UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE RUDY CUNDIFF; CHRISTOPHER SETH CUNDIFF, Defendants-Appellants.
Nos. 05-5469/5905; 07-5630
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 4, 2009
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 09a0035p.06. Argued: December 9, 2008.
Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 01-00006—Joseph H. McKinley, Jr., District Judge.
Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.*
COUNSEL
BOYCE F. MARTIN, JR., Circuit Judge. After eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act.
I.
Defendants Rudy and Seth Cundiff own two adjacent tracts of land in Muhlenberg County, Kentucky. Their properties together sit next to Pond and Caney Creeks, which are tributaries of the Green River. The Green River, in turn, flows into the Ohio River. In 1990, Rudy Cundiff bought the southern tract, which contains roughly eighty-five acres of wetlands and an upland area where his house sits. When Rudy bought it, portions of the wetlands contained exceptionally acidic orangish to reddish colored water that had drained out of an abandoned coal mine located on a neighbor‘s nearby property. As a result, locals referred to the Cundiffs’ property as a putrid eyesore, and this stagnant, discolored water caused the wetlands to become a festering mosquito haven—though the Cundiffs knew all this when they bought it.1
Shortly after his purchase, Cundiff began excavating drainage ditches and clearing trees to make the wetlands suitable for farming.
In October 1991, federal officials from the Army Corps of Engineers and state officials from the Kentucky Division of Water observed ditches, artificially filled wetlands, and mechanically cleared land on the wetlands. The Corps suspected possible Clean Water Act violations. Rudy had failed to obtain a section 404 permit as required for such dredging and filling activities, and further inspection revealed that Cundiff had excavated ditches in the wetlands and placed dredged material into
Federal and state officials then began meeting with Cundiff in 1992, though they reached no agreement. Instead, he insisted on converting the wetlands into farmland and continued to drain and clear the property. The Corps referred the matter to the Environmental Protection Agency. Over the next several years, Cundiff continued his draining and ditch digging activities, simply ignoring whatever government directives came his way. In 1997 he planted wheat on the southern tract, and government officials observed downed trees in that area. The EPA issued an Order of Compliance informing him that he had violated the Clean Water Act by depositing fill material into waters of the United States without authorization, and it directed him to “immediately cease participating in or causing any additional discharges” of pollutants.
In 1998 Rudy‘s son, Seth, purchased a tract of land located north of Rudy‘s which contains roughly 103 acres of wetlands. (Seth leases this property back to Rudy for the exact amount of the mortgage payment.) Rudy quickly began excavating and clearing that property as well, activity of which Seth was aware. In October 1998, officials from the EPA informed Rudy Cundiff that he needed a permit for this work too. Rudy—somewhat surprisingly—said that, though he knew he needed a permit, he thought the Corps would never grant him one so he planned on digging his ditches anyway. He eventually completed a two-hundred foot ditch through the wetlands that extended all the way to Caney Creek, and the dredged material was “sidecast” into the wetlands to dry them out to make them arable. In 1999, Kentucky officials told Cundiff that he was destroying wetlands without a permit in violation of state law (he ignored this too), and the EPA issued additional Orders of Compliance to both Rudy and Seth Cundiff requiring them to cease their excavation activities and to restore the unauthorized ditches by refilling them. The Cundiffs responded to these orders as they had to the others.
The United States finally sued both Rudy and Seth Cundiff, alleging that they violated Section 301(a) of the Clean Water Act for discharging pollutants into waters of the United States without a permit.
II.
We review the district court‘s legal conclusions de novo, Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005), and its factual findings for clear error. Id. The imposition of a monetary penalty and injunctive relief is reviewed for abuse of discretion. United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1205 (6th Cir. 1995); United States v. Norris, 937 F.2d 286, 288 (6th Cir. 1991). We review the dismissal of the Cundiffs’ counterclaims de novo. Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002).
III.
Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
The Act also sets up two permit schemes. Section 404(a) authorizes the Secretary of the Army (through the United States Army Corps of Engineers), or a state with an approved program, to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.”
