361 F.3d 934 (7th Cir. 2004), 02-1863, Greenfield Mills, Inc. v. Macklin

Docket Nº:02-1863
Citation:361 F.3d 934
Party Name:Greenfield Mills, Inc. v. Macklin
Case Date:March 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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361 F.3d 934 (7th Cir. 2004)

GREENFIELD MILLS, INCORPORATED, Judi Medlock, Gene Lewis, et al., Plaintiffs-Appellants,


Larry MACKLIN, as Director of the Indiana Department of Natural Resources, Gary Armstrong, Neil Ledet, et al., Defendants-Appellees.

No. 02-1863.

United States Court of Appeals, Seventh Circuit

March 19, 2004

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Neal Lewis (argued), Lewis & Associates, Orland, IN, Eric C. Lewis, Muskegon, MI, for Plaintiffs-Appellants.

Amy E. McDonnell (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before BAUER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

After employees of the Indiana Department of Natural Resources ("DNR") drained a supply pond into the Fawn River, the plaintiffs, riparian landowners, brought this action against DNR employees, David Clary, Tom Meyer, Neil Ledet and Gary Armstrong, in their individual capacities, and against the Director of the DNR in his official capacity. The plaintiffs alleged that these defendants had violated the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and also had violated their rights under the Takings and Due Process Clauses of the Constitution of the United States. The parties filed cross-motions for summary judgment. The district court granted the defendants' motion for summary judgment on all claims. For the reasons set forth in the following opinion, we reverse the judgment of the district court with respect to the CWA claim and remand for further proceedings. With respect to the takings and due process claims, we affirm the judgment of the district court.1

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A. Factual Background2

The plaintiffs are riparian landowners along a five-mile portion of the Fawn River that begins at Orland Dam and ends at Greenfield Millpond. The defendants are an official of the DNR and employees of the DNR who work at the Fawn River State Fish Hatchery ("Hatchery") located in Orland, Indiana. The Fawn River runs through the Hatchery property. As it flows near the Hatchery's main building, the river has been dammed to form a 1.75 acre supply pond. This supply pond feeds by gravity the Hatchery's fish rearing ponds. When the main flow control gates on the dam are opened, the pond water flows from the supply pond down the Fawn River and eventually to Greenfield Millpond.

A bypass channel upstream of the supply pond is used to divert the Fawn River before it reaches the supply pond. The Fawn River, as it existed below the supply pond prior to May 18, 1998, was a clean, clear body of water. The river had a gravel bed and was used for swimming, fishing, canoeing and other recreational activities. It also was home to various plant and aquatic animal habitats. See R.4, Ex.5.

In 1993, there was discussion in the Town of Orland regarding a "proposed dike ... and mill pond dredging adjacent to the town park." R.4, Ex.12. "The project [was] being proposed to alleviate flooding of the Fawn River into the town park." Id. In a letter from a state senator to the Orland Town Board, the senator noted the problem with the supply pond and stated that "the Fawn River is a highly protected environmental river and it may be difficult to make any kind of repairs or dredging in that area." R.4, Ex.14. The DNR supported the project, stating in a June 18, 1993 letter that the supply pond had built up silt for more than 12 years, and, as a result, it was not navigable "even in a canoe." R.4, Ex.12. The DNR stated also that "[a]quatic vegetation ha[d] taken over the supply pond" and that the DNR would "submit[] a work plan this summer to control the vegetation using approved chemicals." Id. In that same letter, the DNR noted that "[s]uch a work plan will tie in nicely with the town's project." Id.3 In 1994 and 1995, the DNR applied chemicals, destroying much of the plant life in the supply pond. After having destroyed the vegetation, the DNR noted that the pond was "now navigable, by canoe, for the first time in over a decade." R.4, Ex.10.

In 1996, defendants David Clary, the Property Manager for the Hatchery, and Tom Meyer, the Assistant Property Manager for the Hatchery, noticed a problem with the main flow control structure of the dam. The flow control structure consisted of six separate gates. The gates were made of horizontal wooden slats that were stacked in two rows and slotted into four vertical metal I-beams. Some of the I-beams appeared to be rusting. On March 31, 1997, Mr. Clary consulted a local welder, who observed that repairs to the I-beams were needed. Mr. Clary sent a project proposal and budget for the repairs to Gary Armstrong, Hatcheries Supervisor, on April 16, 1997. This proposal

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specifically made reference to draining the supply pond in order to complete the repair, but stated that the repair "would have to be completed during a time of low water flow." R.93, Ex.21 at 2. Also, in the memo attached to this proposal, Mr. Clary asked: "Will we need to get a permit for the dam repair work?" Id. at 1. When Mr. Clary was asked during his deposition whether he ever had received an answer to this question, he replied: "I don't think we ever received an answer on that.... I have no documentation of an answer from [Gary Armstrong]." R.93, Ex.16 at 64. Funding approval for the repairs was obtained on October 23, 1997.

Later, on March 12, 1998, Mr. Clary discovered a problem with the river intake plumbing, specifically, the pump was not holding its prime. The pump is used to run water into the Hatchery and rearing ponds and is critical to Hatchery operations. After trying various small repairs, Mr. Clary and Mr. Meyer concluded that the plumbing in the river inlet structure needed to be exposed in order to make the plumbing repairs. The Hatchery needed the pump system to be working properly by June 1, 1998, for the Walleye harvesting.

On May 18, 1998, Mr. Meyer and Mr. Clary decided to draw-down the water in the supply pond to make the plumbing repairs, to allow visual inspection of the gates and to have a test draw-down for the future repairs that were to be done to the gates. Mr. Armstrong, their supervisor, was aware of the plans to open the dam and lower the supply pond. However, Mr. Clary stated in his deposition that initially they had not intended to drain fully the supply pond. Mr. Clary also said that they had not intended to "fully inspect the dam gates down to the bottom." R.93, Ex.16 at 23. In fact, Mr. Clary stated that, in determining how low to draw down the supply pond, their "intentions were only to expose the piping." Id. at 67.4

At approximately 8:30 a.m., Mr. Clary and Mr. