Petition for Writ of Certiorari — Akers v. United States

(1) Supreme Court, U.S.

85-2430 | Fier

JUN 24 1986

. rn

statis JOSEPH F. SPANTOL, SR.

CLERK

In The

Supreme Court of the United States

October Term, 1985

Ly.

ae

ROBERT W. AKERS;

CALIFORNIA CATTLEMEN’S ASSOCIATION;

CALIFORNIA FARM BUREAU FEDERATION;

and NATIONAL CATTLEMEN’S ASSOCIATION,

Petitioners,

V.

UNITED STATES OF AMERIOA,

Respondent.

“~

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

t*.

4

Of Counsel

RONALD A. ZUMBRUN

LANNY T. WINBERRY ROBIN L. RIVETT

Giattina & Winberry COUNSEL OF RECORD

777 Campus Commons Pacific Legal Foundation

Road, Suite 180 555 Capitol Mall, Suite 350

Sacramento, CA 95825 Sacramento, CA 95814

Telephone: (916) 920-1100 Telephone: (916) 444-0154

JAMES S. BURLING Attorneys for Petitioners

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, CA 95814

Telephone: (916) 444-0154

COOLS LW ae eet ee be ) S05-T451 Ext. 388

pias

4 : -

i

QUESTION PRESENTED FOR REVIEW

Section 404(f)(1), 33 U.S.C. § 1344(f)(1), provides an

exermption from wetland dredge and fill regulation by the

Army Corps of Engineers for agricultural activities. Sec-

tion 404(f)(2), 33 U.S.C. 4 1344(f) (2), makes the Section

404(f)(1) exemption inapplicable to certain practices. Does

Section 404(f)(2) obviate the agricultural exemption when

a farmer wishes to change from a wetland crop to an up-

land crop, or when a farmer wishes to rotate from one

wetland crop to a different wetland crop and that change

might alter an area’s hydrological regime?

PARTIES BELOW

The parties in the action below were the following:

1. Plaintiff-appellee—United States of America.

2. Defendants-appellants—Robert W. Akers, a farm-

er; John Doe Equipment Operator.

3. Plaintiffs-intervenors-appellees—National Audu-

bon Society and National Wildlife Federation.

4. Defendants - intervenors - appellants — California

Cattlemen’s Association, a nonprofit California corpora-

tion; California Farm Bureau Federation, a nonprofit

California corporation with a membership of 52 county

farm bureaus which have a combined membership of over

100,000 farm families; National Cattlemen’s Association,

a nonprofit corporation, composed of 245,000 individual

and 50 state-assoeciation members.

at

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ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW i

PARTIES BELOW ii

TABLE OF AUTHORITIES iv

OPINIONS BELOW 2

JURISDICTION Tere 3

STATUTORY PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

THE BASIS FOR JURISDICTION BELOW ___. 7

REASONS FOR GRANTING THE WRIT... —té88

I, INTRODUCTION

Il. THE PLAIN LANGUAGE OF THE CLEAN

WATER ACT CLEARLY EXEMPTS FROM

REGULATION ACTIVITIES SUCH AS

THOSE PERFORMED BY AKERS - 9

A. Normal Farming Activities Are Exempt From

Corps Regulation 10

B. Subsection (f)(2) Does Not Negate the Ex-

emptions of Subsection (f)(1) Because

Mr. Akers Is Not Bringing the Subject

Property into a New Use .. 11

III. CONGRESS INTENDED THE AGRICULTUR-

AL EXEMPTIONS TO THE CLEAN WATER

ACT TO APPLY TO A FULL RANGE OF AG-

RICULTURAL ACTIVITIES 13

IV. CONCLUSION : 21

APPENDIX A A-l

APPENDIX B B-1

APPENDIX C C-1

iv

TABLE OF AUTHORITIES

Page

CasEs

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

715 F.2d 897 (5th Cir. 1983) 11, 20

Caminetti v. United States, 242 U.S. 470 (1917) ........ 14

Duplex Printing Press Co. v. Deering,

254 U.S. 443 (1921) 14

Standard Oil Co. of New Jersey v. United States,

221 U.S. 1 (1911) —

United States v. Huebner, 752 F.2d 1235 (7th Cir.

1985), cert. denied, — U.S. —, 88 L. Ed. 2d 50

(1985) 11, 20

STATUTES

28 U.S.C. § 1254(1) 3

§ 1292(a) (1) ...... 7

Clean Water Act § 404, 33 U.S.C. § 1344 ow. 3, 5, 20, 21

§ 404(f), § 1344(f) 3, 9, 15, 16, 18, 19, 20

§ 404(f)(1), § 1344(f) (1) -.. 11

§ 404(f)(1)(A), § 1344(f) (1) (A) 6, 10

§ 404(f) (2), § 1344(f) (2) 11, 12, 19

§ 404(h), § 1344(h) 19

Rvuxes anpD RecuLations

33 C.F.R. § 232.3 (1985) 10

§ 323.4 (1985) . 10

49 Fed. Reg. 39,019 (1984) 10

v

TABLE OF AUTHORITIES—Continued

Page

MISCELLANEOUS

The Federalist No. 17 (A. Hamilton) (J. Cooke ed.

1961) 8

Environmental Policy Division of the Congres-

sional Reference Service, a Legislative History

of the Water Pollution Control Act Amendments

of 1972 (Comm. Print 1973) _.15, 16, 17, 18, 19

a

— VE

Se

In The

Supreme Court of the United States

October Term, 1985 ?

>.

———{)>-

ROBERT W. AKERS;

CALIFORNIA CATTLEMEN’S ASSOCIATION;

CALIFORNIA FARM BUREAU FEDERATION;

and NATIONAL CATTLEMEN’S ASSOCIATION,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

— ws

— i

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

4.

——

Petitioners, Robert W. Akers, California Farm Bureau

Federation, California Cattlemen’s Association, and Na-

tional Cattlemen’s Association, respectfully request that

this Court issue a writ of certiorari to review a decision of

the United States Court of Appeals for the Ninth Circuit.

That decision allows the Army Corps of Engineers (Corps)

to maintain dredge and fill regulatory permitting juris-

diction over substantial portions of Mr. Akers’ farmland,

as well as mi:.ons of additional farmland acres throughout

the United States. By the decision, a farmer must obtain a

1

eo ee Kt ee es ae

permit in two particular instances at issue. First, a permit

must be obtained wherever a farmer wishes to change from

a wetlaud crop to an upland crop. Second, a permit is re-

quired for changes from one wetland crop to another wet-

land crop when such a change may alter the ‘‘hydrological

regime.’? The Ninth Circuit’s pronouncement on the reach

of the Corps’ regulatory jurisdiction contradicts the plain

language as well as the unambiguous intent of Congress to

exempt certain agricultural activities from federal regula-

tion. The reach of the Corps’ regulatory jurisdiction is a

critical decision that should be decided by this Court.

fon}

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

785 F.2d 814 (9th Cir. 1986). The opinion was filed

March 26, 1986, and judgment filed April 21, 1986. The

opinion is reproduced in petitioners’ Appendix B.!

The opinion of the District Court is not officially re-

ported. That court’s findings of fact and conclusions of

law and order granting preliminary injunction were filed

January 15, 1986, and are reproduced in Appendix C.

io}

: All of the references cited in this petition may be found

in the record and are available under Supreme Court Rule

No. 19.1. In addition, certain references are also included in the

appendix to this petition, as indicated.

JURISDICTION

The opinion of the Court of Appeals was filed

March 26, 1986, and judgment filed April 21, 1986. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

r.%

Ww

STATUTORY PROVISIONS INVOLVED

At issue in this case is the meaning and extent of the

agricultural exemptions to Section 404 of the Clean Water

Act. The exemptions found at Section 404(f) of the Act,

codified at 33 U.S.C. 4 1344(f), are reproduced in full in

Appendix A. Section 404(f) reads in relevant part:

**(f}(1) Except as provided in paragraph (2) of

this subsection, the discharge of dredged or fill ma-

terial—

‘“*(A) from normal farming, silvicul-

ture, and ranching activities such as plowing,

seeding, cultivating, minor drainage, harvesting

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

ucts, or upland soil and water conservation prac-

tices ;

‘*is not prohibited by or otherwise subject to regula-

tion under this section or section 131l(a) or 1342 of

this title (except for effluent standards or prohibi-

tions under section 1317 of this title).

**(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 naviga-

ble waters into a use to which it was not previously

subject, where the flow or circulation of navigable wa-

ters may be impaired or the reach of such waters be

reduced, shall be required to have a permit under this

section.’’

ry.

Ww

STATEMENT OF THE CASE

Millions of acres of American farmland can be classi-

fied as wetlands. In 1984 Robert Akers, petitioner, pur-

chased farmland in Northern California which, according

to the Army Corps of Engineers, encompasses approxi-

mately 2,800 acres of wetlands.? Like all good farmers and

ranchers Mr. Akers sought to modernize his farming opera-

tion by altering crop patterns, intensifying irrigation ac-

tivities, and generally upgrading the efficiency of the oper-

ation. The land owned by Mr. Akers has been in continu-

ous production since 1897. Opinion, Appendix at B-10.

Except for a few sporadic attempts at growing cereal

grains the land has been used primarily for the cultivation

of meadow hay. Opinion, Appendix at B-10; Findings, Ap-

pendix at B-8. Meadow hay cultivation on Mr. Akers’ prop-

erty involves the use of traditional wild flood irrigation to

ensure soil saturation in the spring. The fields have always

been drained before harvest in order to allow mechanized

cutting and baling of the dry hay. At issue in this appeal

are two particular modernization programs that Mr. Akers

attempted to implement. First, he tried to convert some

areas under wetland meadow hay cultivation to upland

grain cultivation. Second, Mr. Akers tried to convert some

of the meadow hay cultivation to wetland wild rice farm-

ing. The Army Corps of Engineers asserts that Mr. Akers

2 _ A portion of this wetlands acreage was recently sold. How-

ever, Mr. Akers retains a significant portion of wetlands farmland.

5

must first obtain a Clean Water Act § 404 dredge and fill

permit before he may proceed with either of these pro-

grams.

Congress recognizes the importance of natural wetlands

for flood control, fisheries, and migratory bird populations.

For this reason it passed Section 404 of the Clean Water

Act, codified at 33 U.S.C. § 1344, to preserve and protect

this country’s wetlands. Congress was well aware, how-

ever, that an overbroad reading of the Clean Water Act

could unjustifie bly and adversely affect the ability of farm-

ers and ranchers to carry on their day-to-day operations.

Farming and ranching, by their inherent nature, must alter

and affect the character and use of land, but the tremendous

benefits derived generally far outweigh any concern over

the conversion of wetland farming to upland farming or

alternative types of wetland farming. Thus, Congress en-

acted a well-balanced statute that not only preserves the

ability of farmers to efficiently and independently munage

their operations but also protects this nation’s wetland en-

vironments to the maximum extent practicable. It is this

balance, crucial to farming operations throughout the Unit-

ed States, that is at stake in this lawsuit.

What Congress did that is essential to American agri-

culture is pass a regulatory exemption to the Section 404

permit procedures for a wide range of agricultural activi-

ties including cultivation, irrigation works, and road build-

ing. When Mr. Akers commenced his upgrade activities

the Corps began attempts to regulate Mr. Akers’ activities

through the Section 404 permitting process. Findings, Ap-

pendix at C-2-C-4; Opinion, Appendix at B-3 -B-5.

