JOHN T. COPENHAVER, Jr., District Judge.
Pending is the motion for summary judgment filed February 21, 2017, by the United States Environmental Protection Agency ("EPA") and Scott Pruitt, in his official capacity as Administrator (collectively "defendants") and the motion for summary judgment as to defendants' counterclaim, filed on February 21, 2017, by Ron Foster ("Foster"), Foster Farms, LLC, ("Foster Farms") and Marketing & Planning Specialists Limited Partnership ("Marketing & Planning Specialists") (collectively "plaintiffs"). This case presents a challenge by plaintiffs to a Clean Water Act ("CWA") Administrative Compliance Order ("ACO") under the Administrative Procedures Act and defendants' counterclaim which seeks injunctive relief and a civil penalty under the CWA.
In September 2009, Ron Foster, general partner and shareholder member of Foster Farms and Marketing & Planning Specialists, purchased two tracts of property in Wood County, West Virginia, north of Lubeck, West Virginia, known as "Neal Run Crossing," (hereinafter "Neal Run Crossing"). Foster purchased Neal Run Crossing out of the bankruptcy estate of the Endurance Group, LLC ("Endurance") and assigned one parcel to Foster Farms and the other to Marketing & Planning Specialists. 2d Am. Comp. ¶ 8(d)-(f); Defs.' Mem. Ex. 2; Administrative Record ("AR") 47 at AR 000384.
In 2009, when Neal Run Crossing was owned by Endurance, a stream was relocated on a portion of the property known as Pad 1 (being one of five such pads) without a Section 404 permit to do so, in violation of the Clean Water Act, 33 U.S.C § 1251
On September 9, 2010, EPA inspectors Stephanie Andreescu and Todd Lutte visited the Neal Run Crossing property. Defs.' Mem. Ex. 4 (Andreescu Decl.) ¶¶ 11, 13; Lutte Decl. at ¶ 14. According to defendants, their visit related to complaints about flooding on neighbors' land caused by Endurance's movement of the Pad 1 stream. Defs.' Mem. in Supp. of Mot. for Summary Judgment ("Defs.' Mem.") at 7; Andreescu Decl. at ¶¶ 15-16; Lutte Decl. ¶¶ 15-16. During this visit, they saw a billboard that advertised the sale of portions of the Neal Run Crossing property. Defs.' Mem. at 7; Andreescu Decl. at ¶¶ 15-16; Lutte Decl. ¶¶ 15-16; Andreescu Decl. at Attach. C. The sign included a topographical map, which indicated that fill had or would be placed on streams in Pad 4, which is the focal point of this dispute. Defs.' Mem. at 7; Andreescu Decl. at ¶¶ 15-16; Lutte Decl. ¶¶ 15-16; Andreescu Decl. at Attach. C.
The Neal Run Crossing property has been divided into five "pads" for development purposes. Stipulation ¶ 15. The alleged CWA violations at issue in this case occurred on Pad 4, which is also sometimes referred to as "the Site."
The First Unnamed Tributary joins the Second Unnamed Tributary to Neal Run. Stipulation ¶ 25. The Second Unnamed Tributary is a relatively permanent water, which flows into Neal Run.
This case revolves around whether RR1, RR2, RR3, and RR4 are "waters of the United States" under the CWA. Defendants assert that RR4 is a relatively permanent water as defined in the plurality opinion of four Justices in
Andreescu and Lutte approached the Site through a field on adjoining property next to Pad 4 and discovered a stream channel that had been partially buried with dirt and vegetation. Defs.' Mem. at 7-8; Andreescu Decl. at ¶ 18; Lutte Decl. ¶¶ 17, 19. Andreescu and Lutte observed that the portion of the stream that was not buried had a bed, bank, an ordinary high water mark, and "other attributes associated with the regular presence of flowing water," of which Andreescu took photos. Defs.' Mem. at 8; Andreescu Decl. at ¶¶ 19, 21; Lutte Decl. ¶ 17; Andreescu Decl. at Attach. D, E.
A man, who was later identified as Bryan Scott Moore, approached the inspectors while they were observing the Site and stated that a stream previously flowed on the Site. Defs.' Mem. at 8; Pls.' Mem. at 8; Andreescu Decl. at ¶¶ 19, 21; Lutte Decl. ¶ 17. Moore attempted to take Andreescu and Lutte to the source of the stream, but they were unable to locate it due to thick vegetation. Defs.' Mem. at 8; Andreescu Decl. at ¶ 20. When they returned to the Site, the inspectors encountered men with a bulldozer, one of whom they later learned was David Walters of Walters Excavating. Defs.' Mem. at 8; Andreescu Decl. at ¶ 21; Lutte Decl. at ¶ 19. The men indicated that they had filled the stream and Walters stated that he had not obtained a permit for the work. Lutte Decl. ¶ 19; Defs.' Mem. Ex. 8 (Walters Dep.) at 99-100. The men from Walters Excavating were preparing "the area for the construction of a storm water control cell." Pls.' Mem. at 8.
Lutte's declaration states that while he does not specifically remember what he said to Walters, his "usual practice would be to inform him of applicable law and the fact that a permit may be required." Lutte Decl. at ¶ 19. Walters testified that Lutte or Andreescu told him that they "may be in violation" for filling in the stream and that they needed a 404 permit for the work done. Defs.' Ex. 27 (David Walters Dep.) at 106.
When leaving the Site, Andreescu observed the stream channel exiting Pad 4 and continuing towards a hayfield. Andreescu Decl. ¶ 22. Andreescu and Lutte walked across the hayfield and noted that the stream channel lost its bed, bank, and ordinary high water mark in the middle of the field.
After Lutte and Andreescu left, David Walters informed Foster of his conversation with them.
In late fall 2010, the EPA sent information requests pursuant to Section 308 of the Clean Water Act to Foster Farms, Walters Excavating, and Fox Engineering in order to determine whether and to what extent Clean Water Act violations occurred in the Pad 4 area. Andreescu Decl. ¶ 27. Responses to the requests were provided in December 2010.
In March 2011, plaintiffs commissioned a delineation report, which was conducted by Jacob White of Randolph Engineering and was submitted to the United States Army Corps of Engineers ("the Corps") for input into their jurisdictional determination ("JD"). Pls.' Mem. at 10; Andreescu Decl. Attach. F ("Randolph Report"), AR 61. White determined that the Pad 4 site likely contained jurisdictional waters.
Between October and December 2011, the EPA and the Corps discussed whether plaintiffs' discharges would be addressed through an EPA enforcement action or an after-the-fact permit issued by the Corps. Defs.' Mem. at 9; Andreescu Decl. ¶ 37; Lutte Decl. ¶ 25. Defendants contend that while the EPA began drafting the ACO in December 2011, the EPA was still "urg[ing] the Corps to take lead agency status," although the Corps ultimately decided not to do so. Defs.' Mem. at 9; Andreescu Decl. ¶ 36; Lutte Decl. ¶ 25.
