United States v. Hobbs

No. 89-327-N (E.D. Va. August 24, 1990)

The court denies defendants' post-trial motions for a new trial and judgments notwithstanding the verdict (JNOV) after a jury found that defendants discharged pollutants onto their wetlands without a Corps of Engineers permit in violation of § 301(a) of the Federal Water Pollution Control Act (FWPCA). After the jury verdict, the court conducted a bench trial to determine the appropriateness of ordering injunctive relief, in the form of restoration and imposition of civil penalties, to which defendants moved for a new trial and JNOVs. the court first holds that defendants' motion for a new trial and lacks merit, incorrectly states the basis of the court's previous ruling, and is frivolous and wholly unsupported by the evidence. At the jury trial, defendants stipulated that they cleared, planted, and grubbed their property numerous times, and the jury was properly instructed that defendants' liability was not dependent on their ownership status, but on the evidence that each defendant engaged in activities constituting discharges of pollutants. In denying defendants' motions for JNOV or, in the alternative, new trials, the court holds that it correctly ruled during the jury trial that the Environmental Protection Agency (EPA) has independent authority to evaluate whether property is governed by the FWPCA. The court next holds that it did not effectively grant the United States a directed verdict at jury trial by permitting testimony to be introduced on the federal wetlands delineation manual. At the jury trial, the court held that compliance with the Administrative Procedure Act in enacting the federal delineation manual, the EPA manual, or the Corps manual, was unnecessary since the manual aided agency officials in "interpreting" the dictates of the FWPCA, and were thus guidance materials rather than legislation. Moreover, the jury was ultimately bound to evaluate the evidence in light of the regulatory definition of the term "wetlands," and the court instructed [21 ELR 20831] the jury that the United States bore the burden of proving that defendants' property constituted jurisdictional wetlands.

The court next holds that the forms of verdict submitted to the jury are not void and did not violate defendants' Seventh Amendment rights by leaving the court to decide factual matters, even though the court used special interrogatories without requiring the jury to render a general verdict. The court did not abuse the wide discretion accorded trial courts by entering separate verdicts based on the jury's answers to each issue of fact. The jury, based on the forms of verdict they returned, found that defendants' property is wetlands constituting a water of the United States, onto which defendants discharged pollutants. Moreover, the fact that the court did not require the jury to determine the date, location, or precise amount of the discharges is not fatal to a finding of liability. The court had sufficient information from the jury to proceed with the penalty phase of the trial, at which the court allowed the parties to present evidence on all relevant factors.

The court next holds that defendants' claim that the definition of "adjacency" in 33 C.F.R. § 328.3(c) is void for vagueness is without merit. In light of the broad legislative intent of FWPCA § 101(a), it was reasonable for the court to conclude that adjacent wetlands may be defined as waters under the FWPCA. Further, courts have consistently found jurisdictional wetlands to exist, even when the connection between the wetlands area and the adjacent tidal waters is artificial or man-made. Thus, defendants' claim that their property is adjacent to man-made, non-tidal drainage ditches that are not waters of the United States, did not preclude the jury from determining that defendants' land is wetlands. The court next holds that defendants were not incorrectly denied categorization under statutory exemptions from the permitting process. Defendants were not entitled to exemption from the permitting process for discharges onto wetlands that result from normal agricultural activities, since the exemption is only available for discharges onto wetlands that have already been subject to agricultural activities. The evidence shows that defendants purchased the property in order to begin agricultural activities. Defendants are also not entitled to the exemption for silvicultural activities, since that exemption applies to normal timber harvesting, not to the clearing of timber to permanently change the wetlands into a non-wetland agricultural tract.

The court next holds that defendants were not denied due process when the court refused to permit them to present evidence of their good faith belief that EPA's order for compliance was invalid. At jurytrial, the court concluded that failure to comply with an EPA compliance order is governed by a strict liability standard, since the regulatory provisions of the FWPCA were written without regard to responsible persons' intentions. However, while defendants' good faith belief was irrelevant for purposes of determining liability, the defendants' intent was a proper consideration for the court in determining civil penalties. The court also holds that the government is not estopped from enforcing the FWPCA against defendants. Defendants failed to show any affirmative misconduct by employees of the Soil Conservation Service on which they relied.

The court refuses to grant the United States' request that defendants' counsel be sanctioned, pursuant to Federal Rule of Civil Procedure 11, for submitting voluminous, repetitive, and often frivolous motions and objections throughout the litigation. However, the court places defense counsel on notice that subsequent repetitive motions and objections, without new legal authority or evidence, will be subject to scrutiny under Rule 11.

[The district court's prior decision in this litigation is published at 20 ELR 21299.]

Counsel for Plaintiff
Michael Rhine, Ass't U.S. Attorney
Walter Hoffman U.S. Courthouse, 60 Granby St., Rm. 401, Norfolk VA 23510
(804) 441-6631

David A. Carson, Craig B. Schaefer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Richard R. Nageotte, James S. Krein
Nageotte, McCormack, Krein & Gray
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 497-0000

Smith, J.:

Memorandum Opinion and Order

This matter comes before the court on numerous post-trial motions filed by defendants in this case. On January 26, 1990, the jury found that defendants had discharged pollutants onto their wetlands property without first seeking a permit from the United States Army Corps of Engineers (hereinafter referred to as "Corps"), in violation of Section 301(a) of the Clean Water Act (hereinafter referred to as "CWA"), 33 U.S.C. § 1311(a). A bench trial was conducted on May 17, 18, and 21, 1990, to determine the appropriateness of ordering injunctive relief, in the form of restoration, and of imposing civil penalties.¹ The court issued its ruling regarding relief, restoration, and penalties from the bench on May 21, 1990, with a Final Order entered in the case on August 22, 1990. The following is a list of defendants' motions, with their filing dates, which are the subject of this opinion and order:

(March 2, 1990)

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

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

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

(March 14, 1990)

Motion to Stay Entry of Final Judgment;

(June 26, 1990)

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

The court will consider each motion in the order indicated above.

Motion for a New Trial

In their motion, defendants Donna M. Hobbs and Dorothy V. Hobbs seek a new trial on the basis that the United States failed to present evidence that either defendant discharged a pollutant, a prerequisite to establishing a violation of the CWA. 33 U.S.C.§ 1311(a).² Defendants' Donna M. Hobbs and Dorothy V. Hobbs' Motion for a New Trial, United States v. Hobbs, Civil Action No. 89-327-N, at 1-2 (E.D. Va. March 2, 1990). Defendants represent in their motion that the court found the two defendants could be liable for violating the CWA purely on the basis that they were co-owners of the subject property with their spouses. Id. at 2-3. The court finds that defendants' motion lacks merit and incorrectly states the basis of the court's ruling.

Despite defendants' contention that no evidence was presented to establish liability, they stipulated to clearing, planting, and grubbing their property on numerous occasions. The Stipulation read: "Phillip Ray Hobbs and Dorothy V. Hobbs conducted the work on the parcels listed on the dates set as follows. . . ." Order on Final Pretrial Conference, United States v. Hobbs, Civil Action No. 89-327-N, at 3 (E.D. Va. January 4, 1990) (emphasis added) (hereinafter referred to as "Stipulation"). Likewise, the Stipulation with respect to defendant Donna M. Hobbs indicated: "S. Paul Hobbs and Donna M. Hobbs conducted the work on the parcels listed on the dates set out as follows. . . . " Id. at 4 (emphasis added). The Stipulation was presented to the jury in the court's preliminary instructions at the inception of trial and as part of the court's charge (Jury Instruction No. 4) at the close of the liability phase of the case. Clearly, the basis for each defendant's liability was not his or her status as a co-owner of the [21 ELR 20832] subject property, but rather liability rested on the evidence presented to the jury that each defendant engaged in various activities which constituted discharges of pollutants. See also Jury Instruction No. 21 (each defendant to be considered separately and individually by the jury). Defendants, moreover, made no objections to the court's preliminary instruction or the final jury instruction, each of which contained the Stipulation. Thus, for the reasons stated herein, the court DENIES defendants' motion for a new trial as being frivolous and wholly unsupported by the evidence.

Motions for JNOVs or New Trials

On March 2, 1990, defendants, S. Paul Hobbs and Donna M. Hobbs, and defendants, Phillip Ray Hobbs and Dorothy V. Hobbs, filed separate motions seeking judgments notwithstanding the verdicts or, in the alternative, new trials. Because both motions raise the same seven issues, the court will discuss these motions together. The seven issues asserted by both motions are:

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

2. The 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands and the 1988 Environmental Protection Agency (hereinafter referred to as "EPA") Wetland Identification and Delineation Manual violate the Administrative Procedure Act;

3. The court's Forms of Verdict are void;

4. The term "neighboring" incorporated into the definition of "adjacency," 33 C.F.R. § 328.3(c) is void for vagueness;

5. The court improperly failed to instruct the jury that man-dug, non-tidal drainage ditches are not waters of the United States;

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

7. The court erred in prohibiting defendants from presenting evidence as to their "good faith" belief that the order of compliance issued by the EPA was invalid.

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

In addition, defendant S. Paul Hobbs asserts a separate ground pertaining to the court's failure to instruct the jury on estoppel. S. Paul Hobbs and Donna M. Hobbs' Motion for Judgment Notwithstanding the Verdict or, in the alternative, a New Trial, United States v. Hobbs, Civil Action No. 89-327-N, at 59-66 (E.D. Va. March 2, 1990) (hereinafter referred to as "Paul Hobbs' Motion for JNOV" in regard to this one ground).

1. Permitting Authority

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

Defendants assert the same arguments previously set forth in support of their contention. In fact, two of the cases relied upon by defendants, National Wildlife Federation v. Hanson, 859 F.2d 313, 315-16 [18 ELR 21509] (4th Cir. 1988), and Golden Gate Audubon Society, Inc. v. United States Army Corps of Engineers, 700 F. Supp. 1549, 1552-53 [18 ELR 20992] (N.D. Cal. 1988), both support the court's decision. In both cases, the courts held that the citizen suit provisions of the CWA, 33 U.S.C. § 1365, authorize such suits against the Corps, even though the language of the provision only permits such suits against the EPA. National Wildlife, 859 F.2d at 316; Golden Gate, 700 F. Supp. at 1552. The Fourth Circuit stated:

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

National Wildlife, 859 F.2d at 315-16 (emphasis added) (citations omitted).³ The court, therefore, remains convinced that its previous rulings on this point are correct and defendants' Motions for JNOVs on this ground are DENIED.

2. Delineation Manuals

On January 2, 1990, defendants filed a motion for summary judgment or, in the alternative, partial summary judgment, alleging that various identification and delineation manuals utilized by EPA officials in making their wetlands evaluations are void in that they were not enacted in compliance with the notice and comment provisions of the Administrative Procedures Act (hereinafter referred to as "APA"). Defendants' Motion for Summary Judgment or, in the alternative, Partial Summary Judgment, United States v. Hobbs, Civil Action No. 89-327-N (E.D. Va. January 2, 1990). After reviewing the motion and the memoranda of law filed by both parties, the court, on January 10, 1990, denied the motion, holding that compliance with the APA was unnecessary since the manuals aided agency officials in "interpreting" the dictates of the CWA and, therefore, were guidance materials rather than legislation.

