# Appendix — Hobbs v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 940

## Text

IN THE
Supreme Court of the United States

OCTOBER TERM, 1991

S. PAUL Hoss, and DoNNA M. Hoss, his wife and
PHILLIP RAY Hoss, and DoroTHY V. Hosss, his wife,
Petitioners,
V.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

RICHARD R. NAGEOTTE *

JAMES SCOTT KREIN

NAGEOTTE & KREIN

385 Garrisonville Road, Suite 201
Stafford, Virginia 22554

(703) 659-5050

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

APPENDIX A—Decision of the Court of Appeals .........
APPENDIX B—Final Order of the District Court ......

District Court’s Findings of Fact and
Legal Conclusions from the bench ......

District Court’s Judgment ..................

APPENDIX C—District Court’s Opinion and Order
denying post-trial motions for judg-
ment notwithstanding the verdict, and
alternatively new trial .........................

District Court’s Findings of Fact and
Legal Conclusions from the bench ......

District Court’s Judgment ...................

APPENDIX D-—Denial of petition for rehearing and
suggestion for rehearing en banc, De-
Ce On Oe

APPENDIX E—Jury-Forms of Verdict .........................
APPENDIX F— United States’ Answer and Counter-

APPENDIX G—Constitutional provision, statutes, and
regulations involved .............................

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 90-1861

S. PAUL Hospps; DONNA M. Hopss, his wife;
PHILLIP RAY Hopss; DorotTHy V. Hosss, his wife,
Plaintiffs-Appellants,

V.

UNITED STATES OF AMERICA; WILLIAM REILLY, Adminis-
trator, United States Environmental Protection Agency
(A-100) ; STANLEY L. LASKOWSKI, Acting Administra-
tor, United States Environmental Protection Agency,
Region III]; GREENE A. JONES, Director, Environmental
Services Division, United States Environmental Protec-
tion Agency, Region III; JOHN O. MARSH, JR., and/or;
RICHARD L. ARMITAGE, after confirmation, Secretary of
the Army; LIEUTENANT GENERAL HENRY J. HATCH,
Chief, Army Corps of Engineers; MAJOR GENERAL
JAMES W. VAN LOBEN SELS, North Atlantic Division
Engineer; JOSEPH H. THOMAS, Norfolk District En-
gineer,

Defendants-A ppellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk
Rebecca B. Smith, District Judge
(CA-89-327-N )

2a

Argued: May 7, 1991
Decided: November 8, 1991

Before ERVIN, Chief Judge, STAKER, United States
District Judge for the Southern District of West Vir-
ginia, sitting by designation, and KAUFMAN, Senior
United States District Judge for the District of Mary-
land, sitting by designation.

Affirmed by unpublished per curiam opinion.

OPINION
PER CURIAM:

These appeals arise from a civil enforcement action
brought by the Environmental Protection Agency for al-
leged violations of the Clean Water Act (“CWA”), 33
U.S.C. § 1251 et seq., by Phillip and Dorothy Hobbs as
well as the couple’s son and daughter-in-law, Paul and
Donna Hobbs.'! The violations stem from the clearing,
draining, and constructing of roads on approximately 50
acres of alleged wetlands to create hay fields. All of the
Hobbses were subjected to penalties for violations of the
CWA by the district court. The Hobbses appeal the dis-
trict court’s decision on various grounds. Finding none
of their arguments persuasive, we affirm the district
court’s decision.

I.
A.

A brief review of the statute is necessary for an under-
standing of the law of this case. The Clean Water Act is
a comprehensive statute designed to “restore and main-

1 We refer to the defendants collectively as “the Hobbses.”

3a

tain the chemical, physical, and biological integrity of the
Nation’s waters.” CWA § 101(a) (2), 33 U.S.C. § 125(a).
In accordance with this mandate, the Act bars the dis-
charge of pollutants into waters of the United States
except in compliance with a permit issued under the Act.
CWA § 301(a), 33 U.S.C. § 1811(a). The term pollutant
includes dredged and fill material consisting of soil, rock,
and sand. CWA § 404, 33 U.S.C. § 1362(6). The Hobbses
do not contest that their discharge material fits within
the definition of a pollutant.

The term “waters of the United States” is not explicitly
defined under the statute. The Act does define “navigable
waters,” however, as waters of the United States. 33
U.S.C. § 13862(7). The term “navigable waters” has been
given the broadest constitutional understanding. A Legis-
lative History of the Water Pollution Control Act Amend-
ments of 1972, at 178.

“Waters of the United States” is also defined as waters
adjacent to other waters of the nation. 40 C.F.R.
§ 230.3(s); United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121 (1985). EPA defines “adjacent” as
bordering, contiguous, or neighboring. 40 C.F.R.
§ 230.3(a). Moreover, wetlands separated from other
waters of the United States by ‘man-made dikes or bar-
riers, natural river berms, beach dunes and the like are
‘adjacent wetlands’” according to the EPA. 40 C.F.R.
§ 230.3(b). Finally, both the EPA and the Army Corps
of Engineers (‘Corps’) define wetlands as:

those areas that are inundated or saturated by sur-
face or groundwater at a frequency and duration
sufficient to support, and that under normal circum-
stances do support, a prevalence of vegetation typ-
ically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs,
and similar areas.

40 C.F.R. § 230(t) ; 33 C.F.R. § 328(b).

4a

The EPA is authorized under the Act to issue a Find-
ing of Violation and a Compliance Order for any viola-
tion of CWA § 301(a). 33 U.S.C. $ 1319(a). Moreover,
EPA may commence a civil action for appropriate relief
for a violation of CWA § 301(a).

B.

For the instant case, there are two relevant manuals
for wetlands determinations, one produced by the EPA
and the other by the Corps. Both manuals are used to aid
in the determination of What constitutes wetlands. Each
manual relies on three parameters to make a determina-
tion: hydrology, vegetation, and soils. The Corps of En-
gineers Delineation Manual was adopted in 1987. The
EPA manual was adopted April 1988.2 There is also an
interagency manual, adopted by the EPA and the Corps,
which was adopted January 10, 1989. The joint manual,’
like the EPA manual, uses the three parameter test in
a manner that expands the definition of wetlands. The
jury was allowed to consider the multiparameter standard
in each of the manuals.

IT.

Phillip and Dorothy Hobbs own about 169 acres in
Ware Neck, Gloucester County, Virginia. The Hobbses’
son and daughter-in-law, Paul and Donna, also own 37
acres in the county. The combined property contains ap-
_ proximately 206 acres (“Hobbses’ property”). The jury

found this parcel to be wetlands adjacent to the Ware
River.

The Hobbses cleared, drained, and constructed roads
on approximately 50 acres of wetlands to create hay
fields. In the process, the elder Hobbs discharged,

* Revised Interim Final Edition of April 1988.

3’ For the sake of clarity, the publication is referred to as the
“joint manual.” Its official title is the Federal Manual for Identify-
ing and Delineating Jurisdictional Wetlands.

va

dredged, or filled material onto their wetlands in 1980,
1984, and 1985. The younger Hobbs did the same in
1986, 1987, and 1988. The Hobbses, however, did not
apply for a § 404 permit from the Corps, as required by
the CWA.

The Hobbses contend that they did not apply for a per-
mit because they were under the impression that they
were not required to do so. On September 29, 1988 an
official of the U.S. Fish and Wildlife Service (“FWS”)
went to the Hobbses property and told Paul Hobbs they
might be doing work on nontidal wetlands. The FWS
official arranged a site visit by a Corps official. The
Hobbses contend they overheard the two men talking and
expressing doubt about whether the land was in fact wet-
lands. When Paul Hobbs asked about the property, the
Corps official stated that “it was a grey area of enforce-
ment for the Corps of Engineers ... and he didn’t see
where the [Hobbses] had . . . done anything wrong.”
Moreover, the Corps employee told the Hobbses that he
would get back to them about whether their land was
wetlands; but he never told them whether the property
was wetlands nor did the official tell them about a per-
mit.

EPA issued the Hobbses a Findings of Violation and
Compliance Order, or Administrative Order, on March
23, 1989. EPA subsequently amended the order on April
25, 1989.

Il.

On April 25, 1989, the Hobbses filed a complaint chal-
lenging the EPA’s Findings of Violation and Compliance
Order issued against them under § 404. On May 4, 1989,
the district court issued a preliminary injunction allow-
ing the Hobbses to continue to farm that portion of the
land previously converted to hayfields.

The government in turn filed a counterclaim on June
23, 1989, charging the Hobbses with violating CWA

ba
s 301/a) by discharging pollutants into wetlands without
a permit. These counterclaim ultimately became the only
cause of action in this proceeding, when, on December 14,
1989, the district court dismissed the Hobbses complaint
and granted summary judgment in favor of the govern-
ment with respect to its counterclaim.

The trial was split into a liability phase determined by
jury and a penalty/remedy phase determined by the
court. At the close of the first phase, the jury found that
the couples’ property was wetlands adjacent to waters of
the United States and that they had indeed discharged
pollutants onto their wetlands.

Following the penalty phase, the district court entered
a Final Order on August 22, 1990. The court held that:
(1) the Hobbses could continue to grow hay on the par-
cels of land already cleared; (2) the parties must either
agree to a restoration plan for the 25 acres in transition
or allow the parcel to revegetate naturally; (3) the un-
disturbed portion of the wetlands must remain that way;
(4) as permitted by the statute, the Hobbses could change
the use of any of the parcels upon approval of a permit ;
and (5) the elder Hobbs were ordered to pay $100.00 in
civil penalties, while the younger Hobbs were required to
pay $200.00.

On August 24, 1990, the district court issued a memo-
randum opinion and order addressing the post-trial mo-
tions, The court denied the Hobbses’ motions for judg-
ments notwithstanding the verdicts or new trials. These
motions were based on a sixfold argument. All of the
contentions were rejected. The district court held that:
(1) EPA has independent authority to make jurisdic-
tional determinations under the CWA: (2) the wetlands
manuals were guidance materials, not substantive rules;
(3) adjacent wetlands may be defined as waters of the
United States under the CWA because the CWA is to be
applied broadly under the Commerce Clause and in light
of the ecological connection between waters and adjacent

7a

wetlands; (4) man-dug (sic), non-tidal drainage ditches
can be waters of the United States when they are con-
structed in wetlands; (5) good faith is not a defense to
the strict liability violation alleged; and (6) there is no
estoppel against the government absent affirmative mis-
conduct by the government.

The district court also denied a second JNOV motion
because the evidence at trial supported the jury’s finding
that the Hobbses properties are jurisdictional wetlands.
Finally, on October 24, 1990, the trial court issued a
ruling from the bench denying the Hobbses’ Fed. R. Civ.
P. 60(b) motion. The Hobbses appealed to this court.

IV.
A.

As previously noted, the Hobbses make six arguments,
which we shall address in turn, The Hobbses first raise
the issue of whether the EPA has independent enforce-
ment authority over violations of sections 404 and 301
of the CWA, 33 U.S.C. ss 1311, 1344. According to their
reasoning, the question is whether EPA has the authority
to enforce $ 404 of the CWA when the issuance of a per-
mit allowing pollutants is the sole province of the Corps.
They contend that because the Corps did not find that the
Hobbses were discharging pollutants onto wetlands nor
required them to secure a permit, the EPA has nothing
to enforce. Merely pointing to 33 U.S.C. $1342, as the
statutory grant of permitting authority to the Corps,
however, does not mean that EPA lacks independent en-
forcement authority. Reading the whole of the statute’ re-
veals the Hobbses argument to be proof-texting.

It should be noted from the outset, that as the Hobbses
have not applied for a permit, it cannot be maintained
that they were denied one. Moreover, nothing in the rec-
ord suggests that the Corps actually refused to exert

_

8a

jurisdiction over the Hobbses property through a wetlands
determination.

Under 33 U.S.C. § 1311(a) the discharge of a pollutant
is illegal “except” as in compliance with sections author-
izing permits. Thus, the discharge itself is illegal. Ac-
cordingly, the Hobbses need not be required to secure a
permit and subsequently pollute to violate the Act. The
language of the Act confers upon EPA the authority to
issue a Finding of Violation and a Compliance Order or
to institute a civil action for any violation of CWA
s 3801(a). CWA § 309(a) (3); 33 U.S.C. §$ 1819(a) (3).
Moreover, the Act authorizes the commencement of a civil
action for appropriate relief, CWA § 309(b); 33 U.S.C.
$ 1319(b). Finally, permitless discharges of dredged and
fill material are within the enforcement authority of
EPA. Administrative Authority to Construe Section 404
of the Federal Water Pollution Control Act, 43 Op. Att’y
Gen. No. 15 (Sept. 5, 1979).

This view is supported by the fact that EPA has inde-
pendent authority to make wetlands determinations. In
Ayolles Sportmen’s League, Inc. v. Marsh, 715 F.2d 897,
903 n.12, the Fifth Circuit noted that the EPA and the
Corps reached an agreement that the latter would have
the responsibility for making final determinations. More-
over, the ultimate authority for determining the reach of
navigable waters under § 404 of the CWA belongs to the
EPA. Administrative Authority, supra.

