Petition for Writ of Certiorari — Cundiff v. United States (No. 08-1376)

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Supreme Court, U.S.

() FILED

Now __ 081476 MAY 5 - 2009

OFFICE OF THE CLERK

Jn The

Supreme Court of the United States

GEORGE RUDY CUNDIFF anp

CHRISTOPHER SETH CUNDIFF,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

LESLIE E. NUNN

Counsel of Record

P. O. Box 99

CYNTHIANA, IN 47612

(812) 431-3638

Counsel for Petitioners

May 5, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

II.

IIl.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE TRIAL COURT AND THE

SIXTH CIRCUIT COURT OF APPEALS HAVE

APPLIED THE INCORRECT TEST TO

DETERMINE WHETHER THE CLEAN

WATER ACT APPLIES IN THIS INSTANT

CASE.

WHETHER, EVEN IF THESUPREME COURT

HOLDS THAT THE CUNDIFF PROPERTY IS

A WETLAND, THE CUNDIFFS’ WERE NOT

REQUIRED TO HAVE A PERMIT ISSUED BY

THE U.S. CORPS OF ENGINEERS.

WHETHER THE CONDUCT OF THE UNITED

STATES CONSTITUES A WRONGFUL

TAKING OF THE PETITIONERS’ PROPERTY

WITHOUT JUST COMPENSATION

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

The parties to the proceeding below are identified

in the caption of the case. Petitioners are private

individuals and have no parent corporation and no

publicly held corporation has a 10% or greater

ownership interest in the Petitioners.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT .. ii

TABLE OF CONTENTS .. 0... ccc cccscctcences iil

TAB OF BUFR CRORE oi ic bees aes aun vi

Bog ij be Ff, | a aera aa erence a 1

Pare A ork ee 1

STATEMENT OF THE CASE ................ 1

POCeal TUNOUTIOE: 5 oS a ek wes 2

REASONS FOR GRANTING THE PETITION ... 4

REE gh 5 ek eh ee ee oe ae 4

I. THE TRIAL COUR’ AND THE SIXTH

CIRUCIT COURT OF APPEALS HAVE

APPLIED THE INCORRECT TEST TO

DETERMINE WHETHER THE CLEAN

WATER ACT APPLIES IN THIS INSTANT

CE Fie ee es ee eee ae eee 4

Is There a Controlling Opinion in Rapanos v.

I on ke eee i 4

Incorrect Decision as to Controlling Opinion by

the Trial Judge and the United States Sixth

Cirowit Cowit OF ADDOGIS ...k ccc ccc esos: 10

Definition of Continuous Surface Connection. 12

Different surface levels between the surface of

the Cundiff properties and the creeks? ...... 14

Applying the Justice Kennedy significant nexus

CE uss h aes or ee ce ee one ee eee es 18

Il. EVEN l#¥ THE SUPREME COURT HOLDS

THAT THE CUNDIFF PROERTY IS A

WETLAND, THE CUNDIFFS’ WERE NOT

REQUIRED TO HAVE A PERMIT ISSUED BY

THE U.S. CORPS OF ENGINEERS ........ 21

The Commence Wetland Conversion permit

granted by the US Department of Agriculture,

known as the “Swamp Buster’s Permit” (which

the Cundiffs had), authorized the Cundiffs’

worm Of Geer IE SC#“# iw ee ee a ewene 21

IIl.THE CONDUCT OF THE UNITED STATES

CONSTITUES A WRONGFUL TAKING OF

THE DEFENDANTS’ PROPERTY WITHOUT

JUST COMPENSATION ................. 24

Time before financial return on restored land . 24

There Are Other Ways Available to Control the

Acid Mine Water Without Taking the Cundiffs’

PE has a6 oo UR ee ee eer ees 31

ek ie a ae amare en err sareatay coer arte ae nr 34

APPENDIX

Appendix A: Sixth Circuit Opinion, dated

Pee © SE «bs 9 soe See ees eee la

Appendix B: District Court Memorandum

Opinion, dated March 29, 2007 ........... 34a

Appendix C: District Court Findings of Fact and

Conclusions of Law, dated January 10,2005. 49a

TABLE OF AUTHORITIES

Cases

Armstrong v. United States,

364 U.S. 40, 80 S.Ct. 1563,

@ 1..15G.2G 1GD4E CISGO) 2... ce cee ee 25, 28, 30

Chicago, Burlington & Quincy R.R. Co. v. Chicago,

166 U.S. 226, 17 S.Ct. 581,

BPS 4g LG ys) er 30

Cotton Land Co. v. United States,

40 F.Supp Zaz (Ct. Ci. 1948) ....... 0.220 ees 29

Dolan v. City of Tigard,

512 U.S. 374, 114 S.Ct. 2309,

Bape Be BE CRE) onc ce ccc cewenses 28

Eastern Enters. v. Apfel,

524 U.S. 498, 118 S.Ct. 1231,

BGS Ese. Bl SOE CAGMO) 6 vc ec vee ws 24

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

482 US. 304, 107 S.Ct. 2378,

SO Rede. WE BOO CLOT) ow ce tweens 28, 29

Florida Rock Indus., Inc. v. United States,

791 F.2d 893 (Fed. Cir. 1986) ............. 27

Furman v. Georgia,

ee RTD 5c eb ve an eee sen 8

Vil

Goldblatt v. Hempstead,

369 U.S. 590, 82 S.Ct. 987,

Pe eRe ae). | 27, 29

Gordon v. City of Warren,

579 F.2d 386 (6th Cir. 1978).............. 29

Gregg v. Georgia,

G08 Se LG. ya err e 8

King v. Palmer,

O60 F.2a@ 7711 (D.C. Cir. IBB1) .. 2. cc ccc ceca 9

Loretto v. Teleprompter Manhattan VATV Corp,

458 U.S. 419, 73 L.Ed.2d 868,

poo Baa Me oa |. | Sar 27

Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 112 S.Ct. 2886,

ESO En. Be TO CAO) oc cc eee 24, 27, 29

Marks v. United States,

430 U.S. 188, 97 S.Ct. 990,

SGP LG. yy ) re 7, 8,9

Palazzo v. Rhode Island,

533 U.S. 606, 121 S. Ct. 2448,

150 L.Ed.2d 592 (2001) ............ 24, 28, 29

Palm Beach Isles Assoc.-v. United States,

231 F.3d 1354 (Fed. Cir. 2000) which modified

208 F.3d 1374 (Fed. Cir. 2000) ......... 27, 29

Penn Cent. Transp. Co v. New York City,

438 U.S. 104, 98 S.Ct. 2646,

DF Rito Wk CEOFOD 05 ee cee ein 24, 28

Vill

Penn Coal Co. v. Mahon,

260 U.S. 393, 43 S.Ct. 158,

UR Re Le > 5 re ee 27, 28

Rapanos v. United States,

547 U.S. 715, 126 S.Ct. 2208,

165 L.Ba.2d 3168 (2006) ... ccc cccnes passim

Save Our Cmty. v. United States E.P.A..,

971 F.2d 1155 (5 Cir. 1992) ........cn cece 21

Simsbury-Avon Pres. Society v. Metacon Gun Club,

472 F. Supp.2d 219

CEN, EET as ce od Eee 13, 14, 18, 19, 20

Solid Waste Agency of N Cook County v. U.S. Army

Corps of Eng’rs,

531 U.S. 159, 121 S.Ct. 675,

148 L.e.26 GIGS (BOON) oc ced sccueeans 18

United States v. Chevron Pipe Line Co.,

437 F Supp.2d 605 (N.D.Tex 2006) .......... 6

United States v. Dickinson,

331 U.S. 745, 67 S.Ct. 1382,

Of bs.cee. See) 8 vi eG eek ee eee 30

United States v. Johnson,

467 F.3d S6 (1° Cir. 2006) .........05..: ~ @

United States v. Kansas City Life Ins. Co.,

339 U.S. 799, 70 S.Ct. 885,

OG 2,066, 1277 Chee 4 oes he vk we 29

United States v. North Am. Transp..

253 U.S. 330, 40 S.Ct. 518,

A RUDD 5 cv ec cc ee cccevevevcs 28

United Siates v. Riverside Bayview,

474 U.S. 121, 106 S.Ct. 455,

88 L.Ed.2d 419 (1985) ............. 10, 11, 18

United States v. Robison,

505 F.3d 1208 (11 Cir. 2007) .......... 6, 7,8

Williamson County Reg’l Planning Comm’n_v.

Hamilton Bank,

473 U.S. 172, 105 S.Ct. 3108,

EG rrr 24

Constitutions, Statutes and Regulations:

U.S. Constitution

Fifth Amendment Takings Clauses ........ 28

ec eet eee eee eeeeevees ]

ire 3

TOME. tc et tee eee eee neneeen 3

eer 3

tte cere anes ewesae 3

I gw oc cas bee eee eeaeee ees 3

re 21

]

OPINIONS BELOW

The United States District Court for the Western

District of Kentucky (Owensboro Division) entered its

judgment holding that the Clean Water Act applied to

the Petitioners, that the Petitioners were required to

have a permit issued by the United States Corps of

Engineers, and that there was no wrongful taking of

the Petitioners’ property without just compensation.

This opinion is attached in Pet. App. B, 34a. 480

F Supp.2d 940

The United States Court of Appeals for the Sixth

Circuit issued its decision affirming the decision of the

United States District Court in all aspects. That

decision is also attached hereto in Pet. App. A, La.

JURISDICTION

Petitioners seek review of a final decision of the

Court of Appeals entered on February 4, 2009. This

Court has jurisdiction pursuant to 28 U.S.C. Section

1254.

STATEMENT OF THE CASE

Petitioners seek review of the Sixth Circuit Court

of Appeals’ decision affirming the District Court’s

decision applying the incorrect test under Rapanos v.

United States, rejecting their contention that the

Petitioners’ “Swamp Busters” permit issued by the

United States Department of Agriculture allowed them

to drain an alleged wetland without having a permit

from the United States Corps of Engineers, and

refusing to recognize that the United States was

taking the Petitioners’ property without just

compensation in violation of the United States

Constitution.

Factual Statement:

The Petitioners, father Rudy Cundiff and son Seth

Cundiff, (hereinafter “Cundiffs” or “Petitioners”) own

two adjacent tracts of land in Muhlenberg County,

Kentucky which border Pond and Caney Creeks.

There is an abandoned underground coal mine on

property owned by a person not a party to this action

which is adjacent to the Petitioners’ land. The

entrance to this abandoned mine is at a higher

elevation than the Cundiff property. An orange/red

acid water is discharged from this abandoned mine

twenty-four hours a day and it flows downhill and onto

the Cundiff property. The acid water silted in

drainage ditches which had been dug on the property

years ago to permit farming operations. This caused

the acid water to pond on the Cundiff property at

times.

The Cundiff property had been part of a larger tract

of ground known as the Martin property. Owners of

the Martin property obtained from the United States

Department of Agriculture a Commenced Wetland

Conversion Permit (also known as a “Swamp Buster

Permit”) on March 28, 1989 authorizing the draining

of the Cundiff property. When the Cundiffs purchased

their land from the larger Martin tract, the permission

to drain the Cundiff land passed to the Cundiffs. This

Swamp Buster Permit specified the drainage must be

completed on or before January 1, 1995.

The Cundiffs did not obtain any permit from the

United States Corps of Engineers, relying on their

United States Department of Agriculture Swamp

Buster Permit. Cundiffs began cleaning out the

existing drainage ditches and drained the land, taking

down dead trees which had been killed by the acid

water. In October, 1991, the Corps of Engineers sent

to the Cundiffs a cease-and-desist letter prohibiting

any further activity, at a time when the Swamp Buster

Permit was still valid for approximately another four

years. The Cundiffs did not cease their operations and

the United States sued.

The United States filed their complaint against the

Petitioners alleging violations of the Clean Water Act

(CWA), 33 U.S.C. Sections 1311, 1319, 1342, 1362 et

seq. At a subsequent trial, the United States District

Court for the Western District of Kentucky, the

Honorable Joseph H. McKinley, Jr. presiding, found

against the Petitioners, and imposed a civil penalty of

$225,000 against them, suspending all but $25,000

(480 F.Supp.2d 940). The Petitioners appealed that

judgment to the United States Court of Appeals for the

Sixth Circuit.

The matter was then referred back to the United

States District Court by the Sixth Circuit Court of

Appeals due to the then recent ruling of the United

States Supreme Court in the case of Rapanos v. United

States regarding jurisdiction over waters of the United

States. The Trial Court held a hearing on this issue,

ruled in favor of the United States and against the

Petitioners, and the Petitioners appealed that decision

as well. 480 F.Supp.2d 940. See also 28 U.S.C. Section

1291. The Sixth Circuit affirmed the decision of the

United States District Court in its entirety. It is trom

that decision that the Petitioners file this Petition for

Writ of Certicrari.

REASONS FOR GRANTING THE PETITION

This case is important and warrants review. There

is a conflict among the Courts of Appeal as to the

application of Rapanos v. United States, 547 U.S. 715.

This case involves the application of the Clean Water

Act, the legal effect of regulatory taking of private land

by restrictinig its use by it owners, and the effect of

conflicting federal departments and agencies issuing

permits to drain wetlands.

ARGUMENT

I. THE TRIAL COURT AND THE SIXTH

CIRUCIT COURT OF APPEALS HAVE

APPLIED THE INCORRECT TEST TO

DETERMINE WHETHER THE CLEAN

WATER ACT APPLIES IN THIS INSTANT

CASE.

Is There a Controlling Opinion in Rapanos v. United

States?

This is a case involving the Clean Water Act. In

the case of Rapanos v. United States, 547 U.S. 715,

126 S.Ct. 2208, 165 L.Ed.2d 159, the United States

Supreme Court addressed the issue of what are the

waters of the United States in order to give the United

States Government jurisdiction over wetlands. The

Supreme Court split its vote 4-1-4, with four justices

deciding there was no jurisdiction in Rapanos (the

plurality), one justice (Justice Kennedy) concurring

that there was no jurisdiction but for differing reasons,

and four justices dissenting with the view that there

was jurisdiction. Each vote wrote its own opinion,

giving three separate opinions as to the outcome of the

case.

The plurality held that waters of the United States

include only “relatively permanent, standing or

continuously flowing bodies of water forming

geographic features that are described in ordinary

parlance as streams, oceans, rivers, (and) lakes” 126

S.Ct. at 2225. Justice Scalia, writing for the plurality,

continued that “only those wetlands with a continuous

surface connection to bodies that are waters of the

United States in their own right, so that there is no

clear demarcation between ‘waters’ and wetlands, are

adjacent to such waters and covered” by the Clean

Water Act.

Justice Kennedy, concurring in the judgment, but

for different rationale, wrote that there would be

jurisdiction if the wetlands “possess a significant

nexus to waters that are or were navigable-in-fact or

that could reasonably be so made.” Id at 2236.

Although Justice Kennedy did not define the “nexus,”

he did state that this nexus would be there if “either

alone or in combination with similarly situated lands

in the region, (they) significantly affect the chemical,

physical, and biological integrity of the other covered

waters more readily understood as navigable.” Id. at

2248.

Justice Stevens, writing for the dissent, stated that

the significant nexus requirement is “categorically

satisfied as to wetlands adjacent to navigable waters

or their tributaries,” and said that the dissenting

justices would all find jurisdiction present in situations

where either the tests of the plurality or Justice

Kennedy found jurisdiction.

Confusion has followed Rapanos within the Circuit

Courts of Appeal. In the United States v. Chevron

Pipe Line Co., 437 F.Supp.2d 605 (N.D.Tex 2006), the

court noted that there was a lack of a clear legal

standard in Rapanos. It also stated that Justice

Kennedy advanced an ambiguous test — whether a

‘significant nexus’ exists to waters that are/were/might

be navigable. This test leaves no guidance on how to

implement its vague, subjective centerpiece. That is,

exactly what is ‘significant’ and how is a ‘nexus’

determined?” Id. 613.

That there is confusion on the state of law as to

what are “waters of the United States” is perhaps most

clearly outlined by Judge Robert B. Propst in the

Northern District of Alabama on November 7, 2007

when he decided in United States v. Robison, 505 F.3d

1208 (11 Cir. 2007), “I write this opinion to explain

why I will direct the Clerk to reassign this case to

another judge for trial. At least one of the reasons is

that I am so perplexed by the way the law applicable

to this case has developed chat it would be

inappropriate for me to try it again.”

Judge Propst continued “I will try to pique the

interest of the readers of this opinion by stating that

the answer to that question has been determined to be

what one Justice of the Supreme Court of the United

States has written which was not agreed to by any of

the other eight Supreme Court Justices in Rapanos v.

U.S., 126 S.Ct. 2208 (2005). Remarkably, this

conclusion was reached because the Eleventh Circuit

held that a test which serves to broaden federal

jurisdiction (‘i.e., less restrictive of CWA jurisdiction’)

is the ‘less far reaching’ and ‘narrowest’ of two

purported tests. This holding appears to be directly

contrary to Supreme Court cases which were precedent

for the Supreme Court in Marks v. United States, 430

U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) case

relied upon by the Eleventh Circuit.” (citations added)

Judge Propst explains that “Since the Eleventh

Circuit held in Robison, supra, at *12, that ‘pursuant

to Marks, we adopt Justice Kennedy’s ‘significant

nexus’ test as the governing definition of ‘navigable

waters’ under Rapanos, ‘it is appropriate to see what

the plurality said about Justice Kennedy’s opinion.”

He then goes on to outline 12 criticisms raised by the

plurality against Justice Kennedy’s opinion. The

plurality then, Judge Propst finds, lists eight

criticisms against the dissent. Justice Kennedy

mentions eight criticisms of the plurality, and the

dissent lists 14 criticisms of the plurality and Justice

Kennedy.

