the fact in this case.
48
THE COURT: Well, I think you may further qualify
him in that regard, Counsel, but I will sustain it at the
moment.
MR.SALO: All right.
THE COURT: On the basis that the witness has not
been qualified.
MR.SALO: All right.
THE COURT. As an expert in that particular area.
Q (By Mr. Salo) Is it part of your job or has it
been part of your job with the Health Department to do
reports on spills of oil and other harmful substances?
A We get called in on various spills of what we call
hazardous substances, whether it be acid or pesticides, oil,
salt water type spills, cattle feedlot runoff, stuff like that.
We get called in and usually our office is no more than
an investigating type body that calls in other agencies
and this is really all that we do, is go out and notify
the people that these things have happened. As far as
fish kills and stuff like this, the Wildlife Department
was notified on these particular instances.
[53] Q In the academic work you did to earn your two
degrees, did your studies include studying the effect of
pollutants on fish or vegetation?
A My studies did not include any courses directly re-
lated to effects of pollution on fish. They were mainly
in culture and environmental aspects.
Q All right. Have you had the chance to investigate
oil spills where there were fish kills?
A Yes, I have.
Q So, are you familiar with the effect that oil and
substances that are discharged with oil, the effects they
have on fish, for example?
A Yes, in certain situations, I am.
All right. Could you explain what some of the
effects of oil spills into water are?
MR. JONES: If the Court please, I’m going to object
to that unless it can be shown that such effects were
present here or unless there is something about Boggy
Creek, detective water from the Atlantic Ocean to the
Gulf of Mexico or the Great Lakes—That’s too broad a
A ak Se Nate ie et ih a
Rte a re Tle Cnc A laren, ht Avie EGA Rate. ae
49
question, is the basis of my objection. It’s not properly
framed for the facts of this case.
THE COURT: Would you rephrase it, Counsel?
Q (By Mr. Salo) All right. Well, did you see any
specific harmful effects of this oil spill on either—on
[54] vegetation, for example?
A There was—I observed no fish kill.
THE COURT: Well, he said vegetation.
THE WITNESS: Vegetation.
THE COURT: That was his inquiry, did you see
any harmful effect on vegetation?
THE WITNESS: Harmful effects on vegetation. You
would have to go with—a long-lasting effect or a tem-
porary effect or what? There were no long-lasting effects,
harmful effects on the vegetation.
Q (By Mr. Salo) All right. Now, you told us how
you followed the oil, evidence of it as far down as Six-
teenth Street. In your experience in investigating oil
spills, will some of the oil continue on down the stream
and yet remain undetected?
MR. JONES: If the Court please, that’s too broad a
question. It assumes facts not in evidence and I think
we are entitled to know what did happen, not what might
have happened in the absence of other evidence.
THE COURT: I think he may show what he saw,
tell the Jury, go ahead, what you saw.
THE WITNESS: Like I say, I had—past Sixteenth
Street, I observed no oil on either the banks, vegetation
or any types of debris, other debris that was in the
Creek, so I cannot say that it went on down or it didn’t.
[55] Q (By Mr. Salo) All right. Now, I would like
to show you this document which is marked Plaintiff’s
Exhibit 1. Have you seen that document before?
A Yes.
Q Could you tell us what it is?
A It’s a report that Mr. Ward filled out to send to
the Environmental Protection Agency.
Q Is that the report on the spill that you have been
describing for us?
A Yes.
50
MR. SALO: All right. I have no more questions,
Your Honor.
THE COURT: You may cross examine, Mr. Jones.
* * * *
169] THE COURT: So, we’ll hear the Defense wit-
nesses now. You may call your first witness for the
Defendant.
MR. JONES: The Defendant calls Curly Corwin.
B. V. CORWIN
called as a witness on behalf of the Defendant, after
having been first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified as follows,
to-wit:
DIRECT EXAMINATION
QUESTIONS BY MR. JONES:
Q Would you state your name for the Court and Jury,
please, and spell your last name for the Reporter?
B. V. Corwin, C-o-r-w-i-n.
Do you have a nickname, Mr. Corwin?
Yes, I do, Curly.
What is it?
Curly.
Now, would you be sure to speak up loud enough
so all the members of the Jury can hear you, the Court
and Mr. Salo, the Government’s Counsel, sitting here
at the first table. Where do you live, Mr. Corwin?
A Ilivein Enid, 2185 Sundown Circle.
Q What is your principal occupation?
A Iam in the oil field service business.
Q How long have you been in that line of work?
A For eighteen years.
