Petition for Writ of Certiorari — Emery v. United States

G ae +" U.S.

961306 JAN 17 1997

NO. ___nestes—of THE CLERK

In The

Supreme Court of the United States

October Term, 1996

+

HOWARD W. EMERY,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

¢

Petition For A Writ Of Certiorari

From The United States Court Of Appeals

For The Sixth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

¢

CHARLES E. BLooM

Counsel of Record

HERSCHEL, ACCETTOLA, BLOOM

& Mitts

Attorneys for Petitioner

615 Adams Street

Toledo, Ohio 43604

PH: (419)-241-1150

FAX: (419)-241-7825

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I. The Jurisdiction of the United States as conferred

by the Rivers and Harbors Appropriation Act of 1899, 33

U.S.C. 403 to regulate the navigable waters of the United

States extends to the entire surface of a navigable body

which shall include all of the land and water below the

ordinary high water mark of such surface or bed, how-

ever, may be limited by permitted manmade structures

such as dikes.

II. The Jurisdiction of the United States as conferred

by the Clean Water Act, 33 U.S.C. 1311, 1319, and 1334, to

regulate the waters of the United States does not extend

to wetlands which constitute prior converted crop lands.

III. A structure which is permitted pursuant to the

Rivers and Harbor Act of 1899, 33 U.S.C. 403 and the

Clean Water Act, 33 U.S.C. 1311, 1319, and 1334, may be

repaired or rehabilitated without the necessity of obtain-

ing the permission of the United States Government, if

such structure is providing the service for which it was

intended.

IV. The denial by the United States Government of a

land owner’s request to rehabilitate or reconstruct a

structure located within the waters of the United States

which had previously been permitted, constitutes a tak-

ing of the land owner’s property without due proce ss of

law and therefore is in violation of the Fifth Amendment

to the United States Constitution.

il

LIST OF PARTIES

The names of all Parties to the proceeding in the

Court whose judgment is sought to be reviewed appear

in the caption of the case. There is no parent or subsidiary

company of any Party to be listed.

iii

TABLE OF CONTENTS

Page

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Statement of Jurisdiction. .............ccccccccccece 1

ee, es da eign vanals beeedews 1

a a 5

Reasons for Granting the Writ..................... 8

I. The Jurisdiction of the United States as con-

ferred by the Rivers and Harbor Act of 1899,

33 U.S.C. 403 to regulate the navigable waters

of the United States extends to the entire sur-

face of a navigable body which shall include

all of the land and water below the ordinary

high water mark of such service or bed, how-

ever, may be limited by permitted manmade

structures such as dikes ..........cccccseees 11

II. The Jurisdiction of the United States as conferred

by the Clean Water Act, 33 U.S.C. 1311, 1319, and

1334, to regulate the waters of the United States

does not extend to wetlands which constitute

prior converted crop lands ................... 12

Ill. A structure which is permitted pursuant to

the Rivers and Harbor Act of 1899, 33 U.S.C.

403 and the Clean Water Act, 33 U.S.C. 1311,

1319, and 1334, may be repaired or rehabili-

tated without the necessity of obtaining the

permission of the United States Government,

if such structure is providing the service for

which it was intended at the existent time.. 13

IV.

iv

TABLE OF CONTENTS - Continued

Page

The denial by the Uniced States Government

of a land owner’s request to rehabilitate or

reconstruct a structure located within the

waters of the United States which had previ-

ously been permitted, constitutes a taking of

the land owner’s property without due pro-

cess of law and therefore is in violation of the

Fifth Amendment to the United States Consti-

RRS Ss ace ce kas bene ee nl ek eee eeea

TABLE OF CITATIONS

Page

Cases CITED:

Orleans Audubon Society vs. Lee, 742 Fed 2d 901

4. Be eee per rer ne Oe er ae a 9

The United States vs. Appalachian Power Company,

eR eg he es ens er eee 12

The United States vs. Defelice, 641 Fed 2d 1169

(PEPER: CINE SO Raa, 6 bak w rece Salas de> oan Fans 9

The Unite? States vs. Riverside Bay View Homes, 474

Si RE SEE 5 ac nuN ase cad shee heehee shaun ey 10, 14

The United States vs. Southern Investment Company,

876 Fed 2d 606 (Eighth Circuit, 1989)........... 9, 12

StaTUTES CITED:

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BF PE He ak eat bons CoCo CiKeeo eeee eee Os 8

es ER iv e8 Gang din bak Sh dee eetinabsiatatee 8

Be Se 58S bas Ke ldo nied Hew dnd J ben Ee 6

ee es. ES hike Ft b5s pom can nakende he eo ecb henbans 14

ee Ae ian SD MPR MEER os 5 Wins edd dobbew se beeee es 4

te Ol ae a es Uy ot Cr elt gtr! a,

Se LI, Sein bea Reh cs baba eaeeeber nes euewnen 6

es, BEE § 85 RU ERTSS HEM s ph GD eb eel 6, 12

Se Ua Se BH BOO? és bviva oe Kd04 saa SS 1, 8, 12

ee ens I Rd ee ee aes , Me

vi

TABLE OF CITATIONS - Continued

Page

OrtHerR AUTHORITIES CITED:

33 C.F.R. 323.4(a)(2) (Chapter II 7-1-92; 7-1-87) ....... 3

S35 CoRR. FOGe SOO .sc.c v0den.00sncdsdhes caer coe 3

338 C.E.R, SOD GIO) 3. 6c asics ceeds eee 7

SS CBM, BIO hs vcs ck hevandecciedassctacee A |

33 C.F.R. 330 App. A(B)(3) (7-1-87)............. eee 5

Contents

APPENDIX

Memorandum Opinion filed October 22, 1996 in

the United States Court of Appeals for the Sixth

Chocatht ..oocccctewvecscusence uses: bee la

Memorandum & Order filed February 7, 1995 i.

the United States District Court for the North-

ern District of Ohio, Western Division............ 5a

Order filed November 21, 1994 in the United

States District Court for the Northern District of

Ohio, Western Division........ a bad a eee oe ws 9a

Memorandum & Order filed February 22, 1994 in

the United States District Court for the North-

ern District of Ohio, Western Division ........... 15a

Memorandum & Order filed Juiy 27, 1993 in the

United States District Court for the Northern

District of Ohio, Western Division ............... 26a

Ase, FOG oo sc etiniidcvccvavdosbecteuveueaty ees 4la

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Howard W. Emery, sespectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit.

*

OPINIONS BELOW

The opinion of the Court of Appeals is unreported

and is reproduced in the Appendix filed herewith

(“App.”) at la. The unreported opinions of the district

court in this case are reproduced at 5a and 16a.

s

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on Octo-

ber 22, 1996. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254 (1).

STATUTES INVOLVED

403. The pertinent provision of the Rivers and Har-

bors Appropriation Act of 1899, 33 U.S.C. Section 401-467

(n) and the Clean Water Act of 1977 as amended 33 U.S.C.

Section 1251-1387 and the Regulations adopted by the

Corps of Engineers relative to such statutes are set forth

below:

403. Obstruction of navigable waters generally;

wharves; piers, etc; excavations and filings in:

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capac-

ity of any of the waters of the United States is

prohibited; and it shall not be lawful to build or

commence the building . . . of other structures in

any .. . navigable river, or other water of the

United States . . . except on plans recommended

by the Chief of Engineers and authorized by the

Secretary of the Army.

33 U.S.C. 403.

1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law. Except as in compliance

with this section and sections 302, 306, 307, 318,

402, and 404 of this Act (33 U.S.C. 1312, 1316,

1317, 1328, 1342, 1344), the discharge of any

pollutant by any person shall be unlawful.

1344. Permits for dredged or fill material

(e) General permits on State, regional, or

nationwide basis. (1) In carrying out his func-

tions relating to the discharge of dredged or fill

material under this section, the Secretary may,

after notice and opportunity for public hearing,

issue general permits on a State, regional, or

nationwide basis for any category of activities

involving discharges of dredged or fill material

if the Secretary determines that the activities in

such category are similar in nature, will cause

only minimal adverse environmental effects

when performed separately, and will have only

minimal cumulative adverse effect on the envi-

ronment. Any general permit issued under this

subsection shall (A) be based on the guidelines

described in subsection (b)(1) of this section and

(B) set forth the requirements and standards

which shall apply to any activity authorized by

such general permit.

(f) Non-prohibited discharge of dredged or fill

material. (1) Except as provided in paragraph (2)

of this subsection, the discharge of dredged or

fill material; (B) for the purpose of maintenance,

including emergency reconstruction of recently

damaged parts, of currently serviceable struc-

tures such as dikes, dams, levees, groins, riprap,

breakwaters, causeways, and bridge abutments

or approaches, and transportation structures;

33 U.S.C. 1344(e), 33 U.S.C. 1344(f)(2)(b)

323.4 Discharges not requiring permits

(2) Maintenance, including emergency ;econ-

struction of recently damaged parts, of currently

serviceable structures such as dikes, dams,

levees, groins, riprap, breakwaters, causeways,

bridge abutments or approaches, and transpor-

tation structures. Maintenance does not include

any modification that changes the character,

scope or size of the original fill design. Emer-

gency reconstruction must occur within a rea-

sonable period of time after damage occurs in

order to qualify for this exemption.

333 C.F.R. 323.4(a)(2) (Chapter II 7-1-92; 7-1-87)

323 Permits for Discharges of Dredged or Fill Mate-

rial into Waters of the United States. (a) Certain

discharges specified in 33 C.FR., part 330 are

permitted . . . If a discharge of dredged or fill

material is not exempted by 323.4.

329.11 Geographic and jurisdictional limits of rivers

and lakes.

(a) Jurisdiction over entire bed. Federal regula-

tory jurisdiction, and powers of improvement

for navigation, extend laterally to the entire

water surface and bed of a navigable water-

body, which includes all the land and waters

below the ordinary high water mark. Jurisdic-

tion thus extends to the edge (as determined

above) of all such water bodies, even though

portions of the water body may be extremely

shallow, or obstructed by shoals, vegetation or

other barriers. Marshlands .. . similar areas are

thus considered navigable in law, but only so far

as the area is subject to inundation by the ordi-

nary high waters.

(1) The “ordinary high water mark” on non-

tidal rivers is the line on the shore established

by the fluctuations of water and indicated by

physical characteristics such as a clear, natural

line impressed on the bank; shelving, changes in

the character of soil; destruction of terrestrial

vegetation; the presence of litter and debris; or

other appropriate means that consider the char-

acteristics of the surrounding areas.

B. Nationwide Permits.

3. Maintenance. ... The repair, rehabilitation,

or replacement of any previously authorized,

currently serviceable structure or fill .. .

currently serviceable means useable as is or

with some maintenance, but not so degraded as

to essentially require reconstruction. This

nationwide permit authorizes the repair, reha-

bilitation, or replacement of those structures

destroyed by storms, floods, fire or other dis-

crete events, provided the repair, rehabilitation,

or replacement is commenced or under contract

to commence within a reasonable time of the

date of their destruction or damage.

33 C.RR. 330 App. A(B)(3) (7-1-87)

¢

STATEMENT OF THE CASE

Howard W. Emery, a longtime resident of Northwest

Ohio, bought property adjacent to the Portage River

located in Northwest Ohio in April, 1993. Prior to Mr.

Emery purchasing the property, Mr. Emery checked the

status of the property with the local Zoning Commission

and Health Department. Mr. Emery noted that the dikes

which are the subject of this litigation were intact, and in

fact, he drove upon such dikes. Mr. Emery contacted the

United States Corps Of Engineers at its Cleveland Office

and was told by an employee that as long as the dikes

existed prior to 1968, he could repair and maintain the

dikes pursuant to regulation without a permit. The Par-

ties have stipulated, that the dikes were serviceable on

the date that Mr. Emery purchased the subject property.

Mr. Emery in the period 1983 through 1986 in fact main-

tained and repaired the dikes without a permit. In 1986

and 1987, the Portage River was at historically high

levels. As a result, the dikes on Mr. Emery’s property

were overtopped. In April, 1987, Mr. Emery and two (2)

other individuals, working part-time, utilized approxi-

mately 100 loads of material to repair any breaches in the

dikes. The work was completed in approximately two (2)

to four (4) months. Mr. Emery is a full-time employee of

General Motors at its plant in Sandusky, Ohio.

The United States Government in the Summer of

1986, notified Mr. Emery that he would have to obtain the

permission of the Corps of Engineers in order to repair

and/or rehabilitate the dikes located on his property. The

Corps asserted that the dikes had ceased to exist in the

mid 70’s and therefore were not a permitted structure. In

addition, the Corps further asserted that in the Summer

of 1986, the dikes had become so degraded and over-

topped that repair and rehabilitation were not possible,

and therefore, the dikes would have to be reconstructed.

Mr. Emery and the Corps of Engineers had a number of

discussions, wherein, Mr. Emery asserted that pursuant

to statute and regulation, such permit was not necessary.

The Corps has not adopted any administrative appeal

procedure relating to its decision relative to the enforce-

ment of the aforementioned statutes or regulations. Thus,

Mr. Emery had no other alternative means to question the

Corps’ decision but to proceed with the repair. The Corps

served upon Mr. Emery in April, 1987, a Cease and Desist

Order. Mr. Emery ignored the Cease and Desist Order

and proceeded to effectuate the repairs.

In 1991, the United States Government instituted an

action against Mr. Emery to enjoin him from reconstruct-

ing the dikes, and further, from utilizing the land in

proximity to the dikes without a permit. In addition, the

Government sought a sizeable civil penalty. The District

Court, had jurisdiction to hear the cause pursuant to 28

U.S.C. 1345, 33 U.S.C. 406, and 33 U.S.C. 1319. The Trial

Court granted partial summary judgment on July 27,

1993. The Trial Court, found, that the Corps of Engineers

had jurisdiction to regulate the Defendant's property pur-

suant to the Rivers and Harbors Appropriation Act of

1899, 33 U.S.C. Section 401, et seq. because the dikes in

question were below the ordinary high water mark. The

Trial Court found, that in determining the ordinary high

water mark, one should calculate where the water of the

navigable river would extend if the manmade structure

did not exist. The Trial Court further found, that the

Corps of Engineers had jurisdiction over the land which

lies “behind” the dikes pursuant to the Clean Water Act

of 1977, 33 U.S.C. 1344. The Trial Court therefore found

that the deposit of materials “behind” the dikes was in

violation of the law.

The matter proceeded to trial on the remaining alie-

gations on October 28, 1993 and October 29, 1993. The

Trial Court found, that the dikes were previously autho-

rized pursuant to 33 C.F.R. 330.03(b). The Trial Court,

found, however, that in 1986 and 1987, the dikes ceased to

be serviceable. Thus, the Trial Court found, that Howard

Emery could not repair, rehabilitate or reconstruct the

dikes without obtaining the permission of the Secretary

of the Army. The Trial Court further found, that the area

“behind” the dike constituted wetlands and that it was

not exempt from Regulation pursuant to Statute and Reg-

ulations. The matter was, continued for further hearing

upon the question of remediation.

On November 21, 1994, the Trial Court ordered How-

ard Emery to breach the dikes which were the subject of

the litigation, to cease and refrain from any activity in the

area which would be inundated, and to remove all mate-

rials from the area to be inundated.

Howard Emery filed a Motion for a New Trial which

was rejected on February 7, 1995. Howard Emery per-

fected an appeal in the United States Court of Appeals for

the Sixth Circuit pursuant to 28 U.S.C. 1291 and 28 U.S.C.

1294. On October 22, 1996, in an unreported per curiam

decision, the Court of Appeals affirmed the decision of

the Trial Court. The Court of Appeals adopted the reason-

ing and detailed written opinions issued by the Trial

Court. Judge Harry W. Wellford concurred in part and

dissented in part in relationship to said decision. Judge

Wellford, although noting that the issue of the ser-

viceability of the dike was a close question, and that he

believed that Mr. Emery’s work upon the dike was more

akin to maintenance and repair than reconstruction,

found, that such finding, did not constitute an abuse of

discretion. Judge Wellford, however, could not accept, the

conclusion of the Trial Court that the Corps of Engineers

had jurisdiction over the land which lies “behind” the

dike pursuant to the Clean Water Act of 1977. 33 U.S.C.

1251-1387.

REASONS FOR GRANTING THE WRIT

The Trial Court found, which was affirmed by the

Court of Appeals, that in determining the jurisdiction of

the United States Department of Army, Corps of Engi-

neers pursuant to statute, that such jurisdiction extends

to the ordinary high water mark, as such mark would

exist if there were no manmade impediments. The Trial

Court and Court of Appeals rejected Petitioner’s argu-

ment that if the impediment is a permitted structure, that

the ordinary high water mark and therefore the jurisdic-

tion of the Corps must be determined in relationship to

such impediment. It would appear, that such finding

determines such issue for the first time in the United

States. The consequence of such finding is to bring within

the jurisdiction of the United States Department of the

Army vast areas of land located adjacent to navigable

waters of the United States which historically have been

diked. Further, such finding would appear to be in con-

flict with 33 C.F.R. 329.11 (1986 Final Rule) and the deci-

sion of the Eighth Circuit Court of Appeals in the United

States vs. Southern Investment Company, 876 Fed 2d 606

(Eighth Circuit, 1989).

The Trial Court’s decision, which was affirmed on

appeal relative to the definition of serviceability appears

to be in conflict with the decision rendered by the Fifth

Circuit Court of Appeals in the United States vs. Defelice,

641 Fed 2d 1169 (Fifth Circuit, 1981). In Defelice (supra),

the Court of Appeals defined serviceability as requiring

the subject structure to provide the service for which it

was intended at the existing time. The Fifth Circuit in

Defelice (supra) was interpreting the Rivers and Harbor

Act of 1899. The Fifth Circuit, adopted a similar definition

in interpreting the Clean Water Act of 1977 in Orleans

Audubon Society vs. Lee, 742 Fed 2d 901 (Fifth Circuit,

1984). The Court of Appeals for the Sixth Circuit, how-

ever, by adopting the Trial Court’s opinion and reasoning

defined serviceability pursuant to a regulation promul-

gated by the Corps of Engineers in 1992 and which

appears at 33 C.F.R. Appendix B.2. The Trial Court's

definition of serviceability requires the structure to be

useable as is or with some maintenance, but is not so

degraded as to essentially require reconstruction. Thus,

the Fifth Circuit’s focus is upon the issue of whether the

structure is discharging the purpose for which it was

constructed. The Sixth Circuit focuses upon whether the

10

structure needs to be reconstructed. In fact, the Trial

Court found in favor of the Respondent and against the

Petitioner upon the issue of reconstruction, because, the

Trial Court found that the amount of material utilized

evidenced more than mere repair. The Trial Court, in

finding that the structure was a permitted structure, i.e.

had existed since 1968, by definition concluded that it

was discharging the purpose for which it was con-

structed.

Further, the rejection by the Trial Court of the Peti-

tioner’s Motion for a New Trial alleging that this action

constitutes a taking of property without due process of

law has grave import. The facts which are presented in

this cause are distinguishable from the facts which were

presented to this Honorable Court in United States vs.

Riverside Bay View Homes, 474 U.S. 121 (1985). In United

States vs. Riverside Bay View Homes (supra), the offending

party was placing fill materials in a wetland in order to

commence new construction. This Court, found, that the

requirement that the land owner obtain a permit prior to

such action, did not constitute a taking without due pro-

cess of law, because the land owner had resort to a

remedy in the United States Court of Claims. In the case

at bar, the actions of the United States Government

results, as the Trial Court found, that, the land of the

Petitioner was rendered useless and fit for no reasonable

purpose. Thus, the United States Government, in this

cause, is taking land from the Petitioner and not merely

denying the Petitioner the right to utilize said land in a

particular manner.

11

This Court, therefore, should grant the Writ of Cer-

tiorari because a United States Court of Appeals has

rendered an important decision in conflict with the deci-

sion of another United States Court of Appeals on the

same matter. Further, by affirming the decision of the

Trial Court, the United States Court of Appeals has

departed from accepted usual course of judicial proceed-

ing relative to the interpretation of Federal Statutes and

Regulations as to require the exercise by this Court of its

power of supervision.