During this time, Pam Lazos of the EPA represented to Foster that the Corps refused to issue a permit because the violations at the Site were so "egregious." Pls.' Mem. at 11; Pls.' Mem. Ex. 32 (October 18, 2011 email from Lazos to Foster). In an email sent in March, 2012, Richard Hemann, who worked for the Corps, informed Andreescu that the Corps "did not wish to verify the delineation if the EPA will not consider improvements to unauthorized work as compensatory mitigation for other unauthorized work." Pls.' Mem. at 12-13; Pls.' Mem. Ex. 37.
On January 3, 2012, the EPA informed Foster that the case was proceeding as an EPA enforcement action. Defs.' Mem. at 9; Defs.' Ex. 17 (AR 84) at AR0000632. On January 24, 2012, the EPA issued an ACO to Foster Farms stating that there had been unauthorized discharges of fill materials to waters of the United States in Pad 4. Defs.' Mem. at 9; Andreescu Decl. ¶ 37 & Attach. K; Lutte Decl. ¶ 26. Although the EPA had already assumed lead agency status, the Corps finished its analysis of the Site, which defendants state was at the request of Foster. Defs.' Mem. at 10; Andreescu Decl. Attach O. The Corps concluded that the four streams on Pad 4 that were filled by plaintiffs were covered by the CWA, and informed plaintiffs of this in a February 22, 2012 letter. Defs.' Mem. at 10; Andreescu Decl. Attach. O.
Because the Corps' jurisdictional analysis provided an administrative appeal process, plaintiffs' appealed the Corps' jurisdictional determination. Pls.' Mem. at 14. The EPA issued a letter on April 5, 2012, which stated that due to the EPA's issuance of the ACO on January 24, 2012, it was "superseding the Corps' authority to verify the jurisdictional status" at the Site, and reaffirmed its findings that RR1, RR2, RR3, and RR4 were jurisdictional waters. Pls.' Mem. Ex. 44 (April 5, 2012 Letter). The Corps' denied plaintiffs' appeal because the EPA had assumed the role of lead agency for the Site.
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those necessary to establish the elements of a party's cause of action.
The moving party has the initial burden of showing — "that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case."
Inferences that are "drawn from the underlying facts. . . must be viewed in the light most favorable to the party opposing the motion."
In 1972, Congress passed the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The CWA prohibits the discharge of pollutants into navigable waters, which are defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Supreme Court has interpreted the term "navigable waters" on multiple occasions, most recently in
The plurality opinion of four Justices, authored by Justice Scalia, limited CWA jurisdiction to traditional navigable waters, waters connected to traditional navigable waters that have a "relatively permanent flow," and wetlands that have a "continuous surface connection" to relatively permanent waters.
Circuit courts are divided on how to interpret navigable waters post-
Defendants argue that because three circuits have found that either test satisfies jurisdiction under the CWA, and because the Fourth Circuit has adopted the parties' agreement in
Plaintiffs argue that only the
For the first time in their reply to defendants' response to plaintiffs' motion for summary judgment on the counterclaim, plaintiffs' assert that "Although
As noted above, circuit courts are divided on whether to apply the plurality's test, Justice Kennedy's test, or both post-
The Courts of Appeals for the First, Third and Eighth Circuits instead have found
Instead, those courts looked to the suggestion by Justice Stevens contained in his
In accordance with these instructions, these circuits have decided to follow "Justice Stevens' instructions and look[] to see if either
The court finds the analysis of the Courts of Appeals for the First, Third, and Eighth Circuits more persuasive, as affirmed by the Fourth Circuit's willingness to apply the significant nexus test in
Accordingly, in determining whether the Pad 4 streams are subject to the CWA under both plaintiffs' APA claim and defendants' enforcement counterclaim, the court will find jurisdiction if either the
Plaintiffs make several additional arguments as to why only the
However, as noted by defendants, the 2015 EPA Clean Water Rule was not in effect when plaintiffs' discharges occurred and therefore does not govern this case.
Defendants and plaintiffs both move for summary judgment on defendants' counterclaim, which seeks injunctive relief and civil penalties against defendants for their violation of the CWA.
In order to prevail under the CWA, defendants must establish that plaintiffs are: (1) persons that (2) discharged a pollutant (3) from a point source (4) to a water of the United States (5) without a CWA Section 404 permit. 33 U.S.C. §§ 1311(a), 1344(a).
Under the CWA, "person" means "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. § 1362(5).
Plaintiffs do not dispute that they are "persons" under the CWA. Foster is a member of Foster Farms and a limited partner and employee of Marketing & Planning Specialists. AR 47 at AR 000384; Pls.' Mem. Ex. 18 (Foster Farms Interrogatory Responses) at 3; Pls. Mem. Ex. 19 (M&PS Interrogatory Responses) at 2. Foster Farms and Marketing & Planning Specialists own the Site. 2d Am. Comp. ¶ 8(d)-(f). Foster hired Fox Engineering to design the plans for the pad construction and hired Walters excavation to clear, fill, and level the Site. Pls.' Mem. Ex. 20 (Metheny Dep.) at 28-30; 90-91. The court thus finds that plaintiffs are "persons" under the CWA.
Defendants contend that plaintiffs' activities at the Site "resulted in a discharge of pollutants, specifically fill material." Defs.' Mem. at 12.
The CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source. . . ." 33 U.S.C. § 1362(12). Pollutant means "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. § 1362(6). Courts have concluded that fill material is a pollutant under the CWA and plaintiffs do not contest this assertion.
Defendants assert that the "bulldozers, dump trucks, and other earthmoving equipment . . . used by Mr. Walters and his employees to deposit rock, dirt, and other fill material at the Site are point sources. Defs.' Mem. at 13.
A point source is defined in the CWA as "any discernible, 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." 33 U.S.C. § 1362(14). Under the CWA, "[t]he concept of a point source embraces the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States. As such, bulldozers, backhoes, draglines, and other earthmoving equipment are all point sources under the CWA."
Under the CWA, "navigable waters" are defined as "waters of the United States." 33 U.S.C. § 1362(7). As discussed, the court will apply both the relatively permanent flow test and the significant nexus test to determine whether the Pad 4 streams are waters of the United States.
The parties do not dispute that waters that are connected to traditional navigable waters that have a "relatively permanent flow" are jurisdictional waters under the CWA. Defs.' Mem. at 13; Pls.' Mem. at 23;
As discussed, RR4 is a stream that crosses Pad 4 which was filled with dirt, rock and other materials by plaintiffs. RR1, RR2, and RR 3 flow into RR4. RR4 then exits the western boundary of Pad 4 and its path crosses a neighbor's hayfield and then joins the First Unnamed Tributary to Neal Run.
Defendants assert that prior to being filled, RR4 had a relatively permanent seasonal flow.