The court reasoned that the parties were free to present jurisdictional determinations based on either the federal delineations manual, the EPA manual, or the Corps manual, since the jury was ultimately bound to evaluate the evidence in light of the regulatory definition of the term "wetlands." Indeed, the jury instruction recited verbatim the regulatory definition of the term "wetlands." Jury Instruction No. 19 (quoting 33 C.F.R. § 328.3(b)). The court also instructed the jury that the United States bore the burden of proving, by a preponderance of the evidence, every essential element of its case, which included proving that defendants' property constitutes jurisdictional wetlands. See Jury Instructions Nos. 11, 12, and 14. Thus, the court is unpersuaded by defendants' argument that by permitting testimony on the federal delineations manual, the court, for all practical purposes,granted a directed verdict for the United States. Defendants' Joint Memorandum in Support of Hobbs' Motions for Judgments Notwithstanding the Verdicts or in the alternative a New Trial, United States v. Hobbs, Civil Action No. 89-327-N, at 21-22 (E.D. Va. March 2, 1990). Consequently, finding no new matters presented for the court's consideration, and finding no error in the court's previous ruling on this issue, defendants' motions with respect to this ground are DENIED.

B. Forms of Verdict

Defendants claim that the Forms of Verdict submitted to the jury are void because the court used special interrogatories pursuant to Federal Rule of Civil Procedure 49(a), without requiring the jury to render a general verdict in the case. Motions for JNOVs at 29. When defendants first raised this objection, the court explained that the Forms of Verdict called for a jury determination on each issue of fact. Transcript, United States v. Hobbs, Civil Action No. 89-327-N, at 11 (E.D. Va. January 24, 1990) (hereinafter referred to as "January 24, 1990 Transcript"). Based on the jury's answers, the court would then enter a verdict under the law. The court did not abuse the wide discretion accorded to trial courts when employing special verdicts. [21 ELR 20833] Scott v. Isbrandtsen Co., 327 F.2d 113, 119 (4th Cir. 1964) ("The number and form of issues, if they present the case fairly, are matters resting in the sound discretion of the trial judge.") (emphasis in original). The CWA prohibits the discharge of a pollutant into waters of the United States without a permit. 33 U.S.C. § 1311(a). Based on the Forms of Verdict returned by the jury, they found that defendants' property is wetlands constituting a water of the United States, and that defendants discharged pollutants onto their wetlands property. Forms of Verdict, United States v. Hobbs, Civil Action No. 89-327-N (E.D. Va. January 26, 1990).

On January 24, 1990, defendants first objected to the Forms of Verdict because, while the Forms of Verdict did inquire into whether defendants discharged pollutants onto wetlands adjacent to waters of the United States, they did not ask whether defendants engaged in such activity "without a permit required from the United States Army Corps of Engineers." Motions for JNOVs at 32; January 24, 1990 Transcript at 11. At that time, the court indicated that the CWA requires a permit if there is a discharge of a pollutant onto waters of the United States. January 24, 1990 Transcript at 11. If the jury found that defendants engaged in such activity, then as a matter of law a permit was required under the CWA, and defendants stipulated that they, in fact, had not obtained any permit. Id. There was no issue of fact for the jury to determine on this point. Therefore, for the reasons stated herein, in addition to those conveyed by the court at the time this objection was first raised, the court finds no merit in this objection.

Defendants further contend that the structure of the Forms of Verdict violates the Supreme Court's decision in Tull v. United States, 481 U.S. 412 [17 ELR 20667] (1987), since, according to defendants, the court was left to decide certain factual matters which should have been submitted to the jury. Motions for JNOVs at 41. Specifically, defendants criticize the Forms of Verdict for failing to require the jury to determine the date, the location, or the precise amount of the discharges. Motions for JNOVs at 41-43. The Supreme Court, in Tull, held that while there is a Seventh Amendment right to a jury trial for purposes of determining liability under the CWA when the United States seeks civil penalties, the trial court bears the responsibility of engaging in "highly discretionary calculations that take into account multiple factors" in order to assess civil penalties, if any. Tull, 481 U.S. at 427. All Tull requires is a general jury verdict on the issue of liability. In this case, defendants received more than a general verdict because Forms of Verdict were used. The jury's verdict specifically found discharges of pollutants by defendants at certain time periods onto wetlands, which were waters of the United States, thereby establishing liability. The Forms of Verdict were sufficiently detailed to comport with the evidence presented in the case.⁴ The court then had sufficient information from the jury to proceed with the penalty phase of the trial.

It was then the court's duty during the penalty phase of the trial to consider those factors, namely the amount and location of the discharges, in order to determine the type of restoration to be ordered and the amount of civil penalties to be imposed. The court allowed the parties a full opportunity to present evidence at the penalty phase of the trial on all relevant factors.⁵

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

4. Adjacency

Defendants reassert in this ground an argument that has been revisited by this court in this case on numerous occasions. They maintain that the regulatory definition of the term "adjacency," 33 C.F.R. § 328.3(c), is void for vagueness unless the term "neighboring" utilized in the definition is given the same meaning as the terms "bordering" and "contiguous." Motions for JNOVs at 44. Defendants first raised this argument in one of their pretrial motions filed on January 2, 1990, and, then, asserted it again during the course of the trial and as an objection to the jury instructions. The court has consistently concluded that in light of the broad legislative intent of the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a), the Act is to be applied broadly under the Commerce Clause. United States v. Whichard, 20 Envtl. L. Rep. [ERC] 1148, 1150 [14 ELR 20093] (1983) (citing United States v. Texas Pipe Line Co., 611 F.2d 345, 347 [10 ELR 20184] (10th Cir. 1980)). Even the Supreme Court, in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 [16 ELR 20086] (1985), indicated that because of the sweeping authority contemplated by the CWA and the Corps' opinion with respect to the ecological interplay between waters and their adjacent wetlands, it was reasonable to conclude that "adjacent wetlands may be defined as waters under the Act." Accordingly, for the reasons herein and those recited throughout this proceeding, the court finds that defendants' void for vagueness argument lacks merit and does not constitute a basis for granting defendants' motions, which are DENIED on this ground.