Judge Propst then lists nine concerns of his own

about the Rapanos decision, including, but not limited

to: nobody has attempted in any opinion to distinguish

the meanings of “relatively permanent” and

“yatermittent;” and, among seven other concerns, no

justice in Rapanos (including Justice Kennedy himself)

has stated that Justice Kennedy’s opinion would be

controlling.

The Plurality Opinion Controls

Marks v. United States, supra, held in reviewing a

Sixth Circuit Court of Appeals case that “When a

fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five

Justices, ‘the holding of the court may be viewed as

that position taken by those Members who concurred

in the judgments on the narrowest grounds....”” No

definition of “narrowest” is given in Marks.

When we go to Webster’s Dictionary, we find the

definition of “narrow” to be 1. Of little breadth, not

wide or broad; 2. Of little extent; very limited; 3.

Having but a little margin; 4. Limited as to means.

Presumably, the word “narrowest” would be defined as

of the least breadth, or of the least extent, having but

the least margin, most limited as to means, and the

like.

But, a reading of Marks shows it’s opinion relies on

Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) that

reads “Since five Justices wrote separately in support

of the judgments, in Furman v. Georgia, 408 U.S. 238

(1972), the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds.”

Judge Propst further felt that the plurality

controlled because Justice Kennedy’s concurrence

rejected two limitations imposed by the plurality’s test

on the definition of navigable waters, Robison, supra,

at *12. “Eight justices imposed a total I:mitation on

Justice Kennedy’s test.”

If Marks is controlling as to which opinion is the

“Yaw,” it is difficult to see how Justice Kennedy’s

opinion is more restrictive than the plurality’s

requirement. In fact, in the dissent, Justice Stevens

stated “I assume that Justice Kennedy’s approach will

be controlling in most cases because it treats more of

the nation’s waters as within the Corps jurisdiction...”

How, then, can Justice Kennedy’s opinion be more

narrow if it grants more jurisdiction?

The plurality holds that only those wetlands with

a continuous surface connection to bodies that are

waters of the United States in their own right, so that

there is no clear demarcation between “waters” and

wetlands, are adjacent to such waters and covered by

the Clean Water Act.

On the other hand, Justice Kennedy holds that any

wetiand that either alone or in combination with

similarly situated lands in the region, significantly

affects the chemical, physical, and biological integrity

of the other covered waters more readily understood as

navigable is covered by the Clean Water Act.

“Marks is workable - one opinion can_ be

meaningfully regarded as ‘narrower’ than another —

only when one opinion is a logical subset of other,

broader opinions. King v. Palmer, 950 F.2d 771, 781

(D.C. Cir. 1991). This will work only when one opinion

reaches that result for less sweeping reasons than the

other.” United States v. Johnson, 467 F.3d 56 (1* Cir.

2006)

Justice Kennedy does not require a continuous

surface connection, which is certainly restrictive. The

plurality does not permit such an ephemeral definition

as “affecting the chemical, physical and biological!

integrity of other covered waters” to control. Justice

Kennedy’s very general requirement is certainly much

easier to meet than is the plurality’s “continuous

surface connection.” Therefore, a strict application of

Marks results in the plurality’s opinion being more

restrictive and therefore being the controlling opinion

in Rapanos.

Incorrect Decision as to Controlling Opinion by the

Trial Judge and the United States Sixth Circuit Court

of Appeals

Both the trial court and the Sixth Circuit Court of

Appeals held that either the plurality’s standard or

Justice Kennedy’s standard in the Rapanos case apply.

The Petitioners argue that only the plurality’s

standard applies. Further, even if either will apply,

the Petitioners argue that the United States failed to

prove that they had met either the plurality’s standard

or the standard of Justice Kennedy.

In speaking of the U.S. Army Corps of Engineers,

United States v. Riverside Bayview, 474 U.S. at 132,

(106 S.Ct. 455, 88 L.Ed.2d 419 (1985)) the Supreme

Court held that

“(T) he corps must necessarily choose some point

at which water ends and land begins. Our

common experience tells us that this is often no

easy task: the transition from water to solid

ground is not necessarily or even typically an

abrupt one. Rather, between open waters and

dry land may lie shallows, marshes, mudflats,

swamps, bogs — in short, a huge array (947) of

areas that are not wholly aquatic but

nevertheless fall far short of being dry land.

Where on this continuum to find the limit of

‘waters’ is far from obvious.”

Based on this Riverside Bayview wording, the trial

judge in this instant case incorrectly reasoned that

“according to the Rapanos plurality, because of this

inherent ambiguity, the ‘Supreme Court in Riverside

Bayview held the agency could reasonably conclude

that a wetland that adjoined waters of the United

States is itself a part of those waters.” And, he

concluded (again incorrectly) “Given this discussion of

Riverside Bayview, Justice Scalia clearly did not

intend that the water level of the wetland and the

covered “waters” must be completely level. Such a

conclusion would completely eviscerate the plurality’s

recognition that a gradual transition can exist from

water to land, e.g. shallows, marshes, mudflats,

swamps, bogs — in short.” (See the Trial Court’s

decision at Apx B at page 47a and the Sixth Circuit’s

decision at Apx A at page 20a)

This is not the case, however. The transition from

water to land through shallows, marshes, mudflats,

swamps, bogs, etc. can and does occur at essentially

the same level of elevation. Obviously if it were

perfectly level, the water would not move and would

therefore be stagnant. However, the slope of the

change in elevation can be almost level and still form

a continuous surface connection of water molecules on

the earth’s surface. Such a reading of Riverside

Bayview does not eviscerate the plurality, but is

actually quite consistent with Justice Scalia’s words.

A reading of Rapanos and other Justice Scalia opinions

clearly shows that Justice Scalia is careful in his

selection and usage of words!

The plurality in Rapanos clearly held that waters

of the United States includes only “relatively

permanent, standing or continuously flowing bodies of

water forming geographic features that are described

in ordinary parlance as streams, ... oceans, rivers and

lakes.” The plurality went on to further state “only

those wetlands with a continuous surface connection to

bodies that are ‘waters of the United States’ in their

own right, so that there is no clear demarcation

between ‘waters’ and wetlands, are ‘adjacent to’ such

waters and covered by the Act.” At 2226.

Definition of Continuous Surface Connection

The issue, in part, then revolves around the

definition of “continuous surface connection” as used

by Justice Scalia. Webster defines the word

“continuous” as “marked by uninterrupted extension in

space, time or sequence.” Surface” is defined as “the

exterior or upper boundary of an object or body, the

external or superficial aspect of something, an external

part or layer.” “Connect” is defined as “to become

joined” and “connection” is defined as “the act of

connecting; the state of being connected.” Connecting

these words (in their “Webster” meaning) together

gives the following meaning to “continuous surface

connection:” the uninterrupted extension of connected

molecules of water on the exterior or external part or

layer of the earth. To read anything else into the

meaning of the words “continuous surface connection”

is to fly in the face of obvious, defined usage.

In explaining to a witness the Petitioners’ view, the

trial judge correctly said:

THE COURT: “Right. Now, I think counsel is

reading the Supreme Court opinion and thinking

about that part of the opinion that talks about such

that there is no clear demarcation between where

the wetlands start and the waters end, or I may

have that flipped.”

MR. NUNN (Petitioners’ attorney): “Yes, sir.”

THE COURT: “And so he’s thinking, well, I can

walk up there on that. property and I can see the

ground that the Court has determined is a wetland,

and then I can see the water of the United States,

which is Pond Creek, and I can tell where the

water is and then I can tell where the wetland is.

MR. NUNN: “And I can see the wetland is at this

elevation and the creek is down at that one.

(indicating)

THE COURT: "Right. So the question is, what did

the Supreme Court mean when they said

“continuous surface connection?” (R. 186, Trial

Record 01-25-07, pp. 99, 100, Apx. 1020-21) Note:

All references to pages refer to the transcript of the

January 25, 2007 hearing.

Again, it is the Petitioners’ position that, as stated,

there must be a continuous water surface between the

wetland and the stream so that one cannot tell where

the wetland ends and the stream begins. This water

can flow through shallows, marshes, mudflats,

swamps, and bogs as it moves from the wetland to the

stream, but there must be a continuous connection of

the water molecules on the surface (all at essentially

the same level of elevation). The emphasis here is on

the word “surface.” On the Cundiff property, the

surface of the alleged wetland is normally as much as

eight to ten feet higher than the surface on Pond Creek

and Caney Creek.

The issue of what is meant by “continuous surface

connection” was addressed in the case of Simsbury-

Avon Preservation Society v. Metacon Gun Club, 472

F. Supp.2d 219 (Conn. 2007), decided on January 31,

2007, the by the district court for the District of

Connecticut. That court required a continuous surface

connection as argued by the Petitioners here. The

evidence there, like in this instant case, showed only

a continuous surface connection between the alleged

wetland and a river after heavy rains and thawing of

snow and ice. The court in Simsbury said “While

plaintiffs have offered evidence showing that a surface

water connection does at times exist, they offer no

evidence demonstrating a continuous connection

between the Metacon wetland and Horseshoe Cove or

the Farmington River such that there exists “no clear

demarcation between ‘waters’ and wetlands” as

required by the plurality in Rapanos, 126 S.Ct. at

2226. Therefore, the defendant is entitled to summary

judgment under the plurality standard.”

Different surface levels between the surface of the

Cundiff properties and the creeks?

During the trial, in examining the photograph

marked Defendants’ Exhibit H, (Apx 671) Petitioner

Rudy Cundiff was asked by Petitioners’ attorney,

MR. NUNN: “Mr. Cundiff, how much difference is

there from the elevation of the water to the top of

the ground surface of your property there?

MR. CUNDIFF: “A pretty good indicator is that’s

me standing there in the top left corner, and I’m

close to 6 feet, and there’s 4 foot above my head you

have got to get to the property. So it’s

approximately 10 foot from where I’m standing up

to my property.

MR. NUNN: “And approximately how deep would

you say the water is in that photograph?”

MR. CUNDIFF: “Well, if you'll notice to the left of

me it’s about 3 or 4 inches deep.... That’s Caney

Creek with my four-wheeler sitting in the middle of

it it...And, as you can see, the water is maybe a

couple inches deep.” (R. 186, Trial Record 01-25-07,

p. 144, Apx. 1042)

Speaking of another photograph in Exhibit H (Apx

671),

MR. CUNDIFF “The bottom left-hand, that is also

Caney Creek....you can also see the grass growing

out there in the middle of the water, which means

it’s not over three or 4 inches deep.” (R. 186, Trial

Record 01-25-07, p. 145, Apx. 1043)

MR. CUNDIFF Speaking of Exhibit J (Apx 673) :

“Top left corner, that is Pond Creek after Caney

Creek and Pond Creek is run together...Pond Creek

goes to the left there where my dog is standing. ...

so you can see how deep it is. I mean, it’s just very

little bit of water there.

“There again it’s 8 to 10 foot from the water up to my

property.” (R. 186, Trial Record 01-25-07, p. 145-46,

Apx. 1043-44)

As to other photographs marked Defendants’

Exhibit K, Exhibit L, Exhibit M, and Exhibit N (Apx

674, 675, 676, and 677, respectively), Petitioner Rudy

Cundiff said all show water in creeks is only a couple

of inches deep and it is 8 to 10 feet from the surface of

the creek water up to the surface of his land. (R. 186,

Trial Record 01-25-07, pp. 146, 147, Apx. 1044-45)

The only way, then, that the surface water level of

the wetland could be the same level as the surface

water level of the creeks on the Cundiff property would

be if the creeks were full of water from a storm event

and overflowing water from the banks of the creeks

onto the surface of the Cundiff property.

In speaking of water overflowing the creek banks

and getting onto the surface of the Cundiff property,

the United States expert, Dr. Lee, testified at the trial

“Figure 10 also includes a series of arrows that

indicate where we think water from the Pond Creek

and Caney Creek channels overflows during storm

events, goes over the banks of the existing creeks and

into the wetlands of the Cundiff tracts on the north

and south.” (R. 186, Trial Record 1-25-07, p. 37, Apx.

975) (emphasis added). Clearly, Dr. Lee did not know

for certain what the water does when it goes over the

banks of the creeks because he has never seen that

happen. It happens very seldom. The surface of the

water in the creeks was well below the surface of the

Cundiff property the only time Dr. Lee was ever at the

Cundiff property.

Later, at the trial, Dr. Lee, the Government’s

witness continued “...And then when the height of the

water —or I want to call it the stage of the water in

Pond Creek goes up, increases, on a storm event, the

engagement of the creek channel to its adjacent

floodplain to the abutting forested wetlands and

cleared areas in the south tract takes places via

overbank flooding.” To further demonstrate the only

time surface waters would be continuously connected

would be in event of a large storm, Dr. Lee said “At

the same time, if you have a storm of sufficient

duration or intensity, it can increase the stage in

Caney Creek channel itself and cause water to

overbank flow and flow back into the forested scrub

shrub and emergent wetlands that occur in the north

tract.” (R. 186, Trial Record 01-25-07, p. 68, Apx. 1004)

(emphasis added)

The evidence was that this “overflowing” occurs

only several times a year. (R. 167 Pretrial

Memorandum, Declarations, Apx. 715) Clearly, even

Dr. Lee’s testimony indicates the Government admits

this overflowing is a rare or unusual occurrence. Only

when there is an “overflowing” would there be a

continuous surface connection (at essentially the same

elevation) between the surface of the water level on the

alleged wetland and the surface of the water level on

Pond Creek or Caney Creek. And it is the Petitioners’

position that only on these few, rare occasions would

there be a continuous surface connection between the

water on the wetland and the water on Pond Creek or

Caney Creek where you could not tell where the

wetland ends and the water begins. Surely this is not

what was intended by the plurality or Justice Kennedy

in Rapanos.

The Sixth Circuit, however, held the Cundiff's

argument of a continuous surface connection is too

restrictive and that only “some kind of dampness...” is

sufficient (at the bottom of page 14 of the Court’s

opinion). Also, in footnete 5 of the Sixth Circuit’s

opinion, it states “At oral argument, the Cundiffs’

counsel conceded that seasonal rivers and like water

bodies would be covered by the plurality’s test.” This

statement of counsel was with the understanding that

the Circuit Court was referring to when a seasonal

river was at “flood stage” and, at that time, there

would be a continual surface connection of the water

from the flooded river to any adjacent now flooded

wetlands.

Applying the Justice Kennedy significant nexus test

The Tria! Court then found that the United States

had met the standard set forth by Justice Kennedy.

The Petitioners appealed that this is not so and the

evidence does not support the findings of the trial

court.

The Simsbury case also addresses Justice

Kennedy’s opinion. The court in Simsbury says “While

Justice Kennedy states that the ‘substantial nexus’

test is ‘consistent with SWANCC (Solid Waste Agency

of N Cook County v. U.S. Army Corps of Engineers

(531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001))

and Riverside Bayview,’ the actual phrase ‘substantial

nexus’ does not appear in those opinions.” (citations

added) The court concludes that “Thus, Justice

Kennedy’s test is fact-based, rather than

categorical....”

To find that the Justice Kennedy significant nexus

test is met, the Government must prove the Cundiff

alleged wetlands “significantly affect the chemical,

physical, and biological integrity of the other covered

waters more readily understood as navigable.” Since

Justice Kennedy used the words “chemical, physical

and biological” (emphasis added), then all three must

be proved by the Government to meet the significant

nexus test.

In reviewing the evidence admitted against the

alleged polluter Metacon Gun Club, the Simsbury

court noted that while there was some prior testing of

water samples, they were in effect inconclusive. And,

there was no testing of soil samples. Therefore, the

Simsbury court held the evidence against the alleged

polluter was insufficient, and that the Clean Water Act

could not apply under the Justice Kennedy significant

nexus test as there were no jurisdictional waters.

In the Cundiff case at hand, there also was no

evidence of the results of any soil sampling tests or

water sampling tests. In fact, the evidence of the

Government suggests the United States believes that

testing of the soil would be useless. One of the most

surprising things about Dr. Lee’s testimony is that

when asked, in essence, if vegetation is an indicator of

wetlands, Dr. Lee testified “Soil is not a wetland,

and I don’t use vegetation to figure out if soil is a

wetland, sir.” (R. 186, Trial Record 01-25-07, p. 91, 92,

Apx. 1017-18) (emphasis added) This certainly flies in

the face of the Corps of Engineer’s three requirements

for determination of the existence of wetlands: soil,

vegetation, and hydrology.

In the instant Cundiff case, there was no evidence

of any testing of water or other samples. The

Government’s expert Ed Carroll testified that no

samples were taken.

MR. NUNN: “So as far as any laboratory chemical

analysis of the water relating to Mr. Cundiff to

show — there’s no analysis that you know of to

prove that he is adversely affecting it or he’s not

affecting it or he is benefiting it? There’s no

chemical! analysis or laboratory analysis to show

that; is that correct?” (R. 186, Trial Record 01-25-

07,pp. 137, 138, Apx. 1039-40)

MR. ED CARROLL: “Not direct analysis in regard

to that point.” (R. 186, Trial Record 01-25-07 p. 138,

Apx. 1040) This lack of laboratory analysis proved

fatal to the existence of jurisdictional waters in the

Simsbury case. The judge there said “Plaintiffs

inconclusive water sampling data cannot buttress

the rest of plaintiffs’ record so as to demonstrate

that a rational trier of fact could find the required

substantial nexus and thus find for the plaintiffs on

the record taken as a whole.”

Further, in the Cundiff case at hand, there was no

evidence of any testing or sampling done for aquatic or

other biological life, so the Government’s evidence is

lacking here as well. In summation, the Government’s

evidence also fails to meet the Justice Kennedy

significant nexus test.