I. The Jurisdiction of the United States as conferred by

the Rivers and Harbors Appropriation Act of 1899,

33 U.S.C. 403 to regulate the navigable waters of the

United States extends to the entire surface of a navi-

gable body which shall include all of the land and

water below the ordinary high water mark of such

surface or bed, however, may be limited by permit-

ted manmade structures such as dikes.

The Court of Appeals, by affirming the Trial Court’s

decision, held that the ordinary high water mark which

defines the jurisdiction of the United States Government

pursuant to the Rivers and Harbors Appropriation Act of

1899, 33 U.S.C. 403, is determined by elevation. Such

determination would appear to be in conflict with the

Corps’ own Regulation as set forth in 33 C.FR. 329.11

(1986, Final Rule). Further, the Trial Court’s decision

requires such determination by resort to historical marks

of the navigable waters in question. The Trial Court

found that in making such a determination, one must

disregard previously authorized structures. As previ-

ously stated, such decision would appear to be in conflict

12

with the Eighth Circuit’s determination in Southern Invest-

ment Company, (supra) . More importantly, this decision will

subject vast sections of the United States to Military Rule by

bringing property under the supervision of the Corps of

Engineers. This Court, has not determined the jurisdiction of

the United States pursuant to the Rivers and Harbor Act of

1899 since 1940 (See U.S. vs. Appalachian Power Company, 311

U.S. 377 (1940). In addition, the decision of the Court of

Appeals to bring vast sections of the United States under the

supervision of the Corps of Engineers is such an important

decision of Federal Law that only this Court should make

such a determination.

II. The Jurisdiction of the United States as conferred

by the Clean Water Act, 33 U.S.C. 1311, 1319, and

1334, to regulate the waters of the United States

does not extend to wetlands which constitute prior

converted crop lands.

The Trial Court rejected Petitioner’s contention, that

the Petitioner is exempt from the provisions of the Clean

Water Act of 1977. 33 U.S.C. 1251-1387, because such land

constitutes prior converted crop land. Prior converted

cropland is land which has historically been manipulated

to support farm crops and therefor under normal circum-

stances, will not support a prevalence of vegetation typ-

ically adapted for wetlands. Judge Wellford, agreed with

the Petitioners. The lack of concise definition in relation-

ship to this issue will subject vast sections of crop land in

the United States to the whim of the Employees of the

Department of the Army, because, this cause demon-

strates that in an acrimonious situation such employees

will disregard the pronouncements of their Supervisors.

Ter eeigs Here ne eye

13

In light of the refusal of the Corps of Engineers to adopt

meaningful administrative reviews of its decisions, this

Court in its supervisory capacity should more succinctly

define this question of Federal Law.

Ili. A structure which is permitted pursuant to the

Rivers and Harbor Act of 1899, 33 U.S.C. 403 and

the Clean Water Act, 33 U.S.C. 1311, 1319, and 1334,

may be repaired or rehabilitated without the

necessity of obtaining the permission of the

United States Government, if such structure is pro-

viding the service for which it was intended at the

existent time.

Counsel has previously discussed the conflict

between the Sixth Circuit and the Fifth Circuit relative to

the definition of serviceability as it relates to the deter-

mination of the ordinary high water mark which is the

defining issue as to the Government's jurisdiction pur-

suant to the Rivers and Harbors Appropriation Act of

1899. 33 U.S.C. 403. Thus, and upon flooding, vast sec-

tions of the United States will become subject to Govern-

mental control. This Court, in order to resolve a conflict

in its supervisory capacity, should interpret this impor-

tant question of Federal Law. It has been, 56 years, since

this Court has interpreted and defined the Government's

jurisdiction pursuant to the Rivers and Harbor Act of

1899. 33 U.S.C. 403.

14

IV. The denial by the United States Government of a

land owner’s request to rehabilitate or reconstruct

a structure located within the waters of the United

States which had previously been permitted, con-

stitutes a taking of the land owner’s property with-

out due process of law and therefore is in violation

of the Fifth Amendment to the United States Con-

stitution.

The issue which Petitioner asks this Court to review

is distinguishable from the facts which lead to this

Court’s decision in United States vs. Riverside Bay View

Homes, 474 U.S. 121 (1985). In that decision, this Court

found that the requirement that an individual obtain a

permit before engaging in a particular use of his property

does not constitute a regulatory taking. Further, this

Court likewise found in the United States vs. Riverside Bay

View Homes, (supra) that even if there is a taking, that

such taking should not be utilized to restrict implementa-

tion of an overall Government Plan to protect the envi-

ronment. The Court's reasons, that pursuant to the Tucker

Act 28 U.S.C., Section 1491, even if there is a taking, an

individual may receive just compensation through pro-

ceedings in the United States Court of Claims. In this

cause, at the Remediation Hearing, the Trial Court found

that the action of the United States Government rendered

the Petitioner’s land useless. The Trial Court further

found, that after the breaching of the dike, the Peti-

tioner’s land will not be able to be utilized for any other

purpose. In this instance, the Petitioner submits that this

Court should adopt an exception to United States vs.

Riverside Bay View Homes, (supra) relating to Regulatory

~ (an ON

we

ere REPS

15

actions which result in viable land being rendered unten-

able. The implementation of a regulatory scheme to pro-

tect the environment should not be financed by

individuals such as the Petitioner, but should be funded

by the United States Government. This issue is one of the

interpretation of an important Federal question and

should be decided only by this Court.

+

CONCLUSION

For the reasons stated the Petition for Certiorari

should be granted.

Respectfully submitted,

CHARLES E. BLOOM

Attorney for Petitioner

ia

APPENDIX TABLE OF CONTENTS

Memorandum Opinion filed October 22, 1996 in

the United States Court of Appeals for the Sixth

ee Pee te rh ee a la

Memorandum & Order filed February 7, 1995 in

the United States District Court for the North-

ern District of Ohio, Western Division ............ 5a

Order filed November 21, 1994 in the United

States District Court for the Northern District of

Ci. I Fee wen 9a

Memorandum & Order filed February 22, 1994 in

the United States District Court for the North-

ern District of Ohio, Western Division ........... 15a

Memorandum & Order filed July 27, 1993 in the

United States District Court for the Northern

District of Ohio, Western Division ............... 26a

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APPENDIX

NOT RECOMMENDED FOR PUBLICATION

No. 95-3236

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES )

OF AMERICA, )

) ON APPEAL FROM

) THE UNITED STATES

v. ) DISTRICT COURT FOR

HOWARD W. EMERY, ) THE NORTHERN DIS-

) TRICT OF OHIO

Defendant-Appellant. ) MEMORANDUM

OPINION

(Filed Oct. 22, 1996)

Plaintiff-Appellee,

)

)

)

BEFORE: WELLFORD, NORRIS, and DAUGHTREY,

Circuit Judges.

PER CURIAM. Defendant, Howard W. Emery,

appeals from an order of the magistrate judge granting

partial summary judgment to the United States, the judg-

ment rendered by the magistrate judge following a bench

trial, and the court’s denial of defendant’s motion for a

new trial. The cause was submitted to the magistrate

judge by consent of the parties, and arose out of the

government’s contention that defendant had violated

provisions found in the River and Harbor Act of 1899, as

amended, 33 U.S.C. §§ 401-467(n) and the Clean Water

Act of 1977, as amended, 33 U.S.C. §§ 1251-1387.

Having had the benefit of oral argument, and having

carefully considered the record on appeal and the briefs

2a

of the parties, we are not persuaded that the magistrate

judge erred in any of the particulars asserted by defen-

dant.

Because the reasoning which supports the orders |

appealed from has been articulated by the magistrate |

judge, the issuance of a detailed written opinion by this

court would be duplicative and serve no useful purpose.

Accordingly, the orders of the magistrate judge are

affirmed upon the reasoning employed by that court in

its Memorandum and Order filed on July 27, 1993, grant-

ing partial judgment, the Memorandum and Order filed

on February 22, 1994, ordering that judgment on the issue

of liability be granted to the government, and the Mem-

orandum and Order filed on February 7, 1995, denying

defendant’s motion for a new trial.

HARRY W. WELLFORD, Circuit Judge, concurring in

part and dissenting in part:

Howard Emery owns a parcel of real estate that is

located on the banks of the Portage River in Port Clinton, '

Ohio and protected from the river by a dike. In 1987,

Emery began a construction project that included a sub-

stantial refurbishing of the dike. In this lawsuit, the Army

Corps of Engineers alleges that those activities, admit-

tedly conducted without a permit, violated the Clean

Water Act (“CWA”) and the Rivers and Harbors Act of

1899 (“RHA”). The key issues in this appeal are: (1)

whether the district court correctly ruled that the Corps

has jurisdiction under the CWA and RHA to regulate

Emery’s construction activities; and (2) if so, whether the

district court erred in concluding that Emery’s work on

eet eiieliil

3a

the dike was not exempt from the permit requirements of

the CWA and RHA.

Emery’s dike work was exempt from the permit

requirements of the CWA and RHA so long as the struc-

ture was “currently serviceable” at the time of the refur-

bishing in 1987, which means that the dike must have

been “useable as is or with some maintenance but not so

degraded as to essentially require reconstruction.” 33

C.F.R. § 330 App. A, B.2. The Corps concedes that the

dike was currently serviceable when Emery purchased

the property in 1983, and the district court found that,

despite periodic inundation, the structure was intact and

consistent as late as 1984. The court went on to find,

however, that “an apparent breach” had developed near

the center of the dike by 1986. Ultimately, the lower court

concluded that the dike was not currently serviceable in

1987, holding that the fact that the structure had been

overcome by water on a “perhaps predictable basis” since

1979 meant that it was not useable “as is or with some

maintenance,” and that the work done by Emery essen-

tially constituted a “reconstruction” of the dike.

In my view, this is a very close question. The dike

certainly existed, albeit in a degraded state, in 1987.

Although the previous owner of the property, Gary

Molnar, testified that the dike was not structurally

sound,’ the Corps investigator that deemed the dike

* Molnar’s testimony in this regard is contrary to that of the

adjacent landowners, and, since Molnar had previously been

involved in litigation with Emery, I construe his testimony to be

hostile to Emery. Moreover, Molnar’s testimony might have

4a

unserviceable acknowledged that water levels in the Por-

tage were historically high during the years immediately

preceding 1987. This tends to undercut the district court’s

explanation for the periodic inundation of the land

behind the dike. Moreover, in my view, Emery’s dike

work was probably more akin to maintenance and repair

than reconstruction.