5. Drainage Ditches

The court instructed the jury that the phrase "waters of the United States" meant waters which at some point in time, either past, present or future, had been or may be used in interstate or foreign commerce. Jury Instruction No. 18. Wetlands adjacent to these waters are included in the definition of "waters of the United States" and subject to the CWA. Id. Defendants, at numerous times throughout this case, have alleged that even if their property does constitute wetlands, the wetlands are adjacent to man-dug, non-tidal drainage ditches originally excavated on dry land and, therefore, not a water of the United States.⁶

Assuming that the ditches were man-made,⁷ the definition of the term "adjacent" expressly includes wetlands separated from other waters of the United States by man-made structures: "Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.'" 33 C.F.R. § 328.3(c). Courts have consistently found jurisdictional wetlands to exist, even when the connection between the wetlands area and the adjacent tidal waters is artificial or man-made. See United States v. Ciampitti, 583 F. Supp. 483, 494 (D.N.J. 1984), aff'd, 772 F.2d 893 (3d Cir. 1985), cert. denied, 475 U.S. 1014 (1986) (In light of the legislative and regulatory history of the CWA, jurisdictional wetlands may exist even though they may have been artificially created. "[F]ederal jurisdiction is determined by whether the site is presently wetlands and not by how it came to be wetlands."); United States v. Akers, 651 F. Supp. 320, 321-23 [17 ELR 20702] (E.D. Cal. 1987) (Statutory and administrative definitions of "waters" and "wetlands" are broad enough to include artificially-created wetlands because regulatory language "emphasizes the nature of the land in question, not the manner by which it might have reached its wetland state."); Track 12, Inc. v. District Engineer, United States Army Corps of Engineers, 618 F. Supp. 448 [16 ELR 20163] (D.C. Minn. 1985) (Corps had jurisdiction of artificial wetland created by actions of state and local authorities, including construction of a highway and a storm sewage system).

Defendants' contention includes an assumption that the ditches which existed on the property prior to their ownership of the land were dug on dry land. Defendants' own witness, Mr. Rudy Nuttall, a life-long resident of the Ware Neck area, testified that the area was a swamp and that one needed rubber boots when on the defendants' property because the area was extremely wet. In any event, the jury heard testimony from both parties describing the location and the characteristics of defendants' property and the pattern of drainage ditches across the property. The court fully instructed the jury on the definitions of waters of the United States, wetlands, and adjacency. [21 ELR 20834] Jury Instructions Nos. 18, 19, and 20. The jury then determined that defendants' property is, indeed, a wetlands. For the reasons stated from the bench, as well as those stated herein, the court DENIES defendants' Motions for JNOVs with respect to this ground.

6. Statutory Exemptions

Defendants contend that the court incorrectly refused to include their proposed jury instruction concerning the CWA's Section 1344(f) exemptions from the permitting process. Motions for JNOVs at 51.⁸ Specifically, defendants maintain that they engaged in silviculture and in the construction of forestry roads, farm ponds, and drainage ditches. Id. at 51-52, 54. Title 33 U.S.C. § 1344(f)(1) provides exemptions from the permitting process for discharges onto wetlands which result from normal agricultural activities. The exemptions set forth in Section 1344(f)(1) are subject to 33 U.S.C. § 1344(f)(2) (emphasis added) which provides:

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit. . .

Section 1344(f)(1) has consistently been construed narrowly. See United States v. Huebner, 752 F.2d 1235, 1240-41 [15 ELR 20083] (7th Cir. 1985), cert. denied, 474 U.S. 817 (1985); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 [13 ELR 20942] (5th Cir. 1983). At trial, defendants testified that they purchased the property for growing hay and for raising cattle. They engaged in clearing, grubbing, and planting activities in order to achieve their goals. See Stipulation; Jury Instruction No. 4.

Defendants' contend that they engaged in silviculture activity exempt from the permit requirement pursuant to Section 1344(f)(1)(A). According to the regulations issued by the Corps for implementing that section, silviculture qualifies for the exemption only if it is a part of an established operation. 33 C.F.R. § 323.4(a)(1)(ii) (emphasis added). "Activities which bring an area into . . . silviculture . . . use are not part of an established operation." Id. Defendants cleared timber in order to convert the property into hay fields and pasture land. In United States v. Larkins, 852 F.2d 189, 192 [18 ELR 21416] (6th Cir. 1988), cert. denied, U.S. , 109 S. Ct. 1131 (1989), defendants argued that their actions were exempt under Section 1344(f)(1)(A) by claiming that their land was used for silviculture, even though they planted crops after the trees had been removed rather than replanting the property with trees. The court concluded that defendants were not entitled to the exemption since "33 U.S.C. § 1344(f)(1)(A) applies to the normal harvesting of timber, not to the activity of clearing timber "to permanently change the area from wetlands into non-wetland agricultural tract. . . .'" Id. (quoting Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 926 n. 46 [13 ELR 20942] (5th Cir. 1983) (citation omitted) (emphasis in original). Accordingly, defendants' in the case at bar were clearly not entitled to the exemption provided by Section 1344(f)(1)(A).

Next, defendants claim that their construction of forestry roads is also exempt pursuant to 33 U.S.C. § 1344(f)(1)(E). Both the statute and the Corps' regulations require that such roads be constructed and maintained consistent with best management practices ("BMPs") in order to avoid the need for a CWA permit. See 33 U.S.C. § 1344(f)(1)(E); 33 C.F.R. § 323.4(a)(6). Defendants never proffered any evidence that the forestry roads were constructed in accordance with BMPs, nor do they make any such allegation in their motions presently before the court.

The farm pond constructed by defendant Phillip Hobbs was built to serve as a watering area for cattle grazing on the property. By constructing the pond, defendants cleared that portion of the property in order to bring the area into a use to which it had not previously been subject. 33 U.S.C. § 1344(f)(2). Therefore, defendants' actions relating to construction of the farm pond were not exempt from the provisions of the CWA.

Defendants, suggest that their ditching activity resulted in "minor drainage" of the property in an effort to qualify for the statutory exemption contained in Section 1344(f)(1)(A). According to 33 C.F.R. § 323.4(a)(1)(iii)(C)(2), "[m]inor drainage . . . is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland . . . or conversion from one wetland use to another (for example, silviculture to farming)." The uncontroverted evidence was that defendants cleared the land and then dug drainage ditches in order to remove excess water from the property, all to establish hay fields and grazing areas on the land. The discharges of pollutants associated with their ditching activity is, therefore, not exempt pursuant to Section 1344(f)(1)(A).

Finally, defendants assert that the jury should have been given the opportunity to decide whether "the flow or circulation of navigable waters may be impaired or the reach of such waters . . . reduced. . . ." by their actions taken on the subject property. 33 U.S.C. § 1344(f)(2). The Corps' regulations set forth that "[w]here the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. 33 C.F.R. § 323.4(c). The regulations further state the following specific example: "a permit will be required for . . . the conversion of a wetland . . . to agricultural use when there is a discharge of dredged or fill material into waters of the United States in conjunction with construction of . . . drainage ditches or other works or structures used to effect such conversion." Id. The evidence clearly showed that the defendants engaged in extensive clearing and construction activities, including drainage ditches, on the subject property to convert it to an agricultural use. Therefore, under the regulations, it is presumed that the discharges of pollutants resulting from those activities have impaired the flow or circulation of waters of the United States, thereby not entitling defendants to the exemption in § 1344(f)(2). Defendants presented no evidence to the contrary to rebut this presumption, and it would have been error for the court to instruct the jury on this statutory exemption.

For the foregoing reasons, the court DENIES defendants' Motions for JNOVs on this ground because their proposed jury instruction on statutory exemptions under the CWA was properly refused as unsupported by the evidence.

7. Good Faith Belief

Defendants challenge the court's refusal to permit presentation of evidence concerning defendants' good faith belief that the EPA's order for compliance was invalid. They maintain that such evidence was a valid defense to their violation of that order and, therefore, they were denied due process of law. In their motions, defendants articulate eight separate occasions in which they raised this same objection. Motions for JNOVs at 54-57. In each instance, the court concluded that failure to comply with an order for compliance issued by the EPA is governed by a strict liability standard. 33 U.S.C. § 1319(d);⁹ see United States v. Earth Sciences, Inc., 599 F.2d 368, 374 [9 ELR 20542] (10th Cir. 1979) ("The regulatory provisions of the [CWA] were written without regard to intentionality, however, making the person responsible for the discharge of any pollutant strictly liable."); Connecticut Fund for the Env't, Inc. v. UpJohn Co., 660 F. Supp. 1397, 1409 [17 ELR 21137] (D. Conn. 1987) ("Under the [CWA], compliance is a matter of strict liability and a defendant's intention to comply or good faith attempt to do so does not excuse a violation."); United States v. Bradshaw, 541 F. Supp. 884, 886 [12 ELR 20630] (D. Md. 1982) (cessation of activity upon notice of possible violation irrelevant for purposes of CWA, since Act is a strict liability statute).

While defendants' good faith belief was irrelevant for purposes of determining liability, their intent was a proper consideration for the court, not the jury, in determining the amount of civil penalties to be imposed. 33 U.S.C. § 1319(d);¹⁰ United States v. Tull, 481 U.S. 412, 425-27 [17 ELR 20667] (1987). Indeed, the court did take into account [21 ELR 20835] defendants' actions upon receipt of the EPA's original order for compliance, and the amended order, in fashioning a remedy for their violations, as reflected in the court's ruling from the bench on May 21, 1990. Therefore, the court once again, for the reasons previously stated, DENIES defendants' motions on this point.

8. Estoppel

Defendant S. Paul Hobbs renews his objection to the court's refusal to include a jury instruction on estoppel. See Paul Hobbs' Motion for JNOV at 59-66. The Supreme Court has not decided precisely what type of conduct is necessary to estop the federal government, including whether "affirmative misconduct" will suffice. See Schweiker v. Hansen, 450 U.S. 785, 788 (1981) ("This Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations . . . whether even 'affirmative misconduct' would estop the Government. . . .); Heckler v. Community Health Services, 467 U.S. 51, 59 (1984) (party asserting estoppel against the government must demonstrate reasonable reliance to his detriment).

The Fourth Circuit, in Zografov v. V.A. Medical Center, 779 F.2d 967, 969-70 (4th Cir. 1985), denied plaintiff's request for relief by way of estoppel because he failed to demonstrate affirmative misconduct on the part of EEOC officials. The court held: "[P]laintiff has made no showing of affirmative misconduct on the part of the government, which is the least the court would require, even if that would suffice, to rely upon estoppel." Id. at 969 (citing Hansen, 450 U.S. at 788). The holding in Zografov was confirmed in Johnson v. Burnley, 887 F.2d 471, 473, 479 (4th Cir. 1989), when the court stated that in order to invoke the doctrine of equitable estoppel, plaintiff, a former employee of the U.S. Coast Guard, would have to demonstrate, "at the very least, 'affirmative misconduct on the part of the government.'" Id. at 479 (quoting Zografov, 779 F.2d at 969). The court went on to characterize plaintiff's burden as a "stringent" one. Id.; see United States v. Tull, 615 F. Supp. 610, 624-25 (E.D. Va. 1983), (CWA/"wetlands" case requiring at least affirmative misconduct by government to invoke estoppel against it), aff'd, 769 F.2d 182, 187-88 [15 ELR 21061] (4th Cir. 1985), rev'd on another around, 481 U.S. 412 [17 ELR 20667] (1987).