The Sixth Circuit held that there was no

requirement anywhere that any laboratory analysis is

the sole method by which a significant nexus may be

proved, completely disregarding Simsbury.

Ii. EVEN IF THE SUPREME COURT HOLDS

THAT THE CUNDIFF PROERTY IS A

WETLAND, THE CUNDIFFS’ WERE NOT

REQUIRED TO HAVE A PERMIT ISSUED BY

THE U.S. CORPS OF ENGINEERS.

The Commence Wetland Conversion permit granted by

the US Department of Agriculture, known as the

“Swamp Buster’s Permit” (which the Cundiffs had),

authorized the Cundiffs’ work on their lands.

The draining of a wetland does not, per se, require

a permit under the Clean Water Act. Save Our Cmty.

v. United States E.P.A., 971 F.2d 1155 (5 Cir. 1992).

We are dealing with a situation where the United

States in one agency (U.S. Department of Agriculture)

says one thing and the United States in another

agency (EPA) says another thing.

At the same time the Environmental Protection

Agency was trying to prevent any “damage” to

wetlands, the United States Department of

Agriculture authorized the draining of swamps

pursuant to 7 C.F.R. Section 12.2 (a):

(2) Commenced-conversion wetland is a wetland,

farmed wetland, farmed-wetland pasture, or a

converted wetland on which conversion began, but

was not completed, prior to December 23, 1985

(3) Converted wetland is a wetland that has been

drained, dredged, filled, leveled, or otherwise

manipulated (including the removal of woody

vegetation or any activity that results in impairing

or reducing the flow and circulation of water) for

the purpose of or to have the effect of making

possible the production of an agricultural

commodity without further application of the

manipulation described herein: ...

Clearly, the Cundiff property met these

requirements. Defendant’s Exhibit DXGG (Apx 1062)

is entitled “Data Needed for Swamp _ Buster

Commenced and Third-Party Determinations” and

provides that the activity was started in 1981.

Defendant’s Exhibit DXHH (Apx 1063) is the letter

dated March 28, 1989 approving the draining of the

Cundiff property and, in the last paragraph thereof,

specifying that the work must be completed on or

before January 1, 1995. This permit was issued to

Mr. Wayne Johnson of the Martin Properties, from

whom Rudy Cundiff purchased the subject property.

The testimony was extensive as to the water

standing on the Cundiff property some of the time.

Petitioners’ witness, Wayne Johnson, from whom

Petitioners purchased the property, testified that he

received a “Swamp Buster” permit, issued by the

United States Department of Agriculture (Defendant

Exhioit DX-HH — admitted into evidence (R.125, TR

Vol 3, Page 54, Apx 937) which is technically referred

to as a Commence Wetland Conversion permit, and

that he received the permit to what became the

Cundiff property. In fact, he stated “I couldn’t

understand why they (the EPA) got him (Rudy

Cundiff) for swamp busting or whatever it was when

there was already a commence wetland conversion on

it.” (R.125, TR Vol 3, Page 28, Apx 922).

This permit was issued for the Martin Properties,

a predecessor in title to Cundiffs’ property (R.125, TR

Vol 3, Page 22, Apx 920) and, as Petitioner Rudy

Cundiff testified regarding this permit “according to

that last paragraph down there, it says ‘Conversion

activity considered commence before December 23",

1985, and shall lose its exempt statues if not

completed on before January the lst, 1995.’ So I

thought I had approximately four or five years to clean

out the ditches.” (R.125, TR Vol 3, Page 52, Apx 936).

The Commence Wetland Conversion (Swamp

Buster) Permit reads, in part, “The area adjacent to

existing fields have been cleared and drained since

1981. Drainage mains have been established to point

in Caney Creek since they were improved in about

1978.” (R.135, Vol SJ, Page 5, Apx 781) Although this

permit gave the Petitioners until January 1, 1995 to

complete the work, the EPA issued its cease and desist

order to Rudy in 1991, thereby preventing him from

completing the drainage work by the 1995 deadline.

(R.135, Vol SJ, Pages 5 and 6, Apx 781, 782)

Petitioner Rudy Cundiff testified that the permit was

for his property, the part which he purchased of the

Martin thousand acres.” (R.135, Vol SJ, Pages 35 and

34, Apx 787, 788)

The Sixth Circuit completely ignored this issue,

discussing instead that the Cundiffs were not entitled

to either a “farming” exception or a ditch maintenance

exception. The statues and regulations referred to

dealt with the Environmental Protection Agency and

U.S. Army Corps of Engineers, and no reference was

made to the United States Department of Agriculture’s

Swamp Buster’s Permit.

Ill. THE CONDUCT OF THE UNITED STATES

CONSTITUES A WRONGFUL TAKING OF

THE DEFENDANTS’ PROPERTY

WITHOUT JUST COMPENSATION

Time before financial return on restored land

It is well settled that the Constitution does not

forbid Government to take private property for public

use; it merely requires that, if it does so, it pay the

owner just compensation. The Constitution is not

violated until the Government refuses to compensate

the owner. Williamson County Reg’] Planning Comm’n

v. Hamilton Bank, 473 U.S. 172, 194-95, 105 S.Ct.

3108, 87 L.Ed. 2d 126 and n. 13 (1985).

A categorical regulatory taking occurs when the

Government’s regulation of land denies a property

owner of “all economically beneficial or productive use

of the land.” Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed. 2d 798

(1992). And, even if a property owner retains some

economic benefit in his land, he may still be entitled to

compensation for a partial regulatory taking. Palazzo

v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150

L.Ed.2d 592 (2001); Eastern Enters. v. Apfel, 524 U.S.

498, 522,118 S.Ct. 1231, 141 L.Ed. 2d 451 (1998). In

determining whether a partial regulatory taking has

occurred, courts should consider (1) the economic

impact of the regulation on the claimant; (2) the extent

to which the regulation has interfered with distinct

investment-back expectations; and (3) the character of

Governmental action. Penn Cent. Transp. Co. v. New

York City, 438 U.S. 104, 124,98 S.Ct. 2646, 57 L.Ed.2d

631 (1978). The purpose of the Takings Clause is to

prevent the Government from ‘forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.

15638, 4 L.Ed.2d 1554 (1960).

Here, the Government has taken the Petitioners’

land, forced them to maintain their own land to the

Government’s specifications as a wetland, refused to

let the Petitioners use it for livestock grazing or any

other useful purpose, ordered what trees the

Petitioners must plant, and specified species of trees

that will not produce any income for from 60 to 80

years. To place the Petitioners in a position where

they are forced to allow the United States Government

to use their land under only the orders of the United

States Government, in such a way that the Petitioners

will never realize any income therefrom during their

life time, is a taking for certain.

Mr. Ricky L. Harrell, Forester with the Kentucky

Division of Forestry, testified (regarding the species of

trees the United States has forced the Petitioners to

plant on their land which is the subject of this lawsuit)

in answer to the Petitioners’ attorney Mr. Nunn’s

questions as follows:

MR. NUNN: @Q “Once the trees are established,

however long that becomes, about how long does it

take for them to begin reproducing themselves with

seeds or acorns or whatever it may be depending on

the species?”

MR. HARRELL: A “You talk bottomland

hardwoods before they can get tall enough to

actually produce seeds theirselves (sic), you’re

talking 30 years or so.”

MR. NUNN: Q “And to become marketable where

you could do something with them, how long would

that be?

MR. HARRELL: A “Oh, yes. Bottomland

hardwoods in Kentucky, you’re generally talking

somewhere 60 to 80 years. ... Sixty to 80 years for

a mature saw timber.” (R. 186, Trial Record 01-25-

07, p. 175, Apx. 1048)

So, it will be many years before the trees that the

United States wants planted can ever hope to provide

any income for the Petitioners. In fact, the United

States attorney admitted as much when he said “One

other point about the trees. The planting of trees on

the southern tract has the added benefit of creating a

potential income stream for Mr. Cundiff. I know in

years in the future...” (R.125, TR Vol 3, Page 151, Apx

966)

Another United States attorney in the case, Mr.

Rave admitted in Court that the Government wants “it

to be returned to timber and he could harvest the

timber and use that for income. Of course, we’re

talking many years before that would occur.” (R.135,

Vol SJ, Page 52, Apx 798)

The Petitioners do not desire to construct anything

on their property to make fabulous sums of money.

Even the United States attorney admitted in his

closing argument that “The second factor relates to

economic benefit, if any, and 1 don’t believe there was

any relevant evidence on that during the case and

certainly shouldn’t weigh heavily in the Court’s

analysis, from our point of view.” (R.125, TR Vol 3,

Page 151, Apx 966)

The Restrictions Placed on the Petitioners are

such as to Constitute a Taking Without Just

Compensation:

A categorical taking is distinct from a taking “that

is the consequence of a regulatory imposition that

prohibits or restricts only some of the uses that would

otherwise by available to the property owner, but

leaves the owner with substantial viable economic

use.” Palm Beach Isles Assoc. v. United States, 231

F.3d 1354, 1357 (Fed. Cir.) which modified 208 F.3d

1374 (Fed. Cir. 2000).

In Florida Rock Indus, Inc. v. United States, 791

F.2d 893 (Fed. Cir. 1986), the Court stated “the

owner's opportunity to recoup its investment or better

. cannot be ignored” at p. 905. Further, when a

regulation prevents all economically productive or

beneficial uses of land, compensation must be paid to

sustain the regulatory action. Lucas v. South Carolina

Costal Council, supra.

In Loretto v. Teleprompter Manhattan VATV Corp,

458 U.S. 419, 73 L.Ed.2d 868, 1902 S.Ct. 3164 (1982),

the Supreme Court held that the Government owes

compensation to a property owner regardless of the

public interest served by taking the property. A

regulatory taking occurs when some significant

restriction is placed upon an owner's use of his

property for which “justice and fairness” require that

compensation be given. Goldblatt v. Hempstead, 369

U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).

While property may be regulated to a certain

extent, if that regulation goes too far it will be

recognized as a taking. Penn Coal Co. v. Mahon, 260

U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Once a

police power regulation effects a taking, the

Government entity must pay just compensation for

that taking. First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S.

304, 96 L.Ed. 2d 250, 107 S.Ct. 2378 (1987). Dolan v.

City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129

L.Ed.2d 304 (1994) The purpose of this constitutional

guarantee is to keep the Government from forcing

some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as

a whole. Penn Central, supra, Armstrong v. United

States, supra.

The Cundiffs wanted to use the land for growing

crops (as it had been before), raising livestock, or nut

trees from which a paying crop could be taken or

marketable timber with a short growing season, but

the United States has been prevented from doing this.

(R.125, TR Vol 1, Pages 36, 155, 156, 157, Apx 807,

840, 841, 842; TR Vol 3, Pages 60, 81, 83, 98, 112, Apx

939, 946, 948, 955, 958) The restoration plan and order

of the Trial Court is that the Cundiffs can do nothing

on their lands, except to plant trees of varieties that

the United States directs, which might bring financial:

reward to Cundiff heirs in many, hardly to be

considered economically valuable use.

The wrongful action by the United States in

allowing the acid mine water to take over the Cundiff

property and preclude its use for anything other than

a filter bed for this acid mine water was a taking

under the provisions of the Fifth Amendment of the

United States Constitution and the Cundiffs have not

been compensated for it. Palazzo v. Rhode Island,

supra, Penn Coal Co. v. Mahon, supra, United States

v. North Am. Transp. 253 U.S. 330, 333, 40 S.Ct. 518,

64 L.Ed. 935 (1920), First English Evangelical

Lutheran Church vy. County of Los Angeles, supra;

Palm Beach Isles Associates v. United States, supra.

In Palm Beach Isles Associates v. United States,

the Court of Appeals for the Federal Circuit said

“when Government, though purporting to regulate the

uses of a property, in fact imposes restrictions that

have the same effect as a physical seizure and

occupation for public purposes — leaving the owner

with essentially no viable economic uses whatever and

no rights except bare legal title” the Government must

pay the owner. That court stated that “when no

productive or economically beneficial use of land is

permitted ... both law and sound constitutional policy

entitle the owner to just compensation without regard

to the nature of the owner’s initial investment-backed

expectations.”

The Supreme Court held in Palazzo that “Where a

regulation places limitations on land that falls short of

eliminating all economically beneficial use, a taking

nonetheless may have occurred .... These inquiries are

informed by the purpose of the Takings Clause, which

is to prevent the Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.” 121

S..Ct. at 2457. Lucas v. South Carolina Costal

Council, supra; Goldblatt v. Hempstead, supra.

Takings can occur in a variety of fashions. United

States v. Kansas City Life Ins. Co. 339 U.S. 799, 70

S.Ct. 885, 94 L.Ed. 1277 (1950), Cotton Land Co. v.

United States, 75 F.Supp 232 (Ct. Cl. 1948); Gordon v.

City of Warren, (CA 6) 579 F.2d 386; Chicago,

Burlington & Quincy R.R. Co. v. Chicago, 166 U.S.

226, 17 S.Ct. 581, 41 L.Ed 979 (1897), Armstrong v.

United States, supra, at 49:

The Supreme Court said “the Fifth Amendment

expresses a principle of fairness and not a technical

rule of procedure enshrining old or new niceties

regarding causes of action when they are born,

whether they proliferate, and when they die.” United

States v. Dickinson, 331 U.S. 745, 67S.Ct. 1382, 1385,

91 L.Ed. 1789 (1947).

The Trial Court ruled that the responsibility for

controlling the acid mine water coming onto the

Petitioners’ property is the Commonwealth of

Kentucky. (R.61, Memorandum, Opinion and Order,

Apx 595-610) However, the Commonwealth of

Kentucky indicates that they have no funds available

to stop the problem from occurring. Therefore, the

Commonwealth of Kentucky and the United States

EPA are bedfellows in this against the Cundiffs. Why

doesn’t the EPA go against KY and stop the problem,

instead of going after the Defendants Cundiff to force

them to be a band aid and take all the beneficial use of

his property without paying him any compensation?

Kentucky supposedly has no money, but they think the

Petitioners do, so they are going to force the Cundiffs

to use their resources to do what both Kentucky and

the United States refuse to do. (R.125, TR Vol 3, Page

173, 174, Apx 969, 970) This is indeed a taking

without any compensation!

There Are Other Ways Available to Control the Acid

Mine Water Without Taking the Cundiffs’ Property:

The Cunditfs offered to create “wetland cells” on

part of their land that could be used where the acid

mine water would be run into settlement ponds with

limestone and cattails to neutralize the acid, which Ed

Carroll, the United States’ expert, testified would

work. (R.125, TR Vol 1, Page 124, Apx 826) This was

not accepted by the Government.

The Cundiffs offered to purchase other land that

could be returned to wetlands and exchange that land

with the United States for his unhampered use of the

land that is the subject of this lawsuit. Mr. Mike

Wiley, the EPA expert, however required two acres

from the Cundiffs for every one of their own acres they

would get to keep and use as the Cundiffs wanted.

(R.125, TR Vol 1, Pages 183, 184, Apx 847, 848)

The Cundiffs asked that they be permitted to use

their jand for grazing cattle, but the EPA’s Mr. Wiley

stated that since the Cundiffs’ had violated the Clean

Water Act, the Government would not consider that,

saying it was comparing “apples to oranges.” “Now

we’re in the enforcement context where we try to come

up with an equitable settlement that we feel like the

United States and your client would accept, and we

feel like it would be fair to the judge. So it’s two

different — that’s why the apples and oranges.” (R.

125, TR Vol 1, Page 186, 187, Apx 849, 850)

The Cundiffs offered to use their land “as a flood

basin, and in the summertime I could use it to graze,

you know, cattle, to raise hay, just use it something for

myself instead of just having it taken away from me.”

(R.125, TR Vol 3, Pages 63 and 64, Apx 940, 941). But

the Court would not consider this.

Petitioner Rudy Cundiff testified “I asked him, I

said ‘Well, can we plant trees on it that will be worth

something instead of willow trees and cypress trees?”

This reasonable request was also denied by the EPA

and the Trial Court. (R.135, Vol SJ, Pages 54 and 55,

Apx 800, 801)

The Petitioners offered other restoration proposals,

all of which were denied. (R.125, TR Vol 1, Page 122,

Apx 825) See R.125, TR Vol 1, Page 38, Apx 808. See

also Def Exhibit DX —JI, (R.125, TR Vol 3, Page 58,

Apx 938) prepared by Petitioners’ consultant SMR, but

rejected by the Government (R.125, TR Vol 3, Page

110, 119, Apx 957, 959; See also Pl Exhibit 14, Apx

1056-58)

Another of Petitioners’ plan (DDI) was rejected by

the Government (R.125, TR Vol 3, Page 64, Apx 941).

Still another Petitioner expert Third Rock Consultants’

proposal] to put in a limestone filtering basin to filter

out the acid mine water was rejected by the

Government. (R.125, TR Vol 3, Page 64, Apx 941)

The Petitioners offered to give a portion of their

land to the EPA to use for a filter basin and use some

of their land for grazing cattle. (R.125, TR Vol 3, Page

83, Apx 948), but it was not accepted by the Trial

Court. Even an attempt to try the Petitioners’

proposed grazing plan for a couple years to see if it

would work (R.125, TR Vol 3, Page 170, Apx 968) was

denied by the Court. See also (R.125, TR Vol 3, Page

170, Apx 968). This too was denied. The Petitioner

testified “Sir, I was just trying to come up with

something, like I told you, that could benefit us all.”

(R.125, TR Vol 3, Page 112, Apx 958) Nothing was

acceptable to the Trial Court.