That RR4 flowed seasonally on the Site is further supported by Randolph Engineering's stream delineation report, which classified RR4 as an intermittent stream because it showed the same flow characteristics as RR5 and RR10 (which were viewed as similar, unfilled streams on the Site), which White observed and classified as intermittent, and because it received contributing flow from three ephemeral streams, RR1, RR2, and RR3. Pls.' Mem. Ex. 25 ("White Dep.") at 50. In addition, the Corps and the EPA independently determined that RR4 was a relatively permanent water. The Corps conducted its own analysis and verified Randolph Engineering's delineation and concluded that RR4 was an intermittent-seasonal stream based in part on the watershed's size and the characteristics of RR5 and RR10, which are similar watersheds located on Pads 4 and 5, and thus concluded it was a relatively permanent water. Defs.' Mem. at 17; Andreescu Decl. Attach. O ("Corps JD Letter"). During their Site visit on September 9, 2010, Andreescu and Lutte observed RR4's stream channel emerging from the disturbed area with a bed, banks and "ordinary high water mark" ("OHWM"), observed the channel upstream and Andreescu later reviewed GIS data and aerial photographs of the Site, from which she concluded RR4 was a relatively permanent water. Defs.' Mem. at 17-18; Andreescu Decl. ¶¶ 19, 24; Lutte Decl. ¶¶ 17, 24; Defs.' Mem. Ex. 27.
Defendants contend that prior to being filled by plaintiffs, RR4 "exited the western boundary of the Site and flowed across a neighbor's hayfield to the First Unnamed Tributary of Neal Run. Defs.' Mem. at 18; Stokely Decl. ¶ 16. To support this contention, defendants first point to Fosters' response to defendants' information request, which stated, "[d]rainage [from the Site] was flowing across an open field into the main stream without the benefit of a silt fence." Defs.' Mem. 18; AR # 47 at AR 000383. Defendants also assert that the flow across the hayfield is supported by the testimony of Larry Carr, who owned the hayfield from 1965 to 2000. Defs.' Mem. at 18. Carr testified that, in the wintertime and early spring, water from the Site would "run down through here [indicating on the map a "concave dip" on the hayfield] and down all the way to this Neal Run area." Defs.' Mem. at 18; Carr Dep. at 12, 24, 28-29. During the Site visit, Andreescu and Lutte additionally observed RR4's flow path as it left the Site and traveled into and across the hayfield to the First Unnamed Tributary. Defs.' Mem. at 18; Andresscu Decl. ¶ 22; Lutte Decl. ¶¶ 23-24. Defendants assert that RR4's flow path across the hayfield is visible in aerial photographs taken before and after plaintiffs' filling activities. Defs.' Mem. at 18; Stokely Decl. ¶¶ 116-17. The state of West Virginia mapped RR4 as it flows across the hayfield to the First Unnamed Tributary. Defs.' Mem. at 18; Andresscu Decl. ¶ 48 & Attach. P (SAMB Map). Finally, Pehrman, plaintiffs' expert, observed water from the Site flowing continuously across the hayfield into the First Unnamed Tributary. Pehrman Dep. at 106-107.
The parties do not dispute that the tributaries downstream from the hayfield are all relatively permanent bodies of water: the First Unnamed Tributary flows into the Second Unnamed Tributary for about 500 meters before it connects to Neal Run, from which Neal Run connects to the Little Kanawha River and then to the Ohio River. Dow Decl. ¶ 21; Pehrman Dep. 121.
Plaintiffs' sole disagreement with defendants' characterization of RR4 as relatively permanent is that CWA jurisdiction is lost in the hayfield, because there is no relatively permanent flow across it and no visible bed, bank or OHWM for 120 to 121 feet. Pls.' Resp. at 6-13; Pls.' Mem. at 29-36.
In support of the position that there is no hydrological connection across the hayfield, plaintiffs cite to the testimony of Carr, Larry George, and Doug Hatfield. Although defendants interpret Carr's testimony as establishing that there is a relatively constant flow of water across the hayfield in the winter and spring, plaintiffs point to Carr's testimony that the hayfield was "always dry" from June through early fall, that flow across the hayfield would only occur due to an "overnight watershed" and "wouldn't be a continuous thing." Pls.' Resp. at 6; Pls.' Ex. 4 (Carr, George, Hayfield Dep.). When asked if there was ever continuous flow across the hayfield for three months or more, Carr testified, "No. Never. Never."
Larry George testified that he had been familiar with the Pad 4 area and hayfield since 1952. George stated that surface flow was only visible across the hayfield if it rained for ten days. Pls.' Resp. at 7; Pls.' Ex. 4. George testified that there was never a ditch or erosional feature across the hayfield.
Plaintiffs also reference the report completed by GAI Consultants ("GAI") in June 2013. Pls.' Resp. at 8; Pls.' Mem. Ex. 54 ("GAI Report"). According to the report, the hayfield "did not exhibit defined channel characteristics and appeared to be consistent with an upland hayfield. . . . At approximately 121 feet down-gradient from the loss of bed and bank a channel was found to reestablish." GAI report at 2. GAI's field analyst, Jayme Fuller stated, "If there was flow, it would have had to present the physical characteristics that we've identified here in our report." Pls.' Mem. Ex. 55 (Fuller Dep.) at 186-88.
Plaintiffs next argue that there cannot be CWA jurisdiction upstream of the hayfield because of the loss of the ordinary high water mark. They cite to EPA and Corps guidance regarding OHWMs. The EPA guidance states, "One means of identifying the lateral constraints is the existence of an [OHWM]." Pls.' Mem. at 10; Pls.' Mem Ex. 30 (Clean Water Protection Guidance) at 12, 14. The Corps regulation states "(1) In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark[.]" 33 CFR § 328.4. However, as is stated in the guidance and the regulation, and as is noted by defendants, this refers to the way to identify the "lateral extent of jurisdiction in the absence of adjacent wetland (
Plaintiffs also contend that the GAI Report contains historical aerial photography that shows the hayfield has always lacked physical indicators of flow, such as a bed, banks or OHWM. Pls.' Resp. at 8-10; GAI Report at 7-11.
Plaintiffs additionally argue that White, who prepared the delineation report for Randolph Engineering, upon which defendants rely, recanted his opinion that RR4 was jurisdictional after he read the GAI report. Pls.' Resp. at 9. White testified that "[I]t's interesting that what was considered to be an intermittent stream not only doesn't show any groundwater, but not even any bed and bank features. . . . [which] would strongly go against any kind of a significant nexus connection to the downstream water. . . . [and] would go against the relatively permanent water." Pls.' Resp. at 9; Pls.' Mem. Ex. 31 (White Dep.) at 137-40. White also testified that had he observed the "same things that are represented" in the report, he "would have deemed everything . . . not jurisdictional because there was no physical connection to the downstream water."