Therefore, defendant Paul Hobbs was required to demonstrate both affirmative misconduct on the part of Mr. Lipps and Mr. Hawkins, employees of the Soil Conservation Service (hereinafter referred to as "SCS"), and reasonable reliance on their conduct in order to succeed in estopping the government from enforcing the CWA against him. While both Mr. Lipps and Mr. Hawkins testified that they did not believe the property contained wetlands, they also indicated that they never made any representations to defendant concerning regulated wetlands, nor did they have the authority to make jurisdictional determinations. Their purpose on the property was to design, layout, and oversee defendant's construction of the drainage ditches. Defendant points to an alleged failure on the part of either Mr. Lipps or Mr. Hawkins to comply with SCS regulations requiring notice to the Corps of the proposed activity as constituting affirmative misconduct. Paul Hobbs' Motion for JNOV at 64-65. To the extent that SCS policies were not complied with, such inaction on the part of either Mr. Lipps or Mr. Hawkins does not rise to the level of affirmative misconduct.¹¹ The SCS employees' conduct did not inhibit defendant from inquiring into whether other permits were required for the work he was conducting and planning to conduct on the property. See Hansen, 450 U.S. at 789. Thus, the court finds that its ruling from the bench on estoppel was correct and DENIES defendant's motion for JNOV or, in the alternative, a new trial on this issue.¹²

Motion to Stay Entry of Final Judgment On March 14, 1990, defendants filed a Motion to Stay Entry of Final Judgment pending the Fourth Circuit Court of Appeals decision in Southern Pines v. United States, Civil Action No. 89-453-N [20 ELR 20003] (E.D. Va. August 11, 1989), appeal docketed, No. 89-1790 (4th Cir. August 26 or 28, 1989). Motion to Stay Entry of Final Judgment, United States v. Hobbs, Civil Action No. 89-327-N (E.D. Va. March 14, 1990) (hereinafter referred to as "Motion to Stay." This court relied, in part, on Southern Pines to dismiss Counts 1, 2, and 3 of defendants' complaint. Memorandum Opinion and Order, Hobbs v. United States, Civil Action No. 89-327-N, at 4-8 (E.D. Va. March 29, 1990).¹³ In those counts, defendants sought pre-enforcement review of the compliance order requiring them to cease and desist discharging pollutants onto wetlands and to contact the EPA for the purpose of devising a restoration plan, issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). Id. at 1-2. Relying principally on the Supreme Court's decision in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 [11 ELR 20684] (1981), the court concluded that the enforcement provisions of the CWA do not provide a cause of action for challenging compliance orders prior to their being enforced by the EPA. Id. at 7. Therefore, judicial review of a compliance order occurs only when the EPA seeks enforcement in district court. Id. at 8.

Defendants argue that staying the final judgment in this case is appropriate because, if Southern Pines is overturned on appeal, the court should retain jurisdiction to consider motions defendants are certain to file. Motion to Stay at 3. Apparently, the thrust of these motions will be to seek a new trial because defendants were barred from introducing evidence that they challenged the validity of the EPA's exercise of jurisdiction over their property and that a preliminary injunction had been entered on their behalf at an earlier stage in the proceedings. Memorandum in Support of Hobbs' Motion to Stay Entry of Final Judgment Order, United States v. Hobbs, Civil Action No. 89-327-N, at 3 (E.D. Va. March 14, 1990) (hereinafter referred to as "Motion to Stay Memorandum").¹⁴

The court concludes that defendants, reasons for seeking a stay lack merit. Counts 1, 2, and 3 of defendants' complaint pertained solely to pre-enforcement review of the compliance order issued by the EPA. Complaint, Hobbs v. United States, Civil Action No. 89-327-N, at 15-20 (E.D. Va. April 25, 1989). Defendants sought pre-enforcement review of the compliance order because they questioned the propriety of the EPA's assertion of jurisdiction over their property as being wetlands adjacent to waters of the United States. Id. On January 26, 1990, a jury determined that defendants' property is wetlands adjacent to waters of the United States and, therefore, subject to Corps and EPA regulation. Defendants conceded at trial that they did not comply with the order, since they did not submit a restoration plan, however they did cease activity proscribed by the compliance order. Therefore, even if the Fourth Circuit determines that pre-enforcement judicial review of EPA orders for compliance is contemplated by the CWA, defendants would have been correct on the law, but their argument herein for staying entry of final judgment will have been rendered moot since the jury found them in violation of the CWA. Any error would be harmless at this point.

Defendants maintain that the court's actions in reliance on Southern Pines prejudiced their position in front of the jury because they appeared at trial as defendants, defending the characterization of their property as being wetlands, rather than appearing as plaintiffs, actively challenging the validity of the EPA's assertion of jurisdiction. Motion to Stay [21 ELR 20836] Memorandum at 3. This argument makes little sense, considering that as defendants they had no burden of proof and that the burden of proof was on the United States in this case. Specifically, this court instructed the jury that plaintiff bore the burden of proving every essential element of its claim by a preponderance of the evidence, and that it bore this burden with respect to each defendant. Jury Instructions Nos. 11 & 21. In each of the two instructions, the court advised the jury that failure on the part of the United States to prove its case would result in a finding for the defendants, and that each defendant must be examined separately and individually for purposes of determining liability. Id. Therefore, the court remains unconvinced that defendants were prejudiced by being defendants, rather than plaintiffs, in the instant case.