All of his attempts to work out a compromise had

fallen on deaf ears. Petitioner Rudy Cundiff finally

testified “I mean, it’s my property. I still owe money

on it. I just want to benefit in some way from it. If it’s

not, if I can’t do that, then it’s not my property. They

(the United States) need to own it, not me.” (R.125, TR

Vol 3, Page 81, Apx 946)

Without compensation, the Cundiff property is now

being used by the United States to “convert the acid

mine drainage to a much better state” as Ed Carroll,

the Kentucky wetlands biologist testified (R.125, TR

Vol 1, Pages 88, 115, 119, 122, Apx 814, 821, 823, 825)

Mr. Carroll admitted that the owners of properties

affected by the acid mine water were being made to

filter the water because the Government would not

stop the discharge (R.125, TR Vol 1, Pages 128, 129,

Apx 827, 828), a costly problem for Rudy. (R.125, TR

Vol 1, Page 101, Apx 817)

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LESLIE E. NUNN

Counsel of Record

P. O. Box 99

Cynthiana, IN 47612

(812) 431-3638

Counsel for Petitioners

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 05-5469/5905; 07-5630

[Filed February 4, 2009]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GEORGE RUDY CUNDIFF;

CHRISTOPHER SETH CUNDIFF,

)

Defendants-Appellants. )

)

OPINION

Appeal from the United States District Court: for the

Western District of Kentucky at Owensboro.

No. 01-00006—Joseph H. McKinley, Jr.,

District Judge.

Argued: December 9, 2008

Decided and Filed: February 4, 2009

Before: MARTIN and McKEAGUE, Circuit Judges;

COLLIER, Chief District Judge.”

COUNSEL

ARGUED: Leslie F. Nunn, LESLIE E. NUNN, P.C.,

Cynthiana, Indiana, for Appellants. Jennifer Scheliler

Neumann, David Fishback, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: Leslie E. Nunn, LESLIE E.

NUNN, P.C., Cynthiana, Indiana, for Appellants.

Jennifer Scheller Neumann, David Fishback, Ellen J.

Durkee, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. James

Graham Murphy, NATIONAL WILDLIFE

FEDERATION, Montpelier, Vermont, for Amicus

Curiae.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge. After eight

years of failed negotiations and ignored orders, the

United States sued George Rudy Cundiff (who goes by

Rudy) and his son, Christopher Seth Cundiff (who goes

by Seth), seeking injunctive relief and civil penalties

against them for discharging “pollutants” into “waters

of the United States” without a permit in violation of

the Clean Water Act. 33 U.S.C. § 1362. The district

court granted summary judgment for the government,

imposed injunctive relief in the form of a restoration

plan for the Cundiffs’ wetlands, and imposed a civil

* The Honorable Curtis L. Collier, Chief United States District

Judge for the Eastern District of Tennessee, sitting by

designation.

penalty of $225,000. All but $25,000 of that penalty

was suspended, however, provided that the Cundiffs

implemented the restoration plan. The district court

also dismissed the Cundiffs’ array of statutory,

common law, and constitutional counterclaims. While

the original appeal in this case was pending, the

Supreme Court issued its splintered ruling in Rapanos

v. United States, 547 U.S. 715 (2006), which defined

the Act’s jurisdiction over “waters of the United

States.” In light of Rapanos, we returned the case to

the district court to reconsider whether jurisdiction

was proper over the Cundiffs’ wetlands. The district

court determined that it was because the Cundiffs’

wetlands were in fact waters of the United States, and

the Cundiffs appealed. We affirm the district court on

all grounds.

Defendants Rudy and Seth Cundiff own two

adjacent tracts of land in Muhlenberg County,

Kentucky. Their properties together sit next to Pond

and Caney Creeks, which are tributaries of the Green

\t%i er. The Green River, in turn, flows into the Ohio

er. In 1990, Rudy Cundiff bought the southern

ct, which contains roughly eighty-five acres of

v» tlands and an upland area where his house sits.

When Rudy bought it, portions of the wetlands

contained exceptionally acidic orangish to reddish

colored water that had drained out of an abandoned

coal mine located on a neighbor’s nearby property. As

a result, locals referred to the Cundiffs’ property as a

putrid eyesore, and this stagnant, discolored water

caused the wetlands to become a festering mosquito

haven—though the Cundiffs knew all this when they

bought it.’ Shortly after his purchase, Cundiff began

excavating drainage ditches and clearing trees to make

the wetlands suitable for farming.

In October 1991, federal officials from the Army

Corps of Engineers and state officials from the

Kentucky Division of Water observed ditches,

artificially filled wetlands, and mechanically cleared

land on the wetlands. The Corps suspected possible

Clean Water Act violations. Rudy had failed to obtain

a section 404 permit as required for such dredging and

filling activities, and further inspection revealed that

Cundiff had excavated ditches in the wetlands and

placed dredged material into them as filler (known as

“sidecasting”). Consequently, the Corps sent him a

cease-and-desist letter “specifically prohibiting any

further activity involving the placement of excavated

or fill material into these jurisdictional wetlands”

without a federal permit.

Federal and state officials then began meeting with

Cundiff in 1992, though they reached no agreement.

* Singer-songwriter John Prine has colorfully recounted

Muhlenberg County’s sordid ecological history:

And daddy won’t you take me back to Muhlenberg County /

Down by the Green River where Paradise lay / Well, I’m sorry

my son, but you’re too late in asking / Mister Peabody’s coal

train has hauled it away ..../ Then the coal company came

with the world’s largest shovel / And they tortured the timber

and stripped all the land / Well, they dug for their coal ‘til the

land was forsaken / Then they wrote it all down as the

progress of man....

JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records

1971).

Instead, he insisted on converting the wetlands into

farmland and continued to drain and clear the

property. The Corps referred the matter to the

Environmental Protection Agency. Over the next

several years, Cundiff continued his draining and ditch

digging activities, simply ignoring whatever

government directives came his way. In 1997 he

planted wheat on the southern tract, and government

officials observed downed trees in that area. The EPA

issued an Order of Compliance informing him that he

had violated the Clean Water Act by depositing fill

material into waters of the United States without

authorization, and it directed him to “immediately

cease participating in or causing any additional

discharges” of pollutants.

In 1998 Rudy’s son, Seth, purchased a tract of land

located north of Rudy’s which contains roughly 103

acres of wetlands. (Seth leases this property back to

Rudy for the exact amount of the mortgage payment.)

Rudy quickly began excavating and clearing that

property as well, activity of which Seth was aware. In

October 1998, officials from the EPA informed Rudy

Cundiff that he needed a permit for this work too.

Rudy—somewhat surprisingly—said that, though he

knew he needed a permit, he thought the Corps would

never grant him one so he planned on digging his

ditches anyway. He eventually completed a

two-hundred foot ditch through the wetlands that

extended all the way to Caney Creek, and the dredged

material was “sidecast” into the wetlands to dry them

out to make them arable. In 1999, Kentucky officials

told Cundiff that he was destroying wetlands without

a permit in violation of state law (he ignored this too),

and the EPA issued additional Orders of Compliance

to both Rudy and Seth Cundiff requiring them to cease

their excavation activities and to restore the

unauthorized ditches by refilling them. The Cundiffs

responded to these orders as they had to the others.

The United States finally sued both Rudy and Seth

Cundiff, alleging that they violated Section 301(a) of

the Clean Water Act for discharging pollutants into

waters of the United States without a permit. 33

U.S.C. § 1311(a). The district court granted the United

States’s motion for summary judgment, thus finding

the Cundiffs liable, and, after a bench trial,

permanently enjoined them from discharging dredged

or fill material or any other pollutants into waters of

the United States (which it concluded that the

Cundiffs’ wetlands were) and imposed a civil penalty

of $225,000 but suspended $200,000 of that pending

the Cundiffs’ adequate implementation of the

restoration plan. The defendants appealed, and while

that appeal was pending, the Supreme Court decided

Rapanos v. United States, 547 U.S. 715 (2006), which

addressed the scope of the term “waters of the United

States” in the Clean Water Act. The parties jointly

moved for a limited remand from this Court so the

district court could reconsider whether jurisdiction

over the wetlands was proper, and this Court

remanded the case on that question. The district court

concluded that the Cundiffs’ wetlands were “waters of

the United States,” and the Cundiffs now appeal the

district court’s: (1) grant of summary judgment in the

government’s favor; (2) imposition of a civil penalty

and injunctive relief; and (3) the dismissal of their

counterclaims.

II.

We review the district court’s legal conclusions de

novo, Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d

488, 492 (6th Cir. 2005), and its factual findings for

clear error. Id. The imposition of a monetary penalty

and injunctive relief is reviewed for abuse of

discretion. United States v. Midwest Suspension &

Brake, 49 F.3d 1197, 1205 (6th Cir. 1995); United

States v. Norris, 937 F.3d 286, 288 (6th Cir. 1991). We

review the dismissal of the Cundiffs’ counterclaims de

novo. Blakely v. United States, 276 F.3d 853, 863 (6th

Cir. 2002).

ITT.

Congress enacted the Clean Water Act in 1972 “to

restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). Section 301(a) of the Act prohibits “the

discharge of any pollutant by any person” except in

compliance with the Act. 33 U.S.C. § 1311(a).

“(D]ischarge of any pollutant” is broadly defined to

mean “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C. § 1362(12)(A).

In turn, “pollutant” is defined to include not only

traditional contaminants, but also solids such as

“dredged spoil, .. . ‘ock, sand [and] cellar dirt.” 33

U.S.C. § 1362(6). The Act defines “navigable waters” to

mean “the waters of the United States, including the

territorial seas.” 33 U.S.C. § 1362(7).

The Act also sets up two permit schemes. Section

404(a) authorizes the Secretary of the Army (through

the United States Army Corps of Engineers), or a state

with an approved program, to issue permits “for the

discharge of dredged or fill material into the navigable

waters at specified disposal sites.” 33 U.S.C. § 1344(a).

Section 402 authorizes the Environmental Protection

Agency (or a state with an approved program) to issue

a National Pollutant Discharge Elimination System

(NPDES) permit for the discharge of pollutants other

than dredged or fill material. 33 U.S.C. § 1342. The

Corps and the EPA _ share _ responsibility for

implementing and enforcing Section 404. See, e.g., 33

U.S.C. § 1344(b)c).

Although at one time the term “navigable waters”

included only waters that were navigable in fact, The

Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871),

“navigable waters” is a defined term in the Act that

expressly includes all “waters of the United States.” 33

U.S.C. § 1362(7). The Supreme Court has repeatedly

recognized that, with this definition, Congress

“evidently intended to repudiate limits that had been

placed on federal regulation by earlier water pollution

control statutes and to exercise its powers under the

Commerce Clause to regulate at least some waters

that would not be deemed ‘navigable’ under the

classical understanding of that term.” United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 133

(1985). As a result, the Corps and EPA have put out

substantively equivalent regulatory definitions of

“waters of the United States,” compare 33 C.F.R.

§ 328.3(a), with 40 C.F.R. § 230.3(s), that define it to

encompass not only traditional navigable waters of the

kind susceptible to use in interstate commerce, but

also tributaries of traditional navigable waters and

wetlands adjacent to covered waters. See 33 C.F.R.

§ 328.3(a)(1), 328(3)(a)(5), 328(a)(7).

A. Are the Wetlands “Waters of

the United States”?

1. Rapanos

Rapanos involved two consolidated cases in which

the Act had been applied to actual or proposed

discharges of pollutants into wetlands adjacent to

nonnavigable tributaries of traditional navigable

waters. 547 U.S. at 729-30. Although there was no

single majority opinion, all the Justices agreed that

the statutory phrase “waters of the United States”

encompasses some waters not navigable in the

traditional sense. See id. At 731 (Scalia, J., plurality

opinion); id. at 767-68 (Kennedy, J., concurring in the

judgment); id. at 793 (Stevens, J., dissenting). The

four-Justice plurality interpreted the Act to cover

“relatively permanent, standing, or continuously

flowing bodies of water,” 547 U.S. at 739, that are

connected to traditional navigable waters, id. at 742,

as well as wetlands with a continuous surface

connection to such water bodies. Jd. at 732 n.5

(observing that the Act’s reference to “relatively

permanent” waters “dlid] not necessarily exclude

streams, rivers, or lakes that might dry up in

extraordinary circumstances, such as drought,” or

“seasonal rivers, which contain continuous flow during

some months of the year but no flow during dry

months”).

Justice Kennedy, writing only for himself,

interpreted the term to cover wetlands that “possess a

‘significant nexus’ to waters that are or were navigable

in fact or that could reasonably be so made.” Jd. at 759

(Kennedy, J., concurring in the judgment) (quoting

10a

Solid Waste Agency v. United States Army Corps. of

Eng’rs., 531 U.S. 159, 167 (2001)). He explained:

[W]etlands possess the requisite nexus, and

thus come within the statutory phrase

“navigable waters,” if the wetlands, either alone

or in combination with similarly situated lands

in the region, significantly affect the chemical,

physical, and biological integrity of other

covered waters more readily understood as

“navigable.” When, in contrast, wetlands’ effects

on water quality are speculative or

insubstantial, they fal] outside the zone fairly

encompassed by the statutory term “navigable

waters.”

Id. at 780. And Justice Kennedy, relying on Riverside

Bayview, concluded that the Corps’ assertion of

jurisdiction over “wetlands adjacent’ to

navigable-in-fact waters” may be met “by showing

adjacency alone.” Jd. On the other hand, where the

wetlands are adjacent to nonnavigable tributaries,

“laJbsent more specific regulations,” Justice Kennedy

would require the government to “establish a

significant nexus on a case-by-case basis.” Jd. He

therefore concurred in the judgment vacating the

lower court’s decision and voted to remand the case for

more fact-finding on whether the government could

prove the existence of a significant nexus between the

wetlands and nearby navigable-in-fact waters.

The dissenters, with Justice Stevens writing, would

have upheld the determination that the wetlands at

issue were “waters of the United States” as a

reasonable agency interpretation of the Act under

Chevron U.S.A. Inc. v. Natural Resources Defense

lla

Council, Inc., 467 U.S. 837, 842-45 (1984). In the

dissenters’ view, any “significant nexus”

requirement—insofar as the Act contained one—would

be “categorically satisfied as to wetlands adjacent to

navigable waters or their tributaries.” Rapanos, 547

U.S. at 807-08.

Parsing any one of Rapanos’s lengthy and technical

statutory exegeses is taxing, but the real difficulty

comes in determining which—if any—of the three

main opinions lower courts should look to for guidance.

As the Chief Justice observed: “It is unfortunate that

no opinion commands a majority of the Court on

precisely how to read Congress’ limits on the reach of

the Clean Water Act. Lower courts and regulated

entities will now have to feel their way on a

case-by-case basis.” Jd. at 758 (Roberts, C.dJ.,

concurring) (citing Grutter v. Bollinger, 539 U.S. 306,

325 (2003), and Marks v. United States, 430 U.S. 188

(1977)). The dissent, for its part, offered its view of

what lower courts should do:

In these cases, however, while both the plurality

and Justice Kennedy agree that there must be

a remand for further proceedings, their

respective opinions define different tests to be

applied on remand. Given that all four Justices

who have joined this opinion would uphold the

Corps’ jurisdiction in both of these cases—and

in all other cases in which either the plurality’s

or Justice Kennedy’s test is satisfied—on

remand each of the judgments should be

reinstated if either of those tests is met.

Rapanos, 547 U.S. at 810 (emphasis added).

Fortunately, as the following section explains,

12a

jurisdiction is proper here under each of the primary

Rapanos opinions and therefore we do not have to

decide here, once and for all, which test controls in all

future cases.

2. Marks-meets-Rapanos

In Marks v. United States, the Supreme Court

instructed that “[w]hen a fragmented Court decides a

case and no single rationale explaining the result

enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those

Members who concurred in the judgments on the

narrowest grounds.” 430 U.S. at 193 (quoting Gregg v.

Georgia, 428 U. S. 153, 169 n.15 (1976) (opinion of

Stewart, Powell, and Stevens, JJ.)). But all is not

always so rosy. The Supreme Court has oft-noted

Marks’ iimitations, stating that it is “more easily

stated than applied to the various opinions supporting

the result,” Grutter, 539 U.S. at 325 (2003), and that

“i]t does not seem useful to pursue the Marks inquiry

to the utmost logical possibility when it has so

obviously baffled and divided the lower courts that

have considered it,” Nichols v. United States, 511 U.S.

738, 745 (1994) (quotations omitted).

In its short life, Rapanos has indeed satisfied any

“bafflement” requirement. The first court to decide

what opinion was controlling decided to ignore all of

them and instead opted for earlier circuit precedent

which it felt was clearer and more readily applied.

United States v. Chevron Pipe Line Co., 437 F. Supp.

2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals

have not fared much better. The Ninth Circuit has

stated that Justice Kennedy’s test applies in most

instances, Northern California River Watch v. City of

13a

Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while

the Eleventh Circuit has held that the Act’s coverage

may be established only under his test. United States

v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By

contrast, the First and the Seventh Circuits, though

differing somewhat in their analyses, have followed

Justice Stevens’ advice and held that the Act confers

jurisdiction whenever either Justice Kennedy’s or the

plurality’s test is met. United States v. Johnson, 467

F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke

Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).

This is the approach the district court here followed,

largely in reliance on the First Circuit’s thoughtful

reasoning.

Taken literally, Varks instructs lower courts to

choose the “narrowest” concurring opinion and to

ignore dissents. Marks, 430 U.S. at 193. But what does

“narrowest” mean? Marks considered an earlier

Supreme Court obscenity decision, A Book Named

“John Cleland’s Memoirs of a Woman of Pleasure” v.