Mr. Akers, however, believed that his activities were within

6

the Section 404(f) agricultural exemptions and proceeded,

for a time, with his farming operations. In response to

Mr. Akers’ activities the Corps obtained a temporary re-

straining order preventing Mr. Akers from conducting

farm modernization activities on his property. The tem-

porary restraining order was granted and later, after a

hearing before the United States District Court, Eastern

District of California, a preliminary injunction was grant-

ed. Findings, Appendix at C-24. After a motion for

reconsideration was denied, Mr. Akers appealed to the

Ninth Cireuit Court of Ap} eals. The appellate court af-

firmed the granting of the preliminary injunction by the

District Court. Opinion, Appendix at B-20.

Mr. Akers, the California Cattlemen’s Association, the

National Cattlemen’s Association, and the California Farm

Bureau Federation all believe that the Ninth Circuit made

serious legal errors in upholding the preliminary injunc-

tion. Not at issue here is any of the factual record of the

protracted and often strained struggle between Mr. Akers

and the Corps. Rather, at issue are two specific legal inter-

pretations of the agricultural exemption which have a sub-

stantial effect not only on Mr. Akers but also on many indi-

vidual farmers and ranchers who are members of California

Cattlemen’s Association, National Cattlemen’s Association,

and California Farm Bureau Federation.

Specifically, the court ruled that the exemption in Sec-

tion 404(f)(1)(A) for ‘‘normal farming’’ does not apply

when a farmer wishes to start upland farming operations

on an area previously limited to wetlands agriculture.

Opinion, Appendix at B-10 - B-11.

Additionally, while the court correctly held that ‘‘[wlJe

do not believe that Congress intended to place the burden

7

of Corps permit regulation on farmers who desire merely

to change from one wetland crop to another,’’ Opinion, Ap-

pendix, at B-11, the court erroneously qualified this state-

ment by saying that classified as ‘‘nonexempt [are] those

activities which change a wetland’s hydrological regime.’’

Opinion, Appendix at B-16-B-i7. In other words a con-

version from one wetland crop such as wild hay to another

wetland crop such as wild rice would still require a permit

if the hydrological regime were to be altered. The placing

of crop borders, spreader dams, and disking all conceiv-

ably could affect an area’s surface and subsurface water

flow, duration, and quantity thereby affecting the ‘‘hydro-

logical regime,’’ and invoking Corps jurisdiction. The

regulatory process, with all of its concomitant burdens and

delays, is one which farmers must avoid and which Con-

gress intended them to avoid. Otherwise, farmers will not

be able to timely make the necessary day-to-day manage-

ment decisions that are part of farming such as when and

how to flood or drain a field or when and what type of crop

to plant. The Court’s restrictive reading of this agricul-

tural exemption cannot be supported either by the plain

language of the statute or the legislative history of the Act.

ty.

Vv

THE BASIS FOR JURISDICTION BELOW

Jurisdiction in the Court of Appeals for the Ninth

Circuit was pursuant to 28 U.S.C. § 1292(a) (1).

REASONS FOR GRANTING THE WRIT

I

INTRODUCTION

‘‘[T'lhe supervision of agriculture and of other con-

cerns of similar nature, all those things in short which

are proper to be provided for by local legislation, can

never be desirable cares of a general jurisdiction. It is

therefore improbable that there should exist a disposi-

tion in the Federal councils to usurp the powers with

which they are connected; because the attempt te ex-

ercise those powers would be as troublesome as it would

be nugatory; and the possession of them, for that rea-

son, would contribute nothing to the dignity, to the im-

portance, or to the splendor of the national govern

ment.’’ The Federalist No, 17, (A. Hamilton) (J.

Cooke ed. 1961).

The day-to-day regulation of agriculture is not the

proper province of the federal government. The constitu-

tional framers recognized this truth, as did the United

States Congress when it passed the agricultural exemption

to the Clean Water Act. Much debate has been heard over

the years as to where the proper limits of federal regula-

tion of agriculture lie. Here, Congress plainly set the limits

of federal regulation and power over agriculture; by usurp-

ing this power the Army Corps of Engineers is creating

those very ‘‘troublesome’’ ills predicted by Hamilton. As

long as the Corps remains mired in its regulatory excess,

we will continue to see the will of Congress flouted and the

dignity of the national government diminished at the direct

expense of many thousands of farmers throughout the

nation.

II

THE PLAIN LANGUAGE OF THE CLEAN

WATER ACT CLEARLY EXEMPTS

FROM REGULATION ACTIVITIES

SUCH AS THOSE PERFORMED BY AKERS

Section 404(f) of the Clean Water Act, codified at

33 U.S.C. $1344(f), provides an exemption for a range of

farming, silviculture, and ranching activities from the reg-

ulatory jurisdiction of the Army Corps of Engineers. Sec-

tion 404(f) reads in relevant part:

‘*(f)(1) Except as provided in paragraph (2) of

this subsection, the discharge of dredged or fill ma-

terial—

‘*(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;

‘tis not prohibited by or otherwise subject to regu-

lation under this section or section 1311(a) or 1342

of this title (except for effluent standards or pro-

hibitions under section 1317 of this title).

‘*(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 nav-

igable 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.’’

Thus, to qualify for the exemption, Mr. Akers must be

engaged in normal farming activities. It is undisputed that

10

he was. Mr. Akers also must not be putting the area to

a use to which it was not previously subject if that new

use alters the hydrological regime. It is also undisputed

that the area has been continuously farmed throughout

this century and that farming is the only anticipated use.

A. Normal Farming Activities Are

Exempt from Corps Regulation

Section 404(f)(1)(A) exempts normal farming and

ranching activities from the Corps’ regulatory jurisdic-

tion. The subsection also lists certain specific activities

as being within this exemption. However, because the list

is preceded by the words ‘‘such as’’ the list is not exclu-

sive. What is relevant is whether or not Mr. Akers’ ac-

tivities constitute ‘‘normal farming.’’ No allegations have

ever been advanced that the activities of Mr. Akers were

for any purpose but farming. His farmland is not being

converted into a housing development, golf course, or

shopping center; the past, present, and anticipated future

use is for farming and only farming.

The regulations promulgated by the Army Corps of

Engineers for this exemption, 33 C.F.R. 4 323.4 (1985),

and proposed regulation 33 C.F.R. § 232.3, located in

49 Federal Register 39,019 (1984), help define the scope of

normal farming activities. Specifically, they are required

to be ‘‘part of an established (7.e., on going) farming, sil-

viculture, or ranching operation.’’ It is undisputed that

the Akers’ property has been farmed since the turn of the

century. See Opinion, Appendix at B-10. The activities of

Mr. Akers will not bring any unfarmed area into farm

11

production ; the activities will only modernize and intensify

the established farming uses of the property.

B. Subsection (f) (2) Does Not

Negate the Exemptions of

Subsection (f)(1) Because

Mr. Akers Is Not Bringing the

Subject Property into a New Use

Section 404(f)(2) of the Clean Water Act states that

the exemptions outlined in Subsection (f}(1) do not apply

when there is a ‘“‘discharge of dredged or fill material .. .

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.’’ (Emphasis added.)

The Court of Appeals stated that this ‘‘recapture’’

provision applies to any activity that may alter a wet-

land’s hydrological regime: ‘‘Nonexempt [are] those ac-

tivities which change a wetland’s hydrological regime.’’

Opinion, Appendix at B-16-B-17. This is clear error and

presents an important federal question over the reach of

the Army Corps of Engineers’ jurisdiction. The recapture

provision, by its plain language, applies only to activities

which put an area ‘‘into a use to which it was not pre-

viously subject. Circuit courts have correctly reasoned

that when a farmer attempts to put previously unfarmed

land into production by destroying or altering an existing

wetland, then Section (f)(2) applies. See, e.g., United

States v. Huebner, 752 F.2d 1235 (7th Cir. 1985), cert.

denied, — U.S. —, 88 L. Ed. 2d 50 (1985); Avoyelles

Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.

1983). However, when a farmer rotates crops he is not

12

putting land into a use to which it was not previously

subject. The recapture provision is absolutely and totally

inapplicable.

Changing from a wetland farming use to an upland

farming use continues ‘‘normal farming’’ of an area de-

spite any change in the hydrological] regime. Likewise, a

change from one wetland crop such as wild hay cultiva-

tion to another wetland crop such as wild rice cultivation

most certainly is a continuation of normal farming not-

withstanding a potential change in the hydrological regime.

The applicability of the recapture provision is crucial

to many thousands of farmers throughout the United

States. Congress never intended that the Clean Water

Act would straitjacket farmers wishing to change crop

patterns, or simply intensify existing cultivation. Con-

gress recognized that farmers should not have to fear

that every time they do something that might affect their

farmiand’s hydrological regime they will suddenly be

subject to Corps regulation. Rather, the agricultural ex-

emption was intended to protect such farmers from the

threat of regulation.

The subsection 404(f)(2) exception was intended to

prohibit using the guise of agricultural development to

hide a conversion of land from one use to another and dif-

ferent use. However, Section 404(f)(2) in no way can be

reasonably construed to prohibit the intensification or

modification of an existing agricultural use. Normal farm-

ing is normal farming whether it be for upland or lowland

crops. The rotation between crops, for example, from hay

to wheat or vice versa, is not putting the land to a use to

13

which it was not previously subject. If farmers and ranch-

ers must approach the Corps for permission to engage

in norma! crop management then the exemptions of Con-

gress are meaningless.’

III

CONGRESS INTENDED THE AGRICULTURAL

EXEMPTIONS TO THE CLEAN WATER ACT TO

APPLY TO A FULL RANGE OF AGRICULTURAL

ACTIVITIES

The plain language of the exemptions to the Clean

Water Act leaves little ambiguity. The Court of Appeals

held that these exemptions do not encompass a full range

of normal farming activities. Furthermore, it stated that

the legislative history of the amendments to the Clean

Water Act reveal that the exemption must be very nar-

rowly construed so that only very few farming-related

activities will be allowed by the Corps to proceed without

permit requirements. Opinion, Appendix at B-8- B-9.

However, when the entire legislative history is examined,

it becomes abundantly clear that Congress had every in-

tention to exclude normal] farming activities, such as crop

rotations, from the domain of the Army Corps of Engin-

eers. Furthermore, it is plain that the activities of

Mr. Akers fall well within the congressional intent.

The Court of Appeals relied on an isolated statement

made during debate by Representative Harsha for the

3 Finaliy, it should be noted that a literal reading of the ex-

emption provides even less support to the Court of Appeals’

position. The exemption does not speak of uses to which lands

were subjected to but to uses the lands were “subject to.” Thus,

if a wetland area was merely subject or susceptible to farming

uses, there is a valid argument that it should come within the

exemption.

14

proposition that no agricultural activity is exempt which

somehow affects a wetland’s hydrological regime. Opin-

ion, Appendix at B-17. However, a statement in debate

should not and must not be allowed to refute the plain and

obvious meaning of a statute. See, e.g., Duplex Printing

Press Co. v. Deering, 254 U.S. 443, 474 (1921) (it is “well

established that the debates in Congress expressive of

views and motives of individual members are not a safe

guide, and hence.may not be resorted to, in ascertaining

the meaning and purpose of a lawmaking body”) ; Camin-

etts v. United States, 242 U.S. 470, 490 (1917) (weight giv-

en to plain meaning of statute, despite language of con-

gressional report). Nor does such an isolated statement

refute the overwhelming evidence obtained from an exam-

ination of the entire debate, that Congress had every inten-

tion for the agricultural exemption to apply to a wide

range of legitimate agricultural activities. Although re-

sort to isolated examples from legislative debate is not

particularly useful, it is also established that an under-

standing of the entire debate can be helpful to establish

what problems or evils the Legislature was trying to rem-

edy. See, e.g., Standard Oil Co. of New Jersey v. United

States, 221 U.S. 1, 50 (1911) (debates shed light on ‘‘en-

vironment’’ and ‘‘history’’ behind the Sherman Act). Here

it is obvious that Congress passed the agricultural exemp-

tions to relieve farmers from the spectre of excessive regu-

lation.

