Greenfield Mills Inc v. Macklin, LarryGreenfield Mills Inc v. Macklin, Larry
Case Information
*1 Before B AUER , R IPPLE and K ANNE , Circuit Judges . R IPPLE , Circuit Judge
. After employees of the Indiana Department of Natural Resources (“DNR”) drained a supply pond into the Fawn River, the plaintiffs, riparian landowners, brought this action against DNR employees, David Clary, Tom Meyer, Neil Ledet and Gary Armstrong, in their individual capacities, and against the Director of the *2 2
DNR in his official capacity. The plaintiffs alleged that these
defendants had violated the Clean Water Act (“CWA”),
I
BACKGROUND A. Factual Background
The plaintiffs are riparian landowners along a five-mile portion of the Fawn River that begins at Orland Dam and ends at Greenfield Millpond. The defendants are an official of the DNR and employees of the DNR who work at the Fawn River State Fish Hatchery (“Hatchery”) located in Orland, Indiana. The Fawn River runs through the Hatchery property. As it flows near the Hatchery’s main building, the river has been dammed to form a 1.75 acre supply pond. This supply pond feeds by gravity the Hatchery’s fish rearing ponds. When the main flow control gates on the dam are opened, the pond water flows from the supply pond down the Fawn River and eventually to Greenfield Millpond.
A bypass channel upstream of the supply pond is used to divert the Fawn River before it reaches the supply pond. The Fawn River, as it existed below the supply pond prior to May 18, 1998, was a clean, clear body of water. The river had a gravel bed and was used for swimming, fishing, canoeing and other recreational activities. It also was home to various plant and aquatic animal habitats. See R.4, Ex.5.
In 1993, there was discussion in the Town of Orland re- garding a “proposed dike . . . and mill pond dredging adjacent to the town park.” R.4, Ex.12. “The project [was] being proposed to alleviate flooding of the Fawn River into the town park.” Id. In a letter from a state senator to the Orland Town Board, the senator noted the problem with the supply pond and stated that “the Fawn River is a highly protected environmental river and it may be difficult to make any kind of repairs or dredging in that area.” R.4, Ex.14. The DNR supported the project, stating in a June 18, 1993 letter that the supply pond had built up silt for more than 12 years, and, as a result, it was not navigable “even in a canoe.” R.4, Ex.12. The DNR stated also that “[a]quatic vegetation ha[d] taken over the supply pond” and that the DNR would “submit[] a work plan this summer to control the vegetation using approved chemicals.” Id. In that same letter, the DNR noted that “[s]uch a work plan will tie in nicely with the town’s project.” Id . [3] In 1994 and 1995, the DNR applied chemicals, destroying much of the plant life in the supply pond. After having destroyed the vegetation, the DNR noted that the pond was “now navigable, by canoe, for the first time in over a decade.” R.4, Ex.10.
In 1996, defendants David Clary, the Property Manager for the Hatchery, and Tom Meyer, the Assistant Property Manager for the Hatchery, noticed a problem with the main flow control structure of the dam. The flow control structure consisted of six separate gates. The gates were made of horizontal wooden slats that were stacked in two rows and slotted into four vertical metal I-beams. Some of the I-beams appeared to be rusting. On March 31, 1997, Mr. Clary consulted a local welder, who observed that repairs to the I-beams were needed. Mr. Clary sent a project proposal and budget for the repairs to Gary Armstrong, Hatcheries Supervisor, on April 16, 1997. This proposal specifically made reference to draining the supply pond in order to complete the repair, but stated that the repair “would have to be completed during a time of low water flow.” R.93, Ex.21 at 2. Also, in the memo attached to this proposal, Mr. Clary asked: “Will we need to get a permit for the dam repair work?” Id . at 1. When Mr. Clary was asked during his deposition whether he ever had received an answer to this question, he replied: “I don’t think we ever received an answer on that. . . . I have no documentation of an answer from [Gary Armstrong].” R.93, Ex.16 at 64. Funding ap- proval for the repairs was obtained on October 23, 1997.
Later, on March 12, 1998, Mr. Clary discovered a problem with the river intake plumbing, specifically, the pump was not holding its prime. The pump is used to run water into the Hatchery and rearing ponds and is critical to Hatchery operations. After trying various small repairs, Mr. Clary and Mr. Meyer concluded that the plumbing in the river inlet structure needed to be exposed in order to make the plumb- ing repairs. The Hatchery needed the pump system to be working properly by June 1, 1998, for the Walleye harvest- ing.
On May 18, 1998, Mr. Meyer and Mr. Clary decided to draw-down the water in the supply pond to make the plumbing repairs, to allow visual inspection of the gates and to have a test draw-down for the future repairs that were to be done to the gates. Mr. Armstrong, their supervisor, was aware of the plans to open the dam and lower the supply pond. However, Mr. Clary stated in his deposition that initially they had not intended to drain fully the supply pond. Mr. Clary also said that they had not intended to “fully inspect the dam gates down to the bottom.” R.93, Ex.16 at 23. In fact, Mr. Clary stated that, in determining how low to draw down the supply pond, their “intentions were only to expose the piping.” Id. at 67. [4]
At approximately 8:30 a.m., Mr. Clary and Mr. Meyer began the draw-down process by raising the upper three gates of the main flow control structure. After waiting for *6 6
several minutes, the water level in the supply pond stabi- lized, although there was still a considerable amount of water flowing over the top of the three lower gates. Mr. Clary and Mr. Meyer then proceeded to open one of the three bottom gates. After several attempts and much difficulty because of the water rushing over the top of the gate, they succeeded in raising the gate a few inches. They then continued to raise the gate incrementally until the bottom of the gate was above the level of the water exiting the supply pond. By 11:00 a.m., the supply pond was drained to the point that the pipes and plumbing work were exposed and all that remained of the pond was a meander- ing channel of water cut into the floor of the supply pond flowing toward the open gates. Leaving the gates open, Mr. Clary and Mr. Meyer took a lunch break, made a visit to a rock dam upstream of the supply pond, traveled to the east unit of the hatchery to observe water levels, worked on a list of materials needed for the plumbing repairs and then traveled separately to purchase repair parts and plumbing supplies.
Mr. Meyer was first to return to the dam from his errand and was met at approximately 2:00 p.m. by defendant Mr. Ledet, a DNR Fisheries Biologist. Standing next to the open gate, Mr. Ledet noticed that “the water level in the supply pond had been lowered to a distinct channel exposing the silt-covered bottom. . . . Water flowing through this channel was picking up silt and transporting it through the flow control gate.” R.80 ¶ 5. Mr. Meyer testified that Mr. Ledet remarked to him that the water flowing through the gate “looked awful damn muddy.” R.93, Ex.1 at 200. 7 The two men were standing next to the open gate dis- cussing the project when plaintiff Gene Lewis arrived; he was visibly upset. Mr. Lewis pointed out that muck and sediment were being flushed out of the supply pond, through the open dam and into the river, and he requested that the gates to the dam immediately be closed. The men refused to comply with Mr. Lewis’ request, and, shortly thereafter, Mr. Ledet returned to his office located on Hatchery property.