Attorney General of Massachusetts, 383 U.S. 413

(1966), where the Court split on whether a particular

work was protected by the First Amendment. In

Marks, the Court determined that the Memoirs

plurality’s standard controlled because, while two

Justices would have held that the First Amendment

applies equally to all materials—whether obscene,

hardcore, or G-rated, id. at 433 (Douglas, J

concurring); id. at 421 (Black, J., concurring)}—the

plurality would have afforded protection only to

non-obscene materials, id. at 419-20, and therefore

that concurring opinion was doctrinally the

“narrowest.”

l4a

The so-called Marks rule in fact derived from the

Court’s earlier opinion in Gregg v. Georgia, 428 U.S.

153 (1976). Gregg had interpreted Furman v. Georgia,

408 U.S. 238 (1972), in which a majority found that

Georgia’s death penalty scheme was unconstitutional.

Two Justices believed that the death penalty was per

se unconstitutional, while three others merely stated

that it was unconstitutional as then administered in

Georgia. So the Gregg Court stated that “{slince five

Justices wrote separately in support of the judgments

in Furman, the holding of the Court may be viewed as

that position taken by those Members who concurred

in the judgments on the narrowest grounds... .” 428

U.S. at 169 n.15.

As these cases indicate—and contrary to assertions

by the Cundiffs and their amici—Marks does not imply

that the “narrowest” Rapanos opinion is whichever one

restricts jurisdiction the most. But it also makes little

sense for the “narrowest” opinion to be the one that

restricts jurisdiction the least, as the government’s

amici allege; the ability to glean what substantive

value judgments are buried within concurring,

piurality, and single-Justice opinions would require

something like divination to be performed accurately.

Instead, “narrowest” opinion refers to the one which

relies on the “least” doctrinally “far-reaching-common

ground” among the Justices in the majority: it is the

concurring opinion that offers the least change to the

law. See Johnson v. Bd. of Regents of the Univ. Of Ga.,

263 F.3d 1234, 1247 (11th Cir. 2001); Johnson, 467

F.3d at 63. In both Memoirs and Furman the

controlling opinion was less doctrinally sweeping. The

Memoirs controlling opinion did not agree that

obscenity laws per se violated the Constitution, and

15a

the Furman controlling opinion did not agree that the

death penalty was per se unconstitutional.

Yet problems await. For cases like Furman and

Memoirs, Marks’ application is straightforward. But

when “one opinion supporting the judgment does not

fit entirely within a broader circle drawn by the others,

Marks is problematic.” King v. Palmer, 771 F.2d 771,

782 (D.C. Cir. 1991) (en banc). Specifically, “Marks is

workable—one opinior can be meaningfully regarded

as ‘narrower’ than another—only when one opinion is

a logical subset of other, broader opinions.” Jd. at 781.

Where no standard put forth in a concurring opinion is

a logical subset of another concurring opinion (or

opinions) that, together, would equal five votes, Marks

breaks down.

Enter Rapanos. Although “in most cases in which

[Justice Kennedy] concludes that there is no federal

authority he will command five votes (himself plus the

four Justices in the Rapanos plurality),” in other cases

Justice Kennedy “would vote against federal authority

only to be outvoted 8-to-1 (the four dissenting Justices

plus the members cf the Rapanos plurality) because

there was a slight surface hydrological connection.”

Gerke, 464 F.3d at 725. Indeed, there is quite little

common ground between Justice Kennedy’s and the

plurality’s conceptions of jurisdiction under the Act,

and both flatly reject the other’s view. See Rapanos,

547 U.S. at 756 (Scalia, J., plurality opinion) (“[Justice

Kennedy’s}] vest simply rewrites the statute.”); id. at

16a

778 (Kennedy, J., concurring) (“[T]he plurality reads

nonexistent requirements into the Act.”).?

Thus, because Rapanos is not easily reconciled with

Marks, the question becomes what to do. Fortunately,

we need not reconcile Rapanos with Marks. Here,

jurisdiction is proper under both Justice Kennedy’s

and the plurality’s tests (and thus also the dissent’s).

Recently, this Court addressed an analogous situation:

Because the Supreme Court divided 4-1-4 in

[Missouri v. Seibert, 542 U.S. 600 (2004)], there

has been some confusion about whether the

plurality or concurring opinion controls. Most

circuits have assumed that Justice Kennedy’s

concurrence operates as the controlling

precedent, though others have raised doubts

about whether his concurrence actually

represents the narrowest grounds for decision.

We do not need to resolve this issue because

regardless of the applicable framework Lopez’s

statement must be suppressed.

United States v. Pacheco-Lopez, 531 F.3d 420, 427 n.11

(6th Cir. 2008) (citations omitted). As the next section

demonstrates, jurisdiction is proper here under both

Justice Kennedy’s and the plurality’s tests, so we leave

* The Pacific Legal Foundation argues that the plurality’s test is

a logical subset of Justice Kennedy’s test. Amicus Br. at 8. But

this is unpersuasive. Not only is there a theoretical possibility

that the tests do not align, Johnson, 467 F.3d at 64, the Eleventh

Circuit may have addressed such a case. Robison, 505 F.3d at

1223 (“This case arguably is one in which Justice Scalia’s test may

actually be more likely to result in CWA jurisdiction than Justice

Kennedy’s test.”).

17a

ultimate resolution of the Marks-meets-Rapanos

debate to a future case that turns on which test in-fact

controls.°

3. Jurisdiction is proper under both tests

Justice Kennedy’s test. Under this test, the Clean

Water Act applies to wetlands that “possess a

significant nexus to waters that are or were navigable

in fact or that could reasonably be so made.” Rapanos,

547 U.S. at 758. This nexus exists “if the wetlands,

either alone or in combination with similarly situated

lands in the region, significantly affect the chemical,

physical, and biological integrity of other covered

waters more readily understood as navigable.” Id. at

755. By contrast, “[w]hen . . . wetlands’ effects on

water quality are speculative or insubstantial, they fall

outside the zone fairly encompassed by the statutory

terms ‘navigable waters.” Jd. This standard must be

met on a case-by-case basis. Id.

The district court found that the Cundiffs’ wetlands

have a significant nexus with the navigable-in-fact

Green River, via Pond and Caney Creeks, which are

tributaries of that river. The court credited the

government’s expert who testified that the wetlands

perform significant ecological functions in relation to

the Green River and the two creeks, including:

temporary and long-term water storage, filtering of the

acid runoff and sediment from the nearby mine, and

* The Supreme Court recently denied certiorari in two cases

presenting this question. United States v. Robison, 521 F.3d 1319

(11th Cir. 2008), cert. denied sub nom. as United States v.

McWane, 77 U.S.L.W. 3324 (2008); United States v. Lucas, 516

F.3d 316 (5th Cir. 2008), cert. denied, 129 S. Ct. 116 (2008).

18a

providing an important habitat for plants and wildlife.

And the court found that the Cundiffs’

alterations—unauthorized ditch digging, the

mechanical clearing of land, and the dredging of

material and using it as filler—have undermined the

wetlands’ ability to store water which, in turn, has

affected the frequency and extent of flooding, and

increased the flood peaks in the Green River. Thus, it

has “impactled] navigation, crop production in

bottomlands, downstream bank erosion, and

sedimentation.” United States v. Cundiff, 480 F. Supp.

2d 940, 945 (W.D. Ky. 2007) (quoting Report of Dr.

Lyndon C. Lee, J.A. 172). The district court further

credited another government expert’s testimony who

stated that Rudy Cundiffs ditch digging had created

channels so that the acid mine runoff would largely

bypass his wetlands and instead flow more directly

into Pond and Caney Creek and thus the Green River.

It found that these channels cause “direct and

significant impacts to navigation (via sediment

accumulation in the Green River) and to aquatic food

webs .. . that are not adapted to thrive in acid waters

and/or sediment-choked environments.” Cundiff, 480

F. Supp. 2d at 944 (quoting Lee Report). The record

supports this conclusion and the district court found

that the government’s witnesses were credible, and so

we cannot say that its conclusion was clearly

erroneous.*

* For instance, ifone dropped a poison into the Cundiffs’ wetlands,

the record indicates that it would find its way to the two creeks

and the Green River, therefore indicating a significant chemical,

physical. or biological connection between the wetlands and the

nearby navigable-in-fact waters.

19a

The Cundiffs do not really dispute these findings.

Instead, they assert that a “significant nexus” may

only be proved by “laboratory analysis” of soil samples,

water samples, or through other tests. Though no

doubt a district court could find such evidence

persuasive, the Cundiffs point to nothing—no expert

opinion, no research report or article, and nothing in

any of the various Rapanos opinions—to indicate that

this is the sole method by which a significant nexus

may be proved such that the district court’s finding

was inherently improper. So the district court properly

concluded that the government passed Justice

Kennedy’s test.

The Plurality’s test. Under this standard, the

government must make two showings to establish

jurisdiction: “First, that the adjacent channel contains

a ‘watel[r] of the United States,’ (i.e., a relatively

permanent body of water connected to traditional

interstate navigable waters); and second, that the

wetland has a continuous surface connection with that

water, making it difficult to determine where the

‘water’ ends and the ‘wetland’ begins.” Rapanos, 547

U.S. at 742.

The first question is whether the adjacent property

contains a “water of the United States.” The district

court held that jurisdiction was proper under the

plurality’s standard because the South Channel

(located on the northern tract of the wetlands), and

Pond and Caney Creeks were all “relatively permanent

bodies of water connected to a traditional interstate

navigable water, the Green River.” Cundiff, 480 F.

Supp. 2d at 945. Regarding the South Channel, the

district court found that the water flows through the

channel into Pond Creek for all but a few weeks a year,

20a

the two creeks are open waterbodies with significant

flowing water, and that both flow into the Green River.

(Pond Creek itself is navigable in part.) So the first

prong of the plurality’s test is met.

The second question is whether the wetlands

possess a “continuous surface connection” with the

Green River and its tributaries. The Cundiffs argue

that, because the wetlands are at a different elevation

level than the two creeks and it is not readily apparent

that water perpetually flows between them, there is no

continuous surface connection. The district court,

observing that Riverside Bayview stated that it is often

ambiguous where the transition between water and

dry land exactly exists, 474 U.S. at 132, 135 n. 9,

disagreed and held that a continuous surface

connection existed. Specifically, the Court observed

that the inquiry was whether it was ambiguous where

land stopped and water began, because otherwise the

plurality’s recognition of these gradual transitions

would be “completely evisceratfed].” Cundiff, 490 F.

Supp. 2d at 947.

We agree; the Cundiffs’ argument proves too much.

Although the term “continuous surface connection”

clearly requires surface flow, it does not mean that

only perpetually flowing creeks satisfy the plurality’s

test. Indeed, the Rapanos plurality, in tipping its hat

to Riverside Bayview, fashioned its test to determine

when wetlands were “waters of the United States,” and

therefore implicitly recognized that wetlands are

neither navigable-in-fact nor even literally bodies of

water. Instead, wetlands are merely “inundated or

saturated” soil that can “support .. . under normal

circumstances... a prevalence of vegetation typically

adapted for life in saturated soil conditions.” 33 C.F.R.

2la

§ 328.3(b). In other words, the plurality’s test requires

a topical flow of water between a navigable-in-fact

waterway or its tributary with a wetland, and that

connection requires some kind of dampness such that

polluting a wetland would have a proportionate effect

on the traditional waterway. Ifthe Cundiffs’ restrictive

version of the plurality’s test was accurate, then the

plurality could have saved itself time and effort by

saying that wetlands could never be “waters of the

United States” and overruled Riverview Bayside’s

holding to the contrary. It did not do that; instead, the

plurality went through a lengthy analysis and

therefore the standard is broader than the Cundiffs

assert.”

Further undermining their argument is the fact

that the district court took note of the South Channel,

which provides a largely uninterrupted permanent

surface water flow between the wetlands and

traditional waterways. The district court also found

that the existence of additional (and substantial)

surface connections between the wetlands and

permanent water bodies “during storm events, bank

full periods, and/or ordinary high flows” provides

that jurisdiction under the plurality’s test is improper would

improperly exclude seasonal rivers and other such water bodies

whose surface connection was not perpetual. At oral argument,

the Cundiffs’ counsel conceded that seasonal rivers and like water

bodies would be covered by the plurality’s test. See Rapanos, 547

U.S. at 732 n.5 (Scalia, J., plurality opinion) (observing that the

Act’s reference to “relatively permanent” waters “d[id] not

necessarily exclude streams, rivers, or lakes that might dry up in

extraordinary circumstances, such as drought,” or “seasonal

rivers, which contain continuous flow during some months of the

year but no flow during dry months”) (emphasis in original).

22a

additional evidence of a continuous surface connection.

Cundiff, 480 F. Supp. 2d at 947. Finally, Cundiff

personally went a long way towards creating a

continuous surface connection when he dug or

excavated ditches to enhance the acid mine drainage

into the creeks and away from his wetlands; in

determining whether the Act confers jurisdiction, it

does not make a difference whether the channel by

which water flows from a wetland to a

navigable-in-fact waterway or its tributary was man-

made or formed naturally. Thus, we affirm the district

court’s determination that the Act confers jurisdiction

over the Cundiffs’ wetlands because both tests are

met.

B. Summary Judgment Was Proper

To establish lability under the Act, the government

must prove that (1) a person (2) discharged a pollutant

(3) from a point source (4) into waters of the United

States (5) without a permit. 33 U.S.C. §§ 1311(a),

1362(6), 1362(7), 13844(a), 18362(12). The Cundiffs do

not contend that they are not persons (1), nor do they

contend that no point source was involved (3), and we

have already determined that the wetlands here are

waters of the United States (4). The Cundiffs contend

that they have not discharged any pollutants (2) and,

while they concede that they did not have a permit

° Because the Cundiffs failed to properly raise or develop their

Commerce Clause challenge to jurisdiction under the Act—and

such a challenge would be rather tenuous anyway, see, e.g.,

Gonzalez v. Raich, 545 U.S. 1(2005); United States v. Ashland Oil

& Transp. Co., 504 F.2d 1317, 1326-27 (6th Cir. 1974); United

States v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir

2005)—this argument is waived.

23a

from the Corps, they assert that their activities fell

into one of the relevant exemptions (though not the

“recapture” provision) and thus were not required to

have one (5).’

1. Discharge of a pollutant

The Clean Water Act defines the “discharge of a

pollutant” as “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C.

§ 1362(12)(A). “Pollutant” includes not only traditional

contaminants like “radioactive” or “chemical waste,”

but also basic solids like “dredged spoil, . . . rock, sand

[and] cellar dirt.” 33 U.S.C. § 1362(6). Latching onto

“addition,” the Cundiffs argue that the regulation

defining a pollutant to include “sidecasting” goes

beyond the authority the Act grants. In other words,

they argue that it is unreasonable for the agency to

interpret “discharge of a pollutant” to cover situations

not involving the introduction of foreign material into

the area.

Sidecasting involves the addition of dredged or

excavated dirt from a removal site (here, the ditches

the Cundiffs dug), to some disposal site (here, the

Cundiffs’ own wetlands). Sidecasting’s purpose is to fill

’ The Cundiffs also assert that Seth Cundiff should have been

dismissed from the lawsuit because, while he unquestionably

owned part of the wetlands, he had leased them back to his father,

Rudy Cundiff, and only Rudy engaged in any of the disputed

activities. This argument fails, however, because even though he

leased his tract, Seth Cundiff both owned it and had knowledge of

Rudy Cundiff activities. So the district court did not abuse its

discretion in denying the motion to dismiss Seth Cundiff from the

lawsuit

24a

wetlands to dry them out. Although it is plausible to

read “addition” as covering only completely foreign

materials, that reading is foreclosed because

“pollutant” is defined in the Act to specifically include

“dredged spoil”—the Cundiffs would read that term

out of the Act. Further, the Act is not concerned with

mere “material,” but instead with the addition of

“pollutants”—material can be benign in one spot and

seriously disruptive to the surrounding ecological

system in another. As the Fourth Circuit has stated,

once you have dug up something, it becomes

“dredged spoil,” a statutory pollutant and a type

of material that up until then was not present

lin the wetlands]. It is of no consequence that

what is now dredged spoil was previously

present on the same property in [a] less

threatening form .... What is important is that

once a material was excavated from the

wetland, its redeposit in the same wetland

added a pollutant where none had been before.

United States v. Deaton (“Deaton I”), 209 F.3d 331, 335

(4th Cir. 2000); see also Avoyelles Sportsmen’s League,

Inc. v. Marsh, 715 F.2d 897, 920-21 (5th Cir. 1983).

And even if the statute was ambiguous on whether the

prohibition on the “addition” of pollutants included

sidecasting, it is nevertheless a reasonable agency

interpretation and must be accorded deference.

Chevron, 467 U.S. at 843.°

* Although not cited by either party, it is arguable that National

Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584

(6th Cir. 1988), would in some ways support the Cundiffs’

assertion that sidecasting is beyond the agency’s authority. In

that case this Court upheld an agency determination by the EPA

25a

The Cundiffs’ other argument is that, if the

regulations are nevertheless valid, then _ their

dredging, filling, and mechanized landclearing

activities nevertheless fall into the exception to the

“discharge of dredged material” for “de minimis,

incidental soil movement occurring during normal

dredging operations.” 51 Fed. Reg. 41,206, 41,232

(Nov. 13, 1986), codified at 33 C.F.R. § 323.2(d) (1990).

Although this argument was probably waived, see

Thurman v. Yellow Freight Sys., 97 F.3d 833, 835 (6th

Cir. 1996), the assertion that the Cundiffs merely left

some fallback incidental to ditch digging cannot be

credited: they actively filled the wetlands with dredged

spoil and covered roughly 5.3 acres of wetlands next to

about 11,900 feet of ditches. This goes far beyond being

“de minimis.”® Thus, they discharged a pollutant under

the Act.

that the discharge of pollutants from one body of water to a

contiguous one was not an “addition” because it did not add a

foreign pollutant. But Consumers Power is distinguishable

because it was about agency deference to the EPA’s interpretation

of “addition,” Catskill Mountains Chapter of Trout Unlimited, Inc.

v. City of New York, 273 F.3d 481, 489-94 (2d Cir. 2001)

(distinguishing Consumers Power)—indeed, the Consumers Power

Court referred to the definition it was upholding as “circular.”