Plaintiffs also point to the expert opinion of Pehrman, of Environmental Resources Management ("ERM"), who made a ground inspection of the hayfield in 2015 and reviewed topographical mapping, aerial imagery, ground photography, soil mapping and the GAI and Randolph Engineering studies and concluded that even though water was continuously flowing through the hayfield on the day he conducted his site visit, CWA jurisdiction ended at the upstream end of the hayfield because the hayfield "lacks a defined bed and bank and is best described as a broad swale through the farm field which conveys episodic runoff to the downgradient jurisdictional tributaries during heavy precipitation/snowmelt events. . . ." Pls.' Resp. at 9-10; Pls.' Mem. Ex. 61 (ERM Report) at 7.
Finally, plaintiffs attempt to discredit the testimony of defendants' experts. First, plaintiffs argue that Stokely made no "on the ground validation of the features he claimed to identify by remote imagery" and this methodology has been rejected by a court in
Defendants also argue that the expert opinions of Arscott and Dow are flawed in that they did not inspect the hayfield or account for the loss of bed, bank and OHWM in the hayfield in their report. Pls.' Resp. at 11. But, as defendants discuss, Arscott stated in his rebuttal report that "it is common in montane regions for some water to flow subsurface where sediment plumes are deposited in valleys where stream channel/valley slopes transition from higher gradient to lower gradient. . . . To the extent that ERM reports the formation of a defined channel with bed and bank characteristics in the downstream portion of the ACO, we note that such a feature would be formed by the flow of water from the surface, the sub-surface or both." Defs.' Mem. Ex. 24 at Ex. B (Rebuttal Report). Stokely similarly stated that "it is not uncommon to observe a tributary to change its character, including the nature of its bed and banks as it flows across different landscape features and scopes." Defs.' Mem. Ex. 7 at Ex. B (Rebuttal Report). Pehrman testified in his deposition that a change in character of flow can be caused by a change in the landscape. Defs.' Resp. Ex. C (Pehrman Dep.) at 199-202.
As noted, defendants' experts refute plaintiffs' experts' contention that the loss of OHWM severs CWA jurisdiction. In addition, defendants point to the Corps instructions for identifying jurisdictional waters, which states that "a natural or manmade discontinuity in the OHWM does not necessarily sever jurisdiction (e.g. where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices)." Defs.' Mem. Ex. 26 at MPS 001240 n. 6. In such circumstances, the field staff are instructed to "look for indications of flow above and below the break."
The court finds that the above evidence raises genuine questions of material fact that preclude summary judgment for either party as to whether RR4 is a relatively permanent water under the plurality's test in
Defendants contend that RR1, RR2, RR3, and RR4 significantly affect the chemical, physical, and biological integrity of Neal Run and the Little Kanawha River, and are thus a "water of the United States" under Justice Kennedy's significant nexus test. Defs.' Mem. at 19.
According to Justice Kennedy, "[t]he required nexus [under the significant nexus test] must be assessed in terms of the [CWA's] goals and purposes. Congress enacted the law to `restore and maintain the chemical, physical, and biological integrity of the Nation's waters,' 33 U.S.C. § 1251(a), and it pursued that objective by restricting dumping and filling in `navigable waters,' §§ 1311(a), 1362(12)."
According to defendants, the filled streams were headwater streams, which are the upper tributaries of a stream network which have a "profound influence on larger downstream waters." Defs.' Mem. at 20-21, n. 14; Arscott Decl. ¶ 13; Andreescu Decl. ¶ 25; Defs.' Mem. Ex. 31-33. Defendants assert that the filled streams significantly affect Neal Run and the Little Kanawha River by: (1) contributing flow, sediment and other material to downstream waters; (2) supporting and exchanging aquatic life with downstream waters; and (3) processing nutrients, materials, and pollutants. Defs.' Mem. at 21-26. These activities have been recognized by courts as forming a significant nexus with a traditional navigable water.
Drs. Arscott and Dow observed other, similar streams and concluded that the filled streams contributed flow, sediment and other materials to the navigable-in-fact portion of Neal Run. Defs.' Mem. at 21; Arscott Decl. ¶ 44; Dow Decl. ¶ 34. Dr. Dow used Digital Elevation Modeling ("DEM") and Geographic Information System ("GIS") tools to map the stream locations prior to being filled, and as discussed, concluded that RR4 presented a hydrological connection across the hayfield. Defs.' Mem. at 22; Dow Decl. ¶¶ 20-21. By examining aquatic life in the unburied portions of RR2, RR3 as well as RR5 and RR10, Drs. Arscott and Dow deduced that RR2 was intermittent, RR3 was ephemeral, and RR4 was intermittent or nearly perennial. Arscott Decl. ¶¶ 41, 42, 45.
Drs. Arscott and Dow analyzed a three-year hydrological study by the United States Geological Survey of two streams that dried up in the summer and early fall, Robinson Run and North Bend Run, which are located less than 50 miles from the Site. Defs.' Mem at 22; Dow Decl. ¶¶ 27-28. Drs. Arscott and Dow opined that these streams had comparable hydrological patterns with the filled streams, and cited to their "annual suspended sediment loads," which was between 8 and 11.6 tons per year for North Bend Run and between 3.5 and 22.9 tons per year for Robinson Run, which defendants contend illustrates "the substantial type of physical connection that the Filled Streams likely shared with downstream waterways." Defs.' Mem. at 22-23; Dow Decl. ¶¶ 27, 29-30.
Dr. Dow also used GIS tools to calculate the total stream length and watershed area within the Neal Run watershed. Dow Decl. at ¶ 23. According to Dr. Dow's analysis, Neal Run's first and second order streams account for more than 75% of the stream network length and drain almost the same percentage of the total watershed.
Defendants contend that the filled streams "served as habitat to aquatic organisms that contributed to the maintenance and viability of species downstream." Defs.' Mem. at 24. Drs. Arscott and Dow studied and documented numerous types of aquatic life in: (1) the unburied portions of RR2 and RR3; (2) RR5 and RR10, which defendants assert are similar streams on the Site that were not filled; (3) the First and Second Unnamed Tributaries to Neal Run; and (4) Neal Run.
According to Drs. Arscott and Dow, the presence of life in these areas demonstrates that the filled streams were "aquatic habitats to several species that were connected to downstream waters." Defs.' Mem. at 24; Arscott Decl. ¶ 43. According to them, aquatic organisms in headwater streams, like those they found in RR2, RR3, RR5 and RR10, process materials and serve as the bottom of the food chain to support downstream life. Defs.' Mem. at 24; Arscott Decl. ¶ 18. For example, organisms "eating leaves in headwater streams transform the food from large particles (single whole leaves) to small particles of food (feces and leaf fragments . . .), which, in turn, can then be fed upon by downstream . . . communities whose species have specialized mouth parts and structures enabling them to filter out the small organic particles being transported in the water column." Defs.' Mem. at 24; Arscott Decl. ¶ 18.