In National Wildlife Federation v. Hanson, this Court
recognized that while both the Corps and EPA “are re-
sponsible for the issuance of permits under the CWA and
enforcement of their terms,” EPA is the utimate author-
ity. 859 F.2d 313, 315-316 (4th Cir. 1988). EPA would
not be much of an authority if it could make wetlands
determinations, issue permits, but could not enforce the
very rule for which those permits provide the exception.

co
ps)

The second issue is whether the EPA’s wetlands deline-
ation manuals are interpretive guidance documents or
substantive rules with binding legal effect in the deter-
mination of what constitutes wetlands under 40 C.F.R.
3 230(t) and 33 C.F.R. § 328.3(b). Closely related to
this matter is the question of whether the EPA Manual
constitutes substantive rules subject to the Administra-
tive Procedure Act (“APA”) notice and comment require-
ments, 5 U.S.C. § 553.

The Hobbses contend that the EPA manual represents
substantive rules subject to the public notice and comment
requirements under the APA. Their argument in effect
is the manual does not merely clarify and explain the
process of wetlands determination, but rather expands
federal jurisdiction.

Whether the manual is subject to APA depends on
whether it constitutes interpretive rules or substantive
rules. The former rules “ ‘are those which merely clarify
or explain existing law or regulations,’ and ‘do not have
the full force and effect of a substantive rule but [are |
in the form of an explanation of particular terms.’ ”
American Hospital Ass’n v. Bowen, 834 F.2d 1037, 1045
(D.C. Cir. 1987) (citations omitted). In Jerri’s Ceramic
Arts v. Consumer Products Safety Comm’n, 874 F.2d 205
(4th Cir. 1989), we noted the distinction between the two
rules:

An interpretive rule simply states] what the admin-
istrative agency thinks the statute means, and only
“remind[s]” affected parties of existing duties .
|while] a substantive or legislative rule has the force
of law, and creates new law or imposes new rights
or duties.

Id., 207. Moreover, this court held that in determining
whether a rule was interpretive or substantive courts
must consider the agency’s intent. /d., at 208.

I

10a

The intent behind the manuals and absence of the
force of law make it clear that they are interpretive
rules. The EPA manual states in its preface that it was
“developed to address the need for operational and juris-
dictional guidance.” Moreover, the manual states that
the methods offered for wetlands determinations “are
the recommended approaches.”

While the EPA manual does not possess the force cf
law, the EPA manual does represent a significant change
in the definition and an expansion of jurisdiction. The
change in definition, however, is premised upon the making
of certain scientific assumptions regarding the presence
of the three parameters for a wetlands determination.
The Hobbses point to nothing in the record to suggest
any explicitly political motivation or policy consideration
behind the change in the parameter test. Without a show-
ing of intent or legal force, the manuals are no more than
interpretation rules.

Finally, for the reasons discussed, EPA was free to
apply its own or another agency’s manual; EPA possessed
the independent authority. Moreover, the agency was
not prevented from using the EPA manual under the
APA. Accordingly, the district court was correct in al-
lowing expert testimony with respect to all three man-
uals.

C.

The contention that the district court incorrectly in-
structed the jury to determine if wetlands on the Hobbses
property were adjacent to waters of the United States is
based upon a particularly weak premise. Again the
Hobbses engage in proof-texting. Seizing upon the word
“adjacent,” they contend that their wetlands are not
adjacent because they do not actually border waters of the
United States.

Unfortunately for the Hobbs, the statute does not limit
adjacency to literal bordering. The statute, which the
judge quoted verbatim in the jury instruction, reads:

Hai Sl a came a acer amma

lla

The term “adjacent” means bordering, contiguous,
or neighboring. Wetlands separated from other
waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the
like are “adjacent wetland.”

33 C.F.R. § 328.3(c). This reading of the statute was
upheld in Riverside Bayview Homes:
... the landward limit of Federal jurisdiction under
Section 104 must include any adjacent wetlands that
form the border or are in reasonable proximity to
other waters of the United States, as these wetlands
are part of this aquatic system.

424 U.S. at 133-134, quoting 42 Fed. Reg. 37,128 (1977)
(emphasis added). Furthermore, the jury’s factual de-
termination that the lands were wetlands is not clearly
in error. An expert in hydrology and hydrogeology, testi-
fied that there was both a ground and surface water con-
nection between the Hobbses’ property and the Ware
River. An EPA environmental scientist confirmed this
observation based upon aerial photographs. The Hobbses
land is adjacent within the meaning of the statute.

Moreover, the Hobbses’ contention that their land is
not adjacent due to the presence of man-made, non-tidal
drainage ditches dug on dry land is baseless. Such ditches
fall within the express language of the statute. The term
“adjacent” includes:

Wetlands separated from other waters of the United
States by man-made dikes or barriers, natural river
berms, beach dunes and the like....
33 C.F.R. § 328.3. Similarly, the contention that the stat-
ute is void for vagueness is without merit.

D.

Next we turn to whether the district court violated
the Hobbses’ due process rights by denying them the op-
portunity to present evidence as to their good faith belief

a

12a

that administrative orders were invalid. We address the
good faith aspect of their argument first. This court
previously held that a district court erred when it refused
to impose civil penalties under § 309 of the CWA, reason-
ing that:

[The language of the statute] leaves little doubt that,
under the circumstances of this case, a penalty in
some form is mandated. Liability under the Clean
Water Act is a form of strict liability.

Stoddard v. Western Carolina Regional Sewer Authority,
784 F.2d 368, 374 (4th Cir. 1979). Under the Stoddard
standard good faith is not a defense. Moreover, the
amount of the penalty to be levied is within the discretion
of the court. State Water Control Board v. Train, 559
F.2d 921 (4th Cir. 1977).

The procedural aspect of the Hobbses’ due process argu-
ment is that there are no administrative procedures by
which they could contest the EPA’s orders. Moreover, the
Hobbses aver that they were not provided with prior
notice or an opportunity to be heard before the issuance
of the administrative order. The Hobbses, therefore, con-
clude that the lack of due process protection prior to the
imposition of liability for civil remedies violates their due
process rights.

This contention is without merit. The administrative
orders do not in themselves impose penalties. Instead pur-
suant to CWA § 309(d), the penalties were imposed by
the district court following a jury determination that the
Hobbses had violated the CWA. Furthermore, in South-
ern Pines Association v. United States, 912 F.2d 713 (4th
Cir. 1990), a landowner and a construction company
similarly argued that the lack of opportunity to be heard
prior to the issuance of a compliance order violated their
due process rights. We held that as the company and the
landowner would “have an opportunity to make their
constitutional arguments at any enforcement proceeding
before they are subjected to any injunction or penalty,”

13a

there is no violation of the fifth amendment. /d., at 717.
Likewise, the Hobbses are afforded constitutionally ade-
quate process.

E.

Paul Hobbs’ contention that the record supported a jury
instruction on estoppel is without merit. Specifically, he
argues that the government is estopped from prosecuting
him under § 404 of the CWA because he constructed the
drainage ditches under the supervision and according to
the design specifications of two Soil Conservation Service
employees. The district court rejected this argument, be-
cause Paul Hobbs did not allege conduct by the SCS
employees that was sufficient to estop the government.

In Zografov v. V.A. Medical Center, 779 F.2d 967 (4th
Cir. 1985), we suggested a high standard in order for a
federal employee allegedly misled by a Equal Opportunity
counselor regarding an employment discrimination suit
to rely on estoppel. We held that the plaintiff “made no
showing of affirmative misconduct on the part of the gov-
ernment, which is the least the court would require, even
if that would suffice, to rely upon estoppel.” We agree
with the district court that Paul Hobbs did not allege or
prove conduct adequate to estop the government.

F.

The Hobbses aver that the district court abused its
discretion in denying their Rule 60(b) motion. Spe-
cifically, they contend that the court abused its discretion
in denying the motion to be relieved of the final judgment
in light of “newly discovered evidence.” The Hobbses
argue that a September 26, 1990, Regulatory Guidance
Letter (“RGL”) issued by the Corps constitutes such
evidence.

As a threshold matter, the RGL cannot be considered
newly discovered evidence under Fed. R. Civ. P. 60(b) (2)
as the letter did not exist at the time of trial. Moreover,
there is not another “reason justifying relief from opera-

Ee

l4a

tion of the judgment” under Fed. R. Civ. P. 60(b) (6).
In order for the Hobbses to secure relief under Rule
60(b) they must show timeliness, a meritorious defense,
a lack of unfair prejudice to the government, and excep-
tional circumstances. Werner v. Carbo, 731. F.2d 204,
206-207 (4th Cir. 1984). Even assuming the final three
conditions were satisfied by the Hobbses, they cannot
demonstrate that the evidence would constitute a meri-
torious defense. The letter, like the manuals, is a guid-
ance document. The letter merely clarifies the relation-
ship between the jurisdiction of the EPA and the Corps
under the CWA § 404 and the jurisdiction of the SCS
under the provisions of the Food Security Act of 1985,
16 U.S.C. §§ 3821-3823. As the district court noted the
letter is “merely guidance and doesn’t change the defini-
tion of wetlands under the regulations.”

V.

With respect to each of the issues on appeal, the district
court’s judgment, bench rulings, and opinion are affirmed.

AFFIRMED

Filed: November 25, 1991

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 90-1861
(CA-89-327-N )

S. PAUL Hops, et al,
Plaintiffs-A ppellants,

versus

UNITED STATES OF AMERICA, et al,
Defendants-A ppellees.

ORDER

The Court amends its opinion filed November 8, 1991,
as follows:

On Page 6, first paragraph, line 1—the word “These”
is corrected to read “This.”

On page 6, first paragraph, line 3; page 6, fourth full
paragraph, line 2; page 7, first full paragraph, line 13;
page 7, second full paragraph, line 4; page 10, first full
paragraph, line 2; and page 10, line 7 of text after second
indented quotation—the word “Hobbses” is corrected to
read ‘‘Hobbses’.”

On page 10, line 4 of text after second indented quota-
tion—the comma after the word “hydrogeology” is deleted.

For the Court—By Direction

s’ John M. Greacen
Clerk

l6a

APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

Civil Action No. 89-327-N

UNITED STATES OF AMERICA,
Plaintiff,
Ve

S. PAUL Hosss, et al.,
Defendants.

FINAL ORDER
[Filed Aug. 27, 1990]

This action is before the court on the complaint of the
United States seeking injunctive relief and the imposition
of civil penalties against the defendants for the unper-
mitted discharge of fil] materials into waters of the
United States in violation of Sections 301(a) and 404(a)
of the Clean Water Act, 33 U.S.C. § 1311 and 1344 (a).
On January 26, 1990, a jury determined that the property
owned by Phillip Ray Hobbs and his wife, Dorothy V.
Hobbs, and the property owned by S. Paul Hobbs and his
wife, Donna M. Hobbs, all located on Ware Neck in
Gloucester, Virginia, are wetlands adjacent to waters of
the United States. The jury found that defendants Phillip
Ray Hobbs and Dorothy V. Hobbs discharged pollutants
onto cheir wetlands property in 1980, 1984, and 1985.
The jury further found that defendants S. Paul Hobbs
and Donna M. Hobbs discharged pollutants onto their
wetlands property in 1986, 1987, and 1988.

17a

On May 17, 18, and 21, 1990, the court conducted a
bench trial on appropriate penalties. On May 21, 1990,
the court, after fully considering all of the evidence and
arguments presented by all parties, issued an extensive
ruling from the bench. This ruling articulated the factual
findings pertinent to the penalty phase of the litigation,
the amount of civil penalties imposed, and the type of
restorative relief ordered.

With respect to restorative relief, the subject property
is divided into three areas based on the amount of activ-
ity conducted thus far on the property: the cleared par-
cels, the twenty-five acre parcel in transition, and the
undisturbed, forested parcels. The court ruled that the
cleared area could remain in its current use. However, prior
to any change in use, the restoration (water quality miti-
gation! plan proposed by defendants, subject to the court’s
modifications issued from the bench on May 21, 1990,
must be put in effect. See Proposed Water Quality En-
hancement Plan for the Hobbs Property Ware Neck,
Gloucester, Virginia, Exhibit 11, United States v. Hobbs,
Civil Action No. 89-327-N (E.D. Va. May 17, 18, 21,
1990); Transcript, United States v. Hobbs, Civil Action
No. 89-327-N, at 33-34 (E.D. Va. May 21, 1990).! These
modifications include: development of an acceptable out-
fall structure for the ponds; development of a mainte-
nance plan which includes water quality testing; super-
vised construction of the ponds; and further investiga-
tion into flood preparedness, fencing and buffer zones.
See id. Any change in use prior to the modified restora-
tion (water quality mitigation) plan being in effect would
be in violation of this court’s Final Order.

To assure compliance with this court’s Final Order, the
following actions shall be taken by defendants, or any

1 Both of these documents are part of the record in this case and
are incorporated into this Final Order by reference and are here-
inafter collectively referred to as “the modified restoration (water
quality mitigation) plan.”