Larry Koza, a DNR assistant Fisheries Biologist, who also maintained an office on Hatchery property, stated in his deposition that “when I looked out and I saw the water, it was . . . black. It . . . apparently had a high silt load in it from eroding a channel into the bottom” of the supply pond. R.93, Ex.23 at 45. Concerned about the sediment being flushed into the river and the adverse effect it could have on the fish populations downstream, Koza and Mr. Ledet decided to drive together upstream to the water control structure of the bypass channel. Upon arrival, the men opened completely the partially open water control struc- ture “to divert as much clean water into the river below the dam as possible, bypassing the hatchery [supply pond].” R.80 ¶ 7.
Meanwhile, around 2:15 p.m., Mr. Clary returned from his errand to the site of the dam. Simultaneously, Attorney Neal Lewis, son of Gene Lewis and counsel for the plaintiffs, arrived on the scene. Attorney Lewis demanded that the gate be shut immediately, but Mr. Meyer and Mr. Clary informed him that they were working on some repairs to the pump and would shut the gate as soon as the repairs were finished. However, after a short discussion concerning the day’s events, Mr. Meyer and Mr. Clary decided to shut the gate without making the repairs. Around 3:00 p.m., Mr. Meyer informed Mr. Lewis that the bottom gate had just been lowered. Shortly thereafter the three top gates were also lowered. By 4:00 p.m., most of the supply pond had been refilled. See R.76 ¶ 12; see also R.77 ¶¶ 18-19. [7]
The record contains extensive evidence regarding the appearance and substance of the water that flowed through the bottom gate on May 18, 1998. Mr. Clary stated in his deposition that the water coming out of the bottom gate was “somewhat muddy,” R.84, Ex.2 at 43; Mr. Meyer stated in his deposition that the water “was a muddy color im- mediately upon raising the bottom gate” and that “it was muddy throughout that draining operation, muddy col- (...continued)
R.93, Ex.23 at 45. Whether the supply pond was refilled completely on the
afternoon of May 18, 1998, seems to be in dispute. Dr. Daniel Willard personally inspected the supply pond on May 22, 1998, and he noted that the supply pond “showed that it had recently been drawn down considerably.” R.9, Ex.2 at 20. Additionally, photographs taken on May 24, 1998, by plaintiffs Gene and Sharon Lewis show that water still was collecting in the channel cut on March 18, 1998, and that the upper supply pond had not refilled to its former banks. See R.84, Ex.10D.
ored,” R.84, Ex.3 at 139; and Mr. Ledet stated in his deposi- tion that the water coming through the dam “was very dark. It had picked up a lot of—or whatever a lot is—it had picked up, you know, bottom muck, sediment material,” R.84, Ex.4 at 61. [8]
Similarly, the plaintiffs submitted extensive evidence detailing the effects of the released sediment on the Fawn River. Gene Lewis testified that he personally witnessed mud flowing through the open dam. He stated:
While the DNR was cutting out the bottom of their im- poundment by having opened fully their dam structure, I entered the river immediately below the spillway structure of the DNR dam where I was standing in a semi-solid flow of mud which had the consistency of loose cooked oatmeal and looked like chocolate-brown pudding. I could feel this semi-solid flow of mud to approximately my knees—about 2 feet deep. On top of this flowing river of mud was a layer of very murky water in a liquid state.
R.84, Ex.10 at ¶ 8. Mr. Lewis also presented photographs of himself standing in the mud below the dam. Specifically the photographs show him holding up black mud that was flowing from his feet to his knees. See R.84, Ex.10A. Mr. Lewis also took photographs of sections of the supply pond after the channel had been cut through it; these photographs show the water flowing through the channel with the exposed black-mud floor on both sides. See id . He later had photographs taken of himself standing in and measuring the mud deposits in the Fawn River after the opening of the dam; these deposits ranged in depth from a few inches to two feet. See R.84, Ex.10C.
Plaintiffs also submitted expert testimony by professors at Indiana University who performed in-depth analyses of the river and the mud deposits therein after the dam had been opened. Dr. Michael Zaleha’s study demonstrated that the sediment in the river above the dam is different from the mud that now exists in the river below it and that the physical and chemical characteristics of the mud deposits in the Fawn River are not typical of river muds; he also opined that these deposits were caused by a rapid flow of a water and mud mixture (40%-80% concentrated) resulting from the opening of the dam. He further noted that he personally had observed “the large volume of mud deposits” which extend for several miles now on the Fawn River. R.84, Ex.7 at 15. John Gasper, a professional engineer, performed studies to determine the amount of mud deposited by the flow into the Fawn River. He concluded that “approxi- mately one hundred thousand cubic yards of unconsoli- dated material were discharged and deposited into the lower reaches of the Fawn River”; this amount was gener- ated from between 10,000 and 33,000 cubic yards of consoli- dated material that was dredged from the supply pond. R.84, Ex.8 ¶ 6. Gasper stated that, had the vegetation not been killed in 1994 and 1995, the amount of sediment cut out of the supply pond would have been significantly less. He also stated that these deposits
have elevated the bottom of Fawn River, are impairing the flow and circulation of those waters and are reduc- ing the pre-event reach of the waters. In addition, cer- tain areas of the channel that were once flowing are currently stagnant and other areas of quiet waters have been significantly filled with mud.
R.84, Ex.8 ¶ 7.
Dr. Daniel Willard, a professor of environmental sciences, reached a similar conclusion after conducting a study on the effects of the draw-down that occurred on May 18, 1998. Dr. Willard stated:
The volume of reservoir sediments released from [the supply pond] is estimated to have occupied a channel of 20 feet wide, 5,000 feet long and average 5 feet thick (8 feet near the dam and 2 feet 5,000 feet upstream from the dam). This represents a volume of 500,000 cubic feet of reservoir sediment.
R.84, Ex.9B at 14. Dr. Willard also stated:
I have further observed the condition of the small lake at Greenfield Mills, Indiana prior to May 18, 1998, and it has under gone a substantial and extraordinary trans- formation since the events of May 18, 1998. What was once a mostly [] open water shallow lake environment is now an emergent wetland environment dominated by marshy conditions as a result of massive deposits of sedimentation from the events of May 18, 1998.
R.84, Ex.9 ¶ 12. [9] Dr. Willard’s report also contains extensive research into the adverse effects of the mud on the Fawn River plant and animal life. Specifically, the report contains his own eyewitness account of the fish kill that occurred as a result of the release of mud into the river:
At several points along the way large numbers of dead fishes were laid out on the bank. . . . These fishes included many species with notably large Northern and Walleye, plus Smallmouth, suckers, carp, and a variety of other fishes. Several of these fishes showed gills covered with muck on examination. I saw several, hundred, dead fishes total.
Id . ¶ 21. [10] The defendants do not dispute with affidavits or other evidence any of the expert or lay testimony brought by the plaintiffs showing that massive amounts of sediment were deposited into the river or onto the plaintiffs’ property. [11]
Mr. Meyer stated in his deposition that he and Mr. Clary made no repairs to the plumbing on May 18, 1998. He also stated that the repairs on the plumbing that had been planned for May 18, 1998, were actually accomplished a few weeks later. The actual repairs were accomplished without drawing-down, lowering or draining the supply pond. Mr. Clary noted that a DNR diver completed the plumbing repair in less than three hours. See R.93, Ex.16 at 21. With respect to the repair to the dam gates, DNR Structural Engineer Larry Wayland suggested three different alterna- tive repair scenarios, none of which required a rapid draining of the supply pond. Two alternatives involved using a coffer dam to retain the water in the pond while the repairs were being performed; these options did not require the supply pond to be drained at all. Indeed, the repair eventually was accomplished using such a device.
According to the defendants, the only repair work that Mr. Meyer and Mr. Clary accomplished on May 18, 1998, was attaching a chain to two of the lower gates. Mr. Meyer admitted, however, that this attachment was not really a “repair”; he explained that the action “was kind of an af- terthought” taken as a result of the difficulty they experi- enced raising the three lower gates. R.93, Ex.1 at 221. B. District Court Proceedings
The plaintiffs brought this action against Mr. Clary, Mr.
Meyer, Mr. Ledet and Mr. Armstrong, in their individual
capacities, and against the Director of the DNR in his official
capacity. They alleged that the defendants had violated §
402 and § 404 of the CWA,
The district court granted summary judgment to the
defendants on all grounds and denied the plaintiffs’ cross-
motion for summary judgment. Turning first to the § 404
claim, the district court determined that the hydraulic
dredging or sluicing that occurred on May 18, 1998, came
within the prohibition of dredging without a permit. How-
ever, it further determined that the dredging fell within the
maintenance exception to the permit requirement set forth
in
The district court also determined that the defendants’
actions did not fall within the “recapture” provision,
Any discharge of dredged or fill material into the navi- gable 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 under this section.
With respect to the § 402 permit claim, the district court found that the sediments dredged from the supply pond were pollutants under recent CWA case law. However, the court stated, the plaintiffs’ § 402 claim failed nonetheless because “[a]ny ‘churning’ or movement of the soil or sedi- ment in this case was entirely incidental to a maintenance activity that had no purpose of excavating and redepositing soil downstream.” R.131 at 29.
The court then turned to the constitutional claims. With respect to the takings claim, the district court acknowledged that a physical invasion usually constitutes a taking. Nevertheless, the district court held that the plaintiffs’ claim should be dismissed because the plaintiffs had not brought an action in state court for inverse condemnation and, therefore, had failed to exhaust their state remedies as required by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985). With respect to the procedural due process claim, the district court held that the plaintiffs had failed to come forward with any evidence that the defendants had the requisite intent to deprive the plaintiffs of their property— a requirement of a due process violation. Alternatively, the district court stated that, “even if the acts alleged were intentional as Plaintiffs allege, this does not violate due pro- cess so long as adequate state post-deprivation remedies are available,” and “Plaintiffs[’] brief altogether fail[ed] to address why state post-deprivation remedies were inade- quate nor d[id] they set forth any legal analysis on this point.” R.131 at 36.
II DISCUSSION A. Standard of Review
“We review the grant of summary judgment de novo.”
Harley-Davidson Motor Co. v. PowerSports, Inc.
,
B. The Clean Water Act Statutory Scheme
The CWA makes the “discharge of any pollutant” into
navigable waters,
[12]
by any person
[13]
unlawful, absent com-
pliance with specific provisions of the Act.
See
(...continued)
charge at issue here, and thus is the permitting scheme relevant
to this case. If a defendant falls within an exception to the
permitting requirements of § 404 under
[t]he discharge of pollutants other than dredged or fill material are generally regulated under section 402, which creates the EPA-administered National Pollutant Discharge Elimination System [“NPDES”] permitting program. See33 U.S.C. § 1342 . Discharges of dredged or fill material are generally regulated under section 404, which creates the Corps-administered dredge-and-fill permitting program.33 U.S.C. § 1344 .
The discharges in this case fall within the purview of the section 404 program. . . .
Amicus Br. at 4-5. This distinction is also made clear in the reg-
ulations implementing
We note in passing that the regulations implementing § 404 set forth certain exceptions to the definition of “discharge of
(continued...) (...continued)
dredged material” including “[d]ischarges of pollutants into
waters of the United States resulting from the onshore subse-
quent processing of dredged material that is extracted for any
commercial use (other than fill).”
Nevertheless, we note our disagreement with the district court’s conclusion that the defendants’ purpose and intent were relevant in determining whether § 402 had been violated. See R.131 at 29 (stating that the defendants were not liable under § 402 because they “had no purpose of excavating and redeposit- ing soil downstream”). Liability for discharging a pollutant without a § 402 permit and absent an exemption is strict; a de- fendant’s intent or purpose is irrelevant. See Kelly v. EPA , 203 F.3d 519, 522 (7th Cir. 2000) (citing cases).
1. Section 404 Permit Requirement
The CWA generally prohibits “the discharge of any pol-
lutant by any person” absent compliance with one of the
permitting schemes set forth in the Act.
The defendants argue on appeal that there was no “addi-
tion” of dredged spoil to the Fawn River because the supply
pond and the Fawn River constitute the same body of water.
In support of their position, they point to
National Wildlife
Federation v. Gorsuch
,
More recent cases, however, have undercut severely the
holdings of
Gorsuch
and
Consumers Power
. For example,
the Fourth Circuit in
United States v. Deaton
,
Once it was removed, that material became “dredged (...continued)
(because the dam largely had been removed), we stated that “the
CWA’s definition of ‘point source’ . . . connotes the terminal end
of an artificial system for moving water, waste, or other materi-
als.”
Id.
at 938. We also noted that “[t]he broad reach of ‘naviga-
ble waters’ pushes the natural reading of ‘point source’ back to
the point at which an artificial mechanism introduces a pollut-
ant.”
Id.
Here, the artificial mechanism of the dam was used to
convey pollutants into the Fawn River, a navigable waterway.