This function is important because "the ability of each species to span several stream orders enables larger effective population size, which contributes significantly to the species' ability to maintain a viable genetic structure . . . and high level of reproductive health." Defs.' Mem. at 25; Arscott Decl. ¶ 20. If headwater streams are eliminated, there are "impacts [on] the potential viability of species living downstream, in second, third, or higher order navigable tributaries in a way that could lead to their gradual extinction via inability to maintain effective population sizes" in the watershed. Defs.' Mem. at 25; Arscott Decl. ¶ 20.
Defendants contend that RR1, RR2, RR3, and RR4 "transformed and transported organic matter to be used by aquatic life downstream." Defs.' Mem. at 25. Headwater streams "have smaller channels canopied by trees, and accumulate leaf litter, twigs and other tree parts . . . which are transformed by microorganisms into dissolved organic carbon ("DOC"). Defs.' Mem. at 25; Arscott Decl. ¶ 15. DOC is a nutrient for aquatic life and is transported with the water downstream and supplements the energy for downstream aquatic life." Defs.' Mem. at 25; Arscott Decl. ¶ 15.
Drs. Arscott and Dow measured chemical properties in the Site, directly downstream from the Site and at other similar headwater streams within 50 miles of the Site and found the levels in the channels within the Site to be consistent with other nearby headwater streams. Defs.' Mem. at 25; Arscott Decl. ¶¶ 29-30. Headwater streams are generally lower in specific conductivity than downstream waters, and help to dilute pollution in downstream waters where there are greater human inputs that cause conductivity to rise. Defs.' Mem. at 26; Arscott Decl. ¶ 31. When headwater streams are altered or destroyed, like the filled streams, their ability to dilute downstream water lessens, which causes the concentration of pollutants to rise downstream and degrade traditional navigable waters. Defs.' Mem. at 26; Arscott Decl. ¶ 31. Drs. Arscott and Dow found that the water emerging from the filled streams as it discharged to the stormwater pond constructed by plaintiffs at the edge of the Site had an elevated specific conductivity compared to the other similar streams within 50 miles that Drs. Arscott and Dow analyzed, which impact downstream waters, as previously discussed.
Drs. Arscott and Dow also collected water samples to analyze nutrients and ions and discovered increased concentrations of sodium ions and chlorine ions downstream of the fill, which "are strong indicators of human impact." Defs.' Mem. at 26; Arscott Decl. ¶¶ 32, 33. Defendants assert that this is caused by the inability of lost, impacted or degraded headwater streams to dilute downstream waters, which causes the downstream waters to be threatened or impaired.
Plaintiffs primarily dispute defendants' evidence by arguing that none of the above described functions could occur in any significant way because of the lack of hydrologic connection, except during "extreme precipitation conditions," between RR4 and the First Unnamed Tributary at the far edge of the hayfield. Pls. Mem. at 13-15. As discussed above, whether there is a significant connection in the hayfield such that water flow is relatively permanent, despite the loss in bed, bank, and OHWM, is a genuine question of material fact. For the same reason, whether sufficient hydrologic connection exists across the hayfield for sediment, aquatic life, and the processing of nutrients, minerals and pollutants to significantly affect Neal Run and the Little Kanawha River is also a genuine issue of material fact.
In addition, plaintiffs dispute that the species identified by Arscott were present prior to the filling of the Pad 4 streams, stating that they could have developed after the plaintiffs placed a stormwater pond, and because the species were winged, "it is entirely plausible that the specimens gathered came from oviposit egg placement by adult specimens of the species in question." Pls.' Resp. at 14. To the extent plaintiffs dispute Arscott's expert opinion that the species he identified were present in the filled streams prior to being filled, this constitutes a dispute of fact.
Plaintiffs also argue that defendants' experts' failure to "present any quantifiable analysis of the alleged influence of the Pad 4 area on flow, biology and water chemistry to the [Traditional Navigable Water]" and their failure to "compare any other watersheds with similar OHWM discontinuities, renders EPA's empirical support . . . deficient as a matter of law." Pls.' Resp. at 16. But, a "significant nexus showing does not require laboratory tests or any particular quantitative measurements."
Plaintiffs cite to Pehrman's testimony to establish that the Pad 4 streams do not have a significant nexus with downstream navigable tributaries. In making his findings, Pehrman examined at EPA and Corps guidance for establishing a significant nexus and concluded:
Pehrman Report at 10.
The court finds that defendants have presented prima facie evidence of a significant nexus between the Pad 4 streams and navigable waters that precludes summary judgment against them. Additionally, the court finds that plaintiffs have presented evidence that creates a genuine issue of material fact as to whether the Pad 4 streams have a significant nexus with downstream navigable waters under Justice Kennedy's concurrence in
The parties do not dispute that plaintiffs did not obtain a Section 404 permit prior to filling the Pad 4 streams.
The court finds that genuine issues of material fact preclude summary judgment on whether RR4 is a water of the United States under the relatively permanent water test and whether RR1, 2, 3, and 4 are waters of the United States under the significant nexus test. Accordingly, plaintiffs' and defendants' motions for summary judgment on defendants' CWA counterclaim are denied.
Plaintiffs second amended complaint first claims that the EPA's issuance of the Administrative Compliance Order, which found that they were in violation of the CWA, was "arbitrary, capricious, and an abuse of discretion" pursuant to the APA, 5 U.S.C. §§ 701-706. Pls.' Mem. at 36. Second, plaintiffs allege that defendants violated their procedural due process rights by failing to give them an opportunity to appeal the findings in the ACO. Third, they argue that the EPA took retaliatory action against them based upon a campaign donation to Congressman McKinley, in violation of the First Amendment.
Defendants move for summary judgment on all three of plaintiffs' claims. Plaintiffs move for summary judgment on the claim that the issuance of the ACO was arbitrary, capricious, and an abuse of discretion.
Because plaintiffs are challenging federal agency action under the CWA, their claims are subject to judicial review under the APA. The APA "confines judicial review of executive branch decisions to the administrative record of proceedings before the pertinent agency."
Section 706(2)(A) of the APA provides that a court will "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Our court of appeals has elaborated on the standard:
Although not explicitly stated in their motions for summary judgment, the parties made clear that they disagreed as to the scope of review for plaintiffs' procedural due process and First Amendment retaliation claims. Defendants argue that review should be limited to the administrative record, because these claims are brought pursuant to the APA. Plaintiffs argue that because the acts giving rise to these claims took place after the issuance of the ACO, a review of only the administrative record will be insufficient.
Under the APA, the reviewing court may also set aside agency action that is "contrary to constitutional right" or "without observance of procedure required by law."