18a

one of them as appropriate, prior to any change in use of
their wetlands presently in hay cultivation:

1. Give thirty (30) days advance notice in writing to
the United States Environmental Protection Agency, Re-
gion III, that such change is to be commenced.

2. Allow authorized representatives of the United
States Environmental Protection Agency periodic access
to the property during implementation of the modified
restoration (water quality mitigation) plan to verify
compliance with this Order.

3. Upon completion of all construction work required
under the modified restoration (water quality mitigation )
plan incorporated by reference herein, notify the United
States Environmental Protection Agency, Region III.

4. Furnish to the United States Environmental Pro-
tection Agency, Region III, timely reports documenting
the results of all water quality monitoring conducted
pursuant to the modified restoration (water quality miti-
gation) plan incorporated by reference herein.

The parties were given thirty (30) days from the date
of the court’s May 21, 1990, ruling to devise a mutually
agreeable plan for the twenty-five (25) acre parcel in
transition from forested land to agricultural use. The
court indicated that should the parties fail to reach an
agreement, the parcel would remain in the state that it
currently exists and no restoration would be ordered for
that area. The parcel would naturally revegetate, and
defendants would have to make appropriate inquiry as to
the need for permits from the appropriate government
agencies, should they desire to perform work on this area
of the property in the future. Since the parties have not
reached an agreement on this parcel, the parcel will re-
main as it is, and any future work planned -on this parcel
will be subject to any applicable government regulations
and permit requirements,

19a

In addition, the court ruled that the undisturbed por-
tion of the subject property remain as it exists, since
there was no showing that this area was environmentally
unsound. Again, as with the parcel in transition, any
desires on the defendants’ parts to alter the condition of
this undisturbed area may be subject to certain permit
requirements of the relevant governmental agencies.

Therefore, it is ORDERED that the court’s ruling from
the bench on May 21, 1990, become final regarding
penalties and restoration. Accordingly, the Clerk shall
enter final judgment in favor of plaintiff and against
defendants, in accordance with the jury’s verdict of
January 26, 1990, and this court’s ruling of May 21,
1990, as follows:

1. Defendants Phillip Ray Hobbs and Dorothy V.
Hobbs discharged fill material onto wetlands constituting
waters of the United States in 1980, 1984, and 1985
without a permit in violation of Sections 30l(a) and
404(a) of the Clean Water Act, 33 U.S.C. §§ 1311(a)
and 1344 (a).

2. Defendants A. Paul Hobbs and Donna M. Hobbs
discharged fill material onto wetlands constituting waters
of the United States in 1986, 1987, and 1988 without a
permit in violation of Sections 301(a) and 404(a) of the
Clean Water Act, 33 U.S.C. §$§13ll(a) and 1344(a).

3. Defendants Phillip Ray Hobbs and Dorothy V.
Hobbs shall pay civil penalties in the amount of One
Hundred Dollars ($100.00) within sixty (60) days from
entry of this judgment, payable to the United States
Treasury, in care of Craig B. Shaffer, United States
Department of Justice, Post Office Box 23986, Washing-
ton, D.C. 20026-3986.

4. Defendants S. Paul Hobbs and Donna M. Hobbs
shall pay civil penalties in the amount of Two Hundred
Dollars ($200.00) within sixty (60) days from entry of
this judgment, payable to the United States Treasury, in

20a

care of Craig B. Shaffer, United States Department of
Justice, Post Office Box 23986, Washington, D.C.
20026-3986.

5. Use, modification, and/or restoration of the wet-
lands property involved in this action shall be in accord-
ance With the court’s ruling of May 21, 1990, and Final
Order of August 22, 1990.

The parties may appeal from the judgment entered
pursuant to this Final Order by filing a written notice
of appeal with the Clerk of this court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia 23510,
within sixty (60) days from the date of entry of such
judgment. In the event that defendants, or any one of
them, appeal, a Bond on Appeal in the amount of Ten
Thousand Dollars ($10,000.00) shall be posted to protect
the public’s interest during the appeal period.

The Clerk is DIRECTED to mail a copy of this Final
Order to counsel for the parties.

/8/ Rebecca Beach Smith

United States District J udge
Norfolk, Virginia

August 22, 1990

2la

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

Civil Action No. 89-327-N

UNITED STATES OF AMERICA,
Plaintiff,
v.

S. Paut Hosss, DONNA M. Hopss, PHILLIP RAY HOBBs,
DorROTHY V. HOBBS,
Defendants.

EXCERPT OF PROCEEDINGS

(Judge’s Ruling)
Norfolk, Virginia
May 21, 1990

Before: Honorable Rebecca Beach Smith, Judge

* % * *

[2] THE COURT: All right, counsel. The first thing
that I’m going to do is go through my notes and review
certain findings and conclusions that I’m drawing from
those, the testimony and the evidence that I’ve heard over
the last few days. And I would tell you that they may
not be in any specific order or with any type of organi-
zation, but it will give you an idea of what I’m relying
upon to then make the legal conclusions that I will draw.

First of all, there are three types of areas involved in
this case at this point in time. There are the cleared
areas, primarily in pasture grass. There are the forested
areas which have not been cleared. And then there’s the
area that’s been referred to as being in transition. It’s
an area that’s cleared but not yet planted. It’s approxi-

" ee

22a

mately 25 acres of cleared but not planted area. So, those
are basically the three types of areas that the Court will
be dealing with in addressing the damages, primarily
the restoration plan.

Mr. Butch testified on cross-examination—or he testi-
fied on direct examination that there were various alter-
native uses for the property, and that testimony was then
brought to light more clearly through [3] cross-exami-
nation. He indicated that there may be some potential
use for forest products but this would be a long-term use;
that there may be some use for fur bearers, for produc-
ing fur, but this was speculative and no specific studies
had been done in that regard. There may be some poten-
tial for hunting leases, but that had not been studied by
the United States. The only indication of any hunting on
the property came through the testimony of Mr. Paul
Hobbs, who indicated he let the neighbors hunt the prop-
erty because they kept an eye on it. There was no indi-
cation that he had derived any revenues from any hunt-
ing leases or that there was any real potential for leasing
the property out for hunting.

Mr. Butch also indicated that the property might be
available for nature observation. but, again, he said that
there had been no studies made by the United States in
that regard.

He also indicated that it might be a good buffer area
for people who want to live in these types of areas.
Again, there had been no studies done in this regard by
the United States,

He also indicated it might be a potential area for scien-

tifie study, but again he testified that the EPA or the
United States had not really studied that possibility.
[4] The conclusion the Court would draw from that is
while there may be some various alternative potential
uses, none of them have been studied, and none of them
at this point are established for the Court beyond any
type of speculative stage other than, perhaps, the forest
products which, again, is the long-term use.

cea iatiaea enacted laine

23a

Mr. Butch also specifically testified that no site-specific
studies had been conducted by the Environmental Pro-
tection Agency or the United States and that to develop
the restoration plan he, with the help of Mr. McGlaun,
had simply relied upon the general literature in the field.

That testimony was also corroborated by both Mr. Mc-
Glaun and also by Dr. Contula, who indicated that she
had not been privy to any site-specific studies other than
the water quality study conducted by the defendants.

Mr. Butch and Mr. McGlaun spent approximately one-
half day on the site in order to develop the plan, the
restoration plan, at least at the restoration plan stage.
Both had been on site prior to that for brief amounts
of time.

Mr. Butch testified that he was not a qualified witness
to answer any questions about water quality.

Mr. Butch also indicated that the United [5] States’
plan did call for the removal of the materials and the
filling of the ditches back to the original elevation, but
he quite candidly admitted he did not know what the
original elevation would be.

Mr. Butch also testified that he did not know how far
away from a ditch it drains in making the recommenda-
tion to plug the ditches.

Mr. Butch also testified that a major consideration in
developing the United States’ plan was the no-net wet-
lands loss policy that had been developed and basically
had come to fruition since December of 1988.

In developing the United States restoration plans, both
Mr. MeGlaun and Mr. Butch expressed concern for plug-
ging the ditches down near the church and the developed
area that is between the Hobbs’ property and the Ware
River, because the ditches would be necessary to remove
water in those areas or they would run the risk of flood-
ing other people’s homes and the church area, or at least
putting unnecessary water or extra water onto that
property.

OO

24a

No one in proposing either plan to the Court has given
the Court any indication that there was consideration
taken as to any type of natural flow original ditching
system that may have existed back in [6] colonial times
to which Dr. Johnson testified and exactly what the
Hobbs did to enhance that system or to enhance ditches
that were present on the property when they purchased it.

Mr. McGlaun was clear that after the fact permits
were not accepted by the Corps of Engineers until any
interim corrective measures or any restoration plan had
been completed, and the case law would also support that
conclusion.

Mr. McGlaun testified that one of the primary con-
cerns, environmental concerns, of both the EPA and the
Army Corps of Engineers and that he had and Mr. Butch
had in developing this restoration plan was for sheet flow
and that sheet flow was important because of erosion
considerations, detrital export considerations and water
purification considerations.

However, as Mr. McGlaun candidly admitted, there
was no showing that the water on this property from the
current sheet flow is impure. There is no erosion shown
other than from the acreage that’s in transition. And
the Court would conclude from his testimony and others
that there was no showing that the detrital export was
going to be environmentally any better with the ditches
plugged than with the ditches unplugged. And, in fact,
there was testimony, credible testimony, before the
(7] Court from Mrs. Phillips that detrital export could
also pose a potential pollutant, and I’ll go into that in a
moment.

But I would say that at this juncture the Court would
conclude that there’s been no showing that the plugging
of the ditches would enhance the detrital export in an
environmentally sowiid manner any more than it’s handled
through the ditches.

Mr. McGlaun specifically testified that water quality
was extremely important in any consideration in a resto-

25a

ration plan that he would give but that neither the EPA
nor the corps had done any testing in regard to water
quality off of this property.

No hydrologist was consulted, while the restoration
plan that’s been urged—everyone has testified, at least
from the standpoint of getting it approved, that hydrol-
ogy is the driving force behind the plan. No hydrologist
has looked at this plan, and no hydrologist has been
brought before the Court to testifiy. None of the wit-
nesses testified they were expert hydrologists. Some of
them had experience in the area, but the two people who
developed the plan, Mr. McGlavn and Mr. Butch, both
admit that they are not hydrologists.

The plan calls for the removal of all of the [8] roads,
yet the testimony before the Court is that timbering is
not a prohibited activity. And, in fact, Mr. Butch said
that that was a potential use for the property, and yet
the evidence would support a factual finding that roads
would be necessary for any type of timbering operation
on property of this size; that you wouldn’t be able to
even get the timbering equipment in without some roads
to handle the equipment.

The Court would note—and this is a bit out of order—
that both of the plans that have been submitted to the
Court are, frankly, extreme plans. On the one hand, the
government demands total restoration, and, on the other
hand, the Hobbs want to do no restoration so that they’re
both extreme plans.

And I would also note that from a review of the case
law the government, generally, at least, gives the Court
a couple of plans or a couple of alternatives to choose
from and gives the Court some help in this area to say
that, here’s what we want and here’s what we think is
best, but here’s some alternatives. And in this particular
case apparently the parties aren’t able to get together on
any alternatives, and neither side has produced anything
to the Court in the middle. You’ve both just come out
with two extreme plans, leaving it up to the Court to see
what can be worked out, which is not [9] what I think

26a

the law envisions when you get to this stage in the
proceedings. ;

Again, I would emphasize—I’m just going through my
notes, and I may be repeating things that I’ve said be-
fore, but there were no scientific—because there was a
lot of repetitious examination, and I tended to take notes
on the repetitious examination—there were no scientific
tests made by the United States and no site-specific infor-
mation developed.

In regard to Ms. Terry Phillips’ testimony, I found
Ms. Phillips to be a credible witness. Ms. Phillips relied
upon the water quality testing of Reed & Associates.
That testing the Court accepts, because there have been
no alternative tests offered, A, and, B, the United States
stipulated as to the results of those tests. Those tests
show a very high water quality currently coming off of
the property, a water quality that meets both the EPA
and the State Water Control Board’s drinking water
standards.

Ms. Phillips testified that in reviewing those water
quality studies there were no sources of pollutants com-
ing off—no significant sources of pollutants coming off
the property, and the focus was on the Chesapeake Bay
indicators for water quality, and some of the concerns
for the Chesapeake Bay, and none of those—the nutrient
[10] levels and the nitrogen levels were found to be at
all violative of any standards for the Chesapeake Bay or
any indication that there was being any danger posed to
either the Ware River or the Chesapeake Bay from the
water and the drainage off of this property.

Mrs. Phillips did testify that best management prac-
tices had been utilized in building the roads and in con-
structing the drainage ditches. 7

She testified in regard to the ditches that they were
outstanding; that they had been properly cleared and
stabilized; that there was nothing that could have been
done otherwise under best management practices for con-
struction of the drainage ditches.