[70] Q In March of 1975, were you connected in any-
way with the oil lease known as Blansit #2, of L. O.
Ward?
A Yes, sir, I was.
Q And, where was that lease?
OPOPrPO YS
51
A That lease is approximately three-quarters of a
mile South of what is now on Garrett Road in Enid,
and a quarter of a mile East.
* * * *
(77] Q All right, sir. You may return to your seat,
sir. Mr. Corwin, during the latter part of March of
1975, did you have occasion to talk with anyone from
the Health Department?
Yes, sir, I did.
Do you recall who you talked to?
I don’t recall the name, no.
Do you recall when it was?
Yes, it was March 25.
All right. Would you explain to the Court and
Jury, please, how it was that you happened to some in
contact with this gentleman from the Health Department?
A One of the office personnel from Mr. Ward’s office
called me on my mobile phone and asked me if I would
return a call to this member of the Health Department,
that he wanted to talk to me.
Q Allright, sir. Did you do that?
A Yes, I did.
Q All right. Now, what did this gentleman tell you,
just in substance, not the exact conversation, but what
was he calling about?
A He called to tell me that one of Mr. Ward’s wells
that I was looking after had an oil spill.
Q What action, if any, did you take after that con-
versation with the official of the Health Department?
[78] A I don’t ever recall talking to him again, it’s
possible I did.
No, I mean after you talked to him that day on
March 25, 1975, what did you do?
A Well, I immediately proceeded to the location to
survey the damage.
Q All right, sir. When you got there, what did you
observe?
A I walked the draw, so to speak, from the location
back to Boggy Creek and there had, in fact, been some
oil run-off of the location and down that draw.
J * * *
OPO POP
52
[80] Q Now, after you made an examination of the
site, what [81] anything, did you do?
A Well, as I recall, I immediately called a bulldozer
and a vacuum truck and a crew of roustabouts and pro-
ceeded with cleanup operations, to try to clean up as
much of it as possible.
Q Okay. Now, what did you do at that time, when
you say you cleaned it up?
MR.SALO: Your Honor—
THE WITNESS: Well, I took a bulldozer—
MR. SALO: For the record, I would like to preserve
our objection that the cleanup is irrelevant to the civil
penalty.
THE COURT: Yes, the objection will be overruled, in
view of the Court at this moment, that may not be an
issue for the Jury, it might be to the Court with regard
to any mitigation, should ultimately the decision be
reached for the Defendant. The objection is overruled.
You may answer.
Q (By Mr. Jones) Tell me what you did to clean
it up.
A Well, the first thing I done was to take the bull-
dozer and I constructed a dam in the area of the road,
close to Boggy Creek, earth and fill, to prevent anything
from going—should any reason it decide to rain or any-
thing like that, to prevent it from going on down into the
Creek, and we proceeded with our cleanup operations
from there backwards from the well with a vacuum truck,
trying to pick up all of the [82] visible oil and clean it
up in anyway possible.
Q All right. Now, was Mr. Ward present during this
cleanup operation?
A Idon’t recall Mr. Ward being there.
Q Do you know where he was?
A I don’t recall right at the minute. He was on an-
other well somewhere, if I remember correctly and I pro-
ceeded with the cleanup operations in lieu of him being
there immediately.
Q Now, how long did you spend on these cleanup
operations, Mr. Corwin?
53
A AsI recall, I spent a portion of the 25th, all day
the 26th and a portion of the 27th.
Q Did you personally observe any further cleanup
operations?
A Yes, I did. At that time, due to my work schedule,
Mr. Ward had some of his company personnel come in
and take over the cleanup operations and I merely drove
by daily and offered my assistance or whatever.
Q What did you observe that they did, if anything?
A Well, they—they cleaned up every drop of oil up
and down that draw from all the way—
Q Now, after you constructed this earth dam, did any
other oil go past it?
A Not to my knowledge.
Q At anytime from the time you go out there, through
[83] the cleanup period, did you ever see any sheen or
discoloration of Boggy Creek caused by any weathered
oil from the shale pit?
A No, sir, I didn’t.
Q Now, did you see any evidence that, prior to your
being there, that any of this substance had entered
Boggy Creek?
A No, sir.
Q Did you observe any damage to the immediate en-
vironment?
A Do you mean up and down the draw?
Q Well, let’s go first to Boggy Creek and then the
draw.
A No, I don’t believe any of it ever reached—arrived
at Boggy Creek.
Q Now, when you were out there several days later,
was there still water in the gully?
A Yes.
Q When the cleanup operation was completed, was
there any visible sign of the oil?
