United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
M. COFFIN, UNITED STATES (MAGISTRATE JUDGE
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.
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.
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.
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.
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
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.
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.
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. 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.
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.
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.
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.
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).
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.
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.
Court heard oral arguments on plaintiffs motion for summary
judgment on February 21, 2018.