Defendants also contend that should Southern Pines be reversed, they will seek a new trial on the basis that they were prevented from introducing into evidence an Order of Preliminary Injunction issued by this court. Motion to Stay Memorandum at 3. According to defendants, the Order of Preliminary Injunction constituted a defense to the United States' allegation, in Count II of its counterclaim, that the Hobbs failed to comply with the EPA's order for compliance. Id. The court did preclude introduction of this evidence because it was irrelevant for purposes of determining defendants' liability for activity not protected by the injunction, not because, as contended by defendants, the court found that defendants were not entitled to pre-enforcement review of the compliance order. See Order on Final Pretrial Conference, United States v. Hobbs, Civil Action No. 89-327-N, at 37 (E.D. Va. January 4, 1990).

The Order of Preliminary Injunction permitted the Hobbs to continue normal farming operations in the fields which were already in production. Order of Preliminary Injunction, Hobbs v. United States, Civil Action No. 89-327-N, at 5 (E.D. Va. July 6, 1989) (hereinafter referred to as "preliminary injunction").¹⁵ Defendants were not prejudiced by the court's decision to deny admission of the preliminary injunction into evidence because the United States only sought civil penalties for failure to comply with the order for compliance prior to May 4, 1989, the date on with the court heard arguments with respect to the Hobbs' request for a preliminary injunction. Answer and Counterclaim, Hobbs v. United States. Civil Action No. 89-327-N, at 18 (E.D. Va. June 23, 1989); see Preliminary Injunction at 1. Consequently, the court's exclusion of this evidence will remain proper regardless of the Fourth Circuit's disposition of the decision in Southern Pines.¹⁶

For the reasons stated herein, the court DENIES defendants' Motion to Stay Entry of Final Judgment pending appeal to the Fourth Circuit of the district court's decision in Southern Pines.

Second Motion for JNOV

On June 26, 1990, defendants filed a second motion for judgment notwithstanding the verdict alleging that the court lacks jurisdiction over the twenty-five acre parcel of property in transition from forested property to agricultural land. Motion for Judgment Notwithstanding the Verdict and to Partially Set Aside the Jury Verdict as Contrary to the Law and Evidence, United States v. Hobbs, Civil Action No. 89-327-N, at 1 (E.D. Va. June 26, 1990) (hereinafter referred to as "Second Motion for JNOV.). Defendants maintain that the evidence presented at trial does not support the jury's finding, which includes parcels 105, 105A, and 106A, that the subject property constitutes jurisdictional wetlands. Id. On the contrary, two of the government's expert witnesses, Charles A. Rhodes, Jr., and Gary Frazer, testified that the entire subject property constituted jurisdictional wetlands. Their testimony specifically discussed the parcels in question, as well as other segments of the property. Moreover, their testimony was supplemented by photographs and diagrams illustrating the work performed on the property, the condition of the property, and the wetlands delineations conducted by government officials. Defendants' offered the testimony of their expert, Dr. James A. Reed, Jr., who supported their position that the property, including the field in transition, did not meet the regulatory definition of wetlands. He described and demonstrated the method by which he arrived at his conclusion. The jury had ample opportunity to consider and evaluate the witnesses and the evidence presented by both parties. It rendered a verdict which is supported by the evidence and which is reasonable in light of the evidence. Therefore, it would be error for this court to grant defendants' motion on this ground.

Additionally, defendants raise the following two contentions already asserted in their first motions for JNOV: the federal delineation manual is violative of the APA and the regulatory definition of "adjacency," 33 C.F.R. § 328.3(c), is void for vagueness. See supra at 4. Having addressed both issues numerous times throughout the course of this litigation, and again herein, the court DENIES defendants' motion with respect to these issues for the reasons stated from the bench and those stated herein. See supra at 7-8, 11-12.

Sanctions

In its response to defendants' Second Motion for JNOV, the United States asks this court to sanction counsel pursuant to Federal Rule of Civil Procedure 11. United States' Memorandum in Opposition to Defendant S. Paul Hobbs, Motion for Judgment Notwithstanding the Verdict and to Partially Set Aside the Jury Verdict, United States v. Hobbs, Civil Action No. 89-327-N, at 913 (E.D. Va. July 10, 1990) (hereinafter referred to as "Motion for Sanctions"). Plaintiff characterizes defense counsel as having a "propensity for rehashed legal arguments and factual inadequacy." Id. at 11. Frankly, such characterization is kind. This court has been besieged with voluminous and repetitive, and often times frivolous, motions and objections throughout this litigation. For example, the contention that the EPA lacks jurisdiction to enforce the CWA until the Corps determines whether a permit is required has been raised and ruled upon at least five (5) times in this case (prior to trial, at least twice during trial, on motion for directed verdict, and on post-trial motions); the contention that the wetlands delineation manuals are void because of non-compliance with the APA has been raised and ruled upon at least four (4) times thus far (prior to trial, at trial, twice post-trial); the contention that the term "adjacency" is void for vagueness has been addressed at least four (4) times (pre-trial, at trial, as an objection to jury instructions, and post-trial); the assertion that the property is not a water of the United States because, if wetlands, it is adjacent to man-dug, non-tidal drainage ditches has been raised and ruled upon four (4) times (pre-trial, on motion for directed verdict, as an objection to jury instructions, post trial); and in their post-trial motions, the defendants mention eight (8) different times they have raised the argument that they should be able to present evidence of their good faith non-compliance with the EPA Order. Motions for JNOVs at 54-57; see supra at 19. These examples are merely illustrative of the repetitious motions and objections made in this case by defendants' counsel and are in no way a comprehensive list of the abuses.