Despite these observations, I cannot say that the dis-

trict court committed clear error in finding that the dike

was not currently serviceable in 1987. Thus, I would

AFFIRM on the issues that rest upon that determination.

In contrast, I cannot accept the district court’s conclusion

that the area behind Emery’s dike contains sufficient

“hydric soils” to be deemed a “wetland” under the CWA.

As a result, 1 DISSENT from the lower court’s ruling as

to the Corps’ CWA jurisdiction in this case.

been influenced by the fact that he was seeking a permit from

the Corps at the time.

5a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA, Case No: 3:91cv7172

Plaintiff

V. Memorandum & Order

HOWARD W. EMERY,

(Filed Feb. 7, 1995)

Defendant

This action is before the court on defendant’s motion

for a new trial. Defendant alleges that he is entitled to a

new trial because the previous three orders of this court

contain errors of law.! For the following reasons, defen-

dant’s motion shall be denied.

A court may grant a motion for a new trial under

Fed. R. Civ. P. 59 if the verdict is against the weight of the

evidence, Hawley v. Dresser Industries, Inc., 958 F.2d 720,

725 (6th Cir. 1992), or there is a manifest error of law or

fact, Bell Tel. Labs., Inc. v. Hughes Aircraft Co., 73 F.R.D. 16,

20 (D.Del. 1976). Parties seeking a new trial are not per-

mitted to introduce new evidence or legal theories which

were available at the initial trial; if the party had an

‘In an order dated July 27, 1993, I granted partial

summary judgment to the government (Doc. 40). After a two-

day bench trial, I concluded, on February 22, 1994, that the

government was entitled to prevail on the issue of liability (Doc.

62). As to relief, in an order dated November 21, 1994, |

withheld the imposition of a fine pending restoration of the

property to its original condition (Doc. 89).

6a

opportunity to litigate those issues, it should not be per-

mitted to prolong the litigation. Id.

According to defendant, this court should not have

concluded as a matter of law that the Rivers and Harbors

Act (RHA), 33 U.S.C. §§401 et seq., gave plaintiff jurisdic-

tion over the dikes and property behind the dikes. Defen-

dant, pointing to affidavits submitted prior to my grant

of partial summary judgment to the government, dis-

putes my conclusion that judgment as a matter of law

was warranted on the issue of RHA jurisdiction on the

basis of defendant’s failure to provide evidence that the

Ordinary High Water Level (OHWL) did not lie behind

the dikes.

This argument is based on a twisted reading of affi-

davits which were otherwise barren of any scientific evi-

dence as to the OHWL. According to defendant, the

government does not have jurisdiction over the dikes

because they are not within the area bounded by the

OHWL, and the OHWL is not behind the dikes because

the water does not flow further up the shore because the

dikes retard its flow.

The proper analysis, however, involves determining

where the water would flow without the dikes, not where

the water is actually found. In the absence of any evi-

dence to contradict the government’s evidence regarding

the topography of the land behind the dikes and historic

reach of the Portage River, defendant’s argument and its

supporting affidavits did not create a genuine issue of

material fact which would have precluded summary

judgment, nor does it currently provide a basis for a new

trial.

7a

Defendant, likewise, argues that a genuine issue of

material fact existed as to the status of the “Large Dikes”

which lie north of the dikes ai the center of this litigation.

Defendant alleges that he presented affidavits demon-

strating that the “Large Dikes” were intact, serviceable,

and not the subject of new construction.

The only affidavit mentioning the “Large Dikes” was

that of Charles Hupp; he stated that these dikes were

from seventy-five to ninety percent intact and serviceable

from 1983 to 1986. (Doc. 36, { 7). This evidence, however,

only goes to the condition of the dikes, not whether

defendant was engaged in any construction of new dikes.

Because defendant did not respond to the government's

claim that he built a new dike without a permit, he failed

to carry his burden of designating specific facts which

would raise a genuine of material fact; granting summary

judgment, therefore, was not an error of law, and defen-

dant is not entitled to a new trial on this issue.

Defendant further contends that this court erred in

ruling that the area behind the dikes constituted “wet-

lands,” a ruling allegedly contrary to the government's

own interpretation of the law as pronounced in Regula-

tory Guidance Letter (RGL) 90-7. In his opposition to

plaintiff’s motion for summary judgment (Doc. 32), how-

ever, defendant neither argued that RGL 90-7 applied to

the determination of the property’s status, nor contested

that the property was not a wetland. Defendant, there-

fore, is precluded from arguing the application of RGL

90-7, because parties moving for a new trial cannot

advance new theories which they had the opportunity to

litigate at trial. See Bell Tel. Labs, supra, 73 F.R.D. at 20.

8a

Defendant’s final argument alleges that the court

erred when it created a remedial plan which would

return the property to its natural state, rendering it use-

less to defendant. According to defendant, this consti-

tutes a “taking” of his property without compensation in

violation of the Fifth Amendment. Defendant, however, is

not entitled to equitable relief enjoining the “taking” of

his property because he can bring a suit for compensation

against the government subsequent to the taking.

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984).

Defendant conceded this point in his Opposition to Plain-

tiff’s Motion for Summary Judgment where he stated that

this court did not have subject matter jurisdiction over

defendant’s claim for compensation. (Doc. 32, p. 10).

Therefore, although defendant’s, property will be ren-

dered useless, the Fifth Amendment prohibition against

takings without compensation does not bar the imposi-

tion of this court’s remedial plain.

For the reasons set forth above, it is

ORDERED THAT defendant’s motion for new trial

be denied.

So ordered.

/s/ James G. Carr

James G. Carr

United States District Judge

9a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Order

(Filed Nov. 21, 1994)

v.

Howard W. Emery,

Defendant

This is a federal question case in which the govern-

ment claimed that the defendant Howard Emery violated

the Rivers and Harbors Act (RHA), 33 U.S.C. Sec. 401 et

seq., and the Clean Water Act, (CWA), 33 U.S.C. Sec. 1251

et seq., by constructing a dike on property owned by him

and located on the Portage River. Following a two day

hearing, I concluded that the government was entitled to

prevail on the issue of liability under the RHA and CWA.

(Doc. 62).

Thereafter, a hearing was held on the issue of relief.

The government initially proposed that the defendant be

ordered to maintain the dike, but to conduct his activities

to ensure that the land behind the dike was restored as

wetland. At the remediation hearing, the government

revised and reformulated its request, and asked the court

“to order that the dike be breached, that all the junk,

including those precast concrete blocks, be removed, and

also the sump pump that is presently behind the dike also

be removed” (Tr. 53).

10a

In its post-hearing memorandum the government

also asks that a substantial fine be imposed. (Doc. 84).

The defendant objects to imposition of any fine and

asks, in essence, that the status quo be maintained. Alter-

natively, and in response to questions by the undersigned

at the remedy hearing, the defendant, through counsel,

expresses a willingness to reconstruct an adjacent dike

(thereby enabling recreation of additional wetlands)

while being permitted to maintain the dike that gave rise

to this lawsuit.

Like other remedy proceedings, my authority in this

case is “touch[ed] with equity.” United States v. Board of

Trustees of Florida Comm. College, 531 F. Supp. 267, 275

(S.D. Fla. 1981). To the extent that cases cited by the

government, such as Atlantic States Legal Found., Inc. v.

Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990), point in

the direction of a substantial fine, ! conclude that those

cases are distinguishable. Although this case involved

impairment of a wetland, which constitutes serious mis-

conduct on the defendant’s part, it did not involve the

kind of steady and repeated injury to the river that

occurred with the effluent discharges in Tyson. 897 F.2d at

1130.

The Sixth Circuit, in dicta, disagreed with the holding

in Tyson when it stated that it believed courts had cor-

rectly interpreted 33 U.S.C. §1319(d) to still allow discre-

tion whether to impose fines at all. U.S. v. Winchester

Mun. Utilities, 944 F.2d 301, 306 (6th Cir. 1991). The court

based that opinion on the fact that courts had fashioned a

number of different solutions without assessing severe

penalties. See Hawaii's Thousand Friends v. Honolulu, 821

Ls seeenicsiesiiiaiiitieliniisiiiiiiilidiiil

lla

F.Supp. 1368 (D.Hawaii 1993) (maximum civil penalty of

almost $250 million reduced to $918,000 after consider-

ation of lack of quantifiable harm, absence of economic

benefit and limited good faith efforts to comply); U.S. v.

Van Leuzen, 816 F.Supp. 1171 (S.D.Tex. 1993) ($1 million

penalty reduced to $4,200 per year for a minimum of

eight years despite absence of any equities on defendant's

behalf); U.S. v. Confederate Acres S. & S. Drainage System,

767 F.Supp. 834 (W.D.Ky. 1990) (imposing only a $17,000

penalty despite over four thousand violations over a

twelve-year span, because detendant could not pay more

and injunction would end the business); U.S. v. Ohio

Edison, 725 F.Supp. 928, 934 (N.D.Ohio 1989).

Applying the factors which must be considered in

determining civil penalties pursuant to 33 U.S.C.

§1319(d), I conclude that initial assessment of a substan-

tial fine would not be appropriate though the violation

was serious and defendant did not act in good faith to

comply with the regulations. Defendant has not enjoyed

any economic benefit to this point based on his violation,

and his property will have little value after it is restored

to its wetland state pursuant to this order. In addition,

defendant does not have a history of other violations, and

the imposition of a fine would have a devastating impact

on defendant’s ability to restore the property to its right-

ful condition. Thus, in light of §1319(d)’s instruction to

consider “other matters as justice may require,” I choose

not to impose a penalty at this time.

I shall retain jurisdiction over this matter and hold

imposition of a fine in abeyance for a period of six

months. At that time, the parties shall request such fur-

ther action, if any, as they may believe to be appropriate.

12a

A

If it appears that the letter or the spirit of this order -

which seeks to accomplish restoration in due course of

the area to wetland — is not being met by the defendant, I

will give careful heed to the government’s demand that a

substantial fine be imposed. If the defendant shows good

faith compliance with this order, the instinct to leniency

that I exhibited at the remedy hearing will, in all likeli-

hood, prevail. For now, however, and to ensure compli-

ance with this order, the issue of the appropriate fine, if

any, shall be kept open pending future developments.

My focus, accordingly, is on remediation, rather than

punishment. Such a focus is appropriate, in lieu of a

substantial fine, according to the terms of the statute. See

U.S. v. Key West Towers, Inc., 720 F.Supp. 963 (S.D.Fla.

1989) (after property restored to original condition,

$250,000 penalty lifted if property donated to charitable

organization); U.S. v. Larkins, 657 F.Supp. 76, 87 (W.D.Ky.

1987) ($40,000 penalty lifted if defendants completed

ordered restoration plan).

The most appropriate course is that which the gov-

ernment outlined at the conclusion of the remedy hear-

ing, and should include: 1) removal of all material,

including construction material and equipment, pumps,

and other items and materials, that have been introduced

onto the property by the defendant, and presently are to

be found in the area that is to be restored to wetland; 2)

breaching the dike to enable water to flow without man-

made impairment into the area behind the dike; and 3)

cessation of any and all activities that either seek to, or

reasonably can be foreseen as possibly having the pur-

pose or consequence of restricting the flow of water onto,

over, and away from the area to be restored as wetland.

13a

The expense of these activities, which shall be under-

taken forthwith, shall be borne by the defendant.

It is, accordingly,

ORDERED THAT:

1. The defendant shall forthwith:

A) remove all material, including construction

material and equipment, pumps, and other items

and materials, that have been introduced by the

defendant and presently are to be found in the

area that is to be restored to wetland; once

removed from that area, neither that nor any

other similar material shall be introduced onto

said property;

B) breach the dike that is the subject of this

litigation to enable water to flow freely and with-

out further impairment into the area behind the

dike; and

C) cease and permanently desist and refrain

from any and all activities that either seek to, or

reasonably can be foreseen as having the pur-

pose or consequence of unnaturally restricting

the flow of water onto, over, and away from the

area to be restored as wetland;

2) The parties shall on or before May 15, 1995, submit

status reports or otherwise request such other action or

_ relief as they shall deem appropriate at said time.

3) Imposition of a fine is held in abeyance pending

further proceedings in this cause.

l4a

So ordered.

/s/ James G. Carr

James G. Carr

United States District Judge

15a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America, 91CV7172

Plaintiff Memorandum & Order

Vv.

Howard W. Emery, (Filed Feb. 22, 1994)

Defendant

This is a federal question case in which the parties

have consented to the entry of judgment by the under-

signed pursuant to 42 U.S.C. §636(g). A two day bench

trial was held on October 28 and 29, 1993. After comple-

tion of the proofs, the case was taken under advisement.

Post-trial briefs were submitted. For the reasons that

follow, I conclude that the government has met its burden

of proof and judgment will accordingly be entered in its

favor.

In 1983, defendant Howard Emery purchased from

Gary Molnar a parcel of land located along the Portage

River at 3502 West Harbor Road in Port Clinton, Ohio. In

1987, defendant was cited by the United States Army

Corps of Engineers under the Rivers and Harbors Act

(RHA), 33 U.S.C. §401 et. seq., and the Clean Water Act

(CWA), 33 U.S.C. §1251 et seq., for constructing a dike on

his property without obtaining permission from the

Corps.

The parties have stipulated to several relevant facts.

They do not dispute that defendant was in the process of

16a

performing construction on a dike on the edge of his

property along the Portage River in 1987. Further, they

stipulate that defendant’s predecessor owner, Gary

Molnar, obtained a specific act permit on May 13, 1981,

for construction of a small craft marina and reconstruc-

tion of an existing dike. They also agree that the dike was

serviceable when defendant purchased it on April 6, 1983.

Finally, it is undisputed that defendant received a cease

and desist order on May 27, 1987, and Compliance Order

on June 6, 1990. :

At trial, plaintiff argued that in 1987, defendant vio-

lated the RHA and the CWA by performing unauthorized

construction on a breached, overtopped dike on his prop-

erty, causing effluent to be discharged into the river.

Defendant argued that the construction was lawful

because the RHA and CWA allow maintenance construc-

tion on serviceable structures without obtaining a permit.

The basis for the government’s action to enforce the

provisions of the RHA is defendant’s admitted refusal to

obtain a permit for the dike construction. Defendant

claims his construction activity is exempted from the

RHA by a nationwide permit (NWP) codified at 33 C.FR.

§330.5(a)(3), which reads:

The repair, rehabilitation, or replacement of any

previously authorized, currently serviceable

structure or fill, or any currently serviceable

structure or fill constructed prior to the require-

ment for authorization, provided such repair,

rehabilitation, or replacement does not result in

a deviation from the plans of the original struc-

ture or fill, and further provided that the struc-

ture or fill has not been put to uses differing

17a

from the uses specified for it in any permit

authorizing its original construction. Minor

deviations due to changes in materials or con-

struction techniques and which are necessary to

make repair rehabilitation or replacement are

permitted.

Plaintiff argues that a deferential standard of review

(ie., an arbitrary and capricious standard) must be

applied to the Corps’ determination that defendant's dike

construction was not covered by the NWP in 1987. Defen-

dant, on the other hand, argues that he is entitled to de

novo review and the government must prove its case by a

preponderance of the evidence. I note that while the

ultimate burden of proof lies with plaintiff, defendant has

the burden of demonstrating that his conduct is covered

by the NWP. Because I need not resolve the issue of the

appropriate standard of review to decide this case, I

assume that the Corps’ determination is to be reviewed de

novo.

Turning to the factual question of whether defen-

dant’s construction was covered under the nationwide

permit codified at 33 C.ER. §330.5(a)(3), and therefore

exempt from the permit requirements of the RHA, defen-

dant has stipulated that he bears the burden of proof. To

be covered by the NWP, defendant must prove that the

structure was previously authorized, currently service-

able at the time of construction, and being put to the

same use as that specified in the original authorizing

permit.

The first prong of the test for coverage under the

NWP requires proof that the dike was “previously autho-

rized.” 33 C.F.R. §330.3(b) states:

18a

The following activities were permitted by

nationwide permits issued on July 19, 1977, and

unless modified do not require further permit-

ting:

(b) Structures or work completed before

December 19, 1968, or in waterbodies over

which the district engineer had not asserted

jurisdiction at the time the activity occurred

provided, in both instances, there is not

interference with navigation.

Mr. Frapwell of the Corps of Engineers testified that

this NWP provision does not apply to structures that

cease to exist. The parties have stipulated that the dike

was serviceable and, by definition, in existence in 1983.

The factual question is therefore whether the dike ceased

to exist sometime thereafter, prior to the Corps’ unser-

viceability determination in 1987.

The prior owner of the property, Mr. Molnar, testified

that mere mud humps existed where a dike once was

between 1978 and 1981. Government photographs taken

in 1985, 1986 and 1987 (PLAINTIFF’S EX. 12-15) depict

flooding in the area behind the dike. This evidence tends

to suggest the dike ceased to exist after 1985.

As defendant pointed out on cross examination of

plaintiff’s witnesses, it is impossible to tell from the gov-

ernment’s aerial photographs whether the dike had been

ruined or whether it was merely overflowed on the day

the photo was taken. Defendant offered substantial testi-

mony from Mr. Vollmer, Mr. Karshuk, and Mr. Mathews,

that the dike was a permanent fixture on the land from

the 1950’s to the present, though from time to time it

would be overtopped by the river.

19a

I find that plaintiff's assertion that the dike ceased to

exist and therefore was not “previously authorized”

within the meaning of the statute unsupported by the

evidence. The evidence suggests that the dike did not

completely cease to exist before the Corps made its deter-

mination that a construction permit was required. I con-

clude, accordingly, that the dike was an existing,

previously authorized structure at that time.

The next question is whether the dike was “currently

serviceable” when the cease and desist order was issued.

Serviceability turns on factual questions similar to those

above: whether the dike was serviceable and whether it

ceased to exist are, however, separate questions. The term

“currently serviceable” is not defined in the RHA, but is

defined in the implementing regulation, 33 C.F.R. §330

App. A, B.2 as “useable as is or with some maintenance

but not so degraded as to essentially require reconstruc-

tion.”

The government introduced evidence that the dike

on defendant’s property was unserviceable and defen-

dant was reconstructing it. Defendant testified during the

government’s case in chief that he purchased 2,000

pounds of crushed stone for dike enhancement between

April 13, 1987, and November 19, 1987. Gary Molnar,

from whom defendant purchased the property in 1983,

testified that, in his opinion, the dike was not structurally

sound. He stated he never farmed the land behind the

dike, and his lawyer advised him to obtain a permit for

construction on the dike while he owned it.

Gary Buck, a Corps of Engineers investigator, testi-

fied that he visited the property several times between

20a

1980 and 1987 and concluded that the dike was unservice-

able. On cross examination, however, Mr. Buck acknowl-

edged that lake levels were historically high during 1986

and 1987. He further stated that although he observed the

water levels above the dike, he did not conduct any

comparative measurements of the water level.

Defendant offered the testimony of Mr. Karshuk, an

owner of adjoining property. He testified that he was

familiar with the property and the dike had been in

existence for many years. Defendant also offered the tes-

timony of Mr. Vollmer, another owner of adjoining prop-

erty, who testified he visited the dike weekly prior to

1988 and the dike had “always been there.” Another

neighbor, Mr. Mathews, testified that he frequented

defendant’s property since 1955 to hunt fowl and vermin

and had walked along the dike many times during that

period.

The government introduced photographic evidence

to demonstrate the unserviceable condition of the dike.

Defendant’s Exhibits 1 through 8 depict an intact dike

above water between 1977 and 1984. Exhibit 12, taken in

1985, shows a consistent structure above water, though

the area inside the dike is completely inundated. Exhibit

13, taken in 1986, also depicts a structure above water

with an apparent breach near the center. Exhibit 14, taken

in August, 1987, depicts a complete dike above the sur-

face but surrounded by water. Exhibit 15 depicts the dike

as construction was being performed in April 1987, and

Exhibit 19 depicts the dike in November 1987, after con-

struction had advanced further.

2la

The government argues that its evidence demon-

strates that in 1987, the dike was beyond ordinary repair

and any construction on the dike could only be properly

characterized as reconstruction. I agree. Both parties’

photographic evidence indicates the Portage River has

claimed and will continue to claim the area behind the

dike if it is not properly maintained on a continued basis.