Consequently, we believe that the dam constitutes a “point
source.”
See Catskill Mountains Chapter of Trout Unltd., Inc. v. City
of New York
,
spoil,” a statutory pollutant and a type of material that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undis- turbed state. What is important is that once that mate- rial was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before.
Id.
at 335;
see also Avoyelles Sportsmen’s League, Inc. v. Marsh
,
The rationale for limiting the holdings of
Gorsuch
and
Consumers Power
to the very circumscribed facts upon which
they were based and to employ a broader definition of
addition was well stated by the Second Circuit in
Catskill
Mountains Chapter of Trout Unlimited, Inc. v. City of New York
,
If the EPA’s position had been adopted in a rulemaking
or other formal proceeding, deference of the sort ap-
plied by the
Gorsuch
and
Consumers Power
courts might
be appropriate. Instead, the EPA’s position is based on
a series of informal policy statements made and consis-
tent litigation positions taken by the EPA over the years,
primarily in the 1970s and 1980s. Recent Supreme Court
cases emphasize that such agency statements do not
deserve broad deference of the sort accorded by the
Gorsuch
and
Consumers Power
courts.
See United States v.
Mead Corp.
, 533 U.S. 218 (2001);
Christensen v. Harris
County
,
Id. at 490 (parallel citations omitted). The court then held that the narrow definition of addition simply could not be applied to the facts before it:
The present case, however, strains past the breaking point the assumption of “sameness” made by the Gorsuch and Consumers Power courts. Here, water is artificially diverted from its natural course and travels several miles from the Reservoir through Sandaken Tunnel to Esopus Creek, a body of water utterly unre- lated in any relevant sense to the Schoharie Reservoir and its watershed. . . . When the water and the sus- pended sediment therein passes from the Tunnel into the Creek, an “addition” of a “pollutant” from a “point source” has been made to a “navigable water,” and terms of the statute are satisfied.
Id. at 492.
Unlike the position espoused by the EPA in
Gorsuch
and
Consumers Power
, here the EPA, participating at the
court’s invitation as an amicus curiae, has urged upon this
court the broader definition of “addition” employed by the
courts in the more recent § 404 cases.
See
Amicus Br. at 5
(stating that “the courts of appeals have consistently rec-
ognized that materials that have been scooped up and then
redeposited in the same waterbody can result in a discharge
of a pollutant” and citing, inter alia,
Avoyelles Sportsmen’s
League
and
Borden Ranch
). The EPA’s position, which
follows the holdings of recent circuit cases, is persuasive for
several reasons. First, such a reading is compatible with the
purpose of the CWA to “restore and maintain the chemical,
physical and biological integrity of the Nation’s waters.”
The defendants’ actions of May 18, 1998, therefore, con- stituted an addition of dredged spoil into the Fawn River and were subject to the permit requirement of § 404. In order to escape liability under the CWA, the defendants therefore must establish that their actions fall into one of the narrow exemptions to the permit requirements.
2. Maintenance Exception
25
In order to be exempt from the § 404 permit requirement,
however, a party must show not only that it is exempt un-
der one of the provisions in
Turning first to the exemptions, the defendants maintain
that their actions fall within the maintenance exemption
set forth at
The plaintiffs contend that the defendants do not fall
within the exemption under
a. pretext The plaintiffs first argue that the district court erred in granting summary judgment to the defendants because there is a genuine issue of material fact with respect to whether the defendants actually raised the gate to perform maintenance on the dam or whether the “maintenance” was just a pretext to dredge the pond without a permit.
In determining the “purpose” of the defendants’ actions,
“reviewing courts have consistently looked beyond the
stated or subjective intentions and determined the effect or
‘objective’ purpose of the activity conducted.”
United States
v. Sargent County Water Res.
,
Based on the record before us, we cannot reach the same conclusion with respect to the defendants’ actions. The defendants were slow to repair, performed quite “haphaz- ardly,” and let the supply pond drain substantially farther (and for much longer) than was needed to do the repairs. By 11:00 a.m. on May 18, 1998, the supply pond was drained to a level where the pump was exposed and the lower gate was open such that the defendants could inspect the gate. However, the defendants allowed the gate to remain open for four more hours; during this time, the defendants had lunch, purchased supplies and examined other areas of the hatchery. At the end of the day, the defendants had not repaired, or even attempted to repair, the pump. The defendants also have not brought forth evidence explaining the importance or necessity of a test draw-down to the subsequent repair of the gates. Finally, the plaintiffs submit- ted evidence that the DNR had expressed an interest in dredging the supply pond in the years prior to the draw- down and had been informed that obtaining a permit for this action would be difficult. Viewing the evidence in the light most favorable to the plaintiffs, and primarily noting the length of time during which the bottom gate was open and the pump was exposed without any attempt at making repairs, we hold that the plaintiffs have brought forth sufficient evidence to create a genuine issue of material fact with respect to the defendants’ purpose in drawing down the water in the supply pond. On the basis of the record before us, a reasonable finder of fact could conclude that the purpose of drawing down the water in the supply pond was not to perform maintenance on either the pump or the dam, but rather was to dredge the supply pond without a permit.
b. necessity of dredging to maintenance The plaintiffs argue that, in order for a dredging activity to fall within the maintenance exception, the dredging also must be reasonably necessary to the proposed maintenance. The EPA and the Army Corps of Engineers, as well, con- strue the maintenance exemption to carry a requirement of reasonable necessity. They state that the DNR’s activities are exempt as maintenance if the “draw-down and discharge of sediment was necessary to perform those maintenance functions.” Amicus Br. at 7. For the following reasons, we 29 believe that the amici’s position—that the maintenance exemption carries with it a requirement that discharge of dredged material be reasonably necessary to the mainte- nance—is persuasive.
We note initially that a requirement of reasonable neces-
sity or proportionality comports with the legislative history
of the statute. Throughout the legislative history, Congress
repeatedly stressed that the
Certainly there would be no guarantee against more than de minimus adverse effects on the environment if the discharge of dredged material was not required to be reasonably necessary or otherwise proportional to the maintenance performed.
Additionally, several courts have spoken of
(...continued)
level” (emphasis added));
id.
at 912 (stating that the
the maintenance provision at least in the circumstance of
(continued...)