Although the court DENIES the Motion for Sanctions at this time, the court will not tolerate any further repetitive motions and objections, absent new legal authority or evidence, which with due diligence could not have been obtained at the time of the previous filings, motions, and objections.¹⁷ Any further improper, repetitive motions will be subject to scrutiny under Rule 11 of the Federal Rules of Civil Procedure, and defense counsel is so put on notice. These repetitive motions serve no purpose other than to increase the cost of this litigation. If defense counsel is of the opinion that the court is incorrect in its rulings and orders, then the proper recourse at this juncture is appeal, not repetitive filings.

It is so ORDERED.

1. On December 14, 1989, the court granted plaintiff's motion for bifurcation into separate trials on the issues of liability and damages.

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

3. The court in National Wildlife went on to conclude that "Congress cannot have intended to allow citizens to challenge erroneous wetlands determinations when the EPA administrator makes them but to prohibit such challenges when the Corps makes the determination" and the EPA fails to exert its authority over the Corps' determination. 859 F.2d at 316.

4. The government's evidence was that all of defendants' property was wetlands constituting waters of the United States. See infra at 28-29. Defendants presented testimony that none of their property constituted wetlands. See infra at 29. Therefore, the jury could accept or reject these positions and either find wetlands or not. The court made it clear that the United States had the burden of proof on these issues. See Jury Instructions Nos. 11, 12, and 14. Further, the government's evidence of discharges was presented by years, and the court finds no deficiency in this level of specificity.

5. For the most part, the parties simply relied on the evidence previously presented to the jury.

6. Defendants filed a motion for summary judgment, on November 3, 1990, on this point, which was denied by the court on December 14, 1990. Defendants also moved for a directed verdict with respect to this issue, which the court denied. Finally, defendants proffered a jury instruction concerning the ditches, which the court refused.

7. Plaintiff maintains that "what the Hobbs claimed are manmade ditches are actually natural tributaries which have been improved by man." United States' Memorandum in Opposition to Motions for Judgments Notwithstanding the Verdicts or in the alternative for a New Trial, United States v. Hobbs, Civil Action No. 89-327-N, at 15 (E.D. Va. March 14, 1990).

8. The court concluded that defendants' proffered jury instructions overall were extremely verbose, cumbersome, and confusing, because they included matters not in issue and contained lengthy, unnecessary statements of the law. The jury instruction proffered on statutory exemptions is a good example of this over-inclusion of items not in issue in any respect in the lawsuit, such as reconstruction of dikes, dams, levees, etc. See Defendants S. Paul Hobbs, Donna M. Hobbs, Philip Ray Hobbs and Dorothy V. Hobbs' Proposed Jury Instructions, United States v. Hobbs, Civil Action No. 89-327-N, at Jury Instruction F (E.D. Va. January 2, 1990).

9. 33 U.S.C. § 1319(d) provides in pertinent part: "any person who violates any order issued by the Administrator [of the EPA] under subsection (a) of this section, shall be subject to a civil penalty. . . ."

10. 33 U.S.C. § 1319(d) states in relevant part: "[i]n determining the amount of a civil penalty the court shall consider . . . any good-faith efforts to comply with the applicable requirements. . . ." (emphasis added).

11. In Schweiker v. Hansen, 450 U.S. 785, 786 (1981), a Social Security Administration employee failed to advise respondent to file a written application, since she was uncertain as to her eligibility for social security benefits, in violation of the Claims Manual, an internal administration handbook, which provides instructions for advising applicants. The Court found that while the employee did not follow the manual, such conduct did not rise to the level of affirmative misconduct. Id. at 788-89.

12. Finding no affirmative misconduct, the court need not address further at this juncture reasonable reliance by Paul Hobbs. The court did address this point during the course of the jury trial and related motions.

13. Originally, on April 25, 1989, defendants herein filed a complaint challenging the EPA's Findings of Violation and Order for Compliance issued against them. In turn, on June 23, 1989, plaintiff herein filed a counterclaim charging defendants herein with violating Section 301(a) of the CWA, 33 U.S.C. § 1311(a). This court, on December 14, 1989, dismissed counts 1, 2, and 3 of the complaint for lack of subject matter jurisdiction and granted partial summary judgment with respect to count 4 of the complaint. Because no portion of the original complaint survived, the counterclaim because the only cause of action in this suit, thereby making the United States the plaintiff and the Hobbses the defendants. These rulings were subsequently set forth in writing in the court's Memorandum Opinion and Order, filed March 29, 1990, as cited herein.

14. Specifically, defendants maintain that should Southern Pines be overturned:

[They] will have been substantially and irreparably prejudiced and denied their constitutional right to a fair trial. By dismissing [defendants'] complaint in this action, this Court required [defendants] to appear solely as Defendants to the Government's Complaint, prevented the introduction of any evidence on behalf of [defendants] concerning this Court's Order of Preliminary Injunction entered July 5, 1989 which denied [defendants] a defense to Count II of the Government's Complaint, and denied [defendants] a right to a fair trial.

Motion to Stay Memorandum at 3.

15. The United States stipulated that the Hobbs should be allowed to cut the hay already growing at the time the compliance order was issued. Id.

16. Counsel for defendants repeatedly attempted to mischaracterize this court's Order of Preliminary Injunction as a ruling by this court that the defendants' activities on the property were proper and legal. However, this court did not address the merits of the claims but merely granted an injunction to allow the defendants to continue their farming activity until their liability was determined in the underlying suit. Their liability has now been determined by the jury.

17. The court also notes that some of these motions and arguments are contrary to settled law and have been raised repeatedly and finally rule upon in other CWA/"wetlands" cases involving this same defense counsel. See United States v. Tull, 615 F. Supp. 610 (E.D. Va. 1983), aff'd, 769 F.2d 182 [15 ELR 21061] (4th Cir. 1985), rev'd on one ground, 481 U.S. 412 [17 ELR 20667] (1987) (Court held right to jury trial on issue of liability under CWA).