Moreover, Consumers Power was about normal dam operations

that resulted in changes to water quality, while this case concerns

a defendant who took proactive steps to purposefully alter and fill

his wetlands.

° The current form of the regulations exclude “incidental fallback,”

33 C.F.R. § 323.2(d)(3Xiii), and activities that do not have more

than a “de minimis (i.e. inconsequential) effect on the area.” Jd. at

§ 323.2(d 6). The Cundiffs’ activities were neither “incidental” nor

“inconsequential.”

26a

2. Permit requirement

Although the Cundiffs do not dispute that they did

not have a valid section 404 permit when digging

ditches and clearing their wetlands, they nevertheless

argue that their activities fell into one of the statutory

exemptions, though not into the “recapture provision.”

See 33 U.S.C. § 1344(f)(1)-(2). Specifically, the Cundiffs

argue that their activities fall into either the farming

exception, § 1344(f){1)(A), or the drainage ditch

maintenance exception, § 1344(f)(1)(C). “The

defendants bear the burden of establishing both that

they qualify for one of the exemptions of § 1344(f(1)

and that their actions are not recaptured by

§ 1344(f)(2).” Greenfield Mills, Inc. v. Macklin, 361

F.3d 934, 955 (7th Cir. 2004).

The farming exception exempts from the permit

requirement the “discharge of dredged or fill material”

from “normal farming, silviculture, and ranching

activities.” § 1344(f)(1)(A). As the statute and

regulations both require, the disputed activities “must

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

silviculture, or ranching operation” and they cease 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 hydrological

regime are necessary to resume operations.” 33 C.F.R.

§ 323.4(a)(1)i). The Cundiffs’ wetlands fail both

requirements: before the Cundiffs took over and began

their landclearing activities, the land had not been

used as a farm for many decades prior and no one

disputes that no farming could take place on the

wetlands without significant changes—the entire point

of Rudy Cundiffs.activities was to significantly alter

the wetlands to make them arable. Of course, such

27a

activities are not universally impermissible, but they

do require a permit. Thus the farmland exception does

not apply.

Nor does the drainage ditch maintenance exception

apply. Section 1344(f)(2)(C) exempts the discharge of

dredged or fill material “for the purpose of construction

or maintenance of farm or stock ponds or irrigation

ditches, or the maintenance of drainage ditches.” Note

the difference in language between the two clauses:

while the exemption applies to the maintenance or

construction of farm or stock ponds or irrigation

ditches, it only applies to the maintenance of drainage

ditches and not their construction. The regulations

make this explicit. 33 C.F.R. § 323.4(a)(3) (observing

exemption for “the maintenance (but not construction)

of drainage ditches”). The district court found that the

Cundiffs’ activities were not limited to merely

maintaining existing and functioning ditches, but

instead involved both digging brand new ones and

excavating ditches that had no function or ability to

function as drainage ditches, and neither can be

considered mere “maintenance.”

Even if the Cundiffs’ activities fell within either the

farming or drainage ditch maintenance exemptions,

they would still have been required to get a permit

under the “recapture provision,” 33 U.S.C. § 1344(f)(2),

which states that a permit is still required whenever

a dredging activity has “as its purpose bringing an

area of the navigable waters into a use to which it was

not previously subject,” and the “flow or circulation of

navigable waters may be impaired or the reach of such

waters reduced.” Jd. To fall within this provision, both

elements must be met. See Macklin, 361 F.3d at 949.

Here, Rudy Cundiff freely admitted that he excavated

28a

the ditches to convert the wetlands into being suitable

for crop production, and the method by which he

attempted to do so—drying the wetlands out to

transform them into farmland—obviously would, if

successful, “impair[]” the “flow or circulation of

navigable waters” or “reduce” their reach. 33 U.S.C.

§ 1344(f)(2). So, even if the Cundiffs’ activities fell into

one of the exemptions above, they still would have

been required to have obtained a permit under the

recapture provision. And because the government has

thus satisfied its prima facie case against the Cundiffs

by proving all five required elements, the district court

properly granted summary judgment on their liability.

C. The District Court Did Not Abuse its

Discretion in Imposing Remedies

Remediation orders are reviewed for abuse of

discretion. See United States v. Norris, 937 F.2d 286,

288 (6th Cir. 1991). Courts have considered three

factors when evaluating remediation or restoration

proposals: (1) whether the proposal would confer

maximum environmental benefits, (2) whether it is

achievable as a practical matter, and (3) whether it

bears an equitable relationship to the degree and kind

of wrong to be remedied. United States v. Deaton

(“Deaton II”), 332 F.3d 698, 714 (4th Cir. 2003) (citing

cases). Here, the district court analyzed each factor

based on the evidence in rejecting the Cundiffs’

proposals and accepting the government’s proposed

restoration plan. The government’s plan consists

primarily of filling in the ditches on the northern tract,

cutting branches in the ditches on the southern tract

to restore the wetlands, planting trees on the southern

tract to replace the ones the Cundiffs removed,

restoring previous plant and animal life, and placing

29a

riprap (loose rocks assembled as a foundation) where

the northern tract’s ditches enter Caney Creek to

prevent erosion. The Cundiffs’ challenge to the district

court’s judgment is largely a quarrel with the court’s

factual findings, which were not clearly erroneous,

though they also argue that the government’s plan will

not allow them io see sufficient future profits. The

Cundiffs also claim that what they were already doing

would have led to the restoration of the wetlands.

Taking this latter contention first, the district court

flatly rejected it, finding instead that the government’s

plan would “confer maximum environmental benefits.”

And while the amount of money that the Cundiffs

might receive in the future is generally included as a

factor in equity, the court also found that the Cundiffs’

violations were “intentional, flagrant, egregious, and

openly defiant, so as to militate against any equitable

considerations.” J.A. 51-52. Thus, in light of these

findings and the Clean Water Act’s goal of “restoring

and maintaing the chemical, physical, and biological

integrity of the Nation’s waters,” 33 U.S.C. § 1251(a),

the district court did not abuse its discretion in

entering the remediation order.

IV.

The Cundiffs’ counterclaims are rather nebulous,

but they roughly fall into three categories: (A)

Constitutional takings-based counterclaims alleging

that the government’s actions constituted an

uncompensated taking without due process; (B)

duty-based counterclaims alleging that the federal

government owed them a mandatory duty to mitigate

damage to their property caused by the acid water

runoff from the nearby abandoned mine; and (C)

30a

tort-based counterclaims alleging lability for the

government’s failure to fix the acid mine runoff or for

the government’s conduct in enforcing the Act. Each

fails as a matter of law.

A. Takings Counterclaims

The Cundiffs claim that the governments’

actions—either because of the remediation plan or

because of the mine’s drainage onto the-Cundiffs’

property—constituted an uncompensated taking

without due process under the Fifth Amendment. The

merits of this argument are specious,’° but this claim

has a bigger problem: The Tucker Act gives the Court

of Federal Claims exclusive subject matter jurisdiction

over takings claims seeking more than $10,000. 28

U.S.C. § 1491. Although the Cundiffs are not ciear

about how much they exactly seek, they seek more

than $10,000,000 altogether. And the Cundiffs never

specifically refuted that this jurisdictional threshold

applies, and thus their takings counterclaims were

properly dismissed.

B. Mandatory Duty Counterclaims

The Cundiffs assert that the federal government

owed them a mandatory duty to prevent or remediate

runoff from the mine from seeping onto their property

under the Surface Mining Control and Reclamation

Act (“SMCRA”). See 20 U.S.C. § 1270. Although the

' It is unlikely that a takings claim would succeed: the damage

the Cundiffs complain of results from the acid mine drainage from

the nearby abandoned mine, which is owned by some third party

and has never been owned or operated by the federal government.

3la

SMCRA grants a private right of action against the

government for the failure to perform mandatory

duties, id. at § 1270(a)(2); see also 5 U.S.C. § 702

(providing judicial review to persons who have suffered

a legal wrong because of an agency action under the

APA), it only authorizes abandoned mine reclamation

activities on properties adversely affected by

abandoned mines and “for which there is no continuing

reclamation responsibility under State or other federal

laws.” Id. at § 1234. It furthermore envisions

that—while paid for by fees collected from current

mine operators—the mine reclamation projects will be

undertaken by state governments. See id. at § 1201(f).

When a state submits a mine reclamation program

consistent with the SMCRA, that state is given the

“exclusive responsibility and authority” to implement

it. Id. at § 1235(d). Kentucky has an approved

reclamation program, so the responsibility and

authority over remediating pollutants that drain out of

abandoned coal mines like the one near the Cundiffs’

property does not le with the federal government.

Thus, the Cundiffs’ mandatory duty counterclaims

were properly dismissed.

C. Tort Counterclaims

The Federal Tort Claims Act confers jurisdiction on

federal courts to hear cases only “under circumstances

where the United States, if a private person, would be

held liable to the claimant in accordance with the law

of the place where the act or omission occurred.” 28

U.S.C. § 1346(b)(1). The Tort Claims Act thus neither

creates causes of action against the United States nor

provides a means of enforcing federal statutory duties.

Rather, it “constitutes consent to suit and is

fundamentally limited to cases in which a private

32a

individual [would be liable] under like circumstances.”

Myers v. United States, 17 F.3d 890, 894 (6th Cir.

1994). To succeed, the Cundiffs must therefore show

that they have pleaded facts by which a private

individual would be liable under Kentucky law. They

have not.

The gravamen of the Cundiffs’ argument is that the

abandoned coal mine seeps acid water onto their

property so the United States should be liable. But, as

observed above, the United States has never owned

nor operated that mine, and there is no cognizable

legal theory in Kentucky by which someone could be

sued for failing to stop fluid from draining out of some

third-party’s abandoned coal mine. Insofar as the

Cundiffs assert that though a private individual would

not be liable yet nevertheless the federal government

should be, the response is two-fold. First, Kentucky

has never recognized such a lawsuit, and, second,

there cannot be a universal common-law duty on the

federal government to clean up anything and

everything that adversely affects someone’s property,

even when caused by third-parties. Although the

Cundiffs cite a plethora of cases where liability

attached, see, e.g., City of Ashland v. Smith, 340

S.W.2d 208 (Ky. 1960); Louisville & Nashville R.R. v.

Bush, 336 S.W.2d 578 (Ky. 1960), Cissell v. Grimes,

383 S.W.2d 128 (Ky. 1964), in each the liable party

either owned the source of the problem or affirmatively

created it. Neither is the case here. Thus, the district

properly dismissed the tort counterclaims.

¥.

We AFFIRM the district court’s grant of summary

judgment to the government and assignment of

33a

penalties to the Cundiffs, along with the district

court’s dismissal of the Cundiffs’ counterclaims against

the government.

34a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

OWENSBORO DIVISION

CIVIL ACTION NO. 4:01CV-6-M

[Filed March 29, 2007]

UNITED STATES OF AMERICA

PLAINTIFF

VS.

GEORGE RUDY CUNDIFF and

CHRISTOPHER SETH CUNDIFF

)

DEFENDANTS )

)

MEMORANDUM OPINION

This matter is before the Court for a determination

of whether the wetlands at issue in this litigation

constitute “waters of the United States” under the

Clean Water Act. On January 25, 2007, the Court

conducted an evidentiary hearing on this issue. The

parties have filed post-hearing briefs [DN 170, DN

171]. Fully briefed and argued, this matter is ripe for

decision.

35a

I. BACKGROUND

This civil enforcement action arises out of

violations of Section 301(a) of the Clean Water Act

(CWA), 33 U.S.C. § 1311(a), by Defendants George

Rudy Cundiff and his son, Christopher Seth Cundiff.

Defendants own two adjacent tracts of land in

Muhlenberg County, Kentucky. Defendants’

properties are situated adjacent to Pond and Caney

Crecks, tributaries of the Ohio River via the Green

River. By Memorandum Opinion and Order entered

on April 28, 2003, the Court granted the United States’

Motion for Summary Judgment, holding that

Defendants violated Section 301(a) of the Clean Water

Act (“CWA”). In January of 2005, after a three-day

remedy bench trial, the Court permanently enjoined

Defendants from discharging dredged or fill material

or any other pollutants into waters of the United

States, except in compliance with the CWA. The Court

imposed a civil penalty of $225,000 but suspended

$200,000 pending Defendants’ adequate

implementation of the United States’ restoration plan.

The $25,000 was ordered to be paid in equal

installments over five years.’ Defendants appealed the

judgment to the United States Court of Appeals for the

Sixth Circuit.

On June 19, 2006, the United States Supreme

Court issued a decision in Rapanos v. United States,

547 U.S. ___, 126 S.Ct. 2208 (2006). The opinion

addressed the meaning of the phrase “waters of the

' Additional information regarding the factual and procedural

history of this case is set forth in the Findings of Fact and

Conclusions of Law issued on January 10, 2005 [DN 111].

36a

United States” in the CWA and accompanying

regulations. The parties jointly moved for a limited

remand from the Sixth Circuit Court of Appeals so

that this Court could address whether the wetlands at

issue in the present case are “waters of the United

States” in light of Rapanos. On September 29, 2006,

the Sixth Circuit remanded the case for consideration

of that question.

Defendants contend that under the new standard

articulated in Rapanos the wetlands at issue do not

qualify as “waters of the United States” and, therefore,

the United States lacks jurisdiction over the site. The

United States disagrees arguing that its exercise of

jurisdiction over the wetlands at the site is proper

because the wetlands constitute “waters of the United

States” under the meaning of the Clean Water Act, the

applicable regulations, and the Rapanos decision.

Il. LAW

A. Overview of Rapanos v. United States

The Clean Water Act prohibits “the discharge of

any pollutant by any person” except provided in the

Act. 33 U.S.C. § 1311(a). “Discharge of pollutants”

encompasses “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C.

§ 13862(12)(A). “Navigable waters,” in turn, is defined

as “waters of the United States... .” 33 U.S.C.

§ 1362(7). In interpreting the CWA, the

Environmental Protection Agency and the Army Corps

of Engineers “have issued regulations extending CWA

jurisdiction to waters used in interstate commerce,

tributaries of waters used in interstate commerce, and

wetlands adjacent to either waters used in interstate

37a

commerce or to the tributaries of such waters.” United

States v. Evans, 2006 WL 2221629, *16 (M.D. Fla.

Aug. 2, 2006); 33 C.F.R. § 328.3; 40 C.F.R. § 122.2. See

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985); Solid Waste Agenc Northern Cook

County v. United States Army Corps of Engineers, 531

U.S. 159 (2001).

In light of the EPA and the Corps interpretation of

CWA jurisdiction, the Supreme Court in Rapanos v.

United States, 126 S.Ct. 2208 (2006), addressed the

proper interpretation of the phrase “waters of the

United States” and the corresponding scope of the

Corps jurisdiction under the Clean Water Act.

Rapanos involved two consolidated cases from the

Sixth Circuit. In one case, the United States brought

an enforcement action alleging that property owners

and their affiliated businesses deposited fill materials

into wetlands without a permit in violation of the

CWA. See United States v. Johnson, 467 F.3d 56, 59

(1st Cir. 2006)(citing Rapanos, 126 S.Ct. at 2219). In

the other, property owners “were denied a permit to

deposit fill material in a wetland located ona...

parcel of land about one mile from [a lake]” and, after

exhausting their administrative appeals, they filed

suit. Rapanos, 1268S.Ct. at 2219; Johnson, 467 F.3d at

59.

The district court found that there was federal

regulatory jurisdiction over the sites in question. The

Sixth Circuit affirmed, holding that there was federal

jurisdiction over the wetlands at the sites because

“there were hydrological connections between [the]

sites and corresponding adjacent tributaries of

navigable waters.” Rapanos, 126 S.Ct. at 2219 (citing

Rapanos, 376 F.3d 629, 643 (2004)). The Supreme

38a

Yourt then consolidated the cases and granted

certiorari to decide whether these wetlands constitute

“waters of the United States” under the Clean Water

Act. Id, at 2220.

The Court issued a split decision, 4-4-1, construing

the phrase “waters of the United States” as used in the

Clean Water Act. Justice Scalia writing for the

plurality concluded that the phrase “waters of the

United States” includes only “relatively permanent,

standing or continuously flowing bodies of water

‘forming geographic features’ that are described in

ordinary parlance as ‘streams|,} .. . oceans, rivers,

[and] lakes.”” Id. at 2225. “The phrase does not include

channels through which water flows intermittently or

ephemerally, or channels that periodically provide

drainage for rainfall.” Id. For purposes of determining

federal regulatory jurisdiction over wetlands, the

plurality held that “only those wetlands with a

continuous surface connection to bodies that are

‘waters of the United States’ in their own right, so that

there is no clear demarcation between ‘waters’ and

wetlands, are ‘adjacent to’ such waters and covered by

the Act.” Id. at 2226 (emphasis in original). See also

Jobnson, 467 F.3d at 59. Thus, under the plurality’s

standard, establishing that wetlands are covered by

the Clean Water Act requires two findings: “First, that

the adjacent channel contains a ‘wate|r] of the United

States,’ (i.e., a relatively permanent body of water

connected to traditional interstate navigable waters);

and second, that the wetland has a continuous surface

connection with that water, making it difficult to

determine where the ‘water’ ends and the ‘wetland’

begins.” Rapanos, 126 S.Ct. at 2226-27 (citations

omitted)). The plurality vacated the decision of the

Sixth Circuit and, noting “the paucity of the record,”

39a

remanded for further proceedings. Id. at 2235;

Johnson, 467 F.3d at 59.

Justice Kennedy concurred in the judgment, but

rejected the plurality’s rationale. Id. Instead, he

concluded that the government’s jurisdiction under the

Clean Water Act extends to wetlands that “possess a

‘significant nexus’ to waters that are or were navigable

in fact or that could reasonably be so made.” Id. at

2236. Specifically, Justice Kennedy held that

“wetlands possess the requisite nexus, and thus come

within the statutory phrase ‘navigable waters,’ if the

wetlands, either alone or in combination with similarly

situated lands in the region, significantly affect the

chemical, physical, and biological integrity of other

covered waters more readily understood as

‘navigable.” Id. at 2248. Under this standard, “[w]here

the wetlands in question are ‘adjacent to

navigable-in-fact waters, [the government] may rely on

adjacency to establish its jurisdiction.’ ... Where the

wetlands are adjacent to nonnavigable tributaries,

‘falbsent more specific regulations . . . [the

government] must establish a significant nexus on a

case-by-case basis.” Johnson, 467 F.3d at 59 (quoting

Rapanos, 126 S.Ct. at 2249)).

Writing for the four dissenting justices, Justice

Stevens would have upheld the EPA’s and the Corps’

interpretation of “waters of the United States” in its

entirety. Justice Stevens held that any “significant

nexus” requirement of the Clean Water Act “is

categorically satisfied as to wetlands adjacent to

navigeble waters or their tributaries.” Rapanos, 126

S.Ct. at 2264 (citing Riverside Bayview, 474 U.S. at

123). In light of the plurality and concurring decisions,

Justice Stevens suggested that the Corps’ jurisdiction

40a

would extend to cases “in which either the plurality’s

or Justice Kennedy’s test is satisfied ....” Id. at 2265.

See also Johnson, 467 F.3d at 60; Evans, 2006 WL

2221629,*19.

B. The Controlling Standard

The United States argues that the Corps may

continue to exercise regulatory jurisdiction over any

wetland that satisfies either the plurality’s standard or

Justice Kennedy’s standard in Rapanos. Relying on

Marks v. United States, 430 U.S. 180 (1977), the

Defendants disagree arguing that the plurality

decision controls. Under the holding in Marks,

“[wJhen a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent

of five Justices, ‘the holding of the Court may be

viewed as that position taken by those Members who

concurred in the judgments on the narrowest

grounds.” Marks, 430 U.S. at 193.

While the Sixth Circuit has not yet addressed

which star.dard governs, other Court of Appeals have

addressed this issue. Relying on Marks, both the

Ninth Circuit and the Seventh Circuit concluded that

Justice Kennedy’s concurrence actually provides the

controlling test. Northern California River Watch v.

City of Healdsburg, 457 F.3d 1023 (9th Cir.

2006\(significant nexus test set forth in Justice

Kennedy’s concurrence is controlling); United States v.

Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.

2006)(noting that the narrowest opinion is Justice

Kennedy’s concurrence which is the least restrictive of

federal authority to regulate). By contrast, the First

Circuit concluded that the United States could assert

jurisdiction over the sites in question if the

4la

Government meets either Justice Kennedy’s standard

or that of the plurality. Johnson, 467 F.3d at 60. The

First Circuit noted that the Supreme Court has moved

away from the Marks formula and has indicated “that

whenever a decision is fragmented such that no single

opinion has the support of five Justices, lower courts

should evamine the plurality, concurring and

dissenting opinions to extract the principles that a

majority has embraced.” Id. at 65 (citing Waters v.

Churchill, 511 U.S. 661, 685 (1994) (Souter, J.,

concurring) (analyzing the points of agreement

between plurality, concurring, and dissenting opinions

to identify the test that lower courts should apply);

League of United Latin Am. Citizens v. Perry, 126

S.Ct. 2594, 2607 (2006) (Kennedy, J.) (analyzing Vieth

v._Jubelirer, 541 U.S. 267 (2004) to find that

agreement among one concurring and four dissenting

Justices establishes majority support for a legal

proposition); Alexander v. Sandoval, 532 U.S. 275,

281-82 (2001) (Scalia, J.) (noting the agreement of five

Justices who joined plurality and various dissenting

opinions)). See also United States v. Evans, 2006 WL

2221629 (M.D. Fla. August 2, 2006). Significantly, in

accordance with this case law, the four dissenting

Justices in Rapanos stated explicitly that they wou!d

sustain the exercise of federal regulatory jurisdiction

under the CWA whenever either the plurality’s

standard or Justice Kennedy’s standard is satisfied.

Rapanos, 126 S.Ct. at 2265 and n.14.

After a review of the case law, the Court adopts the

First Circuit’s approach and concludes that the United

States may establish jurisdiction over the Cundiff site

if it can meet either Justice Kennedy’s or the

plurality’s standard as set forth in Rapanos.

42a

III. DISCUSSION

A. Justice Kennedy’s Standard - The

Significant Nexus Test

Under the significant nexus test as defined by

Justice Kennedy in his concurrence, the party seeking

to invoke jurisdiction under the Clean Water Act must

present evidence that the wetlands in question

“possess a ‘significant nexus’ to waters that are or were

navigable in fact or that could reasonably be so made.”

Rapanos, 126 S.Ct. at 2236. According to Justice

Kennedy, “wetlands possess the requisite nexus, and

thus come within the statutory phrase ‘navigable

waters,’ if the wetlands, either alone or in combination

with similarly situated lands in the _ region,

significantly affect the chemical, physical, and

biological integrity of other covered waters more

readily understood as ‘navigable.” Id. at 2248. In

contrast, “[w]hen ... wetlands’ effects on water

quality are speculative or insubstantial, they fall

outside the zone fairly encompassed by the statutory

term ‘navigable waters.” Id. The United States must

establish a significant nexus on a case-by-case basis.

See Johnson, 467 F.3d at 59 (quoting Rapanos, 126

S.Ct. at 2249)).

After a review of the testimony and the expert

reports, the Court finds that a significant nexus exists

between the wetlands in question and the traditional

navigable-in-fact water — the Green River. Dr.

Lyndon C. Lee, a professional wetland scientist,

testified that the wetlands on the Cundiff site perform

significant functions that directly, indirectly, and

cumulatively contribute to, enhance, and affect the

physical, chemical, and biological integrity of Pond

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Creek, Caney Creek, and the Green River. Dr. Lee

opined that the wetlands on the Cundiff site serve

several important ecological functions including both

temporary and long term water storage, the filtering of

acid mine drainage and sediment, and habitat support

for plant and wildlife species that are endemic to

wetland ecosystems. (Lee Report at i, 7-8.)

Specifically, Dr. Lee testified that Rudy Cundiff’s

unauthorized ditch construction, mechanical land

clearing and filling of the wetlands at the site have

diminished the capacity of the wetlands in question to

store water. According to Dr. Lee, this reduction

affects the frequency and extent of downstream

flooding, increases the flood peaks in the Green River,

and, in turn, “impact[s] navigation, crop production in

bottomlands, downstream bank erosion and

sedimentation.” (Lee Report at 7.)

Additionally, Dr. Lee and Ed _ Carroll,

Environmental! Control Supervisor with the Kentucky

Division of Water, testified that they observed acid

mine drainage and sediment flow onto the Cundiff

property from upstream sites. Mr. Carroll testified

that the wetlands in question, along with other

surrounding wetlands, perform vitai filtering and

sediment trapping functions which treats pollutants,

contaminants, and toxins and affect the overall water

quality of the Green River. According to Mr. Carroll,

Pond “reek has been channelized by the unauthorized

activities of the Cundiffs thereby causing the acid mine

drainage to bypass the wetlands in question and move

quickly into Pond and Caney Creek and the Green

River. (See Aerie! Video Tape, Carroll Dep. Exhibit A.)

When the acid mine drainage and associated

sediments move too quickly downstream in the

44a

Pond/Caney Creek system to the Green River, “there

are direct and significant impacts to navigation (via

sediment accumulation in the Green River) and to

aquatic food webs... that are not adapted to thrive in

acid vaters and/or sediment-choked environments in

the Green River.” (Lee Report at 8.)

The Court credits the testimony of Plaintiffs

experts and finds that the Cundiff wetlands, alone and

in combination with other area wetlands, “significantly

affect the chemical, physical, and biological integrity”

of the Green River. Rapanos, 126 S.Ct. at 2248. For

these reasons, the Court concludes that the wetlands

at the Cundiff site are “waters of the United States”

under the standard articulated by Justice Kennedy in

Rapanos.

B. Plurality’s Standard

Although the United States has satisfied Justice

Kennedy’s significant nexus standard, the Court will

address the facts in light of the plurality’s standard as

well. Under the plurality’s standard, establishing that

wetlands are covered by the Clean Water Act requires

two findings: “First, that the adjacent channel contains

a ‘watelr} of the United States,’ (i.e., a relatively

permanent body of water connected to traditional

interstate navigable waters); and second, that the

wetland has a continuous surface connection with that

water, making it difficult to determine where the

‘water’ ends and the ‘wetland’ begins.” Rapanos, 126

S.Ct. at 2227. After an examination of the expert

testimony and reports, the Court concludes that the

wetlands at the site are “waters of the United States”

as defined by the standard articulated by the plurality

in Rapanos.

45a

First, Dr. Lee and Mr. Carroll presented

undisputed testimony that the South Channel located

on the northern tract, Pond Creek, and Caney Creek

are relatively permanent bodies of water connected to

a traditional interstate navigable water, the Green

River. Dr. Lee presented an aerial photograph of the

site depicting the water flow. With respect to the

South Channel, Dr. Lee testified that water flows

eastward through the South Channel into Pond Creek

for all but a few weeks in a year of average rainfall.

(Lee Hearing Testimony.) With respect to Pond Creek

and Caney Creek, Dr. Lee and Mr. Carroll introduced

maps, historical aerial photographs, and an aerial

videotape reflecting that Pond Creek and Caney Creek

are open waterbodies with significant quantities of

flowing water. Additionally, Dr. Lee testified that on

October 25, 2006, he along with two other persons

navigated Pond Creek from one mile upstream of the

site, past the eastern boundary of the site, and then to

the Green River. The approximately 11-mile trip took

place “at a time when discharge volumes in the Pond

Creek system and its tributaries were at near seasonal

low discharge.” (Lee Report at 6.) Given this evidence,

clearly the portions of Pond Creek and Caney Creek

that connect the Cundiff wetlands to the Green River,

as well as the South Channel, are “relatively

permanent, standing or continuously flowing bodies of

water,” and therefore satisfy the first element of the

plurality’s standard. Rapanos, 126 S.Ct. at 2225.

Second, since the Court determined that Pond

Creek, Caney Creek, and the South Channel are

“waters” as defined above, the Court must next

determine “whether the wetlands in question are

‘adjacent’ to these ‘waters’ in the sense of possessing a

continuous surface connection that creates the

46a

boundary-drawing problem [the Supreme Court]

addressed in Aiverside Bayview.” Rapanos, 126 S.Ct.

at 2235.

Defendants maintain that the continuous surface

connection requirement is not satisfied where the

water level of the alleged wetland is at a different level

than that of the creeks. The Court finds Defendants’

interpretation of the continuous surface connection

element to be incorrect. In discussing the boundary

drawing problem, the Rapanos plurality noted that in

Riverside Bayview the Supreme Court had

acknowledged that there was an inherent ambiguity in

drawing the boundaries of any “waters”:

[T]he Corps must necessarily choose some point

at which water ends and land begins. Our

common experience tells us that this is often no

easy task: the transition from water to solid

ground is not necessarily or even typically an

abrupt one. Rather, between open waters and

dry land may lie shallows, marshes, mudflats,

swamps, bogs-in short, a huge array of areas

that are not wholly aquatic but nevertheless fall

far short of being dry land. Where on this

continuum to find the limit of ‘waters’ is far

from obvious.

Rapanos, 126 S.Ct. at 2225 (quoting Riverside

Bayview, 474 U.S. at 132.) According to the Rapanos

plurality, because of this inherent ambiguity, the

Supreme Court in Riverside Bayview “held, the agency

could reasonably conclude that a wetland that

‘adjoin[ed]’ waters of the United States is itself a part

of those waters.” Id. (citing Riverside Bayview, 474

U.S. at 132, 135, & n. 9). Given this discussion of

47a

Riverside Bayview, Justice Scalia clearly did not

intend that the water level of the wetland and the

covered “waters” must be completely level. Such a

conclusion would completely eviserate the plurality’s

recognition that a gradual transition can exist from

water to land, e.g., shallows, marshes, mudflats,

swamps, bogs-in short. Id. at 2225 (Riverside

Bayview, 474 U.S. at 132).

After a review of the record, the Court concludes

that the wetlands at the Cundiff site have a

continuous surface connection with Pond Creek, Caney

Creek and the South Channel making it difficult to

determine where the water ends and the wetland

begins. The Plaintiffs experts testified that there are

no clear demarcation between waters and wetlands at

the Cundiff site. In fact, a review of the expert

testimony, aerial maps, aerial video, along with

photographs introduced at the hearing, confirm that

the wetlands at the site physically abut the South

Channel, Pond Creek, and Caney Creek.

Additionally, there are several locations in the

northern and southern tracts where Pond and Caney

Creek and the Cundiff wetlands have a continuous

surface connection during significant storm events,

bank full periods, and/or at ordinary high flows. The

record reflects that water flows between the wetlands

and Pond and Caney Creek through such conduits as

an inadequately armored bank of Caney Creek at the

location of the former western ditch, a rock-stabilized

cut and swale at Caney Creek near the center of the

northern tract, excavated swales along the eastern

bank of the northern tract at Pond Creek, and a rock

ramp/swale system in the northeastern corner of the

southern tract at Pond Creek. Furthermore, during

48a

flood stage, over bank flooding creates numerous

surface water connections between Pond Creek and

Caney Creek and the wetlands. Dr. Lee also testified

that the Cundiff wetlands are connected by a

permanent surface water flow to Pond Creek via a

deep ditch [Southern Channel (the North Tract-South

Ditch in Figure 10)] that passes through the wetlands

on the south side of the northern tract. According to

Dr. Lee, the surface water continuously flows from the

wetlands into Pond Creek from a discharge point in

this ditch located at the southeast corner of the

northern tract. Further, Dr. Lee stated that because

the site is nearly level}, flood waters from the northern

tract also back flow south through a 36-inch iron

culvert cut between the north and south tracts.

For these reasons, the Court finds that the Cundiff

wetlands are covered “waters of the United States” as

defined by the plurality standard in Rapanos.

IV. CONCLUSION

For the reasons set forth above, the Court

concludes that the wetlands at issue in this litigation

constitute “waters of the United States” under the

Clean Water Act as defined by both Justice Kennedy’s

test and the plurality’s test; and thus, the United

States properly exercised jurisdiction over the site.

/s/

Joseph H. McKinley, Jr., Judge

United States District Court

March 29, 2007

cc: counsel of record

49a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

OWENSBORO DIVISION

CIVIL ACTION NO. 4:01CV-6-M

[Filed January 10, 2005]

UNITED STATES OF AMERICA

PLAINTIFF

VS.

GEORGE RUDY CUNDIFF and

CHRISTOPHER SETH CUNDIFF

)

DEFENDANTS )

)

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This civil enforcement action arises out of violations

of Section 301(a) of the Clean Water Act (CWA), 33

U.S.C. § 1311(a), by Defendants George Rudy Cundiff

and his son, Christopher Seth Cundiff. The United

States seeks injunctive relief and civil penalties

against the Defendants for the discharge of fill

materials into the waters of the United States without

the required permit from the United States Army Corp

of Engineers. By Memorandum Opinion and Order

entered on April 28, 2003, the Court granted the

50a

United States’ Motion for Summary Judgment, holding

that Defendants violated Seciion 301(a) of the Clean

.Water Act. The current issue before the Court is the

appropriate civil penalty for Defendants’ violations of

the Clean Water Act and the nature of the injunctive

relief. The Court conducted a bench trial on these

issues between August 30, 2004 and September 1,

2004. The parties have filed proposed findings of fact

and conclusions of law [DN 109 , DN 110]. After fully

considering the evidence and the arguments of counsel,

the Court hereby makes the following findings of fact

and conclusions of law as required by Fed. R. Civ. P.

52(a).

I. BACKGROUND

Defendants George Rudy Cundiff (“Cundiff”) and

his son, Christopher Seth Cundiff (collectively

“Defendants”), own two adjacent tracts of land in

Muhlenberg County, Kentucky. Defendants’ properties

are situated adjacent to Pond and Caney Creeks,

tributaries of the Ohio River via the Green River. In

May 1990, Cundiff purchased the “southern tract.” At

that time, the southern tract contained approximately

eighty-five (85) acres of wetlands and a non-wetland

(“upland”) area on which the Cundiff residence is

situated. Portions of the property contained

orange-colored water which was drainage from mining

activity that had been conducted on adjacent and

nearby properties. Many people in the community

considered the property an eyesore because the

stagnant, discolored water from the mine provided an

ideal breeding ground for mosquitos. Cundiff was

aware of the wet conditions and the mine drainage

when he purchased the property. Cundiff purchased

the property intending to farm the land, and soon

5la

began excavating drainage ditches and clearing trees

in an effort to make the property fit for agricultural

use.

In October of 1991, federal and state officials,

including Richard Funk of the United States Army

Corps of Engineers (the “Corps”) and Jerry Sparks of

the Kentucky Division of Water (“KDOW”), observed

ditches, the filling of wetlands, and mechanical land

clearing on the property. KDOW suspected possible

Clean Water Act (“CWA”) wetlands violations —

namely, failure to obtain the requisite permit from the

Corps pursuant to Section 404 of the CWA. An

inspection of the site revealed that Cundiff had

excavated ditches through the wetlands and placed the

dredged material into the wetlands, an activity known

as “sidecasting.” Cundiff did not have a permit from

the Corps to place the dredged material in the

wetlands. Following the inspection, the Corps sent

Cundiff a cease-and-desist letter “specifically

prohibiting any further activity involving the

placement of excavated or fill material into these

jurisdictional wetlands” without a permit from the

Department of the Army. (Letter from the Corps to

Cundiff of 10/22/91, Exhibit PX-8). The letter attached

a copy of Section 404 of the Clean Water Act, which

requires a permit for the discharge of dredged or fill

material into wetlands.

During the spring and summer of 1992, federal and

state officials met with Cundiff to create a plan to

restore the wetlands. However, no agreement was

reached. Cundiff insisted on converting the wetlands

into farmland. Cundiff subsequently failed to comply

with the Corps’ Cease-and-Desist Order and continued

to drain and clear the property. Because of the flagrant

52a

violations, the Corps referred the matter to the United

States Environmental Protection Agency (“EPA”). Over

the next several years, Cundiff took no action to

restore the wetlands despite repeated governmental

directions to do so. In 1997, Cundiff planted wheat on

a portion of the southern tract. During an inspection,

officials observed the discing and a ring of downed

trees on the southern tract. Cundiff did not have a

permit from the Corps to engage in this activity which

again involved the discharge of dredged material into

the wetlands on the southern tract. Following this

inspection, the EPA issued an Order of Compliance,

Administrative Order No. 404-98-02, which informed

Cundiff that he had violated Section 301(a) of the

Clean Water Act by causing the unauthorized

deposition of fill material into waters of the United

States. The Order of Compliance directed Cundiff to

“immediately cease participating in or causing any

additional discharges into the Discharge Area of any

‘pollutant’ as defined by Section 502(6) of the CWA, 33

U.S.C. § 1362(6).” (EPA Compliance Order of 10/16/97,

Exhibit PX-23). Cundiff again failed to comply.

In June 1998, Cundiffs son, Seth Cundiff,

purchased the “northern tract” which contains

approximately 103 acres of wetlands.' Soon thereafter,

Cundiff began excavating and clearing that property

as well. Seth Cundiff knew that his father was

excavating the ditches on the northern tract but did

nothing to stop him from doing so. During a site visit

ee ——_ ———

' While title to the northern tract is held by Seth Cundiff, he

leases back the property to his father, Rudy Cundiff, for the exact

amount of the mortgage payment. Thus, it appears that Seth

Cundiff is an owner in name only

53a

on October 14, 1998, EPA enforcement official Mike

Wylie advised Cundiff that he needed a permit from

the Corps for this work. Cundiff replied that he knew

that a permit was required, but that the Corps would

not grant him a permit so he dug the ditches anyway.

Ignoring Wylie’s warning, Cundiff continued work on

a 200-foot ditch eventually extending it to Caney

Creek. The dredged material was sidecast into the

wetlands. In January of 1999, KDOW advised Cundiff

that his excavation of the two ditches on the northern

tract constituted a violation of state laws prohibiting

the degradation or elimination of wetland areas

without proper authorization from KDOW. KDOW also

directed Cundiff to submit “a plan and schedule for the

restoration of the wetland.” (Exhibit PX-35). Cundiff

failed to comply.

In June 1999, the EPA issued additional Orders of

Compliance (Administrative Orders CWA-04-99-1015

and CWA-04-99-1016) to both Defendants requiring

them to cease their excavation activities and “restore

the two unauthorized ditches . . . by refilling them to

their former elevation with the adjacent sidecast

dredged material within 30 days ... .” (EPA

Compliance Orders of 06/23/99; Exhibit PX-41 J 13;

PX-42 J 12). Defendants did not comply with the

EPA’s Orders of Compliance.

Il. DAMAGE TO THE WETLANDS

Dr. Thomas E. Heineke, a private wetland

consultant, testified that the unauthorized ditch

construction and mechanical land clearing, along with

the sidecasting of dredged and/or fill material into the

wetlands, has adversely affected the functions of the

wetlands. Dr. Heineke opined that Defendants’

54a

unauthorized activities have reduced the amount of

time that water ponds on the site, resulting in a loss of

wildlife habitat, an increase in the amount of sediment

export from the site, a decrease in flood water storage,

a decrease in organic carbon export, a removal of the

characteristic plant communities on the southern

tract, and a reduction in the removal of elements and

compounds from water entering the site. (Exhibit PX-1

at 9; Wayne Davis Trial Testimony).

According to Dr. Heineke, Defendants’ activities,

particularly the construction of the western ditch on

the northern tract, have massively reduced the ability

of the wetlands to perform the function of filtering and

treating pollutants, contaminants, and toxins before

they enter the groundwater and nearby waterways.

The ditches prevent the wetlands from collecting the

acid mine drainage that enters the property and

neutralizing the contaminants in that runoff. As a

result of these ditches, the acid mine drainage

bypasses the wetlands and goes directly into Caney

Creek, causing damage to the creek and _ to

downstream waters and property. (See Exhibit

PX-124). Additionally, Dr. Heineke testified that the

bottomland hardwood wetland forest which was

located on the southern tract and its entire wetland

habitat have been essentially destroyed by Cundiff’

activities. The Court credits the testimony of Plaintiffs

experts and finds that the Defendants’ unlawful

activities adversely affected the functions of the

wetlands and increased the amount of sediment and

pollutants leaving the site.

55a

Il. REMEDY

A. PERMANENT INJUNCTION

The Clean Water Act authorizes district courts to

issue appropriate injunctive relief for certain violations

of the Act. See 33 U.S.C. § 1319(b). In light of the

violations of the Clean Water Act, as determined in the

Court’s Memorandum Opinion and Order of April 28,

20032, and the documents and testimony admitted into

evidence at the remedy trial, Defendants are

permanently enjoined from discharging or causing the

discharge of dredged or fill material or any pollutants

into any waters of the United States except in

compliance with the Clean Water Act.

B. RESTORATION INJUNCTION

The Plan

The United States tendered a proposed Wetland

Restoration Plan (“restoration plan”) prepared by Dr.

Thomas Heineke in February of 2004. (Exhibit PX-1).

The stated purpose of the restoration plan is to restore

a forested wetland to the southern tract and to restore

the hydrology on the northern tract to its pre-violation

condition. (Exhibit PX-1). With respect to the southern

tract, the restoration plan involves the cutting of

three-foot-wide breaches through the piles of dredged

material along the ditches on the southern tract every

fifty feet. Dr. Heineke testified that the cutting of gaps

into the berms of the ditches on the southern tract is

designed to strike an appropriate balance between

maintenance of wetlands hydrology while preventing

prolonged ponding that would harm the growth of the

new trees. (Exhibit PX-1 at 10 7 1). In addition, Dr.

56a

Steven Chipps, the Plaintiffs aquatic ecology expert,

testified that by cutting gaps into the berms of the

ditches, mosquitofish and other fish that prey on

mosquitos would be able to expand their territory.

Additionally, the restoration plan calls for the

planting of hardwood wetland tree species on nearly

all of the jurisdictional wetlands on the southern tract.

(Exhibit PX-1 at 10). The restoration plan suggests six

types of hardwood trees that are particularly suitable

for planting: pecan, green ash, swamp chestnut oak,

cherrybark oak, pin oak, and bald cypress. (PX-1 at

11). The plan contemplates the planting of 400

seedling trees per acre. (Heineke Trial Testimony).

With respect to the northern tract, the restoration

plan calls for the filling of the ditches by using the

material that had been excavated from those areas.

This would permit the acid mine drainage to “fan out”

across the northern tract. The acid mine drainage

would not spread to the southern tract because Cundiff

has channeled the flow of the acid mine drainage so

that it will remain on the northern tract. (Mike Wylie

Trial Testimony). Furthermore, riprap or other similar

material would be placed at the points where the

northern tract ditches enter Caney Creek. This

measure is intended to prevent further erosion of the

banks of the creek. (Exhibit PX-1 at 10 7 4).

The restoration plan sets objectives to be achieved

within fixed time periods. (Exhibit PX-1 at 12). These

objectives include: (1) a 75% survival rate of the total

amount of the planted trees for five successive years;

(2) adequate understory and ground cover to be

established within five years; (3) a goal of more than

50% of all sampled vegetation to be “facultative .. . or

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wetter”; (4) a minimum woody plant stem count of 300

per acre, until the canopy cover is at least 30%; and (5)

the maintenance of wetland hydrology. (Id.). To ensure

that the restorative measures are implemented, the

restoration plan calls for a professional wetland

scientist or other qualified ecologist to monitor the site

and send annual reports to the EPA for five years. The

reports will contain the information that will enable

the EPA to evaluate the progress of the wetland,

including photographs, a listing of invading plant

species, details of the survival of the planted trees, and

changes in vegetational composition. (Exhibit PX-1 at

12-13).

Defendants would be required to fund the

restoration plan in its entirety, including the costs of

a professional wetland scientist or other qualified

ecologist to satisfy the annual reporting requirement.

(Exhibit PX-1 at 13-14).

The Standard

Jn determining whether a restoration injunction is

appropriate, the Court must examine whether the plan

confers “maximum environmental benefits,” (2)

whether the plan is “achievable as a practical matter,”

and (3) whether the plan bears “an equitable

relationship to the degree and kind of wrong it is

intended to remedy.” United States v. Deaton, 332

F.3d 698, 714 (4th Cir. 2003), cert. denied, 124 S.Ct.

1874 (2004); see also United States v. Norris, 937 F.2d

286, 288 (6th Cir. 1991); United States v. Smith, 149

F.3d 1172, 1998 WL 325954 (4th Cir. June 18, 1998).

First, the Court finds that the restoration plan will

confer substantial environmental benefits. The

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wetlands as they previously existed served various

functions including flood water control, habitat sites

for wildlife, and filtration and treatment of pollutants,

contaminants, and toxins before they enter the

groundwater and nearby waterways. The plan will

restore the wetland functions that were lost or

diminished as the result of Defendants’ unauthorized

activities. For instance, filling the ditches on the

northern tract will restore the wetland hydrology,

including the filtration and treatment of pollutants.

Planting of the hardwood wetland trees on the

southern tract will help restore the pre-existing plant

and animal communities.

Second, the Court finds that the restoration plan is

achievable as a practical matter. The work to be done

is minimal and affordable. The plan contemplates that

Cundiff will be able to cut the breaches, fill the ditches,

armor the riverbanks, and remove the dredge piles by

himself with equipment that is readily available to

him. Defendants have presented no evidence to

indicate that the restoration plan is not achievable.

Third, the Court finds that the restoration plan

bears an equitable relationship to the degree and kind

of wrong to be remedied. Cundiffs activities have

adversely affected the functions of the wetlands and

have increased the amount of sediment and pollutants

flowing into Pond and Caney Creeks. Cundiff has been

repeatedly warned that placing additional fill in the

wetlands would require a permit. In fact, Cundiff

continued to fill the wetlands after he was issued a

cease-and-desist order in 1991. Cundiff’s violations are

“intentional, flagrant, egregious, and openly defiant,’

so as to militate against any equitable considerations.”

Smith, 1998 WL 325954, *4.

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Defendants argue that this restoration plan does

not take into consideration any possible adverse affects

on the neighbors, high school or neighboring

community. The Court credits the testimony of the

Defendants and Defendants’ neighbors regarding the

condition of the mosquito problem in the area prior to

1992 and that Cundiffs excavation of drainage ditches

and filling of the wetlands on the southern tract

helped eradicate the problem. However, there is no

indication in the record that the same result could not

have been achieved without destroying the wetlands.

Furthermore, contrary to Defendants’ arguments,

expert testimony at trial indicates that the

implementation of the restoration plan should not

increase the number of mosquitos at the site. (Chipps

Trial Testimony). Dr. Steven Chipps testified that a

vibrant wetland enhances the habitat for numerous

predators of mosquitos and mosquito larvae, such as

dragonflies and mosquitofish, which are already

present at the site.

Defendants also argue that the restoration plan is

too restrictive. As an alternative to filling the ditches

on the northern tract, Defendants suggest installing a

tiered filtering pond, lined with limestone to filter the

mine drainage water. Additionally, Defendants

complain that planting all of the southern tract in

hardwood trees will not provide adequate income to

the Defendants. Defendants contend that they should

be given several years to see if they can raise cattle

and/or hay on their properties. Defendants objections

to the restoration plan are not well taken. The

Defendants failed to present an alternative restoration

plan or any expert testimony at trial either challenging

the specifics of the plan offered by the United States or

supporting the alternatives now suggested by the

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Defendants. The purpose of the Clean Water Act “is to

restore and maintain the integrity of the nation’s

waters.” Smith, 1998 WL 325954, *4 (citing 33 U.S.C.

§ 1251(a)). Permitting the Defendants to alter the

characteristics of the wetlands in order to raise cattle

or hay will not permit the wetlands to function in the

same way as they did prior to Cundiff illegal activity.

Restoration of property “is necessary to restore the

wetlands to their natural and functional hydrology and

therefore fulfill a central purpose of the Act.” Id.

For these reasons, the Court adopts the Wetland

Restoration Plan proposed by Dr. Thomas Heineke.

Defendants are required to implement and fund the

restoration plan outlined in Dr. Thomas Heineke’s

February 2004 report. (Exhibit PX-1).

C. CIVIL PENALTY

The United States requests a civil penalty in the

amount of $225,000.00 be assessed against Defendant,

George Rudy Cundiff, pursuant to 33 U.S.C. § 1319(d).

The Government has not requested a civil penalty be

assessed against Defendant, Seth Cundiff. This Court

has wide discretion in assessing the penalty, up to the

statutory maximum of $25,000.00 per day. Section

1319(d) of the Clean Water Act sets forth the factors

relevant to the determination of the amount of a civil

penalty:

In determining the amount ofa civil penalty the

court shall consider the seriousness of the

violation or violations, the economic benefit (if

any) resulting from the violation, any history of

such violations, any good-faith efforts to comply

with the applicable requirements, the economic

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impact of the penalty on the violator, and such

other matters as justice may require.

33 U.S.C. § 1319(d).

First, the Court finds that the violations committed

by Cundiff are serious. Evidence at trial indicates that

Cundiff’s activities significantly impaired the

property’s wetland functions such as water filtration

and sediment removal which in turn directly

influenced the quality of Pond and Caney Creeks.

Additionally, Cundiffs activities reduced and/or

eliminated animals and plants associated with

wetland habitats. Second, the Court finds that

Cundiffs motive in filling the wetlands was to raise

cattle or crops on the land. Therefore, Cundiff hoped to

derive an economic benefit from the filling of the

wetlands. Third, the violations committed by Cundiff

have been continuous since 1991. Each day that the

unlawful fill remains in place constitutes a separate

violation. See, e.g., Wright v. Finance Service of

Norwalk, Inc., 22 F.3d 647, 650 (6th Cir. 1994).

Fourth, the Court finds that Cundiff did not make

a good-faith effort to comply with the applicable legal

requirements. For over 13 years, Cundiff has failed to

comply with the orders of the Corps, KDOW, and EPA.

Cundiff flagrantly disregarded the October 22, 1991,

cease-and-desist order; the EPA’s October 16, 1997

Order of Compliance; the KDOW’s January 29, 1999,

violation letter; and the EPA’s June 23, 1999, Order of

Compliance. Additionally, Cundiffhas been repeatedly

informed by both federal and state officials that his

conduct was in violation of the Clean Water Act and

that he was not permitted to excavate ditches through

the wetlands and place the dredged material into the

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wetlands without a permit from the Corps. Cundiff

continues to adamantly refuse to comply with federal

and state Jaw and insists that he should be allowed to

alter the wetlands in order to grow crops or raise

livestock. This position is unacceptable. When Cundiff

purchased the southern tract in 1990, he was aware of

both the standing water on the property and of the

acid mine drainage. And significantly, as early as

1991, he was aware that his activity was in violation

of both state and federal law. Cundiff has repeatedly

defied the express orders and warnings of the federal

and state agencies charged with enforcing the Clean

Water Act. Clearly, Cundiff failed to make any effort

to comply with the law.

Finally, a review of Cundiffs tax records

demonstrate that he can pay a penalty between the

range of $150,000.00 to $225,000.00 payable over five

years. (Dwight D. Murray Trial Testimony). The Court

also finds that Cundiff has the ability to both fund the

proposed restoration plan and pay a monetary penalty.

In light of the evidence presented at trial, and the

consideration of the factors set forth in 33 U.S.C.

§ 1319(d), the Court assesses a civil penalty against

George Rudy Cundiff in the amount of $225,000.00;

however, the Court will suspend $200,000.00 of the

civil penalty provided that Cundiff adequately

implements the restoration plan. The sum of

$25,000.00 shall be paid in equal installments over five

years.

IV. CONCLUSION

In accordance with the above findings cf fact and

conclusions of law, IT IS HEREBY ORDERED that

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Defendants, George Rudy Cundiff and Christopher

Seth Cundiff, are permanently enjoined from

discharging or causing the discharge of dredged or fill

material or any pollutants into any waters of the

United States except in compliance with the Clean

Water Act. The Defendants shall implement and fund

the Wetland Restoration Plan designed by Dr. Thomas

Heineke.

IT IS FURTHER ORDERED that Defendant,

George Rudy Cundiff, is assessed a civil penalty in the

amount of $225,000.00; however, the Court will

suspend $200,000 of the civil penalty provided that

Cundiff adequately implements the restoration plan.

The sum of $25,000.00 shall be paid in equal

installments over five years.

/s/ . :

Joseph H. McKinley, Jr. Judge

United States District Court

January 10, 2005

ce: counsel of record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.