27a

And at this time the Court would also note, based upon
previous testimony before the Court, that it’s an uncon-
troverted fact the Hobbs were working with the Soil
Conservation Service out of Gloucester to design and dig
these ditches and that they were revegetated as soon as
they were dug and that there’s been no showing before
the Court that they posed any significant erosion problem
or that they were not constructed in accordance with the
Soil Conservation Service’s mandates and requirements.
And, in fact, they were working together to see that these
ditches were constructed properly. When I say “working
together,” the Hobbs with the Soil Conservation [11]
Service and vice versa.

Ms. Phillips also testified that under the restoration
plan that it would pose a disturbance of sediment, the
filling of the ditches themselves would disturb the sedi-
ment and introduce a potential source of contaminants
into a waterway. Ms. Phillips also again testified on the
three sheet flow areas, erosion, water quality and detrital
export, and, without reiterating all that, found no prob-
lems, and, in fact, the plan that the government had pro-
posed in her opinion might impede some of these factors,
i.e., increase erosion and not help the detrital export.

She testified and the Court found credible that hay
fields are self-maintaining; that they require less fer-
tilizer than other products, than even, perhaps, timber
that one might be trying to bring along. Her plan that
she developed does provide for flood mitigation.

She testified that storm water retention is not neces-
sary in its current use but that it would be if the use
were changed and that cattle would introduce a potential
contaminant unless handled properly on the property,
which was the impetus for the development of the plan
proposed by the defendants.

She testified that the site-specific studies which she had
utilized were the soil studies, the [12] hydrology studies,
the rainfall data, the current site configurafion, as well
as the specific water studies.

ee

2&a

She testified that in her opinion the plan that would
be developed for changing use of the property to cattle
farming would provide superior protection to the water
quality and restoration of water quality than the govern-
ment’s plan would if the land were put back or poten-
tially put back.

And I would also note that there’s no definitive testi-
mony before this Court that the government’s plan would
ultimately have the effect of converting the property back,
if it were all wetlands in the first place, to wetlands.
There’s only that hope and a high degree of probability
that that would occur, but there’s no assurance of that.

Also, the Court—and this again is not necessarily in
sequence, but I think something that the Court has to
keep in mind, as any court would, is that—and this has
been alluded to throughout the proceedings—that protect-
ing and restoring wetlands is certainly of primary con-
cern to this Court and to any court considering these
types of situations.

On the other hand, the only reason that this Court has
jurisdiction over these wetlands is because of its ad-
jacency to the Ware River. If these were isolated [13]
wetlands and did not constitute waters of the United
States this Court would not have jurisdiction over these
wetlands, so that the jury’s verdict was based upon these
being wetlands adjacent to the Ware River or one of its
tributaries.

So, obviously, of consideration to the Court in looking
at the environmental effects and the environmental harm
that’s proposed by either one of the plans is a strong con-
sideration of the water quality in the Ware River and
the Chesapeake Bay. And I want to make it clear it’s
not the Court’s only concern. I do not agree with Mr.
Nageotte’s principle that the Clean Water Act only looks
to water quality. The Clean Water Act looks to more
than water quality, it looks to the factors that I’ve gone
through before, which is to restore and maintain the
chemical, physical and biological integrity of the nation’s

29a

waters. And that’s more than water quality, it involves
all of the biological aspects that contribute to that water
quality, so that while water quality is a primary concern,
it’s not the only concern. On the other hand, in this case
the Court wouldn’t have jurisdiction over these wetlands
if they weren’t adjacent to the Ware River or one of its
tributaries, so the Court has to take that into consider-
ation,

[14] There was some mention of the constituents of
the road, there being some asphalt in the road, but the
credible testimony is that any runoff from those roads
would only put a negligible amount, if any, of the rock,
asphalt particles into the water, and certainly not a sig-
nificant amount to harm the water quality.

The testimony before this Court at this hearing and
before the jury would indicate that the first contact that
any of the Hobbs actually had with a representative of
the Army Corps of Engineers or the Fish and Wildlife
Service or the EPA would have been in approximately
October of 1988 when Mr. McGlaun came onto the prop-
erty. The Court would find the credible testimony to
indicate that Mr. McGlaun indicated that the property
posed a gray area of enforcement to the Corps and that
he would get back to Mr. Paul Hobbs regarding the
matter.

“he testimony that the Court finds credible indicates
that Mr. McGlaun and no one from the Army Corps of
Engineers ever got back to any of the Hobbs::that the
resulting scheme of activities consisted of Mr. Frasier
making a study of the property. Mr. Frasier is from the
Fish and Wildlife Service. Mr. Frasier then, on Decem-
ber 12, 1988, transmitted a report to the Environmental
Protection Agency.

The Environmental Protection Agency then [15] con-
tacted the Hobbs, at which point Mr. Paul Hobbs—with
an opinion that their property involved wetlands over
which the EPA had jurisdiction, they would like for them
to please plug the ditches, and Mr. Paul Hobbs at that
point requested that the EPA’s position be put in writ-
ing, at which point it was put in writing and a cease and

-

30a

desist order was issued in March—I don’t have the exact
date—I’m recalling 12 in my mind at this point, but it’s
somewhere in March of 1988. It was then revised because
of some matters about the adjacency to the Ware River
that Mr. Paul Hobbs raised. Legal counsel was then
retained at some juncture in there, and the matter then
proceeded into this Court.

Judge Kellam did grant an injunction to the Hobbs at
the initial inception of this case to allow them to continue
their farming operation on the property until this matter
was resolved.

The testimony before the Court is that Mr. Phillip
Hobbs’ costs to improve the property thus far have been
approximately $124,000; that Mr. Paul Hobbs’ cost to
improve his property have been approximately $292,000
thus far. And there’s testimony that some economic
benefit has been derived off of the property. There has
been some minor amounts of sale of hay and timber off
of the property.

[16] There’s no indication that the Hobbs ever refused
to cooperate with any government agency. No one has
ever been refused entry to the property.

The only testimony in regard to the cost of the plan
came from Mr. Paul Hobbs. The government offered no
testimony and no analysis of what its restoration plan
would cost and the practicalities of implementing it other
than the Hobbs own some heavy equipment and would be
able to use their own equipment and work on the property
part time themselves.

Mr. Paul Hobbs, who has been estimating this type of
work or similar work for approximately 22 years, has
estimated that his father’s costs to implement the govern-
ment plan would be $96,825 and that his costs would be
$225,925.

Exhibit Number 10 before the Court shows the finan-
cial situation of the Hobbs, and I’m not going to review
that. There’s been no indication that there’s any falsity
or any inaccuracies in their financial statements, and the

a

a

3la

Court accepts Exhibit 10 as reflective of their financial
situation.

Mr. Paul Hobbs testified that the cost of implementing

their restoration plan, the one that Mrs. Phillips devel-
oped, to his father would be $105,400 and approximately
$128,000 for him.
[17] There’s no history of violation on the part of these
individuals. As far as this Court knows, they’ve never
been in this Court or any other court on violations of
the law, in particular of the Clean Water Act.

Once they received the cease and desist order no fur-
ther work has been done on the property. Mr. Paul Hobbs
did continue to work on the 25-acre tract, I believe, and
I’m not sure about the planting. I can’t recall that. But
he did continue some work after Mr. McGlaun came out
to the property, but not after he received the cease and
desist order.

The jury found no 1989 violation of the Clean Water
Act on the part of Mr. Paul Hobbs. There was no such
violation even presented in regard to Mr. Phillip Hobbs.

Ms. Contula testified that she had certain concerns
about both plans. She said under the Hobbs plan or the
United States plan that she was concerned that whatever
areas were disturbed that they be revegetated and stabil-
ized as soon as possible to keep down any erosion. She
expressed certain concerns about the cattle; to be sure
there was proper fencing and buffer strips, other than
just water troughs, to keep them away from the edges
of the ponds and the edges of the ditches. And she also
expressed some concern about the [18] density of the
cattle. However, as it ultimately came out, the cattle
density would be dependent upon Soil Conservation Serv-
ice and the agricultural standards that would be applied

| to the property and that the plan did call for fencing
and buffer zones in addition to the water troughs.

She expressed concern for water quality. monitoring as
the land use changed.

She expressed concern for the fragmented habitat areas
but again admitted that no one had actually gone in there

a

32a

to see what types of habitats were being created. There
was a mention of deer and racoon, but there is no show-
ing that these are any types of threatened habitats in
this area. There was no indication of any threatened
aquatic life or any aquatic life habitats, only—and there
was no indication that the deer or the racoon would be
threatened, it was just that wooded areas would give
them more habitats, but no indication that those types
of habitats were lacking in this area in the State of
Virginia or anywhere in the United States.

She admitted that the current water quality was good

from what could be—she could tell. She did say she would
like more studies and at different times of the year and
“as the use for the property changed.
[19] And there was some indication that she had seen
hawks, insects and crayfish, but that particular testi-
mony, in the Court’s opinion, was never properly devel-
oped. There was no indication that the hawks didn’t
have a place on the property. And, again, the crayfish—
We got into some lengthy discussion about how many
crayfish holes were in the hay field versus, the ditches,
and nobody ever seemed to be able to work that out. So—
and there was no indication of what types of insects were
on this property, vis-a-vis uplands property, and whether
there was any type of threatened species of hawk, insect
or crayfish on this property.

Nutrients she indicated were a primary concern in the
Chesapeake Bay system and that the nutrients were low
on the Hobbs property, and that was good.

She expressed some concern for an outfall structure on
the proposed pond, because she was worried that the fish
would be able to get out, and then on cross-examination
she admitted that if a proper outfall structure was de-
veloped, a proper maintenance plan and the construction
would be properly supervised, the pond embankment
would be vegetated after excavation, that there would be
some type of ten-year flood event verification, that those
particular corrective measures would make her more
comfortable with the Hobbs plan.

33a

{20] The Court would also note, as it has noted earlier,
that the standards have been constantly evolving and
changing in this area. I agree with Mr. Shaffer that
the definition of wetlands has not changed from a legal
standpoint of regulation.

On the other hand, the wetlands determination and
the guidelines for determining what is a wetland by
the various enforcement agencies has changed since 1980,
and various manuals have been developed. And a new
manual did come into existence in April of 1988 with the
EPA, and on March 20th, 1989 a new joint manual came
into effect as between the EPA and the Army Corps
of Engineers. Those are matters of fact and law in
the record.

All right. Now turning specifically to the damages
that are requested, I’ll first address the area of civil
penalties.

All right. 33 United States Code Section 1319(d)
states, quote, “In determining the amount of a civil
penalty the Court shall’—mandatory language—‘“con-

sider . . .’—and it sets forth the various factors that
the Court will consider. And I’ll go through them one by
one.

The first is the seriousness of the violation. On the
one hand, the United States argues that this is a [21]
particularly serious violation because there’s been approx-
imately a hundred acres of wetlands destroyed. On the
other hand, the Hobbs have argued and presented through
their restoration plan that the water quality has not been
damaged.

And +f you go through the environmental factors that
the Court needs to consider, which I will do in a moment
when we go through the restoration plans, this is not the
type of serious violation that would warrant particularly
heavy civil penalties. When it’s measured against the
objectives of the Clean Water Act—and that’s what you
look at, you look at the seriousness of the violation
measured against the objectives of the Clean Water Act.

: ;

34a

And I’m not going to repeat what I said earlier, but I
make it clear the Court takes into consideration the im-
portance of wetlands on the one hand but also the im-
portance of the preservation of the waters of the Ches-
apeake Bay and the Ware River and the other environ-
mental concerns, the flood protection, wildlife habitat,
aquatic habitat. And I’ll go through all of those when
I review the restoration plan.

The economic benefit resulting from the violations.
There’s no showing here that either Mr. Phillip Hobbs
and his wife, Dorothy, or Mr, Paul Hobbs and his wife,
Donna, have, at least at this juncture, [22] benefited
economically to a large extent from their particular ac-
tion. There’s some showing that they sold some timber,
nothing in any significant amounts, from the property,
and some hay. There’s no showing of any great eco-
nomic benefit resulting to any of them at this juncture.

The third consideration is the history of violations.
As I’ve indicated, there is absolutely no history whatso-
ever of any violations on the part of these individuals.

The good faith efforts to comply with the act. And
the cases in this area have focused on individuals who
generally start into a permit process and whether they
then try to comply with the act and comply with what is
being asked of them.

In this particular situation, while it’s a strict liability
statute and the Court is well aware of it, the Court
still has to be cognizant of the fact that these people
did not willy-nilly and in an egregious manner go out
to violate the environmental laws of the United States,
and they were working with the Soil Conservation Serv-
ice, they thought they were complying with environ-
mental protection regulations when they took these ac-
tions, and it wasn’t until the Army Corps of Engineers
and Mr. McGlaun went out there in 1988 that [23] any-
body, at least from the Hobb’s standpoint, had any idea
they were subject to any regulations other than the ones

35a

they were already under from the Soil Conservation
Service.

