Bayou Marcus Livestock and Agricultural Co. v. United States Environmental Protection Agency

No. 88-30275 WEA (N.D. Fla. November 3, 1989)

The court holds that developers cannot qualify for a silviculture exemption to the Federal Water Pollution Control Act § 404 permitting requirements to dredge or fill a wetland because they cannot show that their conduct was part of an ongoing silviculture operation and because modification of the property was necessary to initiate farming. In addition, the existing silivicultural exemption is nullified where the landowner discharges new dredge or fill material into navigable waters. Even if the developers could qualify for a silviculture exemption under § 404(f)(1), any exemption would be nullified under § 404(f)(2) because plaintiffs were engaged in a new activity with substantial consequences for the hydrology of the wetlands. Finally, the developers' discharge of material into navigable waters without authorization from the U.S. Army Corps of Engineers violates the Rivers and Harbors Act. The court holds that developers are liable for the restoration of wetlands and for civil penalties under § 404 of the Clean Water Act and under the Rivers and Harbors Act.

Counsel for Plaintiffs
Mark Proctor
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell
P.O. Box 12308, Seville Tower, 226 S. Palafox St., Pensacola FL 32581
(904) 435-7000

Counsel for Defendants
Samuel Alter, U.S. Attorneys Office
114 E. Gregory St., Pensacola FL 32501-4972
(904) 434-3251

[20 ELR 20445]

Arnow, J.:

Memorandum Decision

Initially defendants EPA and the Army Corps of Engineers (hereinafter "the government") move to strike certain affidavits submitted by plaintiffs.

The Sheppard affidavit is challenged on two grounds. The first ground is that Mr. Sheppard's testimony relates solely to state standards and is therefore irrelevant to an application of federal law. The second ground is that Mr. Sheppard is not qualified to render an expert opinion of this nature.

The court concludes the second ground is without merit but that this affidavit does speak solely in terms of state law and state environmental standards; it in no way addresses the proper application of federal law and regulations on these facts. It is therefore wholly irrelevant and should be stricken.

The same defect warrants granting the motion to strike the Serviss affidavit. The motion will be denied, however, with respect to the Musgrove, Danser, and Pitt affidavits because the government's objections go solely to the weight rather than the admissibility of the evidence presented by the affidavits.

The government seeks summary judgment against plaintiffs both on its counterclaim and plaintiffs' original claim for relief. It urges that plaintiffs' conduct has violated both the Clean Water Act ("CWA") and the River and Harbors Act ("RHA"). It contends that plaintiffs have contravened the CWA by, inter alia, filling wetlands and discharging pollutants into the waters of the United States without a permit, and have violated the RHA by altering or modifying the course, location or condition of such waters without prior authorization.

Plaintiffs concede that much of the property was wetlands, that such wetlands are subject to federal jurisdiction, and that plaintiffs' activities (dredging, filling, road construction, etc.) affected the wetlands. See, e.g., U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, 88 L. Ed. 2d 419 [16 ELR 20086] (1985).

What plaintiffs do challenge is the determination by the government that a permit was required before they could dredge, fill and build roads on the property. They urge that no permit was necessary because the property qualifies under the so-called silviculture exemption to the CWA set forth in 33 U.S.C. § 1344(f)(1)(a), and is not subject to the recapture provision of § 1344(f)(2).

Accordingly, the issues presented are: (1) whether the property qualifies for an exemption under § 1344(f)(1)(a); and (2) if so, whether such exemption is nullified by operation of § 1344(f)(2).

Plaintiffs challenge the interpretation of the relevant statutory provisions and regulations promulgated pursuant thereto by federal agencies charged with so doing. Thus, the government's findings and conclusions are entitled to some deference pursuant to 5 U.S.C. § 706(2)(A). Because no statutorily mandated standard of review is implicated, the agencies' action, findings and conclusions can be set aside only where arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. See U.S. v. M.C.C. of Florida, Inc., 772 F.2d 1501 [15 ELR 21091] (11th Cir. 1985); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 [13 ELR 20942] (5th Cir. 1983).