Because plaintiffs have pointed to no other action by defendants that qualifies as final agency action and have likewise failed to cite to another source of waiver of sovereign immunity by the government, their challenge to the ACO as unreasonable, their procedural due process claim and their First Amendment retaliation claim are limited to an administrative record review by the court. As discussed below, the court has reviewed evidence presented by plaintiffs outside of the administrative record and finds that defendants are entitled to a grant of summary judgment on these claims even when this evidence is considered.
In the corrected second amended complaint, plaintiffs contend that the issuance of the administrative compliance order by the EPA was arbitrary and capricious. In their motions for summary judgment, plaintiffs and defendants both argue that the court should grant summary judgment in their favor on this claim.
The court will review the administrative record to determine whether the evidence supports the EPA's determination that the Pad 4 waters were waters of the United States under the relatively permanent waters test or the significant nexus test.
According to defendants, the ACO should be upheld "because the administrative record fully supports EPA's determination regarding each element necessary to establish that Plaintiffs violated [the] CWA." Defs.' Mem. at 28. The EPA determined and plaintiffs do not dispute that plaintiffs are persons, who added a pollutant, from a point source, without a necessary permit.
Defendants contend that the administrative record fully supports the EPA's finding that the filled streams are within the jurisdiction of the CWA.
The EPA then sent CWA information requests to Foster Farms and Fox Engineering, and received responses to those requests in December 2010. Defs.' Mem. at 29; AR 44-49. The responses "confirmed that Plaintiffs had cleared, graded, and filled the Site [Pad 4] and indicated that additional work had taken place since September 2010." Defs.' Mem. at 29; AR 49.
In April 2011, the Corps forwarded to the EPA the stream and wetland report prepared by Randolph Engineering at plaintiffs' request. Defs.' Mem. at 29; AR 58. The Randolph Engineering report delineated RR1, RR2, RR3 and RR4 on Pad 4, and 7 other streams on Pads 4 and 5 that it believed were jurisdictional and that plaintiffs had filled ephemeral streams RR1, RR2, and RR3.
In May 2011, Andreescu and other EPA staff visited the Site again and confirmed that plaintiffs had performed more work. Defs.' Mem. at 29; AR 99. Andreescu again determined that RR4 was a relatively permanent headwater stream and that it had a significant nexus to the downstream portion of Neal Run. Defs.' Mem. at 29. "Thereafter, based on Ms. Andreescu's observations, her review of aerial imagery and GIS data, her technical and scientific expertise, and consideration of Plaintiffs' own jurisdictional delineation, EPA concluded that Plaintiffs had unlawfully filled jurisdictional waters and issued the ACO on January 24, 2012."
Plaintiffs argue that the EPA's evidence is not legally sufficient to support a finding that the streams on Pad 4 were jurisdictional waters under the CWA. Pls. Mem. at 36. While much of plaintiffs' arguments target whether defendants' expert testimony is sufficient to support the EPA's conclusion that there is a significant nexus between the Pad 4 streams and a water of the United States, these arguments need not be addressed as this expert evidence is not contained in the administrative record, making it inappropriate to rely on it in determining whether the ACO was arbitrary and capricious under the APA.
Plaintiffs first argue that the EPA acted unlawfully in taking lead agency status from the Corps in that it was inconsistent with a 1989 memorandum of agreement between the Corps and EPA. Pls.' Mem. at 29. As defendants correctly note, the memorandum of agreement states that it is not enforceable by third parties and provides no defense to liability and therefore cannot constitute "procedure required by law" for EPA to issue an ACO. Defs.' Resp. at 21; 5 U.S.C. § 706(d)(2); AR 40 (1989 MOU).
The court also cannot say that the EPA's assumption of lead agency status was arbitrary, capricious, or an abuse of discretion. The memorandum of understanding between the parties to the agreement explains the process that the EPA and the Corps have agreed to use to determine which agency will take the lead in an enforcement action. The EPA had an interest in the Site because it oversaw the restoration of Pad 1 and EPA investigators first discovered the Pad 4 violations. Moreover, the memorandum of understanding states that that while the Corps will generally assume lead status, the EPA will take the lead when the case involves repeat violators, flagrant violators, EPA's request of a case or class of cases, or a recommendation by the Corps that an EPA penalty is warranted. 1989 MOU at III.D.1 to D.2. Thus, it appears that even if the memorandum of understanding was binding, the EPA could have requested that it assume lead agency status of this case. The court cannot say that this constitutes "prima facie evidence of irregularity" as plaintiffs allege. Pls.' Reply at 17.
As discussed, under the relatively permanent body of water test developed by the plurality in
In concluding that RR4,
Defendants contend that under the "highly deferential" standard, the evidence contained in the record supports a finding that RR4 is a relatively permanent body of water. Pls.' Mem. at 27-28. The court agrees. As discussed, the evidence in the administrative record includes a summary of Andreescu and Lutte's September 9, 2010 visit to the Site, as well as photographs from both of the inspectors' visits, which show that a stream on Pad 4 with stream features had been disturbed and filled. AR 41, AR 99. In addition, GIS data and aerial photographs from multiple years show a dark line that crosses the hayfield and connects to the first unnamed tributary, which appears to be a stream channel. AR 95. That Andreescu considered the lack of bed, bank and ordinary high water mark in the hayfield is evident by her photographs of it during her second Site inspection.
The court finds that there is sufficient evidence contained in the record to support the EPA's factual conclusion that RR4 is a relatively permanent stream covered under the CWA.
Plaintiffs assert a number of arguments as to why the issuance of the ACO was not reasonable, none of which contest the adequacy of the evidence contained in the administrative record that support the EPA's conclusion that RR4 is a relatively permanent body of water. Plaintiffs first argue that because Andreescu and Lutte did not have permission to be on the Site on September 9, 2010, any information or evidence obtained during the visit should be excluded from consideration in evidence supporting EPA's claims. Pls.' Resp. at 17. In support of this contention, plaintiffs point to
Defendants respond that Andreescu and Lutte believed they had permission to be on the Site, and even if they did not, it does not constitute a search under the Fourth Amendment because of the "open fields doctrine." Defs.' Rep. at 9 (citing
The court agrees that even though Andreescu and Lutte did not have permission to be on the Site when they conducted the September 9, 2010 inspection, their visit does not constitute a search in violation of the Fourth Amendment.
In
Nor does internal EPA search guidance upon which plaintiffs rely support their allegation that the evidence obtained from the Site visit was illicit. Contrary to plaintiffs' assertion, the entry onto the Site did not violate EPA's inspection guidance. First, the post-
Plaintiffs also assert that Andreescu's report and deposition testimony as well as Lutte's deposition testimony are "misleading" and inconsistent with the photographs taken during the Site visit. Pls.' Resp. at 17-18. However, as already noted, in reviewing the reasonableness of the ACO under the APA, the court is limited to review of the administrative record, and should not consider deposition testimony and evidence that was obtained during discovery in this case of defendants' CWA enforcement counterclaim. Because the photographs from the EPA inspectors' September 9, 2010 visit are contained in the administrative record, and the depositions plaintiffs refer to are not, plaintiffs concerns are unfounded. Moreover, contrary to plaintiffs' assertions, Andreescu's report contained in the administrative record does not state how much water was in the First Unnamed Tributary during her site visit.