After Congress enacted the Clean Water Act in 1972

the Army Corps of Engineers expanded the scope of its

jurisdiction over navigable waterways to further include

all those waters affecting navigable waterways, including

wetlands. Soon thereafter the Corps began to promulgate

15

regulations which would have extended its regulatory con-

trol into the day-to-day activities of all farming in wetlands

areas and even those areas that were merely farmlands

with high seasonal saturations.‘

In response to the Corps’ attempt to expand excessive-

ly its jurisdiction under the 1972 Clean Water Act, Con-

gress in 1977 passed the Section 404(f) exemptions the

scope of which is the subject of this petition. The intent

of these exemptions clearly was to remove the Corps’ regu-

latory jurisdiction from normal farming activities. Even

with the proposed exemptions, however, there remained a

certain amount of wariness of the Corps among many

members of the Senate. Led by Senator Berntsen these

members attempted to pass an additional amendment to

the Clean Water Act which would have removed wetlands

entirely from Section 404 regulation. It is most telling to

note that during the debate over Senator Bentsen’s amend-

ment, the Senate was repeatedly assured that the Section

404(f) exemptions alone would relieve farmers from the

‘ During the Senate debate over the 1977 Amendments to

the Clean Water Act Senator Muskie stated:

“The corps proceeded to take [the Clean Water Act]

and . . . expand it far beyond any intent of the Congress

so that it found itself threatening regulation in areas of the

country which the corps had never imagined it had any

jurisdiction over.

“We all began to get letters from farmers, foresters,

ranchers, from people whose activities in the mind of Con-

gress were not in the slightest bit intended to be affected

... 2” See Environmental Policy Division of the Congres-

sional Reference Service, a Legislative History of the Water

Pollution Control Act Amendments of 1972 (Legislative

History) at 948 (Comm. Print 1973).

16

type of excessive regulatory jurisdiction that the senators

were concerned with.

For example, in introducing the amendment that would

have excluded wetlands from Clean Water Act regulation

Senator Bentsen stated:

“T find it offensive that before a small farmer can

dig new irrigation ditches he must first write the U.S.

Army for permission, complete the necessary Federal

forms, and then wait an average of 125 days while his

request is shuffled from one bureaucrat’s in-box to

another. I also find it offensive that a farmer who has

paid hard-earned money for new land 2 years ago may

now be prohibited by the Government from improving

that land for agriculturaliy productive uses, and will

not receive a penny in just compensation for his loss

of income from the property.’’ Legislative History

at 905.

In response, Senator Bentsen was assured that the

proposed 404(f) exemption alone would free farmers from

excessive government regulations. As Senator Hart

stated, the exemption “does exempt activities which are

normal farming or agricultural activities, run by indi-

viduals or family farmers.” Legislative History at 907-08.

See also remarks of Senator Stafford at 912 and remarks

of Senator Baker at 922 (“[t}he committee’s amendment

[Section 404(f)] has responded to this confusion and

makes it clear, for example, that normal farming, silvicul-

ture, and ranching activities, such as plowing, cultivating,

seeding, harvesting, upland soil and water conservation

practices and minor drainage are excluded from section

404 altogether”).

17

Despite these reassurances there was still some un-

easiness by some senators. Senator Domenici, in support

of Senator Bentsen’s amendment, stated:

“I think we have an opportunity here in the Senate to

undo something that has grown up that we really never

intended, and not to continue to ignore the fact that

we never intended under section 404 that the Corps of

Engineers be involved in the daily lives of our farm-

ers, realtors, people involved in forestry, anyone that

is moving a little bit of earth anywhere in this coun-

try that might have an impact on navigable streams.

We just did not intend that.

“We exempt ordinary farming, but farming should

not have been involved to begin with. So the farmer

still does not know whether his activity is normal or

not.” Legislatwe History at 924 (emphasis added).

Senator Hart reassured Senators Domenici and Bent-

sen that the proposed 404(f) exemptions would cover

farmers. Senator Hart stated:

“Every proposal before the Senator, every one,

is designed to exempt those normal activities from that

kind of overregulation by the Corps of Engineers or

anybody else. Any argument that is made on the

floor to the contrary simply misrepresents one or the

other of the proposals upon which we will be asked to

vote before this debate is over.

“The committee Amendment [Section 404(f)]

also specifically exempts the construction and main-

tenance of agricultural irrigation ditches and the

maintenance of agricultural drainage ditches.” Legis-

lative History at 928.

18

The debate continued. Senator Dole stated “[w]ithout

this [the Bentsen] amendment, our farmers and ranches

and others could be subjected to unnecessary bureaucratic

harassment.” Legislative History at 938. Once again the

senators were reassured that the 404(f) exemption pro-

tected the farmers although the Corps should continue to

have jarisdiction over wetlands because without that juris-

diction there would be “an open invitation for the dredgers

of this country to find wetland areas for the disposai of

their contaminated waste and spoil. If we adopt the

[Bentsen] amendment, that is what will happen.’’ State-

ment of Senator Muskie, Legislatwe History at 940. De-

spite the misgivings of the senators who wished to pass

the Bentsen amendment, the Senate ultimately decided

that farmers would be fully protected by the Section

404(f) exemptions. The Bentsen amendment was not

passed.

This legislative history is highly relevant to the

proper interpretation of Section 404(f). In this debate

it is clear that normal day-to-day farming activities, such

as crop rotations or increasing of efficiencies or moderni-

zations of farmland, were to be covered under the 404(f)

exemptions. If there had been any credible evidence that

normal farming activities such as those conducted by

Mr. Akers were not to fall within the exemption then the

Senate would not have passed the exemptions without

further modifications. Instead, the exemptions were passed

in their present form because the senators believed that the

404(f) amendment completely precluded the Army Corps

of Engineers from asserting its jurisdiction over the lives

and day-to-day management decisions of America’s farm-

ers.

19

It should be further noted that Section 404(f)(2) was

intended only to preclude the change from an agricultural

use into another use or vice versa under the guise of

“farming activities” and was not intended to affect change

among farm uses. Section 404(f)(2) was most certainly

not intended to preclude the changing of one crop to an-

other crop. The Senate had no intention of forever pre-

venting farmers from engaging in necessary and essential

crop rotations or intensifications of existing agricultural

uses. It only intended to prevent the conversion of wet-

lands into radically new uses. For exatnple, in the Senate

debates it was stated by Senator Stafford that “permit

review is necessary for discharges to convert a hardwood

swamp to another use through construction of dikes or

drainage channels.” Legislative History at 913.

Finally, it should be noted that the House of Repre-

sentatives also believed that the agricultural exemptions

would be applied to a broad range of farming activities. In

the House debate of April 5, 1977, of H.R. No. 199, a sub-

stantively identical exemption to Section 404(f) was de-

bated. The agricultural exemption Section 404(h), reprint-

ed in Legislative History at 1240, was the subject of the

comments of representatives Harsha and Cleveland who

stated that ‘‘[t]his procedure would exempt by statute vir-

tually all agricultural operations by straight exemption of

a list of specific activities from any requirement for any

permit whatsover.’’ Legislative History at 1265 and 1298

(emphasis added).

Subsequent judicial decisions involving the applicabil-

ity of the agricultural Section 404(f) exemptions support

the argument that Congress intended to exempt norma! ag-

ricultural activities from the Corps’ jurisdiction, but it did

20

not intend to exempt wholesale conversions of nonfarmland

into farmland. For example, in Avoyeiles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, it was correctly deter-

mined that the agricultural exemptions could not apply to

a massive land clearing, swamp drainage, and cypress for-

est removal program designed to put previously nonagri-

cultural land into agricultural use. Id. at 925-27. Clearly,

the exemptions could not apply to an area where no agri-

cultural activities had occurred and where farming could

not begin until the completion of the wetlands removal pro-

gram. In United States v. Huebner, 752 F.2d 1235, the court

also held that to the extent that nonagricultura] wetlands

were being converted into agricultural lands the Section

404(f) exemption did net apply.

In this case the wetlands have been used for farming

for generations and will remain in agricultural use for the

foreseeable future. Nonagricultural land is not being con-

verted into agricultural land and agricultural land is not

being converted into nonagricultural land.

Congress did not intend to regulate the activities of

Mr. Akers. Congress did not intend to allow the intrusion

of federal regulation into the day-to-day activities of this

nation’s farmers. Rather, Congress intended to prevent

the wholesale pollution or alteration of this nation’s wet-

lands by industrialists or developers who were not engag-

ing in legitimate ongoing farming or silvicultural activities.

Because none of Mr. Akers’ farm activities involve the

conversion of farmland into nonfarm uses, and becanse

there is no credible factual evidence that his activities fall

outside of the exemptions, he should never have been sub-

jected to the Corps’ Section 404 regulatory jurisdiction.

21

IV

CONCLUSION

The Ninth Circuit held that the Army Corps of Engi-

neers has Sectiou 404 permitting jurisdiction over farming

activities that merely involve rotation from wetland crops

to upland crops, or from one wetland crop to another wet-

land crop which may affect the farmland’s hydrologial re-

gime. This errant holding will negatively affect the man-

agement flexibility and practices of countless farmers na-

tionwide and has converted the Army Corps of Engineers

into these farmers’ managing general partner. Whether

Congress intended such a result is an important question

of federal law which has not been, but should be, settled by

this Court. For these reasons and those stated above, the

petition for writ of certiorari should be granted.

Respectfully submitted,

Of Counsel

RONALD A. ZUMBRUN

LANNY T. WINBERRY ROBIN L. RIVETT

Giattina & Winberry COUNSEL OF RECORD

777 Campus Commons Pacific Legal Foundation

Road, Suite 180 555 Capitol Mall, Suite 350

Sacramento, CA 95825 Sacramento, CA 95814

Telephone: (916) 920-1100 Telephone: (916) 444-0154

JAMES S. BURLING Attorneys for Petitioners

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, CA 95814

Telephone: (916) 444-0154

Dated: June, 1986.

A-1

APPENDIX A

Title 33 U.S.C. § 1344:

‘*(f) Non-prohibited discharge of dredged or fill material

**(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, cultivat-

ing, minor drainage, harvesting for the production of

food, fiber, and forest products, or upland soil and

water conservation practices;

‘*(B) for the purpose of maintenance, including

emergency reconstruction of recently damaged parts,

of currently serviceable structures such as dikes, dams,

levees, groins, riprap, breakwaters, causeways, and

bridge abutments or approaches, and transportation

structures ;

**(C) for the purpose of construction or mainte-

nance of farms or stock ponds or irrigation ditches, or

the maintenance of drainage ditches;

**(D) for the purpose of construction of tempo-

rary sedimentation basins on a construction site which

does not include placement of fill material into the

navigable waters;

**(E) for the purpose of construction or main-

tenance of farm roads or forest roads, or temporary

roads for moving mining equipment, where such roads

are constructed and maintained, in accordance with

best management practices, to assure that flow and

circulation patterns and chemical and biological char-

acteristics of the navigable waters are not impaired,

that the reach of the navigable waters is not reduced,

and that any adverse effect on the aquatic environ-

ment will be otherwise minimized ;

‘*(F) resulting from any activity with respect to

which a State has an approved program under section

A-2

1288(b)(4) of this title which meets the requirements

of subparagraphs (B) and (C) of such section,

is not prohibited by or otherwise subject to regulation un-

der this section or section 1311(a) or 1342 of this title

(except for effluent standards or prohibitions under sec-

tion 1317 of this title).

