862 F. Supp. 2d 951
D. Minnesota2012Background
- US sues Russ and Brady Huseby for discharging fill into waters without a permit under the Clean Water Act at an 80-acre Lake County, MN site.
- Site comprises two 40-acre parcels; Russ transferred 60 acres to third parties, retains 20; Brady still owns 10 acres.
- Huseby conducted logging and clearing from 2000–2007, built and maintained logging roads, cleared vegetation, burned brush, and disked soil as part of site preparation.
- Corps and Lake County issued NOVs and a restoration order; US contends wetlands on site fall within CWA jurisdiction; Huseby argues exemptions apply.
- Court granted US summary judgment on Russ Huseby’s liability under the CWA (recapture provision applies); Brady Huseby’s liability is not proven; restoration order and penalties denied pending further proceedings.
- Remedy hearing ordered to address restoration and penalties; separate ruling on Brady’s liability stood in US favor?
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wetlands jurisdiction under CWA is present? | US shows wetlands have nexus to navigable waters via continuous surface connection or significant nexus. | Huseby challenges delineation as unreliable and argues insufficient nexus. | Wetlands within Corps jurisdiction; nexus established. |
| Did Huseby discharge pollutants without a permit? | Huseby discharged fill into wetlands from a point source without authorization. | Disagreement on whether exemptions apply or recapture provision applies. | Yes, prima facie violation under CWA; recapture provision remains unrefuted. |
| Are exemptions under 1344(f)(1) applicable, or does recapture 1344(f)(2) require a permit? | Exemptions may apply; need to determine if activities are ongoing silviculture or forest road construction. | Exemptions defense favored if activities qualify and do not trigger recapture. | Recapture provision applies; exemptions do not defeat liability. |
| Brady Huseby’s liability established? | Brady performed work on site; could be responsible as principal or control person. | No evidence Brady performed acts causing discharge; liability contested. | No genuine issue of material fact; Brady not liable. |
Key Cases Cited
- United States v. Cundiff, 555 F.3d 200 (6th Cir.2009) (elements of CWA violation and burden-shifting)
- United States v. Brace, 41 F.3d 117 (3d Cir.1994) (recapture vs. exemption under § 1344(f)(1))
- United States v. Bailey, 571 F.3d 791 (8th Cir.2009) (nexus standard for wetlands jurisdiction under CWA)
- United States v. Akers, 785 F.2d 814 (9th Cir.1986) (silviculture exemption narrowly construed)
- Greenfield Mills, Inc. v. Macklin, 361 F.3d 934 (7th Cir.2004) (recapture analysis and exemptions)