The court finds that "[t]he agency has examined the relevant data and provided an explanation of its decision that includes a rational connection between the facts found and the choice made."
Defendants attack the adequacy of the evidence that supports the EPA's finding that there is a significant nexus between RR1, 2, 3 and 4 and navigable waters. Pls. Mem. at 36.
Our court of appeals in
In this case, the administrative record is almost devoid of evidence pertaining to the significant nexus that the Pad 4 waters have on navigable waters. Defendants point to Andreescu's observations of RR4, the fact that it was a relatively permanent headwater tributary, the Randolph Report, to the extent it found that RR1, RR2, RR, and RR4 were jurisdictional, and Andreescu's training and knowledge of literature on the important ecological contributions headwater streams have on downstream waters to support the EPA's finding that it had a significant nexus to navigable waters. Defs.' Mem. at 28; AR 2, AR 3. While quantitative measurements are not required for a significant nexus analysis, the administrative record does not contain enough evidence to allow the court to evaluate the significance of the connection between the Pad 4 waters and navigable waters.
The court is also concerned that the EPA did not follow the required analytic protocols in making its significant nexus determination. As noted by plaintiffs, the administrative record lacks any chemical or biological data that was analyzed by the EPA prior to the issuance of the ACO. Pls. Mem. at 33. The court finds that some data analysis is necessarily required in a significant nexus determination. Guidance by the EPA and the Corps suggests a number of factors that are to be considered in determining whether a significant nexus exists.
The court is unable to determine from the administrative record that the EPA considered the relevant factors. "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
"Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
From the administrative record, the court can infer that the EPA considered the hydrologic factors based upon the two Site visits to Pad 4, the Randolph Report, and maps of the area. However, there is no evidence in the administrative record from which the court can determine that the EPA considered the ecologic factors listed above in reference to the Pad 4 streams. Moreover, the existence of such ecologic factors was not documented in accordance with the above guidance. It is not enough to simply rely on articles that discuss the impact headwater streams have on downstream waters; some site-specific observations or data is necessarily required for the court to review the EPA's significant nexus determinations.
Defendants argue that plaintiffs cannot fault the EPA for failing to use "site specific, quantifiable data" to support their significant nexus determination because when plaintiffs filled the streams, they destroyed the source of the data. Defs.' Mem. at 24. The court agrees that EPA need not use quantifiable data from the Site, especially considering that RR1, RR2, RR3, and RR4 were filled by plaintiffs. However, this does not relieve them of the duty to support their finding of significance with some analysis beyond articles about the effects of headwater streams on navigable waters. Because none exists in the administrative record, the court cannot find the EPA's conclusion to that end persuasive.
Because there is no evidence of significance of the effect of these streams on a navigable water, the administrative record does not support the EPA's determination that RR1, RR2 RR3, and RR4 have a significant nexus with a navigable water. However, there is sufficient evidence contained in the administrative record to support the EPA's finding that RR4 is a relatively permanent stream under the CWA. Accordingly, the court grants defendants' motion for summary judgment on the reasonableness of the ACO to the extent it relates to RR4, and otherwise denies it. The court additionally grants plaintiffs' motion for summary judgment to the extent it relates to RR1, RR2, RR3, and otherwise denies it.
During discovery on defendants counterclaim, plaintiffs obtained from the EPA's internal files, a printed document from a website stating that plaintiffs contributed to the campaign of United States Congressman David McKinley, with plaintiffs' name circled by hand. Despite extensive discovery on the matter, the origin of the document was never discovered. The only EPA representative with knowledge of the document, Pam Lazos, stated in her deposition that she believed the document was obtained during the course of research on the corporate relationship between Foster, Foster Farms and Marketing & Planning Specialists, which was conducted after Foster complained that the EPA named the wrong entity in the ACO. Defs.' Mem. at 36, n. 20; Ex. 45 to Defs.' Mem. (Lazos Dep.) at 21:1-5, 22:16-24; 24:21-25:13).
As discussed by the court's August 22, 2016 memorandum opinion and order, in order to recover for a First Amendment retaliation claim, plaintiffs must establish: (1) they were "engaged in protected First Amendment activity[;]" (2) "the defendants took some action that adversely affected [their] First Amendment rights[;]" and (3) "there was a causal relationship between [their] protected activity and the defendants' conduct."
In their motion for summary judgment, defendants do not dispute that plaintiffs' political contribution is a protected activity and that if the EPA's enforcement proceeding was based upon their political contribution, it would "likely deter a person of ordinary firmness from exercise of First Amendment rights." Defs.' Mem. at 36 (quoting
At the summary judgment phase, "[t]he causation requirement is rigorous."
Plaintiffs alleged in their corrected second amended complaint that the EPA's discovery of the campaign contribution and a "striking change in the government's behavior" both "came about in 2012." August 22, 2016 Mem. Op. & Order at 17-19. Defendants argue that "the evidence shows that there was no `striking change' in the government's behavior in 2012, nor any temporal connection between the EPA's discovery of the contribution and its actions." Pls.' Mem. at 37.
The evidence in the administrative record demonstrates that the EPA inspectors first visited the Pad 4 area in September 2010 and informed Walters that a Corps permit was likely necessary for the work being performed there. AR 41. On October 18, 2011, the EPA informed Foster in an email that the violations were "egregious" and that if the case was put through the enforcement process, there would likely be "huge penalties." AR 84 at 0000634. After the EPA took lead agency status and after discussions between the agencies in October and December 2011, the EPA began drafting the ACO in December 2011. Defs.' Mem. at 38; Defs.' Ex. 16. On January 3, 2012, Lazos informed Foster that EPA was assuming lead agency status and that the EPA was "working up a penalty calculation." AR 84 at AR 0000632. The ACO was then issued on January 24, 2012.
On February 22, 2012, the Corps issued a letter stating that the Site contained jurisdictional waters. Defendants state that this determination was made at the request of Foster even though the EPA had assumed lead agency status. Defs.' Mem. at 39. Although the letter stated that the Corps' jurisdictional determination could be appealed, the Corps denied plaintiffs' attempt to appeal because the EPA had assumed the role of lead agency for the Site.
Plaintiffs assert that the EPA's "issuance of the ACO in January 2012 and subsequent actions were the continuation of an ongoing enforcement process fraught with animus irregularity, malfeasance and misrepresentations that began in 2010 and extended well into 2012." Pls.' Resp. at 23. For example, plaintiffs discuss the purported animosity that EPA administrators, particularly Lazos, had towards them because the EPA did not approve of the bankruptcy order, which limited the remediation efforts of the Pad 1 land to $50,000.
The EPA's assumption of lead authority over the case, even assuming it was fraught with "animus irregularity, malfeasance and misrepresentations," cannot serve as a basis for plaintiffs' First Amendment claim. The EPA first informed plaintiffs that it was taking lead authority of the case on January 3, 2012. Pursuant to 33 C.F.R. § 331.11, this act precluded appeal of the Corp's jurisdictional determination. Even assuming that the EPA could have allowed such appeal, the Corps notified plaintiffs of its jurisdictional determination and plaintiffs' inability to appeal the determination in February 2012, prior to the date the political research document was printed.
Plaintiffs attempt to circumvent the unrebutted assertion that the EPA could not have known about the political research document until at least the end of April 2012 by alleging retaliation by the EPA in drafting letters sent to Congressman McKinley and Senator Manchin, which occurred in July and August 2012.
Senator Manchin made inquiries on behalf of Mr. and Mrs. Blackwell, who were concerned about the stream location work that was conducted on the Pad 1 area. Pls.' Resp. at 27-28; Pls.' Resp. Ex. 12A, 12B. According to plaintiffs, it is noteworthy that previous drafts of the letter to Senator Manchin included statements that the EPA was limited in remediation efforts on Pad 1 due to the constraints in the bankruptcy order, and that these statements were removed in the final version of the letter.
In August 2012, in a letter drafted in part by Lazos and sent to Congressman McKinley, the EPA represented that the Corps was not willing to allow plaintiffs to pursue a Section 404 permit "given the extent of the violations at the site." Pls.' Resp. at 24; Pls.' Mem. Ex. 32. Plaintiffs assert that this statement was false and that Lazos knew it was false. Pls.' Resp. at 24-25. Instead, plaintiffs contend that Hemann of the Corps, informed Andreescu that the Corps was unwilling to consider improvements to the site because the "EPA will not consider [such improvements] as compensatory mitigation."
According to plaintiffs, "[t]he clear inclination by EPA personnel to accommodate a Democratic Senator, but not a Republican Congressman, easily implies that the Political Research Document was a check by the agency to ascertain the Plaintiffs' political contributions in order to determine whether the Plaintiffs did or did not support the agency's perceived ally. . . . EPA's commentary regarding its response to the inquiry from Senator Manchin clearly indicates that the agency was willing to circumvent bankruptcy order constraints, and strong arm the Plaintiffs into conducting remediation they had no obligation to perform pursuant to that ruling, in order to provide a politician whom the agency perceived to be friendly to EPA with an answer the agency believed or knew that politician would find more palatable." Pls.' Resp. at 29-30.
The court is not persuaded. Plaintiffs have not demonstrated how either the letter to Senator Manchin or Congressman McKinley evidence a retaliation on the EPA's behalf and how that retaliation is connected to their First Amendment rights. Assuming that plaintiffs are correct that Lazos did misrepresent to Congressman McKinley the reason a Section 404 permit was not permitted in this instance, as noted by plaintiffs, this language was consistent with Lazos' email in October 2011, which was prior to EPA's purported knowledge of the political research document, that the Corps was unwilling to take the case back. Pls.' Resp. at 24. As discussed above, plaintiffs have been unable to demonstrate any other retaliatory conduct by the EPA that is causally linked to the political research document or any other evidence related to political animus on the part of the EPA. Moreover, plaintiffs' theory that the political research document was obtained as a check on whether plaintiffs supported the agency's perceived ally is speculative at best and is illogical given that the EPA had already indicated it was unwilling to issue a Section 404 permit and had already issued its ACO by the time it was drafting letters to Senator Manchin and Congressman McKinley.
Plaintiffs attempt to point to other actions by the EPA that demonstrate purported retaliation on the EPA's part due to their campaign contribution. First, they state that the EPA's use of private email accounts "cannot be discounted as potential sources of the mysterious, and as yet unexplained, Political Research Document." Pls.' Resp. at 24. However, plaintiffs need not explain the source of the political research document, but rather they must causally link it to the EPA's issuance of the ACO, which they have been unable to do. Plaintiffs also contend that the EPA waited to provide plaintiffs with a proposed penalty until 2014 although they first calculated a penalty two months after the EPA's first site visit and again in 2013 in order to "artificially increase the period of the alleged violation." Pls.' Resp. at 26; Pls. Resp. Ex. 7A, 7B. Given that the EPA first calculated a proposed penalty in 2010, this does not causally link this conduct to the EPA's discovery of the political research document, which could not have occurred until 2012.
Because plaintiffs have failed to establish that "but for" their campaign contribution, the EPA would not have issued the ACO, or denied plaintiffs the opportunity to obtain a Section 404 permit, or engaged in any other alleged retaliatory activity, they cannot demonstrate a causal link between a First Amendment protected activity and the EPA's conduct. Accordingly, defendants' motion for summary judgment on plaintiffs' First Amendment retaliation claim is granted.
Plaintiffs assert that defendants violated their procedural due process rights when the EPA failed to allow them to appeal the jurisdictional determination in the ACO, thereby depriving them of a property interest by "effectively fr[eezing] the [P]roperty, rendering it commercially undesirable to potential purchasers or lessess." Sept. 30, 2015 Mem. Op. & Order at 10.
"The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in `property' or `liberty.'"
Plaintiffs have failed to present evidence of that which was alleged in the corrected second amendment complaint. That is, they have not cited to any factual evidence that they have been unable to lease or sell or freely alienate their land due to the issuance of the ACO. Plaintiffs contend only that "both in terms of imposition of affirmative obligations upon Plaintiffs' property by both the JD and compliance order, and in terms of risks of crushing penalties, Plaintiffs property interests have most certainly by [sic] deprived by the EPA's actions. Both agency actions have also imposed very real and substantial legal costs upon the Plaintiffs in defending their interests." Pls.' Resp. at 19.
The affirmative obligations imposed on plaintiffs under the ACO and the legal fees plaintiffs have paid to defend this action do not deprive them of a constitutionally protected property interest. Plaintiffs contend that
Because plaintiffs have failed to establish that defendants deprived them of a substantial property interest by the issuance of the ACO, plaintiffs' procedural due process claim fails.
Defendants' motion for summary judgment with respect to plaintiffs' procedural due process claim is granted.
For the foregoing reasons, it is ORDERED as follows:
1. Defendants' motion for summary judgment be, and it hereby is, granted with respect to plaintiffs' procedural due process claim, plaintiffs' First Amendment retaliation claim, and reasonableness of the ACO pertaining to RR4 only, and it is otherwise denied.
2. Plaintiffs' motion for summary judgment be, and it hereby is, granted with respect to the reasonableness of the ACO pertaining to RR1, RR2, and RR3, and it is otherwise denied.
The Clerk is requested to transmit copies of this order to all counsel of record and any unrepresented parties.