Mr. Paul Hobbs did continue to do some work on his
property after he was put on notice, albeit minor, that
the property might constitute a wetlands.

The fifth concern—and as I said before, Mr. Phillip
Hobbs did no work on his property, and when the cease
and desist order came they did absolutely nothing until
Judge Kellam told them they could, and the jury found
no 1989 violations. So, the only thing the Court would
be concerned with was what was occurring basically from
October of 1988 until October of 1989 from Mr. Paul
Hobbs.

The economic impact of the penalty on the violators.

Well, it’s clear here that any economic penalty would
have a pretty big effect on these individuals. The cur-
rent net worth of Paul Hobbs is reflected to be approxi-
mately $129,000 and of Mr. Phillip Hobbs, approximately
—and these aren’t the exact figures—$321,000. The pen-
alties, particularly if the Court were to order restoration,
would exceed—the restoration would close to exceed their
net worth under the estimates berore the Court.
[24] But, in any event, given the amount of money
that they put into the property and their net worth, any
substantial penalties would have a pretty strong eco-
nomic effect on them.

Finally, and most importantly, at least,—I wouldn’t
say most importantly, but certainly importantly in this
case are such other matters as justice may require. And
I reiterate here that this is a case that, A, when the
Army Corps of Engineers went out there they said, this
is a gray area; B, nobody was flagrantly violating the
law, they were working with the Soil Conservation Serv-
ice; and, C, as soon as they got that cease and desist
order they stopped, they didn’t do anything without court
approval.

a

So, given all of those considerations, the Court would

for the violation itself, the seriousness of the violation
in regard to the only one of these factors that weighs
at all against Mr. Phillip Hobbs is the violation—in other
words, that wetlands may have been destroyed in this
matter—the Court would levy a civil penalty on him of
$100.

In regard to Mr. Paul Hobbs for the violation itself

and for any continuation of activity after Mr. McGlaun
went out there, the Court would levy a penalty on him of
$200, a hundred for each of those considerations.
(.25] Now to the restoration plan. The cases that have
been cited to the Court—I’m not going to review them
all, I will review some of them. As a lead case, the United
States v. Weisman, found at 489 F.Supp. 1331, Middle
District of Florida, 1980, relying upon United States
versus Sexton Coves, Incorporated at 526 F.2d 1293, a
Fifth Circuit case, 1976, that court indicated that two
prerequisites had to be met before restoration could even
be considered, and the first was that the property be
under the jurisdiction of the Court. Well, it is under the
jurisdiction of the Court. The jury has determined that
there’s been a discharge on wetlands, and the Court has
heard that testimony and liability has been established.
And the activity is to be directly affected by the restora-
tion plan.

The second consideration is that the Court is required
to hold a hearing and take evidence on the merits and
alternatives to the restoration plan. And that’s what
we've been here for these last three days, taking this
evidence and conducting the hearing.

After those two prerequisites are met, the Court then
in selecting a restoration plan or even considering restor-
ation looks to three things. Number one, whether the
plan confers maximum environmental benefits. Two,
whether it’s achievable as a practical [26] matter. And,

three, whether the plan bears an equitable relationship to

ers

via

the degree and kind of wrong which it is intended to
remedy.

In regard to the—and what I will first do is focus
on the plan of the United States, because the United
States is the one who wants restoration. They are the
nes seeking the damages in the form of restoration, and,
consequently, it’s their burden to present an acceptable
plan to the Court and one which is not speculative and
meets the criteria as set forth, as I just previously set
forth.

The first is whether or not the plan confers maximum
environmental benefits. Well, frankly, it’s difficult, if
not impossible, to tell from the government’s plan whether
or not it confers maximum environmental benefits. There
have be@n no site-specific studies done. The only site-
specific study done has been done by the defendants,
which shows that the water quality is exceptional on the
property.

n regard to the environmental benefits that are set
forth in the government’s plan, every paragraph is based
upon some general paragraph in the literature without
any reference to this specific piece of pigpanrit y. And I’m
eoing to go thro

ugh the environmental values, and I’m
reading from Exhibit 1, which is the 27] government’s
plan.

Their first environmental value is for water quality

improvement. Well, there’s no showing here that the
ity needs to be improved, and, in fact, there’s
a showing that the water quality is exceptional.

Secondly, flood protection. And there’s a general state-
ment here that wetlands, such as those found at the
Hobbs’ property, are often referred to as natural sponges
that absorb flooding waters. There's no showing here—
and, in fact, the plan presented by the Hobbs takes care
f any concerns for flood protection, and there’s no show-
ine here that the drainage ditches and the current status

of the property doesn’t protect not only the Hobbs’ prop-
erty but the surrounding property from flood protection.

38a

It was a concern expressed by the United States that if
they caused the Hobbs to plug up all their ditches they
may flood neighboring property so that it appears that
the current drainage ditches and the plan proposed, the
pond plan proposed by the Hobbs, takes care of flood
protection in the area, at least as well as the Court can
determine, because there’s no specific showing, only gen-
eral conclusions in the government’s plan.

The next one is wildlife habitat. And all the govern-
ment says here is that forested wetlands such as [28]
those of the Hobbs’ wetlands are valuable wildlife habi-
tats. And they go on to talk about a variety of birds,
migratory water fowl being one, and yet there’s a specific
showing under the Hobbs’ proposed plan that it would
attract migratory water fowl to the area. And then
there’s some mention here that these types of wetlands
give a habitat for racoon, opossum, squirrels, rabbits,
quail, foxes and white tail deer. Again, there’s no show-
ing that these animals are actually on the Hobbs’ prop-
erty, number one, or, number two, that there’s any threat
at all to this habitat and that the Hobb’s current plan
doesn’t give adequate habitat to these species.

The next is natural products, that there’s a wealth of
natural products. Now, those mentioned are, number one,
lumber, but the government’s plan calls for removal of
the roads so that you couldn’t then engage in this without,
of course, restoring—going through what the Court con-
siders an illogical exercise, which is to remove the roads,
restore the property, then go back to the Corps and re-
apply for the roads and see if you can get the roads
in then, which is certainly an economic and time waste
for all the resources of the United States and the Hobbs.

Then there’s some mention here of shell fish [29] pro-
duction and blue crabs and the aquatic life. But as I’ve
indicated before, there’s no sh »wing that this property is
doing anything to damage those types of product or the
aquatic life. It’s also that the detrital, the enriched
detrital, would serve as a principal source of food. But,

Q.
OUE

as I’ve indicated, the experts say that the detrital export

—at this juncture there’s no problem with it on the prop-
erty, so that the Hobbs—excuse me—the United States
restoration plan for the Hobbs property is so un-site-
specific as to be unacceptable to the Court to be able to
determine whether it confers maximum environmental
benefits. All the United States is doing is saying plug the
ditches, flood the property and we'll see if we can make
it into a total wetlands. We’re not sure, but we'll see.
And it’s impossible for the Court to assess the environ-
mental benefits from that.

Secondly, whether it’s achievable as a practical matter.
The United States has come in here with a plan that,
number one, all it is is a piece of paper with some orange
lines on it with specification that these ditches are to be
plugged back to natural contours and original elevations.
from a practical standpoint, it would be very difficult
for the Court or anybody supervising this plan to be
able to go in and see that |30] the requirements of it
had been met. And what the United States wants the
Court to do is to leave it up to the EPA or someone in
the government to go in and say, ves, that suits us. But
that’s not the stage we’re at now. The Court should
issue a restoration plan that can be put into a court order
that someone can know is going to be met or not met.
And at this point in time I—there was something else
in there that would be most difficult—I’m trying to find
it.

Oh. I want to go back to the environmental benetits
for a moment, too. One of the detrimental environmental
benefits tha Is ]

removing’ a

t the Court sees with this plan is it calls for

ll the side-cast material and all the dredged

and fil! material used for the road and basically putting
all this excavated material back into the ditches.

Now, there’s some indication that this would cause

erosion problems, this can cause more serious pollutants

into the water flow than you would by leaving the vi

- + : i . + . ‘ et " +4 sey I) . . lL, «4 . ;
tated ditches there, and then it calls for whatever st

4 i

i

40a

and waste and gravel that you can’t get back on the
property to then take it off site and dispose of it at an
approved upland disposal site, perhaps on the property.
So that the removal of the material, whatever, there’s
nothing here to show or for the Court to be able [31] to
assess except the testimony of Ms. Phillips to show that
this is environmentally sound to go about digging up
the roads that are already in place and not posing a
problem to the water quality to dig those roads up, to
put all this fill material back into the ditches, to let the
water drain through all of this material so that again
there’s no showing there of the environmental benefits of
this plan.

Again, back to the practicalities. No cost analyses
have been done by the United States. And their argument
here is, well, let the Hobbs do it, let them use their own
equipment. And the only cost analysis that’s been done
is by the Hobbs, and, frankly, it shows a prohibitive cost
to accomplish this work at this juncture. So, the Court
would find that at this point there’s no showing that this
plan is achieveable as a practical matter from either a
cost standpoint, from a specifications standpoint, and,
again, it may even cause some detrimental and environ-
mental repercussions.

And, finally, the plan has to bear an equitable re-
lationship to the degree and kind of wrong which it is
intended to remedy. Again, here, taking—I don’t want to
review all of the technicalities, but you first have to look
at the Ware River and the Chesapeake Bay. One of the
underlying basic purposes of the Clean Water Act is
(32] to promote the water quality, and this plan, A, isn’t
even looking at water quality—nobody’s even looked at
water quality with the plan—and B, there’s the testimony

from Ms. Phillips that this sediment, erosion, might even
damage the water quality.

The equities weighing in their favor that all this was
done under the auspices of the Soil Conservation Service,
and to now come in and say you have to spend 300,000 to
fill ditches that the Soil Conservation Service in the first

4la

place helped you or gave you direction on putting in some-
how doesn’t seem equitable in this particular situation.
Again, being a gray area of enforcement and no indica-
tion that there was anything wrong until the fall of 1988.

And | don’t want to repeat all the equities I went
through with the civil penalties, but all those same equi-
ties apply, and this particular plan simply doesn’t favor

1 equitable relationship to the degree and kind of wrong
which it is intended to remedy in the Court’s opinion.

So, consequently, based upon all of that, the Court
rejects the government’s plan. I do not find that it’s ade-
quate under the law or the facts of this case, and the
Court would reject that particular plan.

In regard to the Hobbs’ plan, the Court will
accept the Hobbs’ plan with certain modifications, and
those modifications would be as follows:

First of all, there has to be an acceptable outfall
structure developed to keep the fish that are going to be
put in the ponds—to be sure that they are in there.

There has to be some maintenance plan developed,

[33]
| Vv

somebody to come in and check to be sure that everything
is functioning properly, at least for a ten-year period.

There needs to be some provision made for the con-
struction of the ponds to be supervised, and Mrs. Phillips
would be an acceptable person to do that. As the ponds
are excavated, the banks would have to be vegetated after
the pond excavation.

You need to look further into this ten-year flood event
verification and be sure that the pond sizes are adequate
to take care of the flood events and that ten years is an
adequate time period. The evidence was a bit weak as
to how she finally arrived at ten years as being an appro-
priate time period for the ponds.

4

The other matters in regard to the fencing and the

buffer zones, that needs to be developed in more detail.
That’s very generalized language in that plan. There
needs to be some specifics as to where the fences [34] and
the buffer zones would be in regard to the cattle as wel]
as the water troughs. Al! the plan says is we'll have

42a

fences, buffer zones and water troughs. The Court would
want some indication as to where those would be and
the extent of those three times.

In terms of any density of any cattle on the property,
again, that would be left up to another government
agency to determine.

The Court would also want as part of the pian some
way to test the water quality over the ten-year period of
the maintenance plan so that someone can monitor
the use of the property would change into cattle farming
the water quality could be monitored in some acceptable
mode to monitor the water quality.

Now, in terms of the one piece of transitional property,
the way the Court looks at what is occvrring today is the
government’s plan is rejected and the Hobbs’ plan is
accepted with certain modifications which I’m going to
give you all a time period to go back and work out and
get an appropriate order to the Court. That basicsly
covers—and if you all are in disagreement, I’m going to
want to know now.

That plan basically covers the—as I started this deci-
sion out, there are three different areas. There’s one, the
undisturbed forested areas. And this [35] Court makes
no order in regard to those areas. I am not going to order
prospective injunctive relief on those areas. The Hobbs
know the rules now, and if they don’t follow those rules
they’re the ones who are going to suffer the repercussions.
It would be, in this Court’s opinion, inappropriate to go
in and order somebody to follow the law on the undevel-
oped property.

Now, I’m going to make three distinctions here. That’s
undisturbed property just like any other undisturbed
property in the United States. It’s subject to the laws,
environmental laws, of the United States, and if any
action is taken on it, if the Hobbs think there are wet-
lands there, then they’re going to have to seek the appro-
priate permit from the Army Corps of Engineers.

as

43a

If they don’t think there are wetlands there and they

do their development anyway and it turns out to be wet-
lands, then they suffer some pretty heavy repercussions,
because the whole civil penalties area changes on the next
case, because then you’ve got a history of violation, a
showing of lack of good faith compliance with the act.
Your whole case changes. So, as far as this Court is
concerned, I’m not going to order prospective injunctive
relief on undeveloped areas. It’s the same as anybody
else, and they know the rules.
[86] The plan that is being denied from the government
and the plan that’s being put in effect deals with the
areas that are now developed and disturbed. Now, that
leaves the question of the transitional area.