A No. I thought they done an exceptional job of
cleaning it up.
Have you, in your eighteen years of experience in
the oil field business, seen cleanup operations of other
similar spills?
A Yes, sir, I have.
54
Q And, approximately how many have you seen?
A That’s—It would be very numerous—I don’t keep
[84] track, but probably a hundred.
Q What was your opinion of the cleanup operation or
what is your opinion of the cleanup operation out here
at this site?
A Well, actually, I think Mr. Ward probably spent
more money and time and effort on that one than the
average, the ones I’ve been involved with.
MR. JONES: If I may approach the witness, Your
Honor?
THE COURT: Surely.
Q (By Mr. Jones) Mr. Corwin, I will hand you here
what previously has been received into evidence as a
series of photographs, marked and identified as Defend-
ant’s Exhibits 1 thru 6, and ask you, please, if you would
look at Defendant’s Exhibit 2 and tell the Court and
Jury, please, what that is, what does that picture show.
A This is the Blansit #2 location standing South
of the well head looking back North down the draw in
question on the right-hand side of the map.
Q All right. Now, that is a recent photograph, is it
not?
A Yes, that has been since the reserve pit and all the
pit areas have been filled.
Q All right. So, now, just show the Court and Jury
on this picture, if you can, where this pit was.
[85] A You can see—
THE COURT: Why don’t you stand over there in
front of them. I’m afraid they can’t see much from
where you are. Just step over there and point it out to
them. Counsel, if you want to look—
THE WITNESS: If you will look in the photo, you
ean see a different color of dirt running along at the base
of where this man is standing and down to this area
right here (indicating). The reserve pit is approximately
125 foot square and it would be in this (indicating) area
of the top of this hill that you see right there (indicat-
ing), the gray, the gray area.
———
55
Q (By Mr. Jones) Okay. Where is shale pit?
A It would be right where this (indicating) man is
standing, right there (indicating).
All right, sir. Now, I hand you, Mr. Corwin—
THE COURT: I’m afraid you might be blocking the
view of someone.
Q (By Mr. Jones) I will hand you Defendant’s Ex-
hibit No. 5 and ask you, sir, what that is?
A That is a picture standing on the corner of the
location, it would be back North and East of the well
head and looking down the draw.
Q All right. Now, where is the gully or draw in that
picture?
[86] A It’s very distinct right down through the mid-
dle of the picture. You can see it right down through
the middle of the picture.
Q Now, I will hand you, Mr. Corwin, Defendant’s
Exhibit 3 and ask you, sir, what that picture depicts?
A Okay. This would be the draw area, I would say
two to 300 feet, right before you go into Boggy Creek.
You can see the road I diagramed right there (indicat-
ing), it runs right by that big tree, the City’s little ac-
cess trail to get to the back of their property. You can
see it right at the edge of the Creek there (indicating).
Q All right. Now, this was a recent picture, but is
this vegetation and what you see there, is that essen-
tially the same as what it was in March of ’75, have
there been any trees cut down or anything there that you
can remember?
A No.
Q All right. Now, I will hand you, Mr. Corwin, De-
fendant’s Exhibit 6, and ask you what that picture de-
picts?
A This is a portion of the draw, just a short area
of the draw that the spill occurred in.
Q And, Defendant’s Exhibit 1?
A This looks like the draw immediately where it
dumps into Boggy Creek, I would say Boggy Creek would
be maybe 25 feet on the other side or between 25 and
50 feet on the other side of this big log. That’s looking
North down the draw.
EE
56
[87] Q And, Defendant’s Exhibit 4?
A Well, this would be a portion of the same area.
This draw goes down into Boggy Creek, this (indicat-
ing) is trash from the dump and whatnot, laying in the
bottom of that draw, I believe.
Q All right, sir. You may resume your seat, sir.
Mr. Corwin, who built the pits out there?
A They were—Mr. Ward contracted Corwin & Hauth,
Incorporated, a dirt construction company, which I own
part of it.
Q So, your company built the pits?
A Yes.
Q You’re sure there was no dike or retaining wall
around this shale pit?
A I’msure there wasn’t, yes.
MR. JONES: I have nothing further. Thank you,
sir.
THE COURT: All right. You may cross examine.
CROSS EXAMINATION
QUESTIONS BY MR. SALO:
Q Mr. Corwin, those—the photograph that we looked
at, those are recent photographs, is that right?
A I believe so, yes.
Q When you were showing the area where the oil
spill had been, do these photographs give an accurate
picture of what the area looked like at the time you
discovered the oil [88] spill?
