Benham v. Ozark Materials River Rock, LLC
885 F.3d 1267
10th Cir.2018Background
- Plaintiff David Benham filed a citizen suit under CWA § 505 alleging Ozark Materials discharged dredge and fill material into wetlands surrounding Saline Creek without a §404 permit.
- After a bench trial the district court found Ozark had constructed a roadway and filled surrounding wetlands, exceeding the one-half acre threshold and constituting a continuing §404 violation. The court imposed a $35,000 penalty and ordered restoration, including a conservation easement.
- Ozark had been inspected by the Army Corps (2010, 2012, 2013) which found no violations; Benham served a pre-suit notice in March 2011 and filed suit when Ozark did not remedy the alleged violations.
- Enercon, an environmental consultant hired by Ozark, prepared documents that were disclosed by subpoena and admitted at trial despite Ozark’s withdrawn expert designation and hearsay/Rule 26 objections.
- On appeal Ozark challenged standing, adequacy of the notice letter, the district court’s factual findings and evidentiary rulings, alleged constitutional defects in the conservation easement, and whether the case fell within the Army Corps’ primary jurisdiction. The Tenth Circuit affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Benham regularly swims/fishes in Saline Creek; his recreational use was harmed by Ozark’s discharges | No concrete, traceable, redressable injury | Standing satisfied: recreational impairment is a cognizable injury; traceable and redressable by restoration and injunction |
| Adequacy of citizen-suit notice | Notice identified pollutants, location (aerial photo/description), statute sections, and a violation date | Notice too general to allow Ozark to cure | Notice adequate: identified specific pollutants, location, statute, and date; within required specificity |
| Liability and evidentiary rulings (continuing §404 violation; admission of Enercon materials) | Benham relied on testimony, photos, and Enercon records to show >½ acre fill and ongoing violation | Ozark disputed authorship/ timing of road, sought exclusion of Enercon material under Rule 26 and hearsay | District court’s factual findings not clearly erroneous; continuing violation proper; Enercon documents admissible because previously disclosed and hearsay objection waived |
| Primary jurisdiction / constitutional claims | Benham: Corps was not diligently prosecuting; citizen suit appropriate | Ozark: Corps is primary enforcer; case should be stayed/dismissed; conservation easement violates Due Process/Takings | Primary jurisdiction declined: no compelling administrative need and Corps not diligently prosecuting; constitutional takings/due process arguments forfeited for being raised first on appeal |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167 (2000) (standing for environmental plaintiffs based on recreational use)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standards for Article III standing and burdens of proof at stages of litigation)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (limits on suits for wholly past violations; discussion of continuing violations)
- Sasser v. Administrator, U.S. EPA, 990 F.2d 127 (4th Cir. 1993) (treating persistent presence of pollutants as continuing violations)
- SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009) (disclosure of expert materials ends confidentiality protections)
- Wilderness Society v. Kane County, 632 F.3d 1162 (10th Cir. 2011) (standard of de novo review for standing)