When defendant purchased the property in 1983, the

dike was solid and the land behind it was dry. In August,

1984, and August, 1985, the river overcame the recently

reconstructed dike and the entire plot behind it was

completely inundated. (Govt. Exhibit #12 and 8). Photo-

graphs show that the land inside the dike had also been

flooded years before Mr. Molnar’s construction in 1983.

(Plaintiff’s Ex. 3 & 4).

Because the evidence clearly demonstrates the struc-

ture was, at least in the eight years preceding 1987, over-

come by the river on a regular and perhaps predictable

basis to the extent that the area behind it completely

flooded, defendant’s argument that the structure could

have been used “as is or with some maintenance” is not

well taken.

Taking the apparent structure of the dike prior to

defendant’s construction effort into account more speci-

fically, the photographic evidence demonstrates the dike

was breached and in need of more than simple repair or

maintenance work. Government exhibit 13 depicts sev-

eral clear breaches in the dike. The construction needed

to allow the structure to serve its intended purpose, by

holding back the river, would have been substantial. The

22a

work defendant actually performed can be seen in Plain-

tiff’s Exhibit 19. Comparing the condition of the dike in

that photograph with Exhibit 13, taken before defendant

began construction, demonstrates that defendant did

more than repair or maintenance on the dike. It is appar-

ent that he essentially reconstructed the dike.

Even considering the government’s serviceability

determination from a de novo standard, the defendant has

not shown the dike was serviceable in 1987. Therefore, I

conclude defendant’s 1987 construction on the dike is not

covered by the nationwide permit.

Turning to the government’s claim under the Clean

Water Act, it must first be noted that no nationwide

permit is in effect which might apply to defendant. There

are, however, two provisions which provide exemption

from CWA permitting under limited circumstances.

The maintenance exemption provides:

Maintenance, including emergency recon-

struction of recently damaged parts, or cur-

rently serviceable structures such as dikes,

dams, levees, groins, riprap, breakwaters,

causeways, bridge abutments or

approaches, and transportation structures.

Maintenance does not include any modifica-

tion that changes the character, scope, or

size of the original fill design. Emergency

reconstruction must occur within a reason-

able period of time after damage occurs in

order to qualify for this exemption. 33

C.F.R. 323.4(a)(1)(ii)

Defendant’s construction does not qualify under this

exemption because, as set forth above, the dike was not

23a

currently serviceable when he began construction. Fur-

thermore, the work cannot qualify as emergency recon-

struction because the evidence shows the river had

started to overcome the dike in the years before 1987, so

defendant’s construction did not come within a reason-

able period.

A second provision exempts from the permit require-

ments of the CWA work which is part of a farming

operation:

To fall under this exemption, the activities

specified in paragraph (a)(1)(i) of this sec-

tion . . . must be part of an established

farming, silviculture or ranching opera-

tion. .. . Activities which bring an operation

into farming, silviculture, or ranching use

are not part of an established operation. An

operation ceases to be established when the

area on which it was conducted has been

converted to another use or has lain idle so

long that modifications to the hydrologic

regime are necessary to resume operations.

Again, it is defendant’s burden to show he is covered

by this exemption. There is photographic evidence dem-

onstrating that the land inside the dike was sowed fol-

lowing defendant’s construction of the dike and dredging

of the area behind it. (Defendant’s Ex. 20, 21) The photo-

graphs also show the land clearly was used for agri-

cultural purposes in the 1960’s (Defendant’s Exhibit A, B)

and even long before. However, photographic evidence

shows the area behind the dike completely inundated

during the growing seasons of 1981 through 1987. (Plain-

tiff’s Ex. 4-8; 12-15)

24a

Though those photographs only depict the area on

the days they were taken, no evidence was submitted to

suggest that defendant was attempting to farm the land

during that time. Defendant has not met his burden, as

required to meet the statutory exemption, of demonstrat-

ing that the 1987 construction was part of an ongoing

farming operation.

Additionally, even if he had shown a continuing

effort to farm the land, it is apparent from photographs of

the dike area in the years immediately preceding con-

struction that modifications to the hydrologic regime

were necessary to resume farming operations. It appears

from photographic evidence, as mentioned above, that

the “hydrologic regime” of the area has been primarily

dictated by the ebb and flow of the Portage River absent

ongoing dike maintenance.

The testimony of Mr. Brewer provided further sup-

port for the government's claim that defendant’s farming

activity was a significant departure from the area’s pre-

vailing hydrologic regime. He characterized the dike area

as a “wetland,” and the soil behind it as “hydric soil.”

Hydric soil, according to Mr. Brewer, requires periodic

inundation to maintain its natural water balance. He also

said the root systems of plants indigenous to hydric soil

are different from those defendant planted after he

pumped the dike area dry. It is clear from Mr. Brewer’s

testimony that defendant could not have resumed farm-

ing that land without substantially modifying its prevail-

ing hydrologic regime.

Defendant's dike construction violated the RHA and

was not covered by the nationwide permit under the

25a

RHA because the dike was not serviceable. Furthermore,

the construction violated the CWA and did not fall within

its two narrow exemptions for maintenance or farming.

For the reasons stated above,

IT IS ORDERED THAT judgment on the issue of

liability be granted for plaintiffs.

So ordered.

/s/ James G. Carr

United States Magistrate

Judge

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America, 91CV 7172

Plaintiff Memorandum & Order

V.

Howard W. Emery, (Filed Jul. 27, 1993)

Defendant

This is a federal question case in which the parties

have consented to the entry of judgment by the under-

signed pursuant to 28 U.S.C. §636(c). Pending is plain-

tiff’s motion for summary judgment. For the reasons

stated below, plaintiff's motion shall be granted in part

and denied in part.

Plaintiff alleges that defendant violated the Rivers

and Harbors Act of 1899 (RHA), 33 U.S.C. §401 et seq.,

and Clean Water Act (CWA), 33 U.S.C. §1251 et seq., by

constructing dikes on the Portage River and draining,

filling, and cultivating the land behind the dikes. Speci-

fically, plaintiff alleges that in 1987, defendant rebuilt a

partially breached and overtopped dike on the Portage

River without obtaining a permit from the Army Corp ot

Engineers. Plaintiff also alleges that in 1988, defendant

constructed a new section of dike adjacent to the rebuilt

dike and placed fill in the area behind the dikes, which

had previously been wetlands.

Defendant contends that no permit was necessary

because the property is not subject to the jurisdiction of

the Army Corp of Engineers pursuant to the RHA and the

27a

CWA. Defendant contends further that even if the prop-

erty is subject to regulation under the RHA and the CWA,

he was not required to obtain a permit before working on

the existing dike because both Acts allow for the mainte-

nance of serviceable structures without obtaining a per-

mit. Plaintiff has moved for summary judgment on the

ground that there is no genuine issue of material fact.

SUMMARY JUDGMENT STANDARD

As a preliminary matter, defendant mischaracterizes

his burden on summary judgment. Defendant states that

the “new era” of summary judgment practice “does not

obviate the Plaintiff from ultimately demonstrating that

no genuine dispute exists as to any material fact” (Doc.

32, pg. 14). He states further that the “new era” cases

merely clarified the old summary judgment standard. Id.

This is not the case.

The principal purpose of summary judgment “is to

isolate and dispose of factually unsupported claims and

defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24

(1986). Pursuant to Fed. R. of Civ. P. 56(c), the moving

party bears the initial burden of showing that there is no

genuine issue of material fact and that it is entitled to

judgment as a matter of law. However, “when the moving

party has carried its burden under Rule 56(c), its oppo-

nent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

Fed. R. of Civ. P. 56(e) places responsibility on the

party against whom summary judgment is sought to

28a

demonstrate that summary judgment is improper, either

by showing the existence of a material question of fact or

that the underlying substantive law does not permit such

a decision. Further, Rule 56(e) requires the non-moving

party to go beyond the pleadings, and by affidavits,

depositions, answers to interrogatories, or admissions on

file, designate specific facts showing a genuine issue for

trial. Id. at 324; Cincinnati Newspaper Guild, Local 9 v.

Cincinnati Enquirer, Inc., 863 F.2d 439, 441 (6th Cir. 1988).

To determine which facts are material, a court must

look to the substantive law to be apnlied. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the dispute

about a material fact is genuine, i.e., if the evidence is

- such that a reasonable jury could return a verdict for the

non-moving party, summary judgment should be denied.

Id. “In deciding a motion for summary judgment a court

may not resolve conflicts in the evidence or make cred-

ibility determinations; the evidence of the non-movant is

to be taken as true and all justifiable inferences drawn in

his or her favor.” Id. at 255 (citing Addickes v. S.H. Kress &

Co., 398 U.S. 144, 158-59 (1970)).

JURISDICTION UNDER THE RHA

Plaintiff alleges that defendant violated §10 of the

RHA, which states:

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capac-

ity of any of the waters of the United States is

prohibited; and it shall not be lawful to build or

commence the building of any wharf, pier, dol-

phin, boom, weir, breakwater, bulkhead, jetty, or

other structures in any port, roadstead, haven,

29a

harbor, canal, navigable river, or other water of

the United States, outside established harbor

lines, or where no harbor lines have been estab-

lished, except on plans recommended by the

Chief of Engineers and authorized by the Secre-

tary of the Army; and it shall not be lawful to

excavate or fill, or in any manner to alter or

modify the course, location, condition, or capac-

ity of, any port, roadstead, haven, harbor, canal,

lake, harbor of refuge, or inclosure within the

limits of any breakwater, or of the channel of

any navigable water of the United States, unless

the work has been recommended by the Chief of

Engineers and authorized by the Secretary of

the Army prior to beginning same.

33 U.S.C. §403. Pursuant to this section, the Army Corp of

Engineers (the Corp) has the power to regulate all navi-

gable waters, defined as “those waters that are subject to

the ebb and flow of the tide and/or are presently used, or

have been used in the past, or may be susceptible for use

to transport interstate or foreign commerce.” 33 C.E.R.