And before I go any further on that, what’s the United
States’ position—what can they do with that transitional
area under current law?

MR. SHAFFER: Well, obviously, the current law
prohibits the discharge of fill material into wetlands. We
would submit the jury has found as a matter of law that
these are wetlands, and, so, therefore, to the extent that
they continue to discharge in that area we would submit
that’s a violation. We would also submit, Your Honor,
as I argued before, that the history and the equities are
different in that 25—

THE COURT: You need to stand up, Mr. Shaffer.

MR. SHAFFER: I’m sorry. I apologize.

The equities are different with respect to that 25-acre
parcel because they clearly were working on that in late
1988. In fact, there’s testimony during the liability phase
that Mr. Lipps layed out the ditches in November of
1988, well after the Hobbs were on notice that there was
some question on the part of the Corps of Engineers.

I would submit that the Court should order [37] injunc-
tive relief which basically says they have to revegetate
and plug the ditches in those parcels to allow it to re-
vegetate to resume its status as wetlands.

44a

THE COURT: But suppose they go in and plant hay
on that? What is your position on that in terms of that
being a violation of the law at this point?

MR. SHAFFER: Well, Your Honor, the planting of
the hay is—you know, to the extent that they obviously
have to go in and remove the fill and presumably are
going to want to level the land, which means filling holes,
which involves the discharge of fill, I would submit, Your
Honor, that basically to allow them to farm that when
they have not expended considerable amounts of money
to bring it into cultivation or get it into shape really does
give them a windfall.

THE COURT: Well, I haven’t ruled on that parcel
yet. Let me make it clear. That’s the point I’m at now.

MR. SHAFFER: My concern is, Your Honor, I don’t
know the status of the land, but, presumably, they’re
going to have to fill holes, grade, level, in order to keep
the water off so they don’t ruin their crop. The sides of
the ditches clearly haven’t been seeded. I would submit.
Your Honor, that further work on that site would con-
stitute a violation in the absence of [38] a permit, and
assuming they could do the work to get it in shape to
cultivate it, you know, obviously, the statute deals with
discharge of fill material, and spoil piles are sitting out
there.

THE COURT: Was there any work in 1988 other
than that field, that you know of?

MR. SHAFFER: My understanding is that that is
the field or that is the collection of fields where they were
doing the bulk of their work in 1988.

THE COURT: That’s what I recall. too.

MR. SHAFFER: That’s my understanding, and ]
can't cite the Court to any other parcels.

THE COURT: I can’t recall from the testimony any
other parcels in 1988.

All right, go ahead, Mr. Nageotte.

MR. NAGEOTTE: If Your Honor please—

THE COURT: Four minutes.

45a

MR. NAGEOTTE: I can appreciate what the govern-
ment is saying with regard to the 25-acre field. They’re
saying, well, you shouldn’t—you know, community bene-
fit. But, on the other hand, to take that approach is
counterproductive to what the government is saying. If
in fact we’re dealing with the Clean Water Act and con-
cern for water quality, the evidence is clear on the record
of this case that the most efficient and [89] expeditious
means to solve the water quality problem, which is
clearly—

THE COURT: Let’s don’t argue about that. I’m not
arguing on what’s the most expeditious means to solve
it, I’m arguing over the legal status.

In other words, the way I view my ruling is that I am
not going to make a legal ruling on areas that are un-
disturbed upon which a jury has not concluded that there
are any wetlands, specifically. And those are just like any
other undisturbed wetlands, and the people will move at
their peril on them. Their restoration plan calls for the
land as is, including that parcel in transition. But we’ve
got an erosion problem on that parcel, so we’ve got to
decide what to do with it, whether I’m going to order
that those ditches be plugged and that it be seeded or
whether it be put into hay or what’s going to be done
with it, because the restoration plan I’m approving, basi-
cally, that you’ve proposed leaves the land as is until such
time as they’re going to put cattle on it. But it leaves
the Court with that piece of property in transition, and
I’ve got to decide now what to do with that property in
transition.

And, frankly, neither one of you all have presented
anything to me on what to do with the piece of property
in transition, other than what Mr. Shaffer did [40] to-
day. And that’s my concern. And what I’m contemplat-
ing right now is giving you all 30 days to try to come up
with something to do with that property and give the
Court some type of information, some site-specific infor-

A
4
;

46a

mation, as to what to do with these 26 acres here or 25
acres, whatever it is.

MR. NAGEOTTE: Well, I would submit to the Court
that clearly what should be done, based on all the testi-
mony that Your Honor has heard at the penalty phase,
is to allow the Hobbs to finish that 25 acres and plant it
with hay.

THE COURT: No, I’m not going to do that, Mr.
Nageotte, because the jury found that in 1988 there was
a violation. That’s the only property that was involved
in 1988, and the Court—I can leave it as is and the Hobbs
can go apply for a permit on it, but I’m not going to now
issue an injunction ordering you to plant the property
into hay. That would be entirely inappropriate under the
act to then say, all right, there’s a violation there. What
I’m doing is saying what’s been done right now shows to
the Court—you’ve been able to show no environmental
detriment, but there’s testimony before the Court that
that piece of property as is may pose an environmental
problem because of the erosion. And, so, we’ve got to
decide what’s to be done with it, and—

[41] MR. NAGEOTTE: First of all, if I could, with
all due respect, clarify something Your Honor said.

The jury did not find that that piece of property was
done in 1988 and was the subject of the ruling. Quite
to the contrary. The jury—if you look at the stipulations,
there was work on various properties in 1988 besides the
25-acre field. And, remember, the jury didn’t pick which
field or which property. The jury found that in 1988
Paul Hobbs discharged fill material into his wetlands
property, which was more than one acre. They didn’t
say how many. So, we have the same problem with the
25-acre field.

THE COURT: All right. Then I’ll tell you what we'll
do, then. We’ll take 30 days and you all can go do a
wetlands delineation on the property. Because I’ve got

Tt

to decide at the damages phase, and you can do a wet-

lands delineation on it, you can do a cost analysis of the

47a

various uses and come up with alternative plans for that
26 acres. I don’t know of any other way to do it at this
point, unless you all can agree, which I’m not going to
count on that.

MR. SHAFFER: Well, Your Honor, with all due re-
spect, we submitted in the liability phase a delineation
which covers that 25 acres. I mean, is the Court asking
us to basically go back and redo everything [42] we did
at the expense of the government?

THE COURT: No.

MR. SHAFFER: The Hobbs have presented no de-
lineations, and I would hate to think that we have to
go back and redo all of that.

MR. NAGEOTTE: Your Honor, what this boils down
to is this, very frankly, and I appreciate the government’s
problem here, but I look at it this way:

If all the evidence in the case is that the ditching of
the Hobbs when allowed to continue was okay, was ex-
cellent, as everyone has said, was done under the SCS
supervision and that field was also at an expense, even
though it’s not completed, and that the hay fields of the
Hobbs are environmentally acceptable, then it seems to
me just to take the position, well, remember—it’s like
Your Honor said about the children; well, you can’t do
this because you just can’t. Well, it’s not doing any harm,
and it would solve the problem. But, no, you can’t do it,
because you just can’t. I just don’t understand that.

I mean, my suggestion is simply to go ahead and finish
that field off and let it—

THE COURT: How can you do it without a permit,
unless you want to take the chance that it’s not a wet-
lands?

143! In other words, at this point, Mr. Nageotte, this
is the factual situation with that piece of property. That
particular work was continued after the EPA was out
there in 1988. In October of 1988 the work on that prop-
erty was continued. That’s the only werk that Mr. Paul

Hobbs was doing in 1988 as a eontinuation of that piece

48a

of property. So, that was being continued after the EPA
went out there. My order today is basically the property
is as it is. The forested wetlands are still subject to
regulation if they’re wetlands, and the property is as it
is because there’s no showing that it’s environmentally
unsound. And for all the reasons—and I’m not going to
repeat everything I’ve said today, not just for that one
reason.

All right. Your restoration plan and what the Court
ordered then leaves that property just as it is. It leaves
it in the same situation as the forested wetlands, basically.
It is as it is. So, in order for—and it’s growing back.
I’ve looked at the pictures. The area is growing back.

So, one of three things can occur here. You all can
try to get together and present to the Court some viable
alternatives for that piece of property, or the Court can
leave it as is with the Hobbs running the risk of what-
ever they do to it they’re going to end up in a [44] new
legal turmoil, or, number three, I can outright order
them to go to the Corps and get a permit for that piece
of property before proceeding any further.

Those are the three alternatives—or, number four, I
can go with the government’s plan—there are four alter-
natives—and say, go ahead and plug up the ditches and
reseed that piece of property.

So, there are four alternatives. I’ve taken care of the
forested areas, and I’ve taken care of the undeveloped
areas, and if I do no more today I’ve basically taken care
of that 25 acres.

I’m trying to give you all an opportunity to work this
out so you don’t end up back in court over your 26 acres.
And they are the only four. I can go with the govern-
ment’s plan, I can leave it as is and they run the risk
of whatever they do, the United States coming back again
and saying, you needed a permit, or they can go on their
own to apply for a permit, or I can order them to do it.
There’s nothing been presented to me in a restoration
plan that says plant that area in hay. That wasn’t part

~

/
49a

of your plan. You didn’t present that as part of your
plan. Your whole testimony and evidence before me was
based on the property as is right now. And I have no
evidence before me whatsoever to go off and say, well
just go ahead and plant it in hay. I simply [45] don’t
have that evidence before me.

MR. SHAFFER: I might observe, Your Honor, that
basically what Myr. Nageotte is proposing is to undo
the very remedy which she sought from Judge Kellam.
Judge Kellam in issuing his preliminary injunction clearly
recognized that that 25-acre parcel was separate and told
them not to do any work in it and recognized that the
equities

THE COURT: Absolutely.

MR. SHAFFER: And now they’re saying we want
even more than Judge Kellam would give us.

THE COURT: This is the way Ym going to leave it
with you. We’re not getting any further today. I’ve
made my order clear.

You all have 30 days to presnt to the Court an order
that sets forth the Court’s ruling today on the restoration
plan approved with modification.

Mr. Shaffer, by working on

this order with Mr.
Nageotte, you in no way waive any objection that you
have to the Court’s, A, not approving your plan and, B,
you don’t show any agreement in the ruling of the Court
of adopting that restoration plan with modification. But
I do require that the two of you submit to the Court an
appropriate order setting forth the plan adopted with
modification.
[46] And the reason I put it to you all to do is you’re
going to have to get together on this outfall structure
se certain —s configurations, and let’s hope that
‘ou don’t need the Court to sit with you to come up with
an outfall structure. I’m hoping that you all can take
eare of those things from a scientific standpoint without
court intervention and present that to the Court. That’s
what you’re required to do.

I would request that you also get together and see if

you can come up with some resolution for the 26-acre

\ der IS aS 1 1S, the property
. I :

parcel. Jf you don’t, n
stays. In other words, I don’t find that the government

has presented an adequate plan for stopping the ditches
on that pareel. I do not find that the defendants have
resented one iota of evidence that planting hay on that
propert any use other than its current use comports

with their evidence. Al] their evidence was based on
] 17) » 44 " rrhipnl ] . + +e xr T~ an
eaving it as is, which leaves the property as is, and,
frankly, somebody would not be very smart to avoid ap-
plving for a permit to do any further work on it.

MR. NAGEOTTE: That’s what I was going to sug-

gest to Your Honor, if you could style that that we have
30 days to work out a plan for the 26 acres, and then in
the event we are no iccessful in doing that [47] tha
he Hobbs ar )} ed to apply for a perm for the 6

application in and of itself does not predetermine the
awarding of the pern

THE COURT Well, I’m not ruling on the awarding
of the permit on that property.

MR. SHAFFER: If I can just ask for some clarifica-
tion from the Court with respect to th areas that are

, .
leve iovped.,

today, one, whether or not this mitigation plan must be
implemented now or when it should be implemented. Is
the Court saying they have to implement the program
now, or do they have to implement the program in and

when they put cattle on the property? If they don’t have

“ | ] . L- M » “ 4*t ‘ | >. } .
to do it now, | think it’s necessary that tnere be some

adi ance tice that their land . se is going to ha} or
aqvanee novice tna elr lana use Is golng cnangt
Otherwise,

THE COURT: I think that’s a viable thing. Mr.
Nageotte is shaking his head, some type of notification

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I

o2a

THE COURT: Well, those water quality tests were
as it is.

All right, counsel, you have 30 days from today to
present that to the Court, and I’m not going to even say
if you run into any difficulty what to do, because I’m

anticipating no difficulty whatsoever. I’m an optimist.