Accordingly, we agree with the plaintiffs and amici that,
in light of the legislative history, existing case law and the
rule that the
Applying this standard to the case at hand, we believe that the plaintiffs have brought forth sufficient evidence to permit the trier of fact to conclude that the dredging of the pond was not reasonably necessary to either the mainte- nance of the pump or the alleged inspection of the gates. DNR engineers explained that the repairs could have been performed without a rapid draw-down, and in fact, both of the alleged repairs were later performed without any draw- down of the pond. Moreover, even if the repairs warranted a rapid draw-down and dredging of the pond, the pond was drained sufficiently to expose the plumbing by 11:00 a.m., and the bottom gate was fully open for inspection by the same time. However, the defendants kept the gates open, allowed the pond to continue “dredging” until 3:00 p.m. and never commenced the necessary repairs. Looking at the evidence in the light most favorable to the plaintiffs, we cannot say that the dredging of the pond—particularly from 11:00 a.m. to 3:00 p.m.—was, as a matter of law, reasonably necessary to the proposed maintenance.
(...continued)
emergency reconstruction of recently damaged parts. The reg-
ulations only exempt emergency reconstruction that “occur[s]
within a reasonable period of time after damage occurs.”
c. character, scope, size of the original fill design
The regulations provide that “[m]aintenance does not in-
clude any modification that changes the character, scope, or
size of the original fill design.”
The district court, the parties and amici propose three alternative definitions of “original fill design.” The plaintiffs argue that “original fill design” refers to the area where the dredged material is deposited, here the Fawn River. The defendants argue, and the district court held, that original fill design is comprised of the dam and the supply pond behind the dam. Amici argue that original fill design “refers to the manmade structures that are the subject of the exemption (e.g. dikes, dams, levees) rather than a natural watercourse such as the Fawn River.” Amicus Br. at 8 n.7.
We are persuaded that the definition of “original fill
design” suggested by the amici best comports with the
language of the statutory exemption itself, which speaks to
the maintenance of “structures.”
Our decision to adopt the amici’s position is consistent
with
United States v. Sargent County
,
Applying this definition to the facts before us, we must
conclude that, in drawing down the supply pond, the DNR
employees did not “change[] the character, scope, or size of
the original fill design” in violation of
We note that this holding does not compel the conclu- sion that the DNR activities constituted maintenance. As we have discussed previously, the plaintiffs have brought forth sufficient evidence to create a genuine issue of material fact as to pretext and as to the reasonable necessity of the dredging to the alleged maintenance.
3. The Recapture Provision
As we noted earlier, in order to escape the permit re-
quirements of
[a]ny 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 under this section.
a. statutory construction
Our interpretation of
When we interpret a statute, we look first to its lan- guage. If that language is plain, our only function is “ ‘to enforce it according to its terms.’ ” United States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States , 242 U.S. 470, 485 (1917)). The plain meaning of a statute is conclusive unless “ ‘literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’” Ron Pair , 489 U.S. at 242 (quoting Griffin v. Oceanic Contractors , 458 U.S. 564, 571 (1982)). Therefore, our interpretation is guided not just by a single sentence or sentence fragment, but by the language of the whole law, and its object and policy. Further, we may adopt a restricted rather than a literal meaning of a word where acceptance of the literal meaning would lead to absurd results.
United States v. Balint , 201 F.3d 928, 932 (7th Cir. 2000) (citations and parallel citations omitted).
Here our analysis is straightforward. Looking to the lan-
guage of
tion of the statutory language is in accord with the interpre- tation offered by the amici, the agencies charged by Con- gress with the administration of the statute. [23] We note, moreover, that this interpretation is consistent with past constructions of the recapture provision proffered by the amici.
(...continued)
“purpose and effect” of the activities);
Sargent County II
, 876 F.
Supp. at 1102-03 (noting that the recapture provision applies
where an activity “brings an area of navigable waters into a use
to which it was not previously subject
and
where the flow of the
waters is impaired and their reach reduced” (emphasis added));
In re Carsten
,
[23] See Amicus Br. at 8 (stating that § 1334(f)(2) recaptures an “otherwise exempt” activity “only if that activity (a) has ‘as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,’ and (b) has the consequence of impairing the flow or circulation of navigable waters or reducing the reach of such waters”). In a Regulatory Guidance Letter from the EPA and the Army
Corps of Engineers concerning whether “Deep-Ripping” activi-
ties were recaptured under
(continued...)
37
In sum, the plain language of the statute establishes that
the recapture provision requires a two-part showing: 1) that
the dredging activity had as its purpose “bringing an area
of the navigable waters into a use to which it was not
previously subject,” and 2) that the dredging activity caused
the flow or circulation of navigable waters to be impaired or
the reach of such waters to be reduced. This interpretation
is bolstered both by case law and by the considered judg-
ment of the interpreting agencies. Consequently, if the
defendants can establish as a matter of law either that their
purpose was not to “bring[] any areas of navigable waters
into a use to which it was not previously subject” or that the
activity did not impair the flow or reduce the reach of
navigable waters, their actions are not “recaptured” by
(...continued)
following are met: “1) does the activity represent a ‘new use’ of the wetland, and 2) would the activity result in a ‘reduction in reach/impairment of flow or circulation’ of waters of the United States?” United States Environmental Protection Agency & United States Dep’t of the Army, Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural Activities (May 3, 1990), available at http://www.epa.gov/owow/wetlands/ cwaag.html. We do not believe that a two-pronged approach runs contrary
to our holding in United States v. Huebner , 752 F.2d 1235 (7th Cir. 1985). In that case, the plaintiffs had plowed and removed wetland vegetation from three reservoirs for “the immediate planting of barley [and] for the future planting of corn and other dryland crops,” had “used backhoes to clean and deepen existing ditches,” had “used a dragline to excavate an approximately 400 foot long new ditch,” had drained wetlands, had “sidecast materials onto the wetlands,” had “used bulldozers to spread the
(continued...) b. application
(...continued)
discharge over several acres,” had built roads, and had expanded
the existing cranberry beds.
Id.
at 1241-43. It was clear that the
plaintiffs’ overall intention was to convert wetlands into uplands
for the cultivation of dryland crops and to expand their existing
cranberry beds into wetlands that previously had not been used
for cultivating wetland crops. The plaintiffs in
Huebner
attempted
to use the
We now must examine whether the defendants have es- tablished that the recapture provision does not apply to their actions of May 18, 1998.
We look first to whether the facts, construed in the light most favorable to the plaintiffs, establish that the defen- dants’ purpose was other than “bringing an area of naviga- ble waters” into a new use. Nevertheless, as we have just determined, the recapture provision has two components and showing merely effects will not serve as a substitute for a finding of a purpose to bring about a new use.