§329.4. The Corp’s jurisdiction ex.ends:

laterally to the entire water surface and bed of a

navigable water body, which includes all the

land and water below the ordinary high water

mark. Jurisdiction thus extends to the edge (as

determined above) of all such waterbodies, even

though portions of the waterbody may be

extremely shallow, or obstructed by shoals, veg-

etation or other barriers. Marshlands and simi-

lar areas are thus considered navigable in law,

but only so far as the area is subject to inunda-

tion by the ordinary high waters.

33 C.R.R. §329.11(a).

30a

Defendant does not contest the government’s asser-

tion that the Portage River is a navigable body of water

(Doc. 32, pg. 9). Consequently, defendant does not dis-

pute the Corp’s ability to regulate his dikes, which pro-

trude into the river.

Defendant does dispute, however, the government's

assertion that the Corp has jurisdiction to regulate the

area behind the dikes. Defendant argues that because the

ordinary high water level is east, rather than west, of the

dikes, the Corp lacks jurisdiction. Defendant’s argument

lacks merit, however, because the evidence demonstrates

that the ordinary high water level (OHWL) lies behind

defendant’s dikes.

The OHWL of a non-tidal river is determined by:

the line on the shore established by the fluctua-

tions of water and indicated by physical charac-

teristics such as a clear, natural line impressed

on the bank; shelving; changes in the character

of the soil; destruction of terrestrial vegetation;

the presence of litter and debris; or other appro-

priate means that consider the characteristics of

the surrounding areas.

33 C.F.R. §329.11(a)(1). Plaintiff provides the uncon-

tradicted affidavit of Gary Buck, who states that based on

a “review of the U.S. Geological Survey Topographical

Maps, aerial photographs, and on-site observation,” the

property behind defendant’s dikes is below the OHWL

(Doc. 30, Exh. 2). Additionally, defendant admits that the

land behind his dikes is below the level of the Portage

River and if it were not for the dikes, the property at

issue would be inundated (Doc. 32, pg. 35). Based on

these statements, it is evident that defendant's property is

3la

—

below the OHWL. Consequently, the Corp has jurisdic-

tion to regulate the property behind defendant’s dikes

pursuant to 33 C.FR. §329.11.

JURISDICTION UNDER THE CWA

Plaintiff also alleges that defendant violated §404 of

the CWA, 33 U.S.C. §1344. Pursuant to that section, the

Corp has the power to regulate the discharge of dredged

or fill material into the navigable waters of the United

States. The scope of the term “navigable waters” as used

in the CWA, however, is broader than under the RHA.

For purposes of the CWA, navigable waters are defined

as “waters of the United States, including the territorial

seas.” 33 U.S.C. §1362(7).

“Waters of the United States” has been defined by

administrative regulation to include:

(a)(1) All waters which are currently used, or

were used in the past, or may be susceptible to

use in interstate or foreign commerce, including

all waters which are subject to the ebb and flow

of the tide;

(7) Wetlands adjacent to waters (other than

waters that are themselves wetlands) identified

in paragraphs (a)(1) through (6) of this section.

(b) The term wetlands means those areas that

are inundated or saturated by surface or ground

water at a frequency and duration sufficient to

support, and that under normal circumstances

do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes,

bogs, and similar areas.

32a

(c) The term adjacent means bordering, contig-

uous, 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 wetlands”

33 C.ER. §328.3.

As stated previously, defendant does not contest the

Corp’s jurisdiction over the Portage River. Defendant.

does, however, contest the Corp’s ability to regulate the

property behind his dikes under the CWA. In support of

jurisdiction over the area behind the dikes, the govern-

ment provides the affidavit of Douglas Brewer, a biolo-

gist, who states that “the area behind the dikes is an area

that when inundated or saturated by surface or ground

water at a frequency or duration sufficient to support a

prevalence of hydrophytic vegetation will, in fact, sup-

port such vegetation” (Doc. 30, Exh. 6). Mr. Brewer goes

on to state that “based on Soil Conservation Service soils

maps for Ottawa County, hydric soils exist in the diked

area. The area, therefore, satisfies the definition of wet-

land as embodied in 33 C.F.R. 328.3(b).” Id.

The permit issued to defendant’s predecessor in

interest, Gary Molnar, on which defendant relies, states

that the area behind the dikes is “an existing wetland”

(Doc. 32, Exh. B). Defendant has not presented any mate-

rial in opposition to this finding and the affidavit of Mr.

Brewer. Consequently, the Corp has jurisdiction over the

area behind the @ «. pursuant to the CWA.

a

33a

WORK ON THE EXISTING DIKE

Plaintiff alleges that defendant violated 33 U.S.C.

§§403, 1311, and 1344 by maintaining and repairing the

existing dike without obtaining a permit from the Corp.

Defendant does not contest plaintiff’s assertion that he

performed work on the dike without a permit sometime .

in early 1987. Rather, he alleges that a permit was not

necessary.

Defendant contends that the work he performed on

his existing dike falls under the CWA exception allowing

him to discharge dredged or fill material without a per-

mit for the purpose of “maintenance, including emer-

gency reconstruction of recently damaged parts, of

currently serviceable structures such as dikes, dams,

levees, groins, riprap, breakwaters, causeways, and

bridge abutments or approaches, and transportation

structures.” 33 U.S.C. §1344(f)(1)(B).

Alternatively, defendant contends that the work he

performed was covered by a nationwide permit authoriz-

ing maintenance, defined as “the repair, rehabilitation, or

replacement of any previously authorized, currently ser-

viceable, structure or fill” or of any currently serviceable

structure or fill completed before 1968. 33 C.F.R. §330,

Appendix A, B.3., and §330.4.

In May, 1981, defendant’s predecessor in interest,

Gary Molnar, obtained a permit to reconstruct a dilap-

idated dike to be used as part of a proposed marina (Doc.

32, Exh. B). Plaintiff’s biologist, Douglas Brewer, states in

his affidavit that “between July of 1981 and July of 1982

dikes were constructed where only mud humps previ-

ously existed as per DA Permit 80-002-6” (Doc. 30, Exh.

34a

6). This testimony is supported by an aerial photograph

taken in July, 1982, which shows what appears to be a

newly constructed dike along the eastern end of defen-

dant’s property (Doc. 31, Exh. 20). As long as this dike

was serviceable, defendant retained the right to maintain

it without a permit pursuant to either the exception to the

CWA or the nationwide permit. See 33 U.S.C.

§1344(f)(1)(B), and §330, Appendix A, B.3.

Plaintiff asserts that the maintenance exception to the

CWA and the nationwide permit do not apply to defen-

dant because his dike was not currently serviceable at the

time the work began. The term “currently serviceable” is

not defined in the CWA or its implementing regulations.

However, the regulation containing the nationwide per-

mit defendant seeks to rely on defines “currently service-

able” as, “useable as is or with some maintenance, but

not so degraded as to essentially require reconstruction.”

33 C.FR. §330, Appendix A, B.2.; See United States v.

DeFelice, 641 F.2d 1169 (5th Cir. 1981); Webster’s Third

New International Dictionary 2075 (1976).

Plaintiff contends that when defendant purchased the

property in 1983, the dike was breached and the area

behind the dike was inundated; therefore the dike was

not currently serviceable. In support of this contention,

plaintiff provides aerial photographs taken during the

period from July 1982, through August 1987, which show

that the area behind defendant’s dike was covered by

water (Doc. 31, Exh. 20, 23-26). Additionally, Douglas

Brewer states in his affidavit that the area behind defen-

dant’s dike was inundated by August of 1985 and that the

dike was completely overtopped by August of 1986 (Doc.

30, Exh. 6).

35a

In contrast, defendant provides that affidavit of

Charles Hupp, who states that he fished from the dike on

defendant’s property from approximately 1983 through

1986 (Doc. 32). Mr. Hupp testifies that during that time

period, the dike at issue was “approximately seventy-five

(75%) to ninety percent (90%) in-tact.” Id. Defendant also

provides the affidavit of Carl Mathews, who states that

he hunted and fished on defendant's property from

approximately 1955 through 1990, and that during that

time “both dikes were serviceable in that they were

accomplishing the purpose for which they were

intended” (Doc. 32).

A genuine issue of material fact exists as to whether

the dike was serviceable at the time defendant began

work in 1987. Defendant correctly states that the aerial

photographs merely depict that the area behind the dike

was inundated on the day the picture was taken. They do

not demonstrate that the dike was unserviceable, i.e. so

degraded that it essentially required reconstruction.

Moreover, defendant correctly states that the conflict

between the affidavit of Mr. Brewer and the affidavits of

Mr. Hupp and Mr. Mathews cannot be resolved on sum-

mary judgment. Consequently, plaintiff is not entitled to

summary judgment on Count One of its complaint or the

portion of Count Four of its complaint that alleges that

the work performed on defendant's existing dike violated

the RHA.!

1 If the work defendant performed was covered under the

nationwide permit, he would be in compliance with both the

CWA and the RHA.

36a

CONSTRUCTION OF A NEW DIKE

Plaintiff also contends that defendant violated 33

U.S.C. §§403, 1311, and 1344 by constructing a new dike

adjacent to the existing dike without a permit. Gary Buck

states that “on September 16, 1988, I did and (sic) aerial

inspection of the site and took photographs (exhibit 15)

and on October 20, 1988, I did a ground level inspection

and took photographs (exhibit 15a). Those inspections

revealed that Mr. Emery commenced work on a new

section of the dike” (Doc. 30, Exh. 2). The photographs

Mr. Buck refers to depict a piece of heavy construction

equipment positioned on a partially completed dike (Doc.

31, Exh. 15, 15a).

In his answer to plaintiff’s complaint, defendant sim-

ply denies the allegation that he constructed a new dike

without a permit (Doc. 8, pg. 3). He has not, however,

provided any specific facts in response to plaintiff’s

motion for summary judgment. Rule 56(e) requires that

once the moving party has made an initial showing that it

is entitled to summary judgment, the non-moving party

must to go beyond the pleadings, and by affidavits, depo-

sitions, answers to interrogatories, or admissions on file,

designate specific facts showing a genuine issue for trial.

Defendant has not responded to plaintiff’s claim that

he built a new dike adjacent to his existing dike without a

permit. Consequently, plaintiff is entitled to summary

judgment on Count Two of its complaint, alleging that

defendant constructed a dike in violation of the CWA,

and the portion of Count Four of the complaint that states

that defendant violated the RHA by constructing a new

dike.