DOU
UNITED STATES DISTRICT COURT
KASTIERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

Civil Action No. 89-327-N

S. PAUL Hosss, et al.,
Plaintiffs and

( ounte rcvdimM De Ti ndants.

j

UNITED STATES OF AMERICA, et al..
De fendants and

;

Counterclaima)

JUDGMENT IN A CIVIL CASE

Filed Aug. 23, 1990]

Jury Verdict. This action came before the Court for
a trial by jury. The issues have been tried and the
jury has rendered its verdict on liability on tl

counterclaim.

Decision by Court. This action came to trial before
the Court. The issues have been tried and a decision
has been rendered on damages.

IT IS ORDERED AND ADJUDGED that on the
counterclaim:
1. Defendants Phillip Ray Hobbs and Dorothy V. Hobbs
discharged fill material onto wetlands constituting waters
of the United States in 1980, 1984, and 1985 without
permit in violation of Sections 301l(a) and 404(a) of the
Clean Water Act, 33 U.S.C. $$ 18ll(a) and 1344(/a

o4a

‘)

2. Defendants S. Paul Hobbs and Donna M. Hobbs dis-
charged fill material onto wetlands constituting waters of
the United States in 1986, 1987, and 1988 without a
permit in violation of Sections 301(a) and 404(a) of the
Clean Water Act, 33 U.S.C. $$ 1811(a) and 1344(a).

8. Defendants Phillip Ray Hobbs and Dorothy V. Hobbs
shall pay civil penalties in the amount of One Hundred
Dollars ($100.00) within sixty (60) days from entry of
this judgment, payable to the United States Treasury, in
eare of Craig B. Shaffer, United States Department ot
Justice, Post Office Box 23986, Washington, D.C. 20026-

3986

4. Defendants S. Paul Hobbs and Donna M. Hobbs shall
pay civil penalties in the amount of Two Hundred Dollars
($200.00) within sixty (60) days from entry of this
judgment, payable to the United States Treasury, in care
of Craig B. Shaffer, United States Department of Justice,
Post Office Box 23986, Washington, D.C. 20036-3986.

5. Use, modification, and or restoration of the wetlands
“1 in this action shall be in accordance
with the court’s ruling of May 21, 1990, and Final Order

Date August 22, 1990 DORIS R. CASEY

APPENDIX C

UNITED STATES DISTRICT COURT
KASTERN DISTRICT OF VIRGINIA
Norfolk Division

UNITED STATES OF AMERICA.
Pla tiff.

Defendants.

MEMORANDUM OPINION AND ORDER

[his matter comes before the court on numerous post-
in this case. On Janu-

ions filed by defendants
ary 26, 1990, the jury found that defendants had dis-

rged pollutants onto the Vetlands prope

set 1 173+} oa4
| 4 ViItnou

first seeking a permit from the United States Army
Corps of Engineers ‘hereinafter referred to as “Corps’’)
in violation of Section 301(a) of the Clean Water Act
(hereinafter referred to as “CWA”), 33 U.S.C. § 1311
(a). A bench trial was conducted on May 17, 18, and
21, 1990, to determine the appropriateness of ordering
injunctive relief, in the form of restoration, and of im-
posing civil penalties.’ The court issued its ruling regard-
ing relief, restoration, and penalties from the bench on
May 21, 1990, with a Final Order entered in the case on
August 22, 1990. The following is a list of defendants’
motions, with their filing dates, which are the subject of
this opinion and order:

1 Q) Decembe 14 1989. t} irt yrant | plaintiff’

d6a
(March 2, 1990)

Defendants Donna M. Hobbs and Dorothy V. Hobbs
Motion for a New Trial;

Motion for Judgment Notwithstanding the Verdict
or, in the alternative, a New Trial on behalf of S.
Paul Hobbs and Donna M. Hobbs:

Motion for Judgment Notwithstanding the Verdict
or, in the alternative, a New Trial on behalf of
Phillip Ray Hobbs and Dorothy V. Hobbs:

(March 14, 1990)
Motion to Stay Entry of Final Judgment;
(June 26, 1990)

Motion for Judgment Notwithstanding the Verdict
and to Partially Set Aside the Jury Verdict as Con-
trary to the Law and Evidence.

The court will consider each motion in the order indicated
above.
Motion for a New Trial

In their motion, defendants Donna M. Hobbs and Dor-
othy V. Hobbs seek a new trial on the basis that the
United States failed to present evidence that either de-
fendant discharged a pollutant, a prerequisite to estab-
lishing a violation of the CWA. 33 U.S.C. S311l(a).
Defendants’ Donna M. Hobbs and Dorothy V. Hobbs’
Motion for a New Trial, United States v. Hobbs. Civil
Action No. 89-327-N, at 1-2 (E.D. Va. March 2, 1990).
Defendants represent in their motion that the court found
the two defendants could be liable for violating the CWA
purely on the basis that they were co-owners of the sub-

“Section 1311(a) provides “[e]xcept as in compliance with this
section and section ... 404 of this Act [33 U.S.C. § 1344 _ the
discharge of any pollutant by any person shall be unlawful.” 33
U.S.C. § 1311(a).

ject property with their spouses. /d. at 2-8. The court
finds that defendants’ motion lacks merit and incorrectly
states the basis of the court’s ruling.

Despite defendants’ contention that no evidence was
presented to establish liability, they stipulated to clearing,
planting,-and grubbing their property on numerous occa-
sions. The Stipulation read: “Phillip Ray Hobbs and
Dorothy V. Hobbs conducted the work on the parcels
listed on the dates set as follows... .”’ Order on Final
Pretrial Conference, United States v. Hobbs, Civil Action
No. 89-327-N, at 3 (E.D. Va. January 4, 1990) (empha-
sis added) ‘hereinafter referred to as “Stipulation’’).
Likewise, the Stipulation with respect to defendant
Donna M. Hobbs indicated: “S. Paul Hobbs and Donna
M. Hobbs conducted the work on the parcels listed on
the dates set out as follows... .” Jd. at 4 (emphasis
added). The Stipulation was presented to the jury in
the court’s preliminary instructions at the inception of
trial and as part of the court’s charge (Jury Instruction
No. 4) at the close of the liability phase of the case.
Clearly, the basis for each defendant’s liability was not
his or her status as a co-owner of the subject property,
but rather liability rested on the evidence presented to
the jury that each defendant engaged in various activi-
ties which constituted discharges of pollutants. See also
Jury Instruction No. 21 (each defendant to be considered
separately and individually by the jury). Defendants’
moreover, made no objections to the court’s preliminary
instruction or the final jury instruction, each of which
contained the Stipulation. Thus, for the reasons stated
herein, the court DENIES defendants’ motion for a new
trial as being frivolous and wholly unsupported by the
evidence.

Motions for JNOVs or New Trials

On March 2, 1990, defendants, S. Paul Hobbs and
Donna M. Hobbs, and defendants, Phillip Ray Hobbs
and Dorothy V. Hobbs, filed separate motions seeking

Pa

8a

judgments notwithstanding the verdicts or, in the alter-
native, new trials. Because both motions raise the same
seven issues, the court will discuss these motions together.
The seven issues asserted by both motions are:

1. The Corps of Engineers is the sole permitting
authority under the CWA;

2. The 1989 Federal Manual for Identifying and
Delineating Jurisdictional Wetlands and the 1988
Environmental Protection Agency (hereinafter
referred to as “EPA’”’) Wetland Identification
and Delineation Manual violate the Administra-
tive Procedure Act;

3. The court’s Forms of Verdict are void:

4. The term “neighboring” incorporated into the
9

definition of “adjacency,” 33 C.F.R. § 328.3(c)
is void for vagueness;
5. The court improperly failed to instruct the jury

that man-dug, non-tidal drainage ditches are not
waters of the United States;

6. The court improperly failed to instruct the jury
on CWA Section 404(f) exemptions; and

—_

The court erred in prohibiting defendants from
presenting evidence as to their “good faith” be-
lief that the order of compliance issued by the
EPA was invalid.

S. Paul Hobbs and Donna M. Hobbs’ Motion for Judg-
ment Notwithstanding the Verdict or, in the alternative,
a New Trial; Phillip Ray Hobbs and Dorothy V. Hobbs’
Motion for Judgment Notwithstanding the Verdict or, in
the alternative, a New Trial, United States v. Hobbs,
Civil Action No. 89-327-N (E.D. Va. March 2, 1990)
(hereinafter collectively referred.to as “Motions for
JNOVS’).

59a

In addition, defendant S. Paul Hobbs asserts a separate
ground pertaining to the court’s failure to instruct the
jury on estoppel. S. Paul Hobbs and Donna M. Hobbs’
Motion for Judgment Notwithstanding the Verdict or,
in the alternative, a New Trial, United States v. Hobbs,
Civil Action No. 89-327-N, at 59-66 (E.D. Va. March
1990) (hereinafter referred to as “Paul Hobbs’ Motion
for JNOV” in regard to this one ground)

1. Permitting Authority

At the close of the government’s case, defendants moved
for a directed verdict on the basis that authority to issue
Section 404 permits rests solely with the Corps. Accord-
ing to defendants, since the Corps never determined that
defendants needed a permit, the EPA !acked all authority
to make any jurisdictional determinations and to enforce
the CWA itself. Motions for JNOVs at 5. Under defend-
ants’ theory, the EPA’s enforcement authority comes into
play only if the Corps has determined that the property
is governed by the CWA and that a permit is required
and has not been obtained, or that an existing permit has
somehow been violated. This court, at the time of defend-
ants’ motions for directed verdicts ‘as well as numerous
other occasions throughout this proceeding), heard oral
arguments on same ground and thoroughly read and
considered the — submitted by both parties, together
with the authorities cited at that time. The court, then,
held that the EPA has independent authority to evaluate
whether property is governed by the CWA. See Tran-
script, United States v. Hobbs, Civil Action No. 89-327-N
(E.D. Va. January 17, 1990). neste from the bench,
the court articulated both its reasoning and the various
authorities relied upon in making its iain,

Defendants assert the same arguments previously set
forth in support of their contention. In fact, two of the
cases relied upon by defendants, National Wildlife Feder-
ation v. Hanson, 859 F.2d 313, 315-16 (4th Cir. 1988),

602

and Golden Gate Audubon Society, Inc. v. United States
Army Corps of KMngineers, TO00 F. Supp. 1549, 1552-53
(N.D. Cal. 1988), both support the court’s decision. In
both cases, the courts held that the citizen suit provisions
of the CWA, 33 U.S.C. $ 1365, authorize such suits
against the Corps, even though the language of the pro-
vision only permits such suits against the EPA. National
Wildlife, 859 F.2d at 316; Golden Gate, 700 F. Supp. at
1552. The Fourth Circuit stated:

It is quite clear that both the Corps and the EPA
are responsible for the issuance of permits under the
CWA and enforcement of their terms. The Corps
has the nondiscretionary duty to regulate dredged or
fill material, and to fulfill that duty it must make
reasoned wetlands determinations. The Corps has a
mandatory duty to ascertain the relevant facts, cor-
rectly construe the applicable statutes and regula-
Lions, and properly apply the law to the facts. Th
BPA is ultimately re sponsible for thie protection of
wetlands.

National Wildlife, 859 F.2d at 315-16 (emphasis added)
(citations omitted). The court, therefore, remains con-
vinced that its previous rulings on this point are correct
and defendants’ Motions for JNOVs on this ground are
DENIED. ™
2. Delineation Manuals

On January 2, 1990, defendants filed a motion for sum-
lary Judgment or, in the alternative, partial summary
judgment, alleging that various identification and deline-
ation manuals utilized by EPA officials in making their
wetlands evaluations are void in that they were not en-

The court in National Wildlife went on to conclude that “Cor

ne cannot have intended to allow citizens to challenge erroneou
wetlands determinations when the EPA administrator makes them
but to prohibit h challenges when the Corps makes the determi

tion and the EPA fails to exert its authorit over the Cory
determination.” 859 F.2d at 316

6la

acted in compliance with the notice and comment provi-
sions of the Administrative Procedures Act (hereinafter
referred to as “APA”). Defendants’ Motion for Sum-
mary Judgment or, in the alternative, Partial Summary
Judgment, United States v. Hobbs, Civil Action No. &9-
327-N (i.D, Va. January 2, 1990). After reviewing the
motion and the memoranda of law filed by both parties,
the court, on January 10, 1990, denied the motion, hold-
ing that compliance with the APA was unnecessary since
the manuals aided agency officials in “interpreting” the
dictates of the CWA and, therefore, were guidance ma-
terials rather than legislation.