A Yes, I would say the draw prior to the oil spill
looked a good deal like that, yes.
Q I’m referring more specifically to what the ground
looked like in the area, does that give an accurate im-
pression of the appearance of the ground after the oil
had been spilled?
A Yes, with the exception of the pit areas, it has
changed—the pits have been back-filled and leveled off and
that photo isn’t like it was at that time, but the rest of
them I think are, yes.
57
Q Isn’t it true that when you first went out, you ob-
served oil on the ground, it was apparent?
A Yes, sir, I did.
Q That does not appear on the photographs?
A No, it does not.
Q In that sense, they don’t give an accurate im-
— of what that area looked like in terms of the,
oil?
A Well, I was speaking prior to the day of the oil
spill, I think that describes the area. R
Q Im sorry. Then, as of the time of the spill, when
you went out to observe it, then, you would say these
do not give an accurate impression of the appearance of
the area where the spill had occurred?
A Well, there is no oil in the photographs and there
was oil on the ground the day I went ‘out and observed
it, yes.
[89] Q All right. Now, as to rainfall that occurred
prior to the time that you investigated the oil spill, did
you say it was your impression that there had been rain-
fall shortly before or immediately before the discharge?
A Well, during the course of. drilling of that well, I
distinctly remember having bulldozer equipment called
over there to pull trucks in and out, which would have
been prior—thirty days prior to the spill, during the
course of the drilling and completion operations, we had
bulldozers over there to pull trucks in and out, so it had
to rain.
Q When would you say that period of time began,
when you’re speaking about, when you needed to have
bulldozers?
A It would have been probably in the first part of
March.
Q Can you remember a specific date when these op-
erations began?
A No,I can’t.
Q All right. »
A I could possibly go back to the records and get in-
voices and produce that information, if it is necessary,
I can do that.
| /
58
Q Is it possible that the largest rainfall in that period
occurred, say a week before tuis spill?
A Yes, it’s possible.
Q Do you have any recollection as to whether there
was much rainfall in the several days, say three or four
days before the spill?
A. I don’t recall it raining three or four days before
the spill, no.
MR. SALO: All right. Could I have one second?
THE COURT: Surely, surely.
MR.SALO: Ihave no further questions.
* * * *
[135] THE COURT: Would you hand the Verdict or
Interrogatory rather, that has been answered up? All
right. The Interrogatory is properly answered. We'll
ask the Clerk to please read it.
THE CLERK: In the United States District Court
for the Western District of Oklahoma, L. O. Ward, Plain-
tiff, versus William G. Coleman, Jr., individually, and as
Secretary of Transportation, et al, Defendants, Case No.
76-0303-E and the United States versus L. O. Ward and
L. O. Ward Oil & Gas Operations, Defendants, Case No.
76-0456-E, Interrogatory, We, the Jury, duly empaneled
and sworn in the above styled cause, do upon our oath
find as follows: That oil did flow in a visible quantity
from the draw on the L. O. Ward lease into Boggy Creek,
signed by Guy W. Chapman, dated May 10, 1977.
THE COURT: All right. Ladies and Gentlemen, you
have heard the reading of the answer to the Interroga-
tory and since under the law it must be unanimous, the
answer that is, I will poll the Jurors individually. Does
the Juror Clarence Cowan agree to the answer to the
Interrogatory?
JUROR COWAN: Yes.
THE COURT: Mary Sipe?
JURORSIPE: Yes.
THE COURT: Edward Parma?
JUROR PARMA: Yes, sir.
[186] THE COURT: Verla Gleason?
JUROR GLEASON: Yes, sir.
THE COURT: Yes?
JUROR GLEASON: Yes.
59
THE COURT: Arthur Pliner?
JUROR PLINER: Yes.
THE COURT: And, Mr. Chapman, you’re the Fore-
man?
JUROR CHAPMAN: Yes.
THE COURT: Thank you very much, Ladies and
Gentlemen. You’re going to be excused in a moment, but
I thought I would explain just briefly to you now what
reduced the case down to such a simple question, because
you Jurors are entitled to know and you’re also entitled
to know the impact of the decision that you made when
you answered the Interrogatory. If you recall, I started
out telling the Jury there may be five questions that were
involved, first of all, one, was there an oil spill, well,
there was no dispute in that, everybody agreed to that,
that was not a question to submit to the Jury; number
two, that whether or not the spill emanated from the
Defendant, and there wasn’t any dispute on that, every-
body agreed that was right; and third, that said spill
flowed into a navigable stream. Now, that was a dispute
because I think the Congress meant anything—if it had
of gotten as you said it did, into this Boggy Creek, then
it goes on from there into the other creek and finally, I
believe, Skeleton Creek, and [137] from there to the
Cimarron River and then to the Arkansas. And, if that
was not the intent of Congress, then, we could spill oil
all over practically this whole Country and the Act would
not apply, if indeed we had to go direct into a navigable
stream, but if it had been headed off at the pass, so to
speak, before it ever got to that Creek, I was prepared
to hold that this draw is not a navigable stream, by law.