Although at one time the term “navigable waters” included only waters that were navigable in fact, The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871), “navigable waters” is a defined term in the Act that expressly includes all “waters of the United States.”
A. Are the Wetlands “Waters of the United States“?
1. Rapanos
Rapanos involved two consolidated cases in which the Act had been applied to actual
Justice Kennedy, writing only for himself, interpreted the term to cover wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759 (Kennedy, J., concurring in the judgment) (quoting Solid Waste Agency v. United States Army Corps. of Eng‘rs., 531 U.S. 159, 167 (2001)). He explained:
[W]etlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”
Id. at 780. And Justice Kennedy, relying on Riverside Bayview, concluded that the Corps’ assertion of jurisdiction over “wetlands adjacent to navigable-in-fact waters” may be met “by showing adjacency alone.” Id. On the other hand, where the wetlands are adjacent to nonnavigable tributaries, “[a]bsent more specific regulations,” Justice Kennedy would require the government to “establish a significant nexus on a case-by case basis.” Id. He therefore concurred in the judgment vacating the lower court‘s decision and voted to remand the case for more fact-finding on whether the government could prove the existence of a significant nexus between the wetlands and nearby navigable-in-fact waters.
The dissenters, with Justice Stevens writing, would have upheld the determination that the wetlands at issue were “waters of the United States” as a reasonable agency interpretation of the Act under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). In the dissenters’ view, any “significant nexus” requirement—insofar as the Act contained one—would be “categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Rapanos, 547 U.S. at 807-08.
Parsing any one of Rapanos‘s lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which—if any—of the three main opinions lower courts should look to for guidance. As the Chief Justice observed: “It is unfortunate that no opinion commands a
In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases—and in all other cases in which either the plurality‘s or Justice Kennedy‘s test is satisfied—on remand each of the judgments should be reinstated if either of those tests is met.
Rapanos, 547 U.S. at 810 (emphasis added). Fortunately, as the following section explains, jurisdiction is proper here under each of the primary Rapanos opinions and therefore we do not have to decide here, once and for all, which test controls in all future cases.
2. Marks-meets-Rapanos
In Marks v. United States, the Supreme Court instructed that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U. S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). But all is not always so rosy. The Supreme Court has oft noted Marks’ limitations, stating that it is “more easily stated than applied to the various opinions supporting the result,” Grutter, 539 U.S. at 325, and that “[i]t does not seem useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it,” Nichols v. United States, 511 U.S. 738, 745 (1994) (quotations omitted).
In its short life, Rapanos has indeed satisfied any “bafflement” requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy‘s test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit has held that the Act‘s coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens’ advice and held that the Act confers jurisdiction whenever either Justice Kennedy‘s or the plurality‘s test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). This is the approach the district court here followed, largely in reliance on the First Circuit‘s thoughtful reasoning.
Taken literally, Marks instructs lower courts to choose the “narrowest” concurring opinion and to ignore dissents. Marks, 430 U.S. at 193. But
The so-called Marks rule in fact derived from the Court‘s earlier opinion in Gregg v. Georgia, 428 U.S. 153 (1976). Gregg had interpreted Furman v. Georgia, 408 U.S. 238 (1972), in which a majority found that Georgia‘s death penalty scheme was unconstitutional. Two Justices believed that the death penalty was per se unconstitutional, while three others merely stated that it was unconstitutional as then administered in Georgia. So the Gregg Court stated that “[s]ince five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” 428 U.S. at 169 n.15.
As these cases indicate—and contrary to assertions by the Cundiffs and their amici—Marks does not imply that the “narrowest” Rapanos opinion is whichever one restricts jurisdiction the most. But it also makes little sense for the “narrowest” opinion to be the one that restricts jurisdiction the least, as the government‘s amici allege; the ability to glean what substantive value judgments are buried within concurring, plurality, and single-Justice opinions would require something like divination to be performed accurately. Instead, “narrowest” opinion refers to the one which relies on the “least” doctrinally “far-reaching-common ground” among the Justices in the majority: it is the concurring opinion that offers the least change to the law. See Johnson v. Bd. of Regents of the Univ. Of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001); Johnson, 467 F.3d at 63. In both Memoirs and Furman the controlling opinion was less doctrinally sweeping. The Memoirs controlling opinion did not agree that obscenity laws per se violated the Constitution, and the Furman controlling opinion did not agree that the death penalty was per se unconstitutional.