Although “[c]ommon sense dictates that, under normal
conditions, ordinary maintenance would not subject an area
to ‘a use to which it was not previously subject,’ ”
Sargent
County I
, 876 F. Supp. at 1088 (quoting
With respect to the “effects” prong of the recapture anal- ysis, viewing the evidence in the light most favorable to the plaintiffs, the record before us would permit the trier of fact to conclude that the defendants’ actions of May 18, 1998, *40 40
impaired the flow and circulation of the Fawn River. The plaintiffs’ evidence, set forth in some detail above, showed that the river bottom of the Fawn River had been elevated by 100,000 cubic yards of unconsolidated sediment that had been deposited in the river, thus altering the flow of the river. Specifically, one of the plaintiffs’ studies showed that release of mud and silt into the Fawn River on May 18, 1998, “elevated the bottom of Fawn River, . . . impair[ed] the flow and circulation of those waters and . . . reduc[ed] the pre- event reach of the waters. In addition, certain areas of the channel that were once flowing are currently stagnant and other areas of quiet waters have been significantly filled with mud.” R.84, Ex.8 ¶ 7. As well, the sediment traveled into Greenfield Millpond and transformed that area from a shallow lake to a marshland. Dr. Willard observed that “[w]hat was once a mostly . . . open water shallow lake environment is now an emergent wetland environment dominated by marshy conditions as a result of massive deposits of sedimentation from the events of May 18, 1998.” R.84, Ex.9 ¶ 12. Given the evidence in the record to show that the deposit of dredged materials into the Fawn River altered the flow of that navigable waterway, the defendants’ actions also permit the conclusion that the requirements of the second prong of the recapture provision have been met.
We therefore conclude that, viewing the facts in the light most favorable to the plaintiffs, a trier of fact could conclude reasonably that the defendants’ actions in draining the supply pond on March 18, 1998, fall within the recapture provision and are subject to the § 404 permit requirement. C. Takings Claim
The district court noted that, under
Loretto v. Teleprompter
Manhattan CATV Corp.
,
When faced with a constitutional challenge to a perma- nent physical occupation of real property, this Court has invariably found a taking. As early as 1872, in Pumpelly v. Green Bay Co. , 13 Wall. (80 U.S.) 166, 20 L. Ed. 557, this Court held . . . . that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id. , 13 Wall. (80 U.S.) at 181. Id. at 427; see R.131 at 30. Nevertheless, the district court (without discussing the issue of permanence) [27] held that the (...continued)
the wetland that must be considered in evaluating the reach of §
(f)(2).”);
United States v. Cumberland Farms
,
were at least semi-permanent, but no actual finding on this point
(continued...) plaintiffs’ taking claim was barred because the plaintiffs had failed to first bring an inverse condemnation suit in Indiana state court. See R.131 at 32.
In
Williamson County Regional Planning Commission
v. Hamilton Bank of Johnson City
,
Takings involving physical invasions—such as the taking alleged here—are subject to a more streamlined inquiry. We have held that a physical invasion constitutes a “final decision” and thus satisfies Williamson County ’s first re- quirement. Therefore, this type of “takings claim is subject only to Williamson ’s exhaustion requirement.” Forseth , 199 F.3d at 372 n.12; see also Wisconsin Cent. Ltd. v. Pub. Serv. (...continued)
was made. See R.84, Ex.9 ¶ 14 (noting that clearing of the deposits by the river itself will take decades if it ever occurs). Because we agree with the district court that the plaintiffs’ takings claim is barred by the plaintiffs’ failure to exhaust state remedies, we do not reach the question of permanence.
Comm’n of Wisconsin , 95 F.3d 1359, 1368 (7th Cir. 1996) (“In takings cases involving a physical invasion . . ., the plaintiff must exhaust available state judicial remedies for just compensation as a prerequisite to a lawsuit in an article III court.”). [28]
In
Williamson County
, the Supreme Court also “adopted a
limited exception to its exhaustion requirement based on the
futility of seeking state court relief.”
Daniels v. Area Plan
Comm’n of Allen County
,
The plaintiffs argue that they do not have a remedy in
state court and should be excused from the exhaustion
requirement. Specifically, the plaintiffs point to recent
Indiana case law which states that “an action for inverse
condemnation is premature until such time as the land-
owner can establish that there are not available avenues by
which the landowner can put his property to an economi-
cally beneficial or productive use
.” Galbraith v. Planning
Dep’t of Anderson
,
In
Daniels
,
However, Indiana courts have not constructed an absolute bar to state actions for physical-invasion takings such as that alleged in the present case. In spite of the all-encom- passing statements made in Mendenhall and Galbraith , other Indiana cases indicate that Indiana in fact does recognize an inverse condemnation claim for a physical invasion of property, no matter how small that invasion. A brief over- view of Indiana inverse condemnation law is instructive.
Under Indiana state law, there are two stages in any ac- tion for inverse condemnation. First, “the landowner must show that he has an interest in land which has been taken (...continued)
warranted as a matter of law, the plaintiffs’ complaint does not
tie specifically the prayer for injunctive relief to the takings claim.
See id.
The plaintiffs pray primarily for damages.
See id.
Thus this
case is not like
Daniels v. Area Plan Commission of Allen County
, 306
F.3d 445 (7th Cir. 2002), where the plaintiffs sought exclusively
equitable relief and had suffered no compensable damages.
Moreover, in their submissions to this court, the plaintiffs have
argued only that they were not required to exhaust state remedies
because Indiana allegedly does not recognize physical invasion
takings. They did not argue that they were seeking injunctive
relief and thus had no remedy under Indiana law. Thus we
analyze the plaintiffs’ takings claim as one for damages, and
conclude that Indiana provides monetary relief for takings in the
form of a suit for inverse condemnation.
See Daniels
,
In determining the first step, the Supreme Court of Indiana and Indiana appellate courts have recognized
that there are “two discrete categories of regulations that violate the Takings Clause regardless of the legit- imate state interest advanced.” The first category en- compasses regulations that require the property owner to suffer a physical “invasion” of his or her property. The second category encompasses regulations that deny all economically beneficial or productive use of land. Georgetown v. Sewell ,786 N.E.2d 1132 , 1139 (Ind. Ct. App. 2003) (quoting Bd. of Zoning Appeals, Bloomington v. Leisz , 702 N.E.2d 1026, 1028-29 (Ind. 1998)); see also Metro. Dev. Comm’n of Marion County v. Schroeder ,727 N.E.2d 742 , 753 (Ind. Ct. App. 2000) (noting the existence of “two discrete categories” of takings regardless of legitimate state interests, namely takings by physical invasion and takings by denial of all economic use of the property); Natural Res. Comm’n of Indiana v. Amax Coal Co. , 638 N.E.2d 418, 430 (Ind. 1994) (noting that a “taking is recognized not only for physical seizure or invasion of property by the government ,” but also when a property owner is deprived of the “economically viable use of his property” (emphasis added)). This recogni- tion of two categories of takings for purposes of inverse condemnation proceedings, see Georgetown , 786 N.E.2d at 1139, comports with the takings doctrine espoused by the Supreme Court of the United States. [31]
Furthermore, Indiana law also mirrors federal constitu-
tional law in that a physical invasion need not deprive an
owner of all economically beneficial use of the land in order
to be compensable; rather, the Supreme Court of Indiana
has stated that a taking occurs whenever the state
“compel[s] a property owner to suffer a physical invasion,
no matter how minute
, of his property.”