‘*(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 impaired or the

reach of such waters be reduced, shall be required to have a

permit under this section.’’

B-1

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellee,

v.

Robert W. AKERS and John Doe Equipment Operator,

Defendants-Appellants.

No. 85-1750.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 12, 1985.

Decided March 26, 1986.

Before WRIGHT, KENNEDY and BEEZER, Circuit

Judges.

EUGENE A WRIGHT, Circuit Judge:

This litigation is the unfortunate result of a standoff

between a California farmer who seeks to farm his wet-

lands more productively and the Army Corps of Engineers

B-2

which regulates wetland use under the Clean Water Act

(“Act”), 33 U.S.C. §§ 1251-1376 (1982 & Supp. I 1984).

The Corps succeeded in enjoining dredge and fill activities

for which a permit had not been sought. We are asked to

construe the Act’s exemptions and review the scope of the

preliminary injunction awarded to the government. We

have jurisdiction under 28 U.S.C. §1292(a)(1), and we

affirm.

BACKGROUND

In January 1984, Robert W. Akers purchased approxi-

mately 9,600 acres in Lassen and Modoe Counties, near

Bieber, California. The property includes 2,889 acres of

wetlands, known locally as the “Big Swamp.” Ash Creek,

a tributary to the Pit River, flows across the property.

The Pit River, Ash Creek, and their channels and adjacent

wetlands are subject to the Corps’s jurisdiction under Sec-

tion 404 of the Act, 33 U.S.C. § 1344 (1982).!

Big Swamp is an important wildlife habitat. It pro-

vides seasonal refuge for numerous species, including the

bald eagle and peregrine falcon, both endangered species,

the greater sandhill crane, listed as rare by California au-

thorities, and the cackling Canada goose, whose numbers

have decreased sharply in recent years. Less threatened

species including Canada geese, snow geese, and mallard,

pintail, shoveler and cinnamon teal ducks, also inhabit the

area.

1. Akers concedes, for purposes of this case, that portions of

his property are “wetlands” under the Corps’s expansive def-

inition, 33 C.F.R. § 323.2(c) (1985). His principal contention,

however, is that his activities are exempt.

B-3

The following chronology summarizes Akers’ battle

with the Corps over Big Swamp farming:

March 1984

May 4

May 15

July 16

Corps learned of Akers’ “farming plan”

to carry out extensive grading, leveling,

drainage and water diversion to convert

the wetlands to farm land suitable for

growing upland crops. After a prelim-

inary investigation, the Corps deter-

mined that its jurisdiction extended to

roughly one-third of Akers’ property

and that a Section 404 permit would be

required.

Akers sued the government for declara-

tory and injunctive relief under the Act

alleging that the Corps’s assertion of

regulatory jurisdiction was improper

and illegal. TRO issued enjoining

Corps from asserting regulatory juris-

diction over Akers until hearing on mo-

tion for preliminary injunction. The

order also enjoined Akers from con-

struction activities.

Akers’ motion for preliminary injunc-

tion was denied.

Akers voluntarily dismissed his lawsuit.

He began the first of three phases of

earthmoving activity. Along the west-

ern border of his property, he built a

dike 3,500 feet long, two to three feet

high and six feet wide. He first told the

Corps he was ditch cleaning, but later

said he was repairing a pre-existing

temporary irrigation structure.

Late July or early Corps determined that Akers needed a

August

permit and issued a cease and desist or-

der. By that time, the project was fin-

ished.

August 13

August 30

September 2

September 13

September 17

September 26

B-4

Corps withdrew cease and desist order

based on assurances that the dike would

be used only for the purposes that the

previous structure had served (although

new dike was longer and in a different

loeation).

Akers was informed by the Corps’s Dis-

trict Engineer (“DE”) that 2889 acres

of his farm contained wetlands within

the Corps’s jurisdiction.

Corps learned of work in central portion

of wetlands.

Corps’s aerial survey revealed two-mile

long dike had been constructed east-to-

west through the wetlands. On the west

end, the dike connected perpendicularly

to the other recently-constructed dike on

the: western property line. A grader

and tractor (pulling discs) were seen

along the dike. Some wetlands south of

the dike had been leveled. Corps issued

a cease and desist order.

Fly-over showed that sometime after

September 13, the dike had been length-

ened from two to three miles.

Fly-over revealed large north-south

ditch on the eastern edge of the prop-

erty, possibly 50 feet wide. While the

ditch was mostly on non-wetlands, it

filled two natural channels of Ash

Creek. Corps also observed roads being

constructed in the northwest section of

the property. These roads blocked sev-

eral overflow channels of the Pit River.

October 3

October 5

October 24

October 31

January 14, 1985

January 15

B-5

The U.S. sued Akers seeking declara-

tory and injunctive relief, civil penalties

and restoration.

District court granted TRO forbidding

Akers from depositing dredged or fill

material in waters on his property, ex-

cept in certain channels with Corps’s

permission.

Court orally granted government’s mo-

tion for preliminary injunction.

Written TRO entered.

Oral arguments on motions for recon-

sideration and intervention of the Cali-

fornia’s Cattlemen’s Association, Agri-

cultural Council of California, National

Cattlemen’s Association, and California

Farm Bureau (“Cattlemen”) on behalf

of Akers and the National Audubon So-

ciety and National Wildlife Federation

(‘‘Audubon’’) on behalf of the govern-

ment.

Court issued written findings of fact,

conclusions of law and order reconfirm-

ing the earlier oral preliminary injunc-

tion. The order prohibited Akers from

depositing dredged or fill material into

the waters, channels or wetlands pre-

viously delineated by the Corps unless

he: (1) obtains a permit from the

Corps, or (2) submits a proposal for

dredge or fill activities, which he asserts

are not within the Corps’ jurisdiction,

and (a) is informed in writing by the

DE that a permit is not necessary; or

(b) is not informed in writing by the

DE whether a permit is necessary within

15 days of receipt of his proposal. The

B-6

court also ordered that Akers must

comply in good faith with Corps cease

and desist orders regarding dredge and

fill activities on his property.

January 31 Court granted permissive intervention

of the Cattlemen and Audubon groups.

This appeal followed. Akers has not applied for a § 404

permit from the Corps.

STANDARD OF REVIEW

A preliminary injunction will be reversed “only if the

lower court abused its discretion or based its decision on an

erroneous legal, standard or clearly erroneous findings of

fact.” Flynt Distributing Co., Inc. v. Harvey, 734 F.2d

1389, 1394 (9th Cir. 1984). The injunction will be upheld

if the court correctiy found that the government demon-

strated either (1) probable success on the merits and the

possibility of irreparable injury, or (2) that serious ques-

tions are raised and the balance of the hardships tips

sharply in its favor. Goldte’s Bookstore, Inc. v. Superior

Court, 739 F.2d 466, 470 (9th Cir.1984). These are not

separate tests, but rather, “extremes of a single conti-

nuum.” Benda v. Grand Lodge of the International Asso-

ciation of Machinists € Aerospace Workers, 584 F.2d 308,

315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct.

2065, 60 L.Ed.2d 667 (1979). -

STATUTORY FRAMEWORK

The Act aims “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.’’

33 U.S.C. $1251(a) (1982). “This purpose is to be

achieved by compliance with the Act, including compliance

B-7

with the permit requirements.” Weimberger v. Romero-

Barcelo, 456 U.S. 305, 315, 102 S.Ct. 1798, 1804, 72 L.Eid.2d

91 (1982) (footnote omitted).

The Act prohibits the discharge of dredged or fill ma-

terials into “navigable waters”—-defined as “waters of the

United States’’—unless authorized by a permit issued by

the Corps pursuant to $404. See generally 33 U.S.C.

§§ 1311, 1344 (1982). “Waters of the United States” is

broken down into seven categories, including wetlands.

See 33 C.F.R. § 323.2(a) (1985).

Recently, a unanimous Supreme Court upheld the

Corps’s wetlands definition’ in United States v. Riverside

Bayview Homes, Inc., — U.S. —, 106 S.Ct. 455, 88 L.Ed.2d

419 (1985). The lands in question are wetlands under the

Corps’s definition; hence, the Corps had authority, absent

an applicable exception, to require Akers to obtain a permit

before engaging in dredge and fill activities.

Limited exemptions from the permit requirement are

found in Section 1344(f), which provides in pertinent part:

(f) Non-prohibited discharge of dredged or fili ma-

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

subsection, the discharge of dredged or fill material—

2. Under the Corps’s definition, “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 veg-

etation typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs and sim-

ilar areas. 33 C.F.R. § 323.2(c) (1985). While the Court con-

strued the 1977 definition, it noted that the 1982 definition,

quoted above, is “substantively identical.” United States v.

Riverside Bayview Homes, Inc., — U.S. —, 106 S.Ct. 455, 458,

88 L. Ed. 2d 419 (1985). ~

B-8

(A) from normal farming, silviculture, and

ranching activities such as plowing, seeding, cul-

tivating, minor drainage, harvesting for the pro-

duction of food, fiber, and forest products, or up-

land soil and water conservation practices ;

(C) for the purpose of construction or mainte-

nance of farm or stock ponds or irrigation ditches,

or the maintenance of drainage ditches ;

(E) for the purpose of construction or mainte-

nance of farm roads or forest roads, or temporary

roads for moving mining equipment, where such

roads are constructed and maintained, in accord-

ance with best management practices, to assure

that flow and circulation patterns and chemical

and biological characteristics of the navigable wa-

ters are not impaired, that the reach of the navi-

gable waters is not reduced, and that any adverse

effect on the aquatic environment will be other-

wise minimized ;

is not prohibited by or otherwise subject to regu-

lation under this section ....

(2) Any discharge of dredged or fill material

into the navigable waters incidental to any activ-

ity 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.

Akers’ activities must be analyzed in light of the Act’s

purposes and the intended scope of its exemptions. The

Fifth and Seventh Circuits have construed the § 1344(f) (1)

B-9

exemptions narrowly. See United States v. Huebner,

752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, — U.S. —,

106 §.Ct. 62, 88 L.Eid.2d 50 (1985); Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir.

1983).

This construction is consistent with the legislative his-

tory. Senator Muskie described the exemptions during

Senate debate :

New subsection 404(f) provides that Federal permits

will not be required for those narrowly defined activi-

ties that cause little or no adverse effects either in-

dividually or cumulatively. While it is understood

that some of these activities may necessarily result in

incidental filling and minor harm to aquatic re-

sources, the exemptions do not apply to discharges

that convert extensive areas of water into dry land

or impede circulation or reduce the reach or size of the

water body.

3 Legislatiwe History of the Clean Water Act of 1977

(“Leg.Hist.”) at 474 (Senate Debate, Dec. 15, 1977). As

the legislation’s primary sponsor, his remarks are entitled

to substantial weight. See Federal Energy Administration

v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295,

2304, 49 L.Ed.2d 49 (1976); Environmental Defense Fund,

Inc. v. Costle, 636 F.2d 1229, 1243 & n. 48 (D.C.Cir.1980).

To be exempt from the permit requirements, one must

demonstrate that proposed activities both satisfy the re-

quirements of §(f)(1) and avoid the exception to the ex-

emptions (referred to as the ‘‘recapture’’ provision) of

§ (f)(2). See Avoyelles, 715 F.2d at 926 ((f)(2) takes

away some of the exemptions provided in (f)(1)). Akers

must establish that his activities are exempt.

B-10

ANALYSIS

(1) The ‘‘Normal Farming’’ Exemption:

§ 1344(f)(1)(A)

[1] The court rejected this exemption because the

wetlands portion of Akers’ farm “has never been subjected

to any established upland farming operation,” relying on

33 C.F.R. §323.4(a)(1)(ii) (1985). That regulation pro-

vides in pertinent part:

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

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

ture, or ranching operation. Activities on areas lying

fallow as part of a conventional rotational cycle are

part of an established operation. Activities which

bring an area into farming, silviculture, or ranching

use are not part of an established operation. An oper-

ation ceases to be established when the area on which

it was conducted has been converted to another use or

has lain idle so long that modifications to the hydro-

logical regime are necessary to resume operations... .

Akers bases his entitlement to the exemption on the

fact that all of his land, including the wetlands, has been

farmed since 1897. He contends that discing and seeding

have been part of the farming operation traditionally un-

dertaken on his land.

He ignores the consequences of the new projects, how-

ever. We cannct view Akers’ plowing, discing and seeding

in isolation. The record amply supports the court’s find-

ing that upland crop production has not occurred on these

wetlands on a regular basis. Upland farming represents a

new operation in the wetlands.

Moreover, Akers argued below that unless he were al-

lowed to complete the work he had started, the effect of

Le a

— ee i ee ee lL! CL

é

B-11

which is to drain the wetlands, he would be unable to en-

gage in the farming activities he had planned. By his own

admission, his activities require substantial hydrological

alteration to Big Swamp, and run afoul of the regulations.

At oral argument, counsel for the government advo-

cated a position of complete authority to prohibit all

changes in wetland use which involve discharges of pollu-

tants without prior Corps approval. Discing of soil is a

point source of pollutants, according to the Corps.

Besponding to our inquiries, government counsel as-

serted that the Corps would require Akers, and other

farmers like him, to obtain a § 404 permit before switching

from one type of wetland 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.

Although we affirm the injunction as a reasonable

response to the peculiar facts before us, we do not endorse

the government’s authoritative 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.

(2) The ‘‘Irrigation’’ Exemption: § 1344(f)(1)(C)

The court rejected Akers’ attempt to characterize the

three-mile long dike bisecting the wetlands as an exempt

irrigation facility. He argues that non-exempt dikes hold

water on their lowland sides while exempt structures, such

as his dike, hold water on their upland sides.

B-12

[2} It is irrelevant how he characterizes the dike.

Provided the structure has the effect of keeping water

from the southern wetlands, its construction requires a

permit. See Huebner, 752 F.2d at 1242. The regulation

defining ‘‘minor drainage,’’ as that term is used in the

‘‘normal farming’’ exemption, supports the government’s

position :

Minor drainage in waters of the U.S. is limited to

drainage within areas that are part of an established

farming or silviculture operation. It does not include

drainage associated with the immediate or gradual

conversion of a wetland to a non-wetland (e.g., wet-

land species to upland species not typically adapted

to life in saturated soil conditions), or conversion

from one wetland use to another (1 for example, silvi-

culture to farming). In addition, minor drainage does

not include the construction of any canal, ditch, dike

or other waterway or structure which drains or other-

wise significantly modifies a stream, lake, swamp, bog

or any other wetland or aquatic area constituting wa-

ters of the United States. Any discharge of dredged

or fill material into the waters of the United States

incidental to the construction of any such structure or

waterway requires a permit.

33 C.F.R. § 323.4(a)(1)(iii)(C)(2) (1985).

Akers also argues that the dike is physically connected

and functionally related to an irrigation ditch and, there-

fore, is exempt under 33 C.F.R. § 323.4(a)(3) (1985):

Discharges associated with siphons, pumps, head-

gates, wingwalls, weirs, diversion structures, and such

other facilities as are appurtenant and functionally

related to irrigation ditches are included in this ex-

emption.

B-13

The court concluded that the dike was not one of the

types of structures specified in the regulation and was not

subsidiary to an irrigation ditch. Akers has not demon-

strated that these factual findings are clearly erroneous.’

(3) The State Water Rights Proviso: 33 U.S.C.

§ 1251(g)

Akers asserts that the court construed 33 U.S.C.

§1251(g) (1982) (also known as the ‘‘Wallop Amend-

ment’’) too narrowly by rendering his state-allocated wa-

ter rights ‘‘virtually meaningless.’’ He urges us to apply

the irrigation exemption ‘‘so as to not impair or abrogate

state allocated water rights.’’

Section 1251(g) provides:

It is the policy of Congress that the authority of each

State to allocate quantities of water within its juris-

diction shall not be superseded, abrogated or other-

wise impaired by this chapter. It is the further policy

of Congress that nothing in this chapter shall be con-

strued to supersede or abrogate rights to quantities

of water which have been established by any State.

Federal agencies shall co-operate with State and local

agencies to develop comprehensive solutions to pre-

vent, reduce and eliminate pollution in concert with

programs for managing water resources.

3. Akers also contends that the court ignored the fact that

flood flows caused a breach in the dike and that he intended

to place culverts in it. The court rejected these developments

as irrelevant. It pr focused on the probable conse-

quences of what had completed to the time of the hear-

ing on the motion for preliminary injunction.

B-14

Akers attacks the ‘‘ambiguous’’ references to legisla-

tive history relied on by the district court when it refused

to apply §1251(g). Senator Wallop, who sponsored the

amendment, described its purpose during Senate debate:

The requirements of section 402 and 404 permits may

incidentally affect individual water rights. ... It is

not the purpose of this amendment to prohibit those

incidental effects. It is the purpose of this amend-

ment to insure that State allocation systems are not

subverted, and that effects on individual rights, if any,

are prompted by legitimate and necessary water qual-

ity considerations. This amendment is an attempt to

recognize the historic allocation rights contained in

State constitutions. It is designed to protect historic

rights from mischievous abrogation by those who

would use an act, designed solely to protect water

quality and wetlands, for other purposes. It does not

interfere with the legitimate purposes for which the

act was designed.

3 Leg.Hist. 532 (Senate Debate, Dec. 15, 1977).

[3] As intervenor Audubon points out, any inciden-

tal effect on Akers’ rights to state-allocated water from

the Pit River is justified because protection of Big Swamp

is the type of legitimate purpose for which the Act was

intended.

In Riverside Irrigation District v. Andrews, 758 F.2d

508, 513 (10th Cir.1985), the Tenth Circuit construed the

Wallop Amendment as an indication

‘that Congress did not want to interfere any more than

necesssary with state water management.’ National

Wildlife Federation v. Gorsuch, 693 F.2d 156, 178

(D.C.Cir.1982). A fair reading of the statute as a

whole makes clear that, where both the state’s interest

B-15

in allocating water and the federal government’s in-

terest in protecting the environment are implicated,

Congress intended an accommodation. Such accom-

modations are best reached in the individual permit

process.

Akers staunchly has resisted the permit process. The

injunction properly compels him to participate in it.

(4) The ‘‘Roadbuilding’’ Exemption:

§ 1344(f) (1) (E)

[4] Akers disagrees with the court’s findings that he

constructed a road across overflow channels of the

Pit River and failed to comply with best management prac-

tices. Rather than challenging these findings as clearly

erroneous, he asserts that the injunction is overbroad. He

contends that instead of enjoining all roadbuilding, the ap-

propriate remedy ‘‘was simply to notify him as to what

actions were necessary to bring the road into conformity

with best management practices, and require compliance

therewith in future activities.’’ We disagree.

The roadbuilding regulations set forth in 33 C.F.R.

§ 323.4(a)(6) (1985) describe with sufficient clarity what

Akers had to do to comply with § 1344(f)(1)(E). As ex-

plained in the overbreadth section below, the court pro-

perly considered Akers’ misunderstanding and disregard

of the Act in fashioning appropriate relief.

(5) The ‘‘Recapture’’ Provision: § 1344(f)(2)

Judge Ramirez concluded that Akers was unlikely to

avoid the recapture provision even if he established an

applicable exemption. Over Akers’ argument that upland

crops could have been grown in the wetlands, the court

wrote:

B-16

The proper inquiry is not what could have been done

but what was done in the past and its relationship to

what Mr. Akers is attempting to do now. Further-

more, Mr. Aker’s [sic] argument ignores the question

of whether there will be a change in Big Swamp from

wetlands (i.e.; waters of the United States) to dry

land (no longer waters of the United States). Whether

or not there have been isolated incidents of attempted

farming of upland crops in the swamp during dryer

periods, there is little doubt that the area is still a

wetland within the meaning of the Clean Water Act.

Mr. Akers’ activities taken as a whole appear to this

Court to be incidental to an effort to convert the area

so that it may be farmed in a way which is incon-

sistent with its remaining a wetland.

United States v. Akers, No. CIV-84-1276 RAR, Conclu-

sion of Law XIV (E.D.Cal. Jan. 15, 1985). The court did

not abuse its discretion in reaching this conclusion.

Additionally, Akers asserts that ‘‘use’’ denotes a ma-

jor type of use, e.g., farming, silviculture or ranching. Be-

cause the land has been used for farming since 1897, he

claims there is no major change of use within the meaning

of § (f) (2).

He attempts to distinguish Huebner and Avoyelies,

where the recapture provision was applied. He asserts

that those cases involved major changes to agricultural

use, whereas his actions represent ‘‘a change within the

farming use.’’ However, he cannot escape the impact of

B-17

these opinions, which classify as non-exempt those activ-

ities which change a wetland’s hydrological regime. See

Huebner, 752 F.2d at 1242; Avoyelles, 715 F.2d at 926.4

While the exemptions and regulations do not dis-

tinguish major and minor changes, the intent of Congress

in enacting the Act was to prevent conversion of wetlands

to dry lands. For example, Representative Harsha, a mem-

ber of the conference committee, stated during House

debate:

To assure that the extent of these exempted activities

will not be misconstrued, . . . (f)(2) provide[s] com-

mon sense limitations to protect the chemical, biolog-

ical, and physical integrity of the Nation’s waters.

While it is understood that some of these activities

may necessarily result in incidental filling and insig-

nificant harm to aquatic resources, the exemptions

do not apply to discharges that convert more exten-

sive areas of water into dry land or impede circula-

tion or reduce the reach or size of the water body.

3 Leg.Hist. 420 (House Debate, Dec. 15, 1977).

It is thus the substantiality of the impact on the wet-

land that must be considered in evaluating the reach of

§ (f)(2). Cf. Huebner, 752 F.2d at 1242 (district court

properly considered results of dredging as it affected sur-

rounding wetlands). The court’s findings on wetland con-

version, not clearly erroneous, establish:

It appears likely that if this work is allowed to remain

in place, or allowed to be expanded, an extensive area

4. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 646-47

(Sth Cir.1983), relied on by appellant, is distinguishable be-

cause no change in wetland hydrological regime was proposed.

“The wetlands involved here will not be converted as in

Avoyelles,” wrote that court. Id. at 647.

B-18

of the Big Swamp wetlands will be converted to non-

wetiand, thereby significantly reducing the reach of |

Big Swamp. In addition, the flow and circulation in

Ash Creek and the overflow channels of the Pit River

may be impaired. Furthermore, many highly signifi-

cant aquatic functions now performed by the Big

Swamp wetlands area will be lost or impaired.

United States v. Akers, Finding of Fact X.

[5] Giving the recapture provision the appropriate

common sense reading, it appears that Akers’ activities

are not exempt from permit requirements due to the like-

ly drying effect. As discussed earlier, this is not to say

that he could not change from one wetland crop to another

without running afoul of the recapture provision.

(6) Is the Injunction Overbroad?

Finally, he argues that the injunction is overbroad be-

cause it requires Corps approval for all his dredge and fiil

activ:i._~s, including those clearly exempt. The government

responds by stating that the conditions are necessary to

preserve the status quo. The government stresses the non-

onerous nature of this injunction, considering the require-

ment that the Corps respond to a permit application within

15 days.

[6] The district court has considerable discretion to

fashion appropriate injunctive relief, particularly where

the public interest is involved. See Virginian Railway Co.

v. System Federation No. 40, etc., 300 U.S. 515, 552, 57 S.Ct.

592, 601, 81 L.Ed. 789 (1937) ; State of California v. Tahoe

Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir.)

(district court has greater power to fashion equitable re-

lief in defense of the public interest than it has when only

private interests are involved), amended, 775 F.2d 998

B-19

(9th Cir.1985). The Supreme Court has recognized that

the Act gives the district court discretion ‘‘to order that

relief it considers necessary to secure prompt compliance

with the Act.’’ Weinberger v. Romero-Barcelo, 456 U.S.

at 320, 102 S.Ct. at 1807.

In enjoining the filling of wetlands without a permit,

courts have noted that the public interest requires strict

enforcement of the Act to effectuate its purpose of pro-

tecting sensitive aquatic environments. See United States

v. Ciampitti, 583 F.Supp. 483, 499 (D.N.J.1984); United

States v. Lofgren, 13 Envtl.L.Rep. (Envtl.L.Inst.) 20,164

at 20,166 (H.D. Mich. 1982) (presumption in favor of pre-

liminary injunction in light of Act’s objectives which in-

clude maintaining Corps’s regulatory scheme) (discussed

in W. Want, Federal Wetlands Laws The Cases and the

Problems, 8 Harv.Envtl.L.Rev. 1, 52 (1984)).

[7] Judge Ramirez did not abuse his discretion in

issuing this injunction. He considered extensive testimony

regarding past and present uses of Big Swamp, ecological

disruption caused by the ongoing and proposed activities,

Akers’ avoidance of the Corps’s permit process, harm in-

curred by Akers, and the legislative history of the exemp-

tions. The findings and conclusions supporting the injunc-

tion are comprehensive and reflect a well-balanced consid-

eration of the competing interests.

CONCLUSION

Akers has failed to demonstrate that the injunction

was based on erroneous legal standards or clearly er-

roneous findings of fact. Nor does he demonstrate that

Judge Ramirez abused his discretion.

B-20

We are mindful of the plight of today’s farmers. So

was Congress when it enacted the wetlands legislation at

issue here. It did not intend to prohibit all changes of wet-

lands, however minor, without prior Corps approval.

The changes proposed by Akers are far from minor,

however. They contemplate a major conversion from wet-

lands to dry lands, thereby necessitating a Corps permit.

Judicial review of Corps permit approval or denial pro-

vides the necessary check against arbitrary government

action. We assume that the Corps will not act arbitrarily

when it rules on Akers’ future permit applications.

This litigation resulted from an inability to work

cooperatively. Both parties bear some fault for the break-

down in communications. Reasonableness and coopera-

tion are indicated. The preliminary injunction is AF-

FIRMED.

5. Intervenor Audubon’s request for attorney’s fees on appeal

is denied. Counsel has not identified any basis for such an

award, and we find none. The motion for intervention pur-

suant to 33 U.S.C. § 1365, where fees are provided, was de-

nied. Instead, Judge Ramirez granted permissive intervention

under Fed.R.Civ. P 24(b).

C-1

APPENDIX ©

IN 'THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NO. CIV.S-84-1276 RAR

UNITED STATES OF AMERICA,

Plaintiff,

v.

ROBERT W. AKERS,

Defendant.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW;

ORDER GRANTING

PRELIMINARY INJUNCTION

(Filed January 15, 1985)

The motion of plaintiff, UNITED STATES OF

AMERICA, for a preliminary injunction came on regularly

for hearing before the undersigned on October 24, 1984.

John Wittenborn, Special Assistant United States Attor-

ney, and Geoffrey Worstell, Esq., of the United States Army

Corps of Engineers, appeared on behalf of plaintiff, UNIT-

ED STATES OF AMERICA. Lanny T. Winberry, Esq.,

appeared on behalf of defendant, ROBERT W. AKERS.

Having considered the voluminous pleadings, declarations

and exhibits filed in support of and in opposition to the

motion, the arguments of respective counsel, the proposed

findings of fact and conclusions of law, as well as the ob-

jections and counter-proposed findings of fact and conclu-

sions of law, the Court now issues the following Findings

C-2

of Fact and Conclusions of Law and Order Granting Pre-

liminary Injunction pursuant to Rule 52 and Rule 65,

Federal Rules of Civil Procedure.

FINDINGS OF FACT

The evidence before the Court shows that Mr. Akers is

the owner of certain real property he acquired in the early

part of 1984, consisting of approximately 9,600 acres lo-

cated partly in Modoc County and partly in Lassen County,

California. The Army Corps of Engineers has determined

that between one-fourth and one-third of the acreage, to wit,

2,889 acres known locally as the Big Swamp, is wetlands

acreage subject to Corps regulation under the Clean Water

Act, 22 U.S.C. § 1251, et seq. The District Engineer has

also found that the primary agricultural activity in this

area has been the haying of native vegetation.

II

The present lawsuit does not represent the first time

that the ongoing controversy between Mr. Akers and the

Corps of Engineers has been before this Court. The Court

can and does take judicial notice of the case file relating to

a prior lawsuit filed by Mr. Akers on May 4, 1984, entitled

Akers v. United States, et al., Civ.S-84-0598 RAR. The

prior lawsuit arose after Mr. Akers developed a farming

plan for his property which, in effect, provided for the

leveling and filling of the Big Swamp area and diversion

of the waters which normally feed it. The Corps of En-

gineers advised Mr. Akers that he needed a permit for

the proposed work, pursuant to § 404 of the Clean Water

Act, 33 U.S.C. § 1244.

0-3

peat

Mr. Akers rejected the Corps’ position and filed his

lawsuit, in which he sought injunctive relief to preclude

the Corps from exercising regulatory jurisdiction over his

land or project. After a full hearing on May 15, 1984, this

Court denied Mr. Akers’ motion for a preliminary injunc-

tion. The Court determined that Mr. Akers had established

no likelihood of success on the merits. It also found that

he had failed to demonstrate a possibility or probability

of irreparable harm, as opposed to monetary injury, and

had likewise failed to establish a balance of hardships tip-

ping sharply in his favor and/or serious questions for liti-

gation. Thereafter, Mr. Akers dismissed his lawsuit vol-

untarily.

IV

Prior to the volntary dismissal of Akers’ suit, the

Corps had entered into a contract with the U.S. Army

Corps of Engineers Waterways Experiment Station

(WES) for an extensive study and determination of the

extent and boundaries of the naturally occurring wetlands

on the Akers’ property, and for an investigation and re-

port on the nature and extent of past agricultural prac-

tices on the iand. On August 30, 1984, Col. Arthur Wil-

liams, District Engineer, Sacramento District, notified

Mr. Akers by letter that he had determined that the lend in-

cluded 2,889 acres of wetlands subject to regulation under

the Clean Water Act. He also notified Mr. Akers that the

proposed farming plan was not exempt from the permit

requirements of the Clean Water Act on the basis of the

historical farming practices.

0-4

V

The wetland determination made by WES and adopt-

ed by Col. Williams was based upon an extensive analysis

of vegetation, hydrology and soils and resulted from the

study of maps, photographs and nine days of actual on-

site investigation. Indeed, Dana Sanders states in his

declaration that the wetland report of the Waterways Ex-

periment Station (WES) was based on more technical

data than is available in more than 99 percent of all wet-

land determinations ever made by the Corps of Engineers.

Furthermore, the defendant himself conceded for pur-

poses of the preliminary injunction hearing only that wet-

lands regulated by the Corps under the Clean Water Act

do exist on his property.

VI

During the course of its investigation of Mr. Akers’

activities and its assessments of his future plans, the Corps

consulted with the United States Environmental Protec.

tion Agency (EPA) concerning the application of § 404(f)

of the Clean Water Act. EPA concurred in the Corps’

conclusion that the proposed dredging and construction

work on Mr. Akers’ property was not exempt from § 404

permit requirements.

vil

In late July, the Corps issued a cease and desist or-

der to stop Mr. Akers from building a dike across the

western portion of the wetland. Relying on Mr. Akers’

attorney’s representation that Mr. Akers was merely re-

constructing an existing dike, the Corps withdrew its cease

C-5

and desist order. In September 1984, the Corps investi-

gated reports that earth-moving activities were being con-

ducted on Mr. Akers’ property in Big Swamp. The Corps’

aerial inspections confirmed the on-going construction of

an earthen dike, running east-west the length of the wet-

lands, dividing them roughly in half, as well as other ac-

tivities, as described more fully below. On September 13,

1984, the Corps issued a cease and desist order to

Mr. Akers. The cease and desist order did not mention

channels of the Pit River. Nevertheless, Mr. Akers con-

tinued to fill in channels of Ash Creek on the east side of

his land, apparently based upon his own interpretations of

the exemptions to the Clean Water Act.

vill

There is persuasive evidence that Mr. Akers or his

agents have recently engaged in the following earth-moving

activities in Big Swamp, to wit: (1) the construction of

an east-west dike, now approximately three miles long,

which bisects the wetland; (2) the leveling of portions of

the wetland area south of the east-west dike, including

the filling of certain Ash Creek channels by use of discing

equipment; (3) construction of a road across the north-

west portion of his property which blocks several over-

flow channels of the Pit River; and (4) construction of a

large ditch and the filling of several Ash Creek channels

on the east side of the property. Heevy earth-moving

equipment was used to dise and scrape wetland soil from

wide swathes on either side of the three mile dike. The

soil was then used to construct the three mile dike. Va-

rious sections of the southern wetlands were disced with

farm equipment. Prior to the discing, the areas were

ripped with a chisel plow (or ‘‘ripper’’) which was used

0-6

to slice through the soil so that the discing would more

effectively pulverize the soil.

Ix

The road in the northwest portion of the property

has not been culverted, bridged or otherwise designed

so as to prevent restriction of flood flows; in fact, it closes

overflow channels of the Pit River. The three mile east-

west dike and the dikes and ditches running north to south

at either end of the three mile dike may, if not broken or

dismantled, prevent the natural flow of water to the south-

ern wetlands, causing them to dry up.

x

It appears likely that if this work is allowed to re-

main in place, or allowed to be expanded, an extensive

area o1 the Big Swamp wetlands will be converted to non-

wetland, thereby significantly reducing the reach of Big

Swamp. In addition, the flow and circulation in Ash

Creek and the overflow channels of the Pit River may be

impaired. Furthermore, many highly significant aquatic

functions now performed by the Big Swamp wetlands area

will be lost or impaired.

XI

Mr. Akers does not have, and has not applied for, a

§ 404 Clean Water Act permit from the Corps of Engineers

for any work on his property.

XI

The government has submitted evidence to establish

that the Big Swamp is considered an important waterfowl

C-7

wintering area and that it attracts significant numbers of

waterfowl in the spring and summer months for nesting

and staging activities. Bald eagles and peregrine falcons,

both federally listed endangered species, are known to

occur in the area, as are golden eagles, which are federal-

ly listed as rare species. Cackling geese, whose num-

bers in California have dwindled seriously in recent years,

use the Big Swamp as a staging area in the spring. More

common waterfowl species also use and inhabit the Big

Swamp in large numbers.

XII

The defendant asks this Court to look at each of his

earth-moving activities individually, rather than to scruti-

nize the overall cumulative impact of his activities. But

this Court does not agree with either the proposed method-

ology or the conclusion to which the defendant contends

it should lead. Moreover, although Mr. Akers had con-

tended that his recent work is only intended to be an in-

tensification of his past farming activities, experts and

others who have witnessed his work and assessed its ef-

fects, have persuaded this Court that the work will subject

his property to new uses potentially detrimental to the

Waters of the United States.

XIV

This Court finds that Mr. Akers has either misunder-

stood or callously disregarded the potential environmental

consequences of his activities. The evidence supports an

inference that Mr. Akers’ activities, if not enjoined, will

have the effect of splitting the Big Swamp into northern

C-8

and southern halves, with the potential eventual effect of

drying up the southern portion. Unless Mr. Akers has a

different plan not disclosed to this Court, it appears that

he intends this effect in order to pursue new and pre-

viously untried agricultural activities in the Big Swamp

area.

XV

Although the defendant contends vigorously that iso-

lated instances of farming of upland crops has taken place

during the past decades in various sectors of his land, he

has not persuasively disputed the Corps’ contention that

the only established farming operation in the wetland por-

tion of his land prior to his recent construction work was

the haying of native wetland grasses. The record also

supports the Corps’ finding that the ongoing irrigation

practices on the land consisted of the use of temporary

low spreader dams placed annually in various channels on

his property to spread water more evenly over the acreage.

XVI

The United States filed suit against Mr. Akers on Oc-

tober 3, 1984, seeking permanent injunctive relief, restora-

tion of the property to its natural condition and civil pen-

alties. The government also sought temporary and pre-

liminary injunctive relief to restrain Mr. Akers from de-

positing dredged or fili material into the wetlands and

channels on his land during the pendency of this lawsuit,

alleging that utherwise the wildlife, plant life and hydro-

logical regime in the area would be threatened with irrep-

arable injury.

0-9

XVII

The government’s application for a temporary re-

straining order (hereinafter ‘‘TRO’’) was heard and

granted on October 6, 1984. Mr. Akers was restrained

from discharging dredged or fill material into the waters

on his property unless and until he invited the Corps to

determine, and the Corps did determine, which waters he

could work in without a permit. Waters are not subject

to Corps regulations if they are not ‘‘waters of the United

States’’ within the meaning of the Clean Water Act.

XVIII

The United States now seeks a preliminary injunction

to extend the application of the prohibitory provisions of

the restraining order throughout the pendency of this law-

suit. The Court is persuaded by the government’s argu-

ments in reaching its decision to issue the preliminary in-

junction. The findings now made by this Court regarding

plaintiff’s preliminary injunction motion necessarily fol-

low closely the findings set forth in the temporary re-

straining order, since the same standard and facts are

involved. Due to the extensive briefing by both sides

since the hearing regarding the TRO, however, the Court

now has a much clearer and more detailed understanding

of the facts underlying this dispute and the manner in

which counsel for both sides view and interpret the law.

Therefore, the Court now has the opportunity and ability

to make these detailed findings of fact and to set forth the

following conclusions of law.

C-10

CONCLUSIONS OF LAW

I

To establish its right to a preliminary injunction, the

moving party may meet its burden by demonstrating either

(1) a combination of probable success on the merits and

possibility of irreparable injury or (2) that serious ques-

tions are raised and the balance of hardships tips sharply

in its favor. These are not separate tests, but the outer

reaches ‘‘of a single continuum.’’ Los Angeles Memorial

Coliseum Com’s v. National Football League, 634 F.2d

1197 (9th Cir. 1980).

Il

The plaintiff has established a strong likelihood of

success on the merits of its claims under the Clean Water

Act, 33 U.S.C. § 1251, et seq.

Itt

The objective of the Clean Water Act is to restore and

maintain the physical, chemical, and biological integrity of

the nation’s waters. 33 U.S.C. § 1251(a).

IV

Subject to certain exemptions, §4 301 and 404 of the

Clean Water Act, 33 U.S.C. §4 1311 and i344, prohibit the

discharge of dredged or fill material from point sources

into the waters of the United States without a permit from

the Corps of Engineers. By defining the term ‘‘navigable

waters’’ in the Clean Water Act to mean ‘‘the Waters of

C-11

the United States, including the territorial seas,”’

33 U.S.C. § 1362(7), Congress intended to assert federal jur-

isdiction over the nation’s water ‘‘to the maximum extent

permissible under the Commerce Clause of the Constitu-

tion.’’ Natural Resources Defense Council v. Callaway,

392 F.Supp. 685 (D.D.C. 1975) ; Leslie Salt Co. v. Froehlke,

578 F.2d 742, 754-756 (9th Cir. 1978); Utah v. Marsh,

740 F.2d 799, 802-804 (10th Cir. 1984); Avoyelles Sport-

men’s League v. Marsh, 715 F.2d 897, 914-916 (5th Cir.

1983); United States v. Byrd, 609 F.2d 1204, 1209-1211

(7th Cir. 1978). The term specifically includes adjacent

wetlands. 33 C.F.R. § 323.2. Avoyelles, supra; Byrd, supra.

This Court concludes that plaintiff has established a strong

likelihood that a substantial portion of the property in ques-

tion constitutes waters of the United States subject to the

Clean Water Act.

V

The construction of the dikes, road, ditches, and chan-

nel fills, and possibly some of the discing (to the extent it

may level that land so as to fill channels or convert wet-

lands to uplands) involve the discharge of dredged or fill

material. .The heavy equipment used to move and deposit

the earth are point sources. Avoyelles Sportman’s League

v. Marsh, supra.

Vi

The defendant contends that his recent activities fall

within any of several exemptions to the permit require-

ment set forth in §404(f)(1) of the Clean Water Act,

33 U.S.C. § 1344(f). Mr. Akers bears the burden of estab-

lishing that his activities are all exempt. United States v.

Frezzo Bros., Inc., 546 F.Supp. 713 (E.D. Penn. 1980),

0-12

appeal after remand, 703 F.2d 62 (3rd Cir. 1983). The

general rule requires the one claiming the benefits of an

exception to the prohibition of a statute to establish the.

applicability of the statutory exception. U.S. First City

National Bank of Houston, 386 U.S. 361, 366, 87 8.Ct.

1088, 1092 (1967). The Court finds a strong likelihood

thut Mr. Akers will not be able to do so.

Vil

Section 404(f)(1) states that:

Except as provided in paragraph (2) of this subsec-

tion, the discharge of dredged or fill materiai [from

activities specified in (A) through (F)] is not pro-

hibited by or otherwise subject to regulation under

this section or section 301(a) or 402 of this Act (ex-

cept for effluent standards or prohibitions wader Sec-

tion 307).

The specific exemptions follow. But the 404(f)(1) exemp-

tions are limited by § 404(f)(2), commonly referred to as

the ‘‘recapture provision.’’ which provides:

Any discharge of dredged or fill material into the nav-

igable 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.

Thus, in order to be exempt from regulation, a discharge

must not only fall within ¢ 404(f)(1), but must also escape

recapture under § 404(f) (2).

Vill

The legislative history of the 1977 Amendments to the

Clean Water Act evidences a strong Congressional intent

C-13

to limit the scope of the ¢ 404(f)(1) exemptions. As Sena-

tor Muskie, sponsor of the legislation explained, ‘‘New

subsection 404(f) provides that Federal permits will not

be required for those narrowly defined activities that cause

little or no adverse effects either individually or cumula-

tively.’’ 3 Leg. Hist. 474 (emphasis added). See also

statements by Rep. Harsha, id. at 420, and Senator Wal-.

lop, id. at 530. The numerous statements in the legisla-

tive history concerning what § 404 does not exempt are also

telling. For example, Senator Muskie explained, ‘‘[T]he

exemptions do not apply to discharges that convert exten-

sive areas of water to dry land or impede circulation or

reduce the reach or size of the water body.’’ 3 Leg. Hist.

474; see also statement of Senator Baker, id. at 523. As

Senator Stafford stated, ‘‘[PJermits will continue to be

required for those farm, forestry, and mining activities

that involve the discharge of dredged or fill material that

connect [sic—presumably intended to be ‘‘convert’’] wa-

ter to dry land including, for example, those occasional

farm or forestry activities that involve dikes, levees or

other fills in wetland or other waters.’’ 3 Leg. Hist. 485.

See also, Senate Report, 4 Leg. Hist. 710 (permit review

necessary for discharges to convert a hardwood swamp to

another use through dikes or drainage channels).

Ix

The defendant attempts first and foremost to rely

upon the exemption set forth in § 404(f)(1)(A) which ap-

plies to the discharge of dredged or fill material:

from normal farming, silviculture, and ranching ac-

tivities such as plowing, seeding, cultivating, minor

drainage, harvesting for the production of food, fiber,

C-14

and forest products or upland soil and water conserva-

tion practices ...

Defendant contends that because his recent activities are

related to his intentions to farm crops, they are exempt as

‘‘normal farming’’ activities.

x

Defendant’s contention is patently incorrect. The ex-

emption for ‘‘normal farming’’ applies only to activities

which are:

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

culture, or ranching operation. Activities on areas

lying fallow as part of a conventional rotational cycle

are part of an established operation. Activities bring-

ing an area into farming, silviculture, or ranching use

are not part of an established operation. An opera-

tion ceases to be established when the area on which

it was conducted has been converted to another use or

has lain idle so long that modifications to the hydro-

logical regime are necessary to resume operations.

33 C.F.R. § 323.4(a) (1) (ii).

The plaintift has amply demonstrated that the area of the

Big Swamp has never been subjected to any established

upland farming operation. Accordingly, defendant’s pro-

posed farming plans with its extensive diking and ditch-

ing is not within the scope of the ‘‘normal farming’’ ex-

emption.

xt

Defendant has failed to show that his dike and road-

building activities are either enumerated in § 404(f) (1) (A)

or are similar in nature to those listed. Indeed, as the

statement of Senator Stafford cited above indicates, dikes

C-15

and levees in wetlands are not exempt. See also, 33 C.F.R.

§ 323.4(a) (1) (iii) (C) (2).

XII

The plaintiff has offered ample evidence to prove that

the recent work has significantly modified the hydrological

regime in the wetlands area, and the defendant himself has

consistently argued that unless he is allowed to complete

the work he has started, he will be unable to engage in the

farming activities he plans. By his own admission, there-

fore, defendant’s proposed work is not part of an ‘‘ongo-

ing’’ or ‘‘established’’ farming practice. Indeed, it ap-

pears that major hydrologic modifications will be re-

quired fex defendant’s farming plan to succeed. Conse-

quently, the defendant is unlikely to establish that his ac-

tivities fall within the exemptions for ‘‘normal farming.’’

Xiil

Even if Mr. Aker’s activities did fall within the ‘‘ner-

mal farming’’ exception of § 404(f)(1)(A), they would

remain subject to permit requirements under the excep-

tion to the exemption contained in subsection (f)(2). Read

together, these two subparagraphs of 4 404(f) provide a

narrow exemption for agricultural and silvicultural activ-

ities that have little or no adverse effect on the nation’s

waters. Avoyelles Sportmen’s League, Inc. v. Marsh,

715 F.2d 897, 926 (5th Cir. 1983). It is clear that Mr. Akers’

activities are bringing the southern wetlands into a use to

which they have not previously been subject, and which is

resulting in an impairment of water flow and circulation

as well as a reduction of the wetlands’ reach.

C-16

xIV

Mr. Akers argues that his activities will not bring

Big Swamp into a use to which it was not previously sub-

ject, on the ground that upland crops could have been

grown there, whether or not they actually were. This

Court declines to adopt such a strained interpretation of

the term ‘‘subject to’’ in § 404(f)(2). The proper inquiry

is not what could have been done but what was done in the

past and its relationship to what Mr. Akers is attempting

to do now. Furthermore, Mr. Aker’s argument ignores

the question of whether there will be a change in Big

Swamp from wetlands (i.e., waters of the United States)

to dry land (no longer waters of the United States).