Yet problems await. For cases like Furman and Memoirs, Marks’ application is straightforward. But when “one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others, Marks is problematic.” King v. Palmer, 771 F.2d 771, 782 (D.C. Cir. 1991) (en banc). Specifically, ”Marks is workable—one opinion can be meaningfully regarded as ‘narrower’ than another—only when one opinion is a logical subset of other, broader opinions.” Id. at 781. Where no standard put forth in a concurring opinion is a logical subset of another concurring opinion (or opinions) that, together, would equal five votes, Marks breaks down.
Enter Rapanos. Although “in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality),” in other cases Justice Kennedy “would vote
Thus, because Rapanos is not easily reconciled with Marks, the question becomes what to do. Fortunately, we need not reconcile Rapanos with Marks. Here, jurisdiction is proper under both Justice Kennedy‘s and the plurality‘s tests (and thus also the dissent‘s). Recently, this Court addressed an analogous situation:
Because the Supreme Court divided 4-1-4 in [Missouri v. Seibert, 542 U.S. 600 (2004)], there has been some confusion about whether the plurality or concurring opinion controls. Most circuits have assumed that Justice Kennedy‘s concurrence operates as the controlling precedent, though others have raised doubts about whether his concurrence actually represents the narrowest grounds for decision. We do not need to resolve this issue because regardless of the applicable framework Lopez‘s statement must be suppressed.
United States v. Pacheco-Lopez, 531 F.3d 420, 427 n.11 (6th Cir. 2008) (citations omitted). As the next section demonstrates, jurisdiction is proper here under both Justice Kennedy‘s and the plurality‘s tests, so we leave ultimate resolution of the Marks-meets-Rapanos debate to a future case that turns on which test in-fact controls.3
3. Jurisdiction is proper under both tests
Justice Kennedy‘s test. Under this test, the Clean Water Act applies to wetlands that “possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Rapanos, 547 U.S. at 758. This nexus exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Id. at 755. By contrast, “[w]hen . . . wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory terms ‘navigable waters.‘” Id. This standard must be met on a case-by-case basis. Id.
The district court found that the Cundiffs’ wetlands have a significant nexus with the navigable-in-fact Green River, via
The Cundiffs do not really dispute these findings. Instead, they assert that a “significant nexus” may only be proved by “laboratory analysis” of soil samples, water samples, or through other tests. Though no doubt a district court could find such evidence persuasive, the Cundiffs point to nothing—no expert opinion, no research report or article, and nothing in any of the various Rapanos opinions—to indicate that this is the sole method by which a significant nexus may be proved such that the district court‘s finding was inherently improper. So the district court properly concluded that the government passed Justice Kennedy‘s test.
The Plurality‘s test. Under this standard, the government must make two showings to establish jurisdiction: “First, that the adjacent channel contains a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Rapanos, 547 U.S. at 742.
The first question is whether the adjacent property contains a “water of the United States.” The district court held that jurisdiction was proper under the plurality‘s standard because the South Channel (located on the northern tract of the wetlands), and Pond and Caney Creeks were all “relatively permanent bodies of water connected to a traditional interstate navigable water, the Green River.” Cundiff, 480 F. Supp. 2d at 945. Regarding the South Channel, the district court found that the water flows through the channel
The second question is whether the wetlands possess a “continuous surface connection” with the Green River and its tributaries. The Cundiffs argue that, because the wetlands are at a different elevation level than the two creeks and it is not readily apparent that water perpetually flows between them, there is no continuous surface connection. The district court, observing that Riverside Bayview stated that it is often ambiguous where the transition between water and dry land exactly exists, 474 U.S. at 132, 135 n. 9, disagreed and held that a continuous surface connection existed. Specifically, the Court observed that the inquiry was whether it was ambiguous where land stopped and water began, because otherwise the plurality‘s recognition of these gradual transitions would be “completely eviscerat[ed].” Cundiff, 490 F. Supp. 2d at 947.
We agree; the Cundiffs’ argument proves too much. Although the term “continuous surface connection” clearly requires surface flow, it does not mean that only perpetually flowing creeks satisfy the plurality‘s test. Indeed, the Rapanos plurality, in tipping its hat to Riverside Bayview, fashioned its test to determine when wetlands were “waters of the United States,” and therefore implicitly recognized that wetlands are neither navigable-in-fact nor even literally bodies of water. Instead, wetlands are merely “inundated or saturated” soil that can “support . . . under normal circumstances . . . a prevalence of vegetation typically adapted for life in saturated soil conditions.”
Further undermining their argument is the fact that the district court took note of the South Channel, which provides a largely uninterrupted permanent surface water flow between the wetlands and traditional waterways. The district court also found that the existence of additional (and substantial) surface connections between the wetlands and permanent water bodies “during storm events, bank full periods, and/or ordinary high flows” provides additional evidence of a continuous surface connection. Cundiff, 480 F. Supp. 2d at 947. Finally, Cundiff personally went a long
B. Summary Judgment Was Proper
To establish liability under the Act, the government must prove that (1) a person (2) discharged a pollutant (3) from a point source (4) into waters of the United States (5) without a permit.
1. Discharge of a pollutant
The Clean Water Act defines the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.”
Sidecasting involves the addition of dredged or excavated dirt from a removal site (here, the ditches the Cundiffs dug), to some disposal site (here, the Cundiffs’ own wetlands). Sidecasting‘s purpose is to fill wetlands to dry them out. Although it is plausible to read “addition” as covering only completely foreign materials, that reading is foreclosed because “pollutant” is defined in the Act to specifically include “dredged spoil“—the Cundiffs would read that term out of the Act. Further, the Act is not concerned with mere “material,” but instead with the addition of “pollutants“—material can be benign in one spot and seriously disruptive to the surrounding ecological system in another. As the
United States v. Deaton (”Deaton I“), 209 F.3d 331, 335 (4th Cir. 2000); see also Avoyelles Sportsmen‘s League, Inc. v. Marsh, 715 F.2d 897, 920-21 (5th Cir. 1983). And even if the statute was ambiguous on whether the prohibition on the “addition” of pollutants included sidecasting, it is nevertheless a reasonable agency interpretation and must be accorded deference. Chevron, 467 U.S. at 843.8
The Cundiffs’ other argument is that, if the regulations are nevertheless valid, then their dredging, filling, and mechanized landclearing activities nevertheless fall into the exception to the “discharge of dredged material” for “de minimis, incidental soil movement occurring during normal dredging operations.” 51 Fed. Reg. 41,206, 41,232 (Nov. 13, 1986), codified at
2. Permit requirement
Although the Cundiffs do not dispute that they did not have a valid section 404 permit when digging ditches and clearing their wetlands, they nevertheless argue that their activities fell into one of the statutory exemptions, though not into the “recapture provision.” See
The farming exception exempts from the permit requirement the “discharge of dredged or fill material” from “normal farming, silviculture, and ranching activities.”
Nor does the drainage ditch maintenance exception apply. Section
Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the “recapture provision,”
C. The District Court Did Not Abuse Its Discretion in Imposing Remedies
Remediation orders are reviewed for abuse of discretion. See United States v. Norris, 937 F.2d 286, 288 (6th Cir. 1991). Courts have considered three factors when evaluating remediation or restoration proposals: (1) whether the proposal would confer maximum environmental benefits, (2) whether it is achievable as a practical matter, and (3) whether it bears an equitable relationship to the degree and kind of wrong to be remedied. United States v. Deaton (”Deaton II“), 332 F.3d 698, 714 (4th Cir. 2003) (citing cases). Here, the district court analyzed each factor based on the evidence in rejecting the Cundiffs’ proposals and accepting the government‘s proposed restoration plan. The government‘s plan consists primarily of filling in the ditches on the northern tract, cutting branches in the ditches on the southern tract to restore the wetlands, planting trees on the southern tract to replace the ones the Cundiffs removed, restoring previous plant and animal life, and placing riprap (loose rocks assembled as a foundation) where the northern tract‘s ditches enter Caney Creek to prevent erosion. The Cundiffs’ challenge to the district court‘s judgment is largely a quarrel with the court‘s factual findings, which were not clearly erroneous, though they also argue that the government‘s plan will not allow them to see sufficient future profits. The Cundiffs also claim that what they were already doing would have led to the restoration of the wetlands.