The court reasoned that the parties were free to pre-
sent jurisdictional determinations based on either the
federal delineations manual, the EPA manual. or the
Corps manual, since the jury was ultimately bound to
evaluate the evidence in light of the regulatory definition
of the term “wetlands.” Indeed, the jury instruction
recited verbatim the regulatory definition of the term
“wetlands.” Jury Instruction No. 19 (quoting 33 C.F.R.
$ 3828.3(b)). The court also instructed the jury that the
United States bore the burden of proving, by a preponder-
ance of the evidence, every essential element of its case.
which included proving that defendants’ property con-
stitutes jurisdictional wetlands. See Jury Instructions
Nos. 11, 12, and 14. Thus, the court is unpersuaded by
defendants’ argument that by permitting testimony on
the federal delineations manual, the court, for all practi-
cal purposes, granted a directed verdict for the United
States. Defendants’ Joint Memorandum in Support of
Hobbs’ Motions for Judgments Notwithstanding the Ver-
dicts or in the alternative a New Trial, United States v.
Hobbs, Civil Action No, 89-327-N, at 21-22 (E.D. Va.
March 2, 1990). Consequently, finding no new matters
presented for the court’s consideration, and finding no
error in the court’s pre lous ruling on this issue,
defendants’ motions with respect to this ground are

DENIED.

62a

2 Forms of Verdict

Defendants claim that the Forms of Verdict submitted
to the jury are void because the court used special inter-
rogatories pursuant to Federal Rule of Civil Procedure
19(a), without requiring the jury to render a general
verdict in the case. Motions for JNOVs at 29. When
defendants first raised this objection, the court explained
that the Forms of Verdict called for a jury determination
on each issue of fact. Transcript, ('nited States v. Hobbs,
Civil Action No, 89-327-N, at 11 (E.D. Va. January 24,
1990) thereinafter referred to as “January 24, 1990

Transcript”). Based on the jury’s answers, the court

would then enter a verdict under the law. The court did
not abuse the wide discretion accorded to trial court
when employing special verdicts. Scott v. Isbrandtsen
Co,, 827 F.2d 118, 119 (4th Cir. 1964) (“The number
and form of issues, if they present the case fairly, are
matters resting in the sound discretion of the trial
judge.”) (emphasis in original). The CWA prohibits the
discharge of a pollutant into waters of the United States
without a permit. 33 U.S.C. §1311(a). Based on the
Forms of Verdict returned by the jury, they found that
defendants’ property is wetlands constituting a water 01
the United States, and that defendants discharged pol-
lutants onto their wetlands property. Forms of Verdict,
United States v. Hobbs, Civil Action No, 89-3827-N (E.D.
Va. January 26, 1990).

On January 24, 1990, defendants first objected to the
Forms of Verdict because, while the Forms of Verdict
did inquire into whether defendants discharged pollutants
onto wetlands adjacent to waters of the United States,
they did not ask whether defendants engaged in such

ac

ivity “without a permit required from the United
States Army Corps of Engineers.” Motions for JNOVs
at 32: January 24, 1990 Transcript at 11. At that time,
the court indicated that the CWA requires a permit if
there is a discharge of a pollutant onto waters of the

United States. January 24, 1990 Transcript at 11. If the

jury found that defendants envaged in such activity, then

as a matter of law a permit was required under the
CWA, and defendant tipulated that they, in fact, had

not obtained any permit. /d. There was no Issue of fac

for the jury to determine on
the reasons stated herein, in addition to those conveyed

1
l

Ny tne court at the time tni ODIECLION Wi I}) ralsed,

the court finds no merit in this objection.

61a

cient information from the jury to proceed with the
penalty phase of the trial.

It was then the court’s duty during the penalty phase
of the trial to consider those factors, namely the amount
and location of the discharges, in order to determine the
type of restoration to be ordered and the amount of civil
penalties to be imposed. The court allowed the parties a
full opportunity to present evidence at the penalty phase
of the trial on all relevant factors.’

For the reasons stated herein, the court finds that the
jury determined all factual matters necessary to estab-
lish defendants’ violations of the CWA in a manner
wholly consistent with their Seventh Amendment rights
as set forth in Tull. Thus, the court, hereby, DENIES
defendants’ motions with respect to this ground.

4. Adjacency

Defendants reassert in this ground an argument that
has been revisited by this court in this case on numerous
occasions. They maintain that the regulatory definition
of the term “adjacency,” 33 C.F.R. § 328.3/c!, is void
for vagueness unless the term “neighboring” utilized in
the definition is given the same meaning as the terms
“bordering” and “contiguous.” Motions for JNOVs at
14. Defendants first raised this argument in one of their
pretrial motions filed on January 2, 1990, and, then, as-
serted it again during the course of the trial and as an
objection to the jury instructions. The court has con-
sistently concluded that in light of the broad legislative
intent of the CWA to “restore and maintain the chem-
ical, physical, and biological integrity of the Nation’s
35 U.S.C. $ 1251(a), the Act is to be applied

2
waters,

proof on these issues. See Jury Instructions Nos. 11, 12, and 14.
Further, the government’s evidence of discharges was presented by
years, and the court finds no deficiency in this level of specificity.

5 For the most part, the parties simply relied on the evidence

previously presented to the jury

65a

broadly under the Commerce Clause. United States v.
Whichard, 20 Envtl. L. Rep. 1148, 1150 (1983) (citing
IJnited Stat uv. Texas Pipe Line Co., 611 F.2d 3
3847 (10th Cir. 1980)). Even the Supreme Court, in
United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 1384 (1985), indicated that because of the
sweeping authority contemplated by the CWA and the
rps opinion with respect’ to the ecological interplay
between waters and their adjacent wetlands, it was rea-
sonable to conclude that “adjacent wetlands may be de-
fined as waters under the Act.” Accordingly, for the
reasons herein and those recited throughout this pro-
ceeding, the court finds that the defendants’ void for
vagueness argument lacks merit and does not constitute
a basis for granting defendants’ motions, which are DE-

NIED on this ground.

ihe court instructed the jury that the phrase “waters

f the United States”? meant waters which at some point

lad heen or Mé

In time, either past, present or Iuture.
e used in interstate or foreign commerce. Jurv Instruc-
: Y ’ y 47 ] : ‘ 4 g* o+ . ‘ e >
tion No. 18. Wetlands adjacent to these waters are in-

cluded in the definition of “waters of the United States”

‘ . A
and subject to the CWA. /d. Defendants, at numerous
times throughout this case, have alleged that even if their

property does constitute wetlands, the wetlands are adja-
, - re. } : aos 3 B dil ane Bin
cent to man-dug, non-tidal drainage ditches originally

> = - . ‘ ] +] ; . > . “? . >
exCaValed on ary ftand and, therefore, not a water of the

Assuming that the ditches were man-made.’ the defi-

nition of the term “adjacent” expressly includes wetlands

Defendants filed a motion for summary judgment, on Novembe)

1990, on this Int, which was denied by the court on December

14, 1990. Defendants also moved for a directed verdict with re spect

e, which the irt denied. Finally, defendants proffered
ry instruction concerning tl tche whi he court refuse

: ff maintai that “‘wh the Hobbs claimed are man-mads

tches are actual] tu U2 i whicl ave been Improved

66a

separated from other waters of the United States by man-
made structures: “Wetlands separated from other waters
of the United States by man-made dikes or barriers, nat-
ural river berms, beach dunes and the like are ‘adjacent
wetlands. 2 C.F.R. § 328.3(c). Courts have consist-
ently found jurisdictional wetlands to exist, even when

9 99 oc
oe

the connection between the \ etlands area and the ad-

jacent tidal waters is artificial or man-made. See United
States v. Ciam) . 5838 F. Supp. 483, 494 (D.N.J. 1984),
afd, 772 F.2d 883 (3d Cir. 1985), cert. denied, 475 U

1014 (1986) (In light of the legislative and regulatory
the CWA, jurisdictional wetlands may exist
even though they may have been artificially created.
“!F]ederal jurisdiction is determined by whether the site
is presently wetlands and not by how it came to be wet-

history of

lands.) ; United States v. Akers, 651 F. Supp. 320, 321-
93 (E.D. Cal, 1987) (Statutory and admin ae def-

Sa BS et ! tute’ 4 ‘Svetlands” are broad :
initions 01 vaters” and ‘“‘wetlands” are broad enough

to include artificially- -created wetlands because regula-

tory langauge ‘emphasizes the nature of the land in

; Y) » ) ’ } y hi ah it } rh T h: ya 1A +} |
question, not the manner by which It mignt lave reachet
sta lo ~+ «4 9 . 4s 29, > P > .
1US wetland SLALC. , Trac at I Tne. _ Distr Engine ir

United States Army Corps of Papineers, 618 F. Supp.
448 (D.C. Minn. 1985) (Corps had jurisdiction of arti-
ficial wetland created by actions of state and local author-
‘ties. including construction of a highway and a storm

Sse W age system re

Defendants’ contention includes an assumption that the
ditches which existed on the property prior to their owner-
ship of the land were dug on dry land. Defendants’ own
witness. Mr. Rudy Nuttall, a life-long resident of the
Ware Neck area, testified that the area was a swamp
and that one needed rubbe . boot s when on the defendants’

man. ited States’ Memorandum in Oppo ition to Motions
for Judgments Notwithstanding the Verdicts or in the ilternatl
for a New Trial, United States v. Hobbs. Civil Action No. 89-527 N,

property because the area was extremely wet. In any

event, the jury heard testimony from both parties de-
| scribing the iocation and the characteristics ef defend-
| ants’ property end the pattern of drainage ditches across
| the property. The court fully instructed the jury on
| the definitions of waters of the United States, wetland:
| and adjacency. Jury Instructions Nos. 18, 19, and 2(

M1, ; — 1, 1, ee . Ahead = P ’ — ine «
ine jury then determined that qaetre ndants p} erty S,
= a ] ens -_ . an te ] — . Ron 4 ] Pan . 41
indeed. 2 wetlands. For the reasons stated from the
] ’ — ;, —
neil as nose ST EPC ey In, ne cou? [| NX] “>
7 " , ; : > x ; P .
defendants’ Motions for JNOVs with resp ( is

2 : |
Frround

6. Statutory Exemptions

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to inciud heir proposed jury instructic concerning tt!
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CWA’s Section 1344(f) exemptions from the permitting
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proces n T( INOVs a { op ifica v, defend-
1} TS VY) int mW ] 7 thay ) ( ' ? iV] 17 ) *)) ] Y)

ra i allclilile« ii Nat they Cll CU i Sil bLUA ‘ « id i

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ave aditenes [\ at 91-52. J f . Us. 1344
fi} (1) provides exemptions from the permitting process

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for discharges onto wetlands which result from normal

agricultural activities. The exemptions set forth in Sec-
tion 1544‘f)(1) are subject to 33 U.S.C. § 1844 (f) (2)

+ .

(emphasis added) which provides:

Any discharge of dredged or fill material into the

navigable waters incidental to any activity havi
as its purpose bringing an area of Tire a (
‘ The court concluded that defendants’ | roffered jm nstructl
overall were extremely verbose, cumbersome, and co!
cause they included matters not In issue and contained le
unnecessary statements of the law. The jury instruction of!
on statutory exemptions is a good example of this over-incl
items not in issue in any respect in the lawsuit, such as re

tion of dikes, dams, |e

Donna M. Hobbs, Philip Ray Hobbs and Dorothy \ Ho! > »
posed Jury Instructions, United States Hobbs, Civil Action N
89-327-N, at Jury Instruction F (E.D. Va. January 2, 199

vees etc. AY, Leper ants S |? }

oSa

waters into a use to which it was not pre viously sub-
ject, where the flow or circulation of navigable wat-
ers may be impaired or the reach of such waters
be reduced, shall be required to have a permit.

Section 1344(f) (1) has consistently been construed nar-
rowly. See United States v. Huebner, 752 F.2d 1235,
1240-41 (7th Cir. 1985), cert. denied, 474 U.S. 817
(1985): Avoyelles Sportsmen’s League, Ine. v. Marsh,
715 F.2d 897, 925 n.44 (5th Cir. 1983). At trial, de-
fendants testified that they purchased the property for
erowing hay and for raising cattle. They engaged in
clearing, grubbing, and planting activities in order to
achieve their goals. See Stipulation; Jury Instruction
No. 4.

Defendants’ contend that they engaged in silviculture
activity exempt from the permit requirement pursuant to
Section 1344(¢) (1) (A). According to the regulations is-
sued by the Corps for implementing that section, silvicul-
ture qualifies for the exemption only if it is a part of an
established operation. 33 C.F.R. $ 323.4(a) (1) (1) (em-
phasis added). “Activities which bring an area into.
silviculture . . . use are not part of an established oper-
ation.” Jd. Defendants cleared timber in order to con-
vert the property into hay fields and pasture land. In
United States v. Larkins, 852 F.2d 189, 192 (6th Cir.
1988), cert. de nied, —— Us. —, 109 S. Ct. 1131
(1989). defendants argued that their actions were ex-
empt under Section 1344(f) (1) (A) by claiming that
their land was used for silviculture, even though they
planted crops after the trees had been removed rather
than replanting the property with trees. The court con-
cluded that defendants were not entitled to the exemp-
tion since “33 U.S.C. $ 1344(f)(1) (A) applies to the
normal harvesting of timber, not to the activitiy of
clearing timber ‘to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0292%3A2. Public record. Not legal advice.