Now, four, the question that the spill was of a harmful
quantity as defined by the Regulations, now, we learned
by the Regulations of what we call a sheen test and that
was part of what I defined to you when you asked that
question. A sheen test, in common language, means some-
thing that is visible by the naked eye and if it can be
seen by the naked eye, the Congress has seen fit to say
that’s a harmful quantity and last, the fifth question,
the penalty, as assessed was a reasonable sum and that
is for me to determine, and I will determine that in a
:
:
>
nnn ana
60
few moments. You, Ladies and Gentlemen, may be ex-
cused, thank you very much, we appreciate your splendid
service during this session of Court. The parties will re-
main momentarily so we can complete the record, but the
Jury may be excused.
(Whereupon, at this point the Jury was excused,
after which time the following proceedings were had,
to-wit :)
THE COURT: Now, the sole question left is whether
or not the civil penalty imposed in connection with this
matter [138] was a reasonable sum. Of course, the Court
permitted evidence on that point to come in so we could
hear the whole thing and that’s in the record, and I’m
going to reduce the amount of this penalty for the reason
that I am convinced that the Defendant did do nearly
everything that was possible to alleviate the situation
after it was discovered, and because of that, and because
of the fact that there was not a great deal of oil that
did escape, I’m going to cut the penalty exactly in half,
make the penalty $250.00 rather than 500.00. It was
suggested to me that I cut the fine or penalty, rather
civil penalty, down to a dollar as was done in a case in-
volving General Motors. I don’t believe we have an
analogous situation here because there the evidence was
and the Judge found that General Motors had done every-
thing possible to prevent the pollution as Congress dis-
tinguished between trying to clean it up after it occurred.
I’m not about to say Mr. Ward is a bad operator or a
bad man. I’m convinced he’s going to be a good man.
We are going to have to be more careful with this wonder-
ful land of ours and do everything humanly possible to
prevent these things to start with, otherwise we are all
going to be reading Silent Spring, and maybe there will
be no Spring at all for our grandchildren. Now, this is
a law that I am happy to help enforce and it must be
enforced and the teeth that enforce it must indeed be
long and sharp ones, so by reducing this fine, Mr. Jones,
as you suggest, to a dollar, I believe I would be [139]
saying to the industry, here in Oklahoma that actually
is not that bad, go ahead and instill this deleterious sub-
ain ict ic inns Na desnn ne demv
61
stance, kill our fish, kill our streams, pollute the waters,
kill the land, because we are so energy conscious that
we don’t care what you do. I just don’t want that mes-
sage to go forward, at least from here. That’s the rea-
son I am not going to impose that minimum, minimal one
dollar penalty. It will be $250.00. 2
Now, I’m going to ask that Counsel for the Govern-
ment prepare a formal Judgment in accordance with the
way we have conducted this Trial, the finding of the
Jury with respect to the Interrogatory in Case No. CIV-
76-0456-E, that’s the one styled United States versus L. O.
Ward, that’s the civil action to collect the penalty. And,
when you have prepared it, I want you to submit it to
Counsel for the Defendant for approval as to form, and
then have it forwarded on to me for signature and filing
and get this done within a week. I would also require
that you do the same thing in the other case, but Mr.
Jones indicated that he would prefer to prepare that
himself, because he may want to appeal. Of course, he
may appeal both of them, but the one that found the
Statute to be Constitutional, didn’t you indicate you
would prefer to draw that one yourself?
MR. JONES: Yes, Your Honor, and enter judgment
in favor of the Defendant in Ward versus Coleman.
* * * *
62
SUPREME COURT OF THE UNITED STATES
No. 79-394
UNITED STATES, PETITIONER
v.
L. O. WaRD, dba L. O. WARD OIL and GAS OPERATIONS
ORDER ALLOWING CERTIORARI. Filed November 5, 1979
The petition herein for a writ of certiorari to the United
States Court of Appeals for the Tenth Circuit is granted.
Mr. Justice Marshall took no part in the consideration
or decision of this petition.
¥* U. 6. GOVERNMENT PRINTING OFFICE; 1979 307515 168
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.