Whether or not there have been isolated incidents of at-

tempted farming of upland crops in the swamp during

dryer periods, there is little doubt that the area is still a

wetland within the meaning of the Clean Water Act.

Mr. Akers’ activities taken as a whole appear to this Court

to be incidental to an effort to convert the area so that it

may be farmed in a way which is inconsistent with its re-

maining a wetland.

XV

Furthermore, § 404(f)(2) indicates that a permit is

necessary even for discharges that are only ‘‘incidental

to’’ an activity which is intended to or will foreseeably

bring about the destruction of the wetland (or other

change in use), where the reach of the waters will be re-

duced or their flow or circulation impaired. In order to

trigger § 404(f)(2), the discharges themselves need not be

the sole cause of the change in use or impairment of reach,

C-17

flow, or circulation. Therefore, this Court rejects defen-

dant’s request that it look at each activity in isolation or

assess their impacts individually. While this Court can-

not look into the mind of Mr. Akers to discern his full in-

tentions, the reasonably foreseeable consequence of his ac-

tivities as a whole is the destruction of a significant wet-

land.

XVI

Accordingly, plaintiff has established a probability of

success on its claim that defendant’s recent activities are

not encompassed within the reach of § 404(f)(1)(A) and,

in any event, would fall within the subsection (f)(2) excep-

tion to the (f)(1)(A) exception.

XVII

Defendant also argues that his activities are exempt

under § 404(f)(1){C) which provides that a permit is not

required for a discharge of dredged or fill material :

for the purpose of construction or maintenance of

farm or stock ponds or irrigation ditches, or the main-

tenance of drainage ditches... .

The primary problem with defendant’s attempt to invoke

the irrigation ditch exemption is that his recent activities

have not involved the construction of any irrigation ditch

in the wetlands. Instead, his major structure is a dike ap-

proximately three miles in length. Defendant nevertheless

contends that his work, including his dike, constitutes ‘‘ir-

rigation facilities’’ within the meaning of 33 C.F.R.

§ 323.4(a)(3) (1983) which provides in relevant part:

Discharges associated with irrigation facilities in the

waters of the United States are included within the

exemption unless the discharges have the effect of

C-18

bringing these waters into a use to which they were

not previously subject and the flow or circulation may

be impaired or reach reduced of such waters.

Defendant’s proposed reading of the language of the regu-

lation is obviously overbroad. The regulation cannot ex-

pand the scope of the statutory exemption, and the statute

exempts from permit requirements only stock ponds, irri-

gation ditches, and the maintenance of drainage ditches.

Obviously, then, the term ‘‘irrigation structures’’ as used

in the interpretive regulation constitutes no more than a

shorthand term for the activities set out at greater length

in the statute. Moreover, defendant’s attempt to argue

that a dike can be an “‘irrigation facility’’ within the

meaning of 33 C.F.R. § 323.4(a)(3) is at direct odds with

the language of the interpretive regulation defining

‘minor drainage’’ as that term is used in the ‘‘normal

farming’’ exemption, § 404(f)(1)(A). That regulation

33 C.F.R. § 323.4(a)(1)(iii)(C)(2) provides in relevant

part:

In addition, minor drainage does not include the con-

struction of any canal, ditch, dike or other waterway

or structure which drains or otherwise significantly

modifies a ... wetland or aquatic area constituting

waters of the United States. Any discharge of

dredged or fill material into the waters of the United

States incidental to the construction of any such

structure or waterway requires a permit. [Emphasis

added]

Indeed, the text of 33 C.F.R. § 323.4(a)(3) set forth above

has just been changed in order to clarify ‘‘the types of ap-

purtenant structures to irrigation facilities for which tlie

discharges associated with such structures are exempt

from the provisions of these regulations.’’ 49 F.R.

0-19

at 39479. The new text of the regulation was published in

the Federal Register on October 5, 1984, and it confirms

that ‘‘discharges associated with major dams and diversion

projects and other large-scale facilities which are not sub-

sidiary to irrigation ditches are clearly not included in the

exemption.’’ Id. The complete new text of 33 C.F.R.

§ 323.4(a)(3) provides simply:

Construction or maintenance of farm or stock ponds

or irrigation ditches, or the maintenance [but not con-

struction] of drainage ditches. Discharges associated

with siphons, pumps, headgates, wingwalls, weirs,

diversion structures, and such other facilities as are

appurtenant and functionally related to irrigation

ditches are included in this exemption.

Defendant’s three mile dike is not one of the types of struc-

tures specified in the new regulation and is clearly not sub-

sidiary to any irrigation ditch.

XVII

Finally, even if defendant’s activities otherwise qual-

ified for exemption under the ‘‘irrigation ditch’’ provis-

ion, the exemption is further qualified by subsection

(f)(2) which, as discussed above, subjects the defendant’s

activities to permit requirements even if the (f)(1) exemp-

tions apply.

XIX

Defendant also asserts that § 404(f)(1)(E) serves to

exempt his road-building activity in the northwest area of

his property, but the very text of the exemption belies his

claim. Subsection (f)(1)(#) provides in relevant part

that no permit is required for the discharge of dredged or

fill material :

C-20

for the purpose of construction or maintenance of

farm roads ... where such roads are constructed and

maintained, in accordance with best management

practices, to assure that flow and circulation patterns

and chemical and biological characteristics of the

navigable waters are not impaired, that the reach of

the navigable waters is not reduced, and that any ad-

verse effect on the aquatic environment will be other-

wise minimized ....

Defendant has neither claimed nor established that any

attempt was made by him to minimize the adverse effects

of his road construction and the result of his activity has

been to block overflow channels of the Pit River, which

feed the wetlands of his property.

Xx

These statutory criteria have been translated by regu-

lation into a number of required best management prac-

tices (BMP’s) which must be complied with for the ex-

emption to apply. 33 C.F.R. § 323.4(a)(6). Among those

BMP’s is a requirement that roads be culverted, bridged

or otherwise designed to prevent restriction of flood

flows. The evidence clearly indicates that Akers failed to

comply with any such management practices. Accordingly,

defendant has not demonstrated that his road is exempt

under 404(f)(1)(E).

XXI

Moreover, the road construction exemption, like all

the subsection (f)(1) exemptions, is further subject to the

(f)(2) exception which requires a permit for defendant’s

activities for the reasons discussed above.

C-21

Defendant also argues that the Clean Water Act either

constitutes an impermissible violation of his state water

rights or that the Act automatically exempts activities

which can be traced to the exercise of state water rights.

This argument, as presented by counsel for defendant in

his briefs and at oral argument, is meritless. Clearly, the

Clean Water Act itself does not impermissibly violate state

water rights. Moreover, any argument that a grant of

state water rights somehow prevents the United States

from asserting jurisdiction within its constitutional limits

is obviously groundless. See United States v. Ciampitti,

583 F.Supp. 483, 495-96 (D.N.J. 1984).

XX

Nor does the Clean Water Act automatically exempt

from regulation any activities which have some bearing on

individual exercise of state-allocated water rights. As the

legislative history of § 101(g) of the Act makes clear,

The requirements of section 402 and 404 permits may

incidentally affect individual water rights . . . It is not

the purpose of this amendment to prohibit those inci-

dental effects...

It is designed to protect historic rights from mis-

chievous abrogation by those who would use an act,

designed solely to protect water quality and wetlands,

for other purposes. It does not interfere with the

legitimate purposes for which the act was designed.

[Emphasis added]

Statement of Senator Wallop (sponsor of § 101(g)), 3 Leg.

Hist. 532.

C-22

XXIV

Having determined that the government is likely to

prevail on the merits of its claim, the Court turns its atten-

tion to the question of resulting injury. There is some

authority for the proposition that the government need not

even make a showing of irreparable injury in order to qual-

ify for injunctive relief under the Clean Water Act. See,

e.g., United States v. Ciampitti, supra, 585 F Supp. at 498,

n.12. This Court need not grapple with the issue, however,

because the government has clearly made a showing of ir-

reparable injury in this case.

XXV

Wetlands serve a variety of on-going ecological and

aesthetic functions, and the Big Swamp wetland is no ex-

ception. They are particularly notable for their role in

supporting migratory birds and in controlling erosion and

protecting downstream water quality. In numerous de-

clarations of hydrological and wetland experts, the United

States has established that Mr. Akers’ recent earth-moving

activities have already, at least temporarily, cut off the

southern half of the wetlands on his property from their

natural water sources. These recent activities as well as

those which Mr. Akers could reasonably be expected to

carry out during the pendency of this litigation if not en-

joined, have disrupted and/or are likely to continue to dis-

rupt significantly the ecological functions of Big Swamp.

Disruption of those functions constitutes an irreparable

injury to a valuable public resource. Should Mr. Akers

continue his activities, including the leveling of his land

through discing, the placement of fill material in channels

C-23

and the construction of dikes and other structures, dam-

age to the area will be compounded.

XXVI

Since the Court has determined that the United States

is likely to prevail on the merits of its claims and has dem-

onstrated the probability of irreparable injury if the pre-

liminary injunction is denied, it remains only to be con-

sidered whether the granting of the injunction will cause a

balance of hardships tipping sharply in Mr. Akers’ favor.

The Court finds that it will not. Mr. Akers claims that the

injunction will cause him such financial damage that he

‘‘might’’ lose his property which ‘‘could conceivably’’ re-

sult in bankruptcy. Such speculative statements fall far

short of a showing of irreparabie injury. Furthermore, as

this Court observed during the course of Mr. Akers’ prior

related case, Mr. Akers either knew or should have known

when he purchased the property that he might become in-

volved in a regulatory dispute with the Corps of Engi-

neers. His tactics in proceeding with the work without

authorization have brought him to his current financial

situation. Therefore, any injury is self-inflicted. The

Court notes that had Mr. Akers applied for a permit at the

conclusion of the prior case, the dispute might well have

been resolved by now.

XXVII

To the extent that any of the foregoing Findings of

Fact are deemed to be Conclusions of Law, or to the extent

that any of the foregoing Conclusions of Law are deemed

to be Findings of Fact, the same shall be deemed Conclus-

ions of Law or Findings of Fact as the case may be.

C-24

Therefore,

IT IS HEREBY ORDERED that Mr. Akers, his

agents, employees and all persons under his control and

supervision, are restrained from engaging in any and all

deposits of dredged or fill materiai into the waters on his

property, including the wetlands previously delineated by

the Corps of Engineers, as well as all channels, unless he:

(1) Obtains a permit from the Corps of Engineers;

or

(2) Submits a proposal for dredge or fill activities,

which he asserts are not within the Corps of Engineer’s

regulatory jurisdiction, and

(a) is informed in writing by the District Engineer

that a permit is not necessary for the work he

proposes ; or

(b) is not informed in writing by the District En-

gineer whether a permit is necessary for the work

he proposes within fifteen (15) days of receipt of

his proposal by the District Engineer (including

weekends and holidays).

Notwithstanding any provision of this Order, Mr. Akers

shall comply in good faith with all lawful cease and desist

orders issued to him by the Corps of Engineers with re-

spect to dredge and fill activities on his property.'

IThus, in the event that Mr. Akers submits a proposal for

dredge and fill activities which he asserts are not within the

Corps’ jurisdiction, to which the Corps does not respond in

writing within fifteen (15) days, Mr. Akers may immediately

begin work on the activities within his pro l. However,

should a subsequent cease and desist order c the Corps of

Engineers order him to halt work on these activities, Mr. Akers

must comply with this and all other lawful orders of the Corps.

C-25

-

IT IS SO ORDERED.

DATED: January 14, 1985.

/s/ Raul A. Ramirez, Judge

United States District Court