Leisz
,
In light of the distinction that Indiana law recognizes between takings characterized by a physical invasion and those that are not, we do not believe that the plaintiffs’ ar- guments based on Mendenhall and Galbraith are compelling. As noted above, plaintiffs cite those cases for the proposi- tion that a plaintiff may not pursue a state inverse condem- nation action absent a showing that he has been deprived of all economically beneficial use of his property; however, neither case concerned a valid claim of a physical invasion taking. [32] As just reviewed, recent Indiana cases, including inverse condemnation cases such as Georgetown , 786 N.E.2d at 1139, state that there are two categories of takings: phy- sical invasion takings and takings that deprive the owners of all economically beneficial use of their property. There is no indication in Indiana law that owners who suffer a physical invasion also must lose all economically beneficial use of their property in order to bring an inverse condemna- tion action. Consequently, we believe that the statements in Mendenhall and Galbraith , when placed in the correct factual and legal context, do not apply to physical-invasion takings.
Therefore, in contrast to the situation in Daniels , we have failed to find any cases indicating that Indiana would not recognize a state action for a physical-invasion taking. Indeed, all indications are that plaintiffs have a state rem- edy—a state inverse condemnation action—which they have not pursued. We must conclude, therefore, that the plaintiffs have not exhausted their state remedies as required by Williamson County , and their takings claim is not properly before this court.
(...continued)
ordinance that restricted the plaintiff’s use of his property. In
determining whether the zoning ordinance constituted a taking,
the court stated that “a zoning regulation ‘goes too far,’ that is, is
confiscatory, when it denies the property owner ‘all economically
beneficial or productive use of the land.’ ”
Id.
at 853 (quoting
Lucas v. South Carolina Coastal Council
,
Thus, the statements that an owner must show that all eco- nomically beneficial use of property has been lost before insti- tuting a state inverse condemnation action arose in the context of regulations on the use of property, not in the context of a physical invasion of property.
D. Procedural Due Process
The plaintiffs argue that the DNR deprived them of
their property without due process of law when it caused
the dredged material from the supply pond to invade and
destroy their property. Although not discussed by the
parties, our case law explains that the
Williamson County
exhaustion requirement applies with full force to due pro-
cess claims (both procedural and substantive) when based
on the same facts as a takings claim.
See Hager v. City of
West Peoria
, 84 F.3d 865, 869 (7th Cir. 1996) (stating that
“[t]he exhaustion requirement of
Williamson County
ap-
plies whether plaintiffs claim an uncompensated taking,
inverse condemnation, or due process violation” and thus
the plaintiffs were required to “first pursue their claims,
whether in the form of a takings challenge or a due process
claim, in . . . state court”).
[33]
We have explained that, al--
though we recognize that a governmental taking of property
may encompass due process concerns, nevertheless, “due
process challenges are premature if the plaintiff has not
exhausted possible state remedies by which to attack the
zoning regulation or other state action” creating the taking.
Covington Ct. Ltd. v. Vill. of Oak Brook
,
Conclusion
For the foregoing reasons, the judgment of the district court with respect to the CWA claim is reversed, and that claim is remanded for further proceedings consistent with this opinion. The judgment of the district court with respect to the plaintiffs’ takings and procedural due process claims is affirmed. The plaintiffs may recover their costs in this court.
A FFIRMED IN PART , R EVERSED AND R EMANDED IN PART . A true Copy:
Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit
Notes
[1] After oral argument, the court invited the Environmental Protection Agency and the United States Army Corps of Engi- neers to file a brief as amicus curiae. The Agency and the Corps accepted the court’s invitation and filed a brief. The court expresses its thanks to both for the assistance that they have rendered.
[2] Because the district court granted summary judgment to the
defendants, we take the facts as alleged by the plaintiffs to be
true.
See Adusumilli v. City of Chicago
,
[3] The “town’s project” was the proposed dredging of the supply pond and construction of the dike. See R.4, Ex.12.
[4] The plaintiffs take issue with Mr. Meyer’s and Mr. Clary’s explanations that the purpose of opening the dam was to make repairs to the pump. The plaintiffs point to evidence in the record that, prior to the incident, the defendants were aware that it was possible to drain the supply pond more slowly to avoid the release of mud and sediment into the Fawn River. See , e.g. , R.93, Ex.1 at 197-99, 205 (deposition of Mr. Meyer) (conceding that “we probably could have done it [drained the supply pond] slower than we did”).
[5] Mr. Meyer admitted that the water flow on the supply pond was not low on May 18, 1998; instead he recollected “a normal flow type of condition, neither high nor low.” R.93, Ex.1 at 69.
[6] In his deposition, when asked why, upon seeing the black water flowing through the dam, he quickly attempted to increase the amount of clean water in the river, Larry Koza responded: Well, you hate to see a lot [of] heavy, you know, dark colored sediment laden, whatever you call it, water going down the stream. And if that has to happen, then you want to make sure that you have as much fresh water, you know, coming into there. My—you know, my first thought was for [the] fish population to make sure that you were getting as much clean water through as you could. (continued...)
[8] The defendants themselves offered conflicting testimony con- cerning the water that came out of the gates and the effects on the river below. In contrast to the statements recounted in the text, the defendants made statements indicating that the water clarity was “unremarkable.” See , e.g. , R.77 ¶¶ 19-20. Mr. Clary, for example, stated in his affidavit that, at about 5:00 p.m. on May 18, 1998, he traveled to the County Road 1100 East bridge that overlooked part of the river and from there the river appeared “normal and I could see the stream bottom.” R.76 ¶ 13. Mr. Ledet made a similar statement that he went to the County Road 1100 East bridge and “[t]he water clarity and level at this bridge crossing were normal. The water was not unusually turbid or discolored with silt.” R.80 ¶ 9. Additionally, Mr. Meyer noted that the water coming out of the bottom gate was “discolored”; and that after closing the gates he “observed a thin layer of silt and discolored water” downstream, but, from the County Road 1100 East bridge, “water clarity was unremarkable and [he] observed no dead or distressed fish.” R.77 ¶¶ 19-20. The power of these statements is diminished by Mr. Clary’s explanation in his deposition that, when he went to the bridge and saw “no indication [of] silt or sediment,” that he knew that the silt or sediment cut from the dam “would have to have been” mostly discharged (at that time) somewhere between the County Road 1100 East bridge and the dam. See R.84, Ex.2 at 167. Mr. Clary’s deposition statement makes it clear that he knew that the silt and deposit had to be somewhere above the County Road 1100 East bridge and below the dam. Thus, the fact that the river color and flow was unremarkable at County Road 1100 did not indicate to him that the river was free from silt or other deposits.
[9] Plaintiffs also placed into the record affidavits and photographs regarding the substantial deposits of mud into Greenfield Millpond. The affidavits demonstrate that the Greenfield Millpond, which is located approximately five miles downstream from the Orland Dam, was converted from a primarily open water environment before May 18, 1998, to a primarily vegetative environment after the dam was opened. See R.84, Ex.12 ¶4, Exs.12A-12B.
[10] This observation was corroborated by several other documents in the record. For example, Gene Lewis stated in an affidavit that he found ninety-four dead fish the day after the opening of the dam and has observed the death or disappearance of many fresh water mussels and snails. See R.84, Ex.10 ¶¶10, 23. Indeed, the DNR acknowledged the fish kill. See R.4, Ex.8.
[11] In fact, the defendants’ own evidence supports the plaintiffs’ theory that the water cut a channel through the floor and that the displaced sediment went into the Fawn River. Mr. Clary stated in his deposition that the water coming out of the dam became “somewhat muddy after the pond was drained and it was cutting the channel as it went through the pond bottom.” R.84, Ex.2 at 43. He went on to explain that, although he “didn’t make any measurements” he would guess that the “meandering” channel was “anywhere from one to three feet” deep. Id. at 44. Mr. Ledet, upon arrival at the supply pond, noticed that “the water level in the supply pond had been lowered to a distinct channel exposing the silt covered bottom. Water flowing through this channel was picking up silt and transporting it through the flow control gate.” R.80 ¶5. Thus, according to the defendants’ evidence, the force of the water flowing out of the dam cut a channel into the floor of the supply pond.
[12] “Navigable waters,” is defined as the “waters of the United
States,”
[13] “Person” is defined to include a “State, municipality, commis-
sion, or political subdivision of a state.”
[14] The district court and the parties discussed CWA liability on the part of the defendants in terms of both § 402 and § 404. However, § 404 is the permitting scheme that regulates dis- charges of dredge and fill material, which is the category of dis- (continued...)
[15] In the district court, the parties disputed whether “dredged” materials included materials that had been hydraulically dredged or “sluiced”; however, the defendants do not urge any such distinction in this court.
[16] The CWA defines a point source as
any discernable, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.
[17] The amici note that the situation in National Wildlife Federation v. Gorsuch , 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife Federation v. Consumers Power Co. , 862 F.2d 580 (6th Cir. 1988), concerned normal dam operations that resulted in changes to water quality. Here, by contrast, the sediment had settled out of the navigable waters, and the DNR’s opening of the flow structure control gates dredged those materials from their resting place and added them to the navigable downstream waters.
[18] Amici construe the recapture provision as containing two dis- tinct elements: that the activity (1) has “ ‘as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,’ and (2) has the consequence of impairing the flow or circulation of navigable waters or reducing the reach of such waters.” Amicus Br. at 8.
[19]
See also
3
Legislative History
283 (“These specified activities
should have no serious adverse impact on water quality if per-
formed in a manner which will not impair the flow and circula-
tion patterns and the chemical and biological characteristics of
the affected waterbody and which will not reduce the reach of the
affected waterbody.” (H.R. Rep. No. 95-830, at 99 (1977));
id.
at
421 (“A case-by-case permit review would not be required for
narrowly defined activities that cause little or no adverse effects
either individually or cumulatively, including those activities
narrowly defined in 404(f)(1)(A-F).”);
id.
at 474 (“Federal permits
will not be required for those narrowly defined activities that
cause little or no adverse effects either individually or cumula-
tively” even though “it is understood that some of these activities
may
necessarily
result in incidental filling and minor harm to
aquatic resources . . . .” (emphasis added));
id.
at 529 (noting that
the
[21] We also note that “an agency’s considered interpretation of its
own regulation is entitled to deference ‘when the language of the
regulation is ambiguous.’ ”
Old Ben Coal Co. v. Dir., Office of
Workers’ Comp. Programs
,
[22]
See Borden Ranch P’ship v. United States Army Corps of Eng’rs
, 261
F.3d 810, 815 (9th Cir. 2001) (reciting language of
[26] Several courts have recognized the importance of examining
the effects of the activity in determining the defendants’ “pur-
pose.”
See United States v. County of Stearns
,
[28]
See also Pascoag Reservoir & Dam, LLC v. Rhode Island
, 337
F.3d 87, 91 (1st Cir.) (stating that “a modified version” of the
Williamson County
analysis “applies to physical taking cases,”
under which “the final decision requirement is relieved or
assumed,” yet “the state action requirement remains in physical
taking cases: Compensation must first be sought from the state if
adequate procedures are available” (internal quotation marks,
brackets and citations omitted)),
cert. denied
,
[29] Here, it appears from the plaintiffs’ complaint that they seek primarily damages, but also a “permanent injunction” against the defendants that would “prohibit[] any future lowering of the reservoir/freshwater lake waters without prior notice and adequate process to protect the Plaintiffs and the river from harm.” R.1 at 25-26. Whether or not this injunction would be (continued...)
[30] The defendants appear to argue in their brief that the plaintiffs do not have any property rights in the Fawn River or its banks except a right to unimpeded river access and constructions of wharves, etc. See Appellees’ Br. at 19. As noted by the plaintiffs, the district court ruled when denying a prior motion to dismiss that the plaintiffs had a property interest in the riverbed and use of the river under state law. The district court held that for state- law purposes, the Fawn River was non-navigable, and thus under Indiana law, the plaintiffs had the right to “ ‘free and unmolested use and control of [their] portion of the [river] bed and water thereon for boating and fishing.’ ” R.51 at 19 (quoting Carnahan v. Moriah Property Owners Ass’n Inc. , 716 N.E.2d 437, 441 (Ind. 1999)). Because we determine that plaintiffs were required to exhaust their remedies in state court, we do not have jurisdiction to determine whether or not a taking took place and thus we will not delve into the issue of what property rights were or were not held by the plaintiffs under Indiana state law.
[31] In
Palazzolo v. Rhode Island
,
[32] In
Mendenhall v. City of Indianapolis
,
[33]
See also River Park, Inc. v. City of Highland Park
,
[34] Additionally, because we find that plaintiffs have failed to exhaust their administrative remedies, we need not and do not address the issue of whether the draw-down of the pond was a random, unauthorized act or whether the DNR employees possessed the requisite intent to establish a due process violation. USCA-02-C-0072—3-19-04