37a

DEPOSITING FILL IN THE AREA

BEHIND THE DIKES

Finally, plaintiff alleges that defendant violated the

CWA and the RHA by depositing fill in the area behind

the dikes without a permit for purposes of building a

roadway. Gary Buck states in his affidavit that based on

his observations in the fall of 1988, defendant had

“placed fill in the previously inundated area behind the

dike for a roadway” (Doc.30, Exh. 2). Mr. Buck also states

that:

On October 12, 1989, I performed an on site

inspection of the property in the presence of Mr.

Emery and took photographs (exhibit 15b). Dur-

ing that inspection, I observed that fill was

placed in several areas inside the dike previ-

ously inundated and in areas immediately adja-

cent to the Portage River that were wetlands as

defined in 33 C.F.R. 328.3(b). When asked who

had placed the fill, Mr. Emery stated that he

had.

Id. Mr. Buck goes on to state that June 1990, and Novem-

ber 1991, inspections revealed that defendant was main-

taining the fill in place and had planted a crop of wheat.?

Id.

The photographs taken by Mr. Buck in October of

1989, reveal that-defendant constructed a road and a pole

barn on the property behind the dikes (Doc. 31, Exh. 15b).

2 Plaintiff’s complaint does not allege that depositing fill on

the property behind the dike for purposes of farming and

planting the property with wheat violates the CWA and the

RHA. Plaintiff alleges only that depositing fill for purposes of

building a road is a violation of the Acts.

38a

Additionally, the road is clearly visible in aerial photo-

graphs taken by Mr. Buck on June 7, 1990 (Doc. 31, Exh.

16).

Defendant does not contest that he built the road. He

does, however, contend that his activity is permitted pur-

suant to an exemption. Plaintiff correctly states that che

RHA does not contain any exemptions. Consequently,

because defendant did not obtain a permit to deposit fill

for the purpose of building a road on the property behind

the dike, he is in violation of the RHA.

Unlike the RHA, the CWA contains exceptions to the

permit requirement. Defendant contends that his dis-

charge of fill material into the wetland behind the dikes

in order to build a road is covered by a CWA provision

exempting discharge “from normal farming, silviculture,

and ranching activities such as plowing, seeding, culti-

vating, minor drainage, harvesting for the production of

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

conservation practices.” 33 U.S.C. §1344(f)(1)(A). Pur-

suant to the regulation implementing this exception, a

property owner can construct.a farm road on his wetland

without obtaining a permit if he complies with several

detailed conditions regarding the construction of the

road, its placement, and other matters effecting the char-

acter of the wetland. 33 C.F.R. §323.4(a)(6).

Defendant does not contest the plaintiff’s assertion

that he bears the burden of proving that his conduct falls

within the exceptions to the CWA. (Doc 32, pg. 39); United

States v. A cers, 785 F.2d 814, 819 (9th Cir. 1986). However,

he has not come forward with any information indicating

that his road falls within the exemption, i.e. material

39a

showing that the road is of appropriate length and width,

was not constructed in areas inhabited by wetland fowl,

shellfish, and vegetation, and was not constructed of

unsuitable material. See 33 C.F.R. §323.4(a)(6)(i) through

(xv). Consequently, I must find that defendant’s road

does not come within the exception.

Even if defendant’s road was covered by the excep-

tion for normal farming activity, defendant would still

have to prove that it was not subject to recapture under

33 U.S.C. §1344(f)(2), which states that:

Any discharge of dredged or fill material into

the navigable waters incidental to any activity

having as its purpose bringing an area of the

navigable waters into a use to which it was not

previously subject, where the flow or circulation

of navigable waters may be impaired or the

reach of such waters reduced, shall be required

to have a permit under this section.

Defendant has not contended that any part of his prop-

erty has previously been used as a road. Building a road

on the property would constitute a new use of that por-

tion of the property, thereby bringing the activity back

under the statute and requiring defendant to obtain a

permit before constructing the road. Consequently, plain-

tiff is entitled to summary judgment on its claims that

defendant’s road violates the CWA and the RHA.

For all the foregoing reasons, it is therefore

ORDERED THAT plaintiff's motion for summary

judgment shall be granted as to Counts Two and Three of

its complaint, as well as the parts of Count Four dealing

with the construction of the new dike and the road, and

40a

denied as to Count One and the part of Count Four

dealing with the existing dike.

So ordered.

/s/ James G. Carr

United States Magistrate Judge

4la

RGL 90-07

Clarification of the Phrase “Normal Circumstances” as

it pertains to Cropped Wetlands.

Issued 9/26/90 Expires 12/31/93

1. The purpose of this regulatory guidance letter (RGL)

is to clarify the concept of “normal circumstances” as

currently used in the Army Corps of Engineers definition

of wetlands (33 CFR 328.3(b)), with respect to cropped

wetlands.

2. Since 1977, the Corps and the Environmental Protec-

tion Agency (EPA) have defined wetlands as:

“areas that are inundated or saturated by surface or groundwa-

ter at a frequency and duration sufficient to support, and that

under normal circumstances do support, a prevalence of vege-

tation typically adapted for life in saturated soil condi-

tions ... ” (33 CFR 328.3(b)) (emphasis added).

While “normal circumstances” has not been defined by

regulation, the Corps previously provided guidance on

this subject in two expired “normal circumstances” RGLs

(RGLs 82-2 and 86-9). These RGLs did not specifically

deal with the issue of wetland conversion for purpose of

crop production.

3. When the Corps adopted the Federal Manual for

Identifying and Delineating Jurisdictional Wetlands

(Manual) on 10 January 1989, the Corps chose to define

“normal circumstances” in a manner consistent with the

definition used by the Soil Conservation Service (SCS) in

its administration of the Swampbuster provisions of the

Food Security Act of 1985 (FSA). Both the SCS and the

Manual interpret “normal circumstances” as the soil and

42a

hydrologic conditions that are normally present, without

regard to whether the vegetation has been removed [7

CFR 12.31(b)(2)(i)] [Manual page 71].

4. The primary consideration in determining whether a

disturbed area qualifies as a section 404 wetland under

“normal circumstances” involves an evaluation of -the

extent and relative permanence of the physical alteration

of wetlands hydrology and hydrophytic vegetation. In

addition, consideration is given to the purpose and cause

of the physical alterations to hydrology and vegetation.

For example, we have always maintained that areas

where individuals have destroyed hydrophytic vegeta-

tion in an attempt to eliminate the regulatory require-

ments of section 404 remain part of the overall aquatic

system, and are subject to regulation under section 404. In

such a case, where the Corps can determine or reasonably

infer that the purpose of the physical disturbance to

hydrophytic vegetation was to avoid regulation, the

Corps will continue to assert section 404 jurisdiction.

5. The following guidance is provided regarding how

the concept of “normal circumstances” applies to areas

that are in agricultural crop production:

a. “Prior converted cropland” is defined by the SCS

(Section 512.15 of the National Food Security Act Manual,

August 1988) as wetlands which were both manipulated

(drained or otherwise physically altered to remove excess

water from the land) and cropped before 23 December

1985, to the extent that they no longer exhibit important

wetland values. Specifically, prior converted cropland is

inundated for no more than 14 consecutive days during

the growing season. Prior converted cropland generally

——~xaQ=_

43a

| does not include pothole or playa wetlands. In addition,

wetlands that are seasonally flooded or ponded for 15 or

more consecutive days during the growing season are not

considered prior converted cropland.

b. “Farmed wetlands” are wetlands which were both

manipulated and cropped before 23 December 1985, but

which -continue to exhibit important wetland values.

Specifically, farmed wetlands include cropped potholes,

playas, and areas with 15 or more consecutive days (or 10

percent of the growing season, whichever is less) of

inundation during the growing season.

c. The definition of “normal circumstances” found at

page 71 of the Manual is based upon the premise that for

certain altered wetlands, even though the vegetation has

been removed by cropping, the basic soil and hydrologi-

cal characteristics remain to the extent that hydrophytic

vegetation would return if the cropping ceased. This

assumption is valid for “farmed wetlands” and as such

these areas are subject to regulation under section 404.

d. In contrast to “farmed wetlands”, “prior converted

croplands” generally have been subject to such extensive

and relatively permanent physical hydrological modifica-

tions and alteration of hydrophytic vegetation that the

resultant cropland constitutes the “normal circum-

stances” for purposes of section 404 jurisdiction. Conse-

quently, the “normal circumstances” of prior converted

croplands generally do not support a “prevalence of

hydrophytic vegetation” and as such are not subject to

regulation under section 404. In addition, our experience

and professional judgment lead us to conclude that

because of the magnitude of hydrological alterations that

ee

44a

have most often occurred on prior converted cropland,

such cropland meets, minimally if at all, the Manual’s

hydrology criteria.

e. If prior converted cropland is abandoned (512.17

National Food Security Act Manual as amended, June

1990) and wetland conditions return, then the area will be

subject to regulation under section 404. An area will be

considered abandoned if for five consecutive years there

has been no cropping, management or maintenance activ-

ities related to agricultural production. In this case, posi-

tive indicators of all mandatory wetlands criteria,

including hydrophytic vegetation, must be observed.

f. For the purposes of section 404, the final determina-

tion of whether an area is a wetland under normal cir-

cumstances will be made pursuant to the 19 January 1989

Army/EPA Memorandum of Agreement on geographic

jurisdiction. For those cropped areas that have previously

been designated as “prior converted cropland” or

“farmed wetland” by the SCS, the Corps will rely upon

such a designation to the extent possible. For those

cropped areas that have not been designated “prior con-

verted cropland” or “farmed wetland” by the SCS, the

Corps will consult with SCS staff and make appropriate

use of SCS data in making a determination of “normal

circumstances” for section 404 purposes. Although every

effort should be made at the field level to resolve Corps/

SCS differences in opinion on the proper designation of

cropped wetlands, the Corps will make the final deter-

mination of section 404 jurisdiction. However, in order to

monitor implementation of this RGL, cases where the

Corps and SCS fail to agree on designation of prior

45a

converted cropland or farmed wetlands should be docu-

mented and a copy of the documentation forwarded to

CECW-OR.

6. This policy is applicable to section 404 of the Clean

Water Act only.

7. This guidance expires 31 December 1993 unless

sooner revised or rescinded.