Taking this latter contention first, the district court flatly rejected it, finding instead that the government‘s plan would “confer maximum environmental benefits.” And while the amount of money that the Cundiffs might receive in the future is generally included as a factor in equity, the court also found that the Cundiffs’ violations were “intentional, flagrant, egregious, and openly defiant, so as to militate against any equitable considerations.” J.A. 51-52. Thus, in light of these findings and the Clean Water Act‘s goal of “restoring and maintaing the chemical, physical, and biological integrity of the Nation‘s waters,”
IV.
The Cundiffs’ counterclaims are rather nebulous, but they roughly fall into three categories: (A) Constitutional takings-based counterclaims alleging that the government‘s actions constituted an uncompensated taking without due process; (B) duty-based counterclaims alleging that the federal government owed them a mandatory duty to mitigate damage to their property caused by the acid water runoff from the nearby abandoned mine; and (C) tort-based counterclaims alleging liability for the government‘s failure to fix the acid mine runoff or for the government‘s conduct in enforcing the Act. Each fails as a matter of law.
A. Takings Counterclaims
The Cundiffs claim that the governments’ actions—either because of the remediation plan or because of the mine‘s drainage onto the Cundiffs’ property—constituted an uncompensated taking without due process under the Fifth Amendment. The merits of this argument are specious,10 but this claim has a bigger problem: The Tucker Act gives the Court of Federal Claims exclusive subject matter jurisdiction over takings claims seeking more than $10,000.
B. Mandatory Duty Counterclaims
The Cundiffs assert that the federal government owed them a mandatory duty to prevent or remediate runoff from the mine from seeping onto their property under the Surface Mining Control and Reclamation Act (“SMCRA“). See
C. Tort Counterclaims
The Federal Tort Claims Act confers jurisdiction on federal courts to hear cases only “under circumstances where the United States, if a private person, would be held liable to the claimant in accordance with the law of the place where the act or omission occurred.”
The gravamen of the Cundiffs’ argument is that the abandoned coal mine seeps acid water onto their property so the United States should be liable. But, as observed above, the United States has never owned nor operated that mine, and there is no cognizable legal theory in Kentucky by which someone could be sued for failing to stop fluid from draining out of some third-party‘s abandoned coal mine. Insofar as the Cundiffs assert that though a private individual would not be liable yet nevertheless the federal government should be, the response is two-fold. First, Kentucky has never recognized such a lawsuit, and, second, there cannot be a universal common-law duty on the federal government to clean up anything and everything that adversely affects someone‘s property, even when caused by third-parties. Although the Cundiffs cite a plethora of cases where liability attached, see, e.g., City of Ashland v. Smith, 340 S.W.2d 208 (Ky. 1960); Louisville & Nashville R.R. v. Bush, 336 S.W.2d 578 (Ky. 1960), Cissell v. Grimes, 383 S.W.2d 128 (Ky. 1964), in each the liable party either owned the source of the problem or affirmatively
V.
We AFFIRM the district court‘s grant of summary judgment to the government and assignment of penalties to the Cundiffs, along with the district court‘s dismissal of the Cundiffs’ counterclaims against the government.
Notes
JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971).And daddy won‘t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I‘m sorry my son, but you‘re too late in asking / Mister Peabody‘s coal train has hauled it away . . . . / Then the coal company came with the world‘s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .