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United States v. Case

United States District Court, D. Oregon

April 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM CASE, BILL CASE FARMS, INC., and CASE FAMILY, LLC, Defendants.

          FINDINGS AND RECOMMENDATION

          THOMAS M. COFFIN, UNITED STATES (MAGISTRATE JUDGE

         Plaintiff the United States of America filed this action against defendants William Case, Bill Case Farms, Inc., and Case Family, LLC, asserting claims under 33 U.S.C. § 1319(b) and (d), for discharging dredged or fill material into waters of the United States in Linn County, Oregon, without a permit. Plaintiff moves for partial summary judgment as to liability. Fed.R.Civ.P. 56. For the reasons set forth below, plaintiffs motion should be granted.

         BACKGROUND

         At all relevant times to this lawsuit, Case Family, LLC, owned several parcels of agricultural land adjacent to the North Santiam River in Linn County, Oregon. Hanson Decl. Ex. D, at 10-11 (doc. 41-4). Mr. Case is the manager of Case Family, LLC. Mr. Case is also the president of Bill Case Farms, Inc., which conducts business operations on the property. Id.

         On June 11, 2009, Bob Lobdell from the Oregon Department of State Lands (DSL) and Michelle Hanson from the U.S. Army Corps of Engineers (USACE) advised Mr. Case about an eroding riverbank on the property. Id. at 23-24. Mr. Case testified that the officials told him that without a permit, he could repair the bank to prevent future erosion if he stayed out of "the stream of the river, " but they did not mention the ordinary high water mark. Id. at 24.

         On June 16, 2009, DSL sent Mr. Case a follow-up letter about the June 11th visit: "the investigation determined that the waterway is an essential salmonoid habitat" subject to permit requirements. Hanson Decl. Ex. A ¶ 2 (doc. 41-1). DSL further explained that if work was performed only above ordinary high water (OHW), Mr. Case did not need a permit. Id.

         On September 27, 2017, DSL sent Mr. Case an email summarizing the June 11th visit: "We discussed working well above the current bankline and above OHW in the cornfield adjacent. We all agreed that if work was done above OHW, well above the bankline and into the corn field that no state or federal permits would be required." Case Decl. Ex. 1 ¶ 1 (doc. 45-1).

         Mr. Case waited to begin the work until September 2009 when the water level was at its "lowest point of the year ... so [he wasn't] working in any water." Hanson Decl. Ex. D, at 24-25 (doc. 41-4). When Mr. Case performed the work, he "tried to stay about a foot above the [existing] waterline." Id. at 29.

         After the 2009 work was about "50, 60 percent done"-i.e., the "footings" were dug out of the field and some rock was placed in the footings-DSL and U.S. ACE officials returned and informed Mr. Case that everything "looked good." Id. at 28.

         In 2012, upstream from the revetment, Mr. Case repaired a dike built by U.S. ACE, which had washed away due to flooding earlier that year. Id. at 67. Mr. Case did not consult with USACE or DSL to determine whether he needed a permit to repair the dike.[1] Id. at 79. Rather, Mr. Case relied upon advice he received from USACE in 1996 that he did not need a permit to repair another portion of the same dike, as long as he completed the repairs within 12 months. Id. However, before completing any repair work, Mr. Case ensured that he was not working in any restricted wetland areas by consulting an "NRCS wetlands map." Id. at 101.

         Mr. Case repaired the dike in 2012 by pushing on-site and purchased rocks and dirt "back up" onto the dike to prevent it from washing away again. Id. at 90. He stated that "right where the worst of the current was, we put some riprap." Id. at 89.

         Mr. Case testified that in 2013, he used a backhoe to push "about 20 yards" of material back onto a portion of the road that had washed away. Id. at 104. He said that he never completed the job because "water started coming up, so we just quit." Id. He also testified that he did not make any effort to determine the location of the ordinary high water mark before performing the work. Id. at 107.

         On February 23, 2016, plaintiff filed a complaint in this Court, alleging that defendants discharged dredged or fill material into waters of the United States without a permit in violation of the CWA. Doc. 1. On November 15, 2017, plaintiff filed a motion for partial summary judgment as to defendants' liability under the CWA and defendants' affirmative defenses. Doc. 38. In support of its summary judgment motion, plaintiff introduced expert testimony from Yvonne Vallette (EPA Aquatic Ecologist for the Office of Enforcement and Compliance) and Dr. Lyndon Lee. Doc. 39; Doc. 40.

         Based upon site visits and photos, Ms. Vallette used geomorphic indicators to determine the ordinary high water mark location relative to defendants' 2009, 2012, and 2013 work areas. Vallette Deck, at 6 (doc. 39); Vallette Deck Ex. A (doc. 39-1); Vallette Deck Ex. B (doc. 39-2).

         Ms. Vallette determined that in 2009, defendants dug an 835 foot-long trench and filled it with approximately 4, 050 cubic yards of riprap below the ordinary high water mark. Doc. 39. In addition, Ms. Vallette determined that in 2012 defendants placed at least 770 cubic yards of large rock riprap along an approximately 830-foot-section below the ordinary high water mark of the river and within adjacent wetlands, which directly altered at least three seasonal channels. Id. Furthermore, Ms. Vallette determined that in 2013, "several piles of excavated gravel and channel material were deposited" into areas near the river. Id. She also observed an area containing "approximately 170 feet by 164 feet of new excavation and fill that extended the berm farther north . . . [which] blocked two of the remaining overflow channels that connected flows to the North Santiam River." Id.

         Independent of Ms. Vallette's report, Dr. Lyndon Lee made similar conclusions that Mr. Case deposited material below the ordinary high water mark in 2009, 2012, and 2013. Doc. 40.

         The Court heard oral arguments on plaintiffs motion for summary judgment on February 21, 2018.

         STANDARD ...


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