Under the law plaintiffs have the burden of showing they are entitled to a silviculture exemption and can also avoid the operation of § 1344(f)(2) to warrant overturning agency action here. See U.S. v. Akers, 785 F.2d 814 [16 ELR 20538] (9th Cir. 1986); Avoyelles, supra.

[20 ELR 20446]

The courts have consistently held that the § 1344 exemptions should be narrowly construed. See U.S. v. Huebner, 752 F.2d 1235 [15 ELR 20083] (7th Cir. 1985); U.S. v. Cumberland Farms, 647 F. Supp. 1166 [17 ELR 20301] (D. Mass. 1986), aff'd, 826 F.2d 1151 [17 ELR 21270] (1st Cir. 1987); Akers and Avoyelles, supra. To qualify for a silviculture exemption plaintiffs must show the existence of an ongoing tree farming operation on the property, and that the challenged conduct was part of such an operation. See 40 C.F.R. § 232.3(c)(1)(ii)(A); Akers, supra.

It is undisputed that prior to 1971 the property was used, if at all, for turpentine collection, and some tree harvesting took place between 1971 and 1974. There is no evidence, however, of any tree farming or related activity between 1974 and 1985 when plaintiffs acquired the land.

Plaintiffs contend the depositions of S. Victor and Kenneth Ness provide some evidence of such activity during that time period. Yet a close review of their statements does not support this contention. In fact, Mr. Victor stated he did not investigate prior uses before commencing work in 1985, and the only such information he did receive was provided by Mr. Schluter. He did find signs of lumbering sixty, seventy or eighty years ago.

Mr. Ness also said he did not think it was important to investigate prior usage. Though he did see some stumps indicating selective harvesting, he had no idea when such occurred. He did note there were many older trees, and concluded the growth was natural.

Overall, there is no evidence of any silviculture operations on the land between 1974 and 1985, much less that such were part of an established ongoing tree farming enterprise.

After plaintiffs acquired the property they began to clear the land and fill the wetlands. This activity included digging drainage ditches, removing trees, roots and debris, and constructing roads. According to both Mr. Victor and Mr. Ness this conduct was designed to prepare the land for tree farming.

Apparently the principals had consulted with state officials but did not contact the Corps of Engineers or the EPA before the work began. On August 1, 1986 the aforementioned agencies ordered plaintiffs to cease and desist. On March 30, 1988 the EPA issued an administrative order mandating restoration of the property to its natural condition. Subsequently plaintiffs filed suit in this court to challenge the legality of these orders.

On the record here this court concludes plaintiffs cannot qualify for a silviculture exemption under § 1344(f)(1)(a).

First, as previously explained, plaintiffs cannot show that their conduct was part of an ongoing silviculture operation. The record discloses some harvesting between 1971 and 1974. (It remains unclear who did so and to what extent.) This does not establish the existence of an ongoing operation, much less that plaintiffs' acts were a continuation of any such activity.

Plaintiffs attempt to bridge the gap between 1974 and 1985 by arguing the slash pines had a 12-15 year growing cycle and therefore letting the trees grow was part of an ongoing operation. This novel contention has no merit. Plaintiffs ignore the fact that such a cycle would have required clearing of all other vegetation 12-15 years ago simply to prepare the site. Yet there is no evidence whatsoever of any planting, site preparation or any other silviculture related activities between 1974 and 1985.

Moreover, adopting defendants' natural revegetation theory would permit all property owners who fill wetlands containing commercially viable timber to claim a silviculture exemption relating back in time based on how long it took the trees in the forest to grow naturally, wherever any lumbering had occurred in the past no matter how distant or discontinuous. This would gut the CWA with respect to such wetlands and be directly contrary to congressional intent. See Avoyelles, supra.

Second, it is apparent that plaintiffs' conduct was not part of an ongoing operation but an effort to establish a tree farming enterprise on the property which did not previously exist. Mr. Ness testified the trees were natural growth of various ages, so they decided to clear cut and replant to achieve a uniform harvest. Such start-up activity expressly cannot qualify for an exemption under § 1344(f)(1)(a). See 33 C.F.R. § 323.4(a)(1)(ii) and 40 C.F.R. § 232.3(c)(1)(ii)(B).

In addition, it is undisputed that this property had "lain idle" between 1974 and 1985, and "modifications to the hydrology regime" were "necessary to resume operations." 33 C.F.R. § 323.4(a)(1)(ii). Before plaintiffs could have effectively harvested the timber and begun farming, it was necessary to dredge, fill, construct roads and dig ditches. Under the undisputed testimony of Mr. Ness, if an ongoing operation had been previously functioning, such changes in the landscape would have been unnecessary.

Assuming arguendo that plaintiffs could qualify for a silviculture exemption under § 1344(f)(1)(a), any such exemption would be nullified by operation of § 1344(f)(2).

Under § 1344(f)(2) a landowner must have a permit to discharge dredge or fill material into navigable waters putting such waters to a use to which they were not previously subject, where the flow or circulation of the waters may be impaired or their reach reduced as a result.

Read in para materia the operation of these provisions is clear. The statute exempts operations in place when the CWA went into effect, but imposes a permit requirement for new or additional activity affecting the waters of the United States. See Avoyelles, supra.

Accordingly, even if plaintiffs' theory satisfied the requirements of § 1344(f)(1)(a), such operation was limited to selective harvesting of natural growth. Thus plaintiffs' conduct from 1985 onward was an additional activity producing entirely new and substantial consequences for the hydrology of the wetlands and adjacent navigable waters and the operation of § 1344(f)(2) would preclude a silviculture exemption for these activities. Cf. U.S. v. Cumberland Farms, 647 F. Supp. 1166 [17 ELR 20301] (D. Mass. 1986), aff'd, 826 F.2d 1151 [17 ELR 21270] (1st Cir. 1987).

Finally, the government urges it has pled and established a violation of § 10 of the RHA (33 U.S.C. § 403). Plaintiffs neither challenge nor controvert this claim.

Under § 403 it is unlawful to "excavate or fill, or in any manner to alter or modify the course, location, condition or capacity . . . of the channel of any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same." This provision should be given an expansive interpretation as Congress intended. U.S. v. Republic Steel Corp., 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 [15 ELR 20982] (1980).

The government's uncontroverted expert testimony establishes that plaintiffs' activities altered and modified the condition and capacity of Bayou Marcus and Perdido Bay, both navigable waters of the United States. In addition, it is undisputed that such work was performed without being first recommended or authorized by the Corps. See 33 U.S.C. § 403.

Under these circumstances the RHA provides separate and independent grounds for rendering summary judgment in favor of the government. Compare M.C.C. of Florida, Inc., supra.

Rule 56, Federal Rules of Civil Procedure, provides that judgment shall be rendered if the record shows there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. As the Court explained in Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 S. Ct. 2548, 2554, 91 L. Ed. 2d 265, 273 (1986):

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden the proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

In this case plaintiffs had the burden of establishing that the government's findings and conclusions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Avoyelle and M.C.C. of Florida, Inc., supra.

Plaintiffs are unable to do so. The government's application of federal law in this case is wholly reasonable and fully supported by the record.

There is no genuine issue of material fact respecting plaintiffs' claim or the government's counterclaim and the government is entitled [20 ELR 20447] to judgment on both claims for relief as a matter of law. The government's motion for summary judgment should and will be granted and appropriate order of summary judgment will be entered.

Order

Pursuant to and in accordance with memorandum decision of this date, it is ORDERED as follows:

1. The government's motion to strike the Sheppard and Serviss affidavits should be and is hereby granted, and such affidavits are stricken.

2. The government's motion to strike the Musgrove, Pitt and Dansar affidavits should be and is hereby denied.

3. Summary judgment is hereby entered in favor of the government and against the plaintiffs on both the complaint and the counterclaim, with the complaint being hereby dismissed with prejudice and at plaintiffs' cost and with the plaintiffs being found liable to the government on the counterclaim for restoration of the wetlands in question and for civil penalties under the United States Code section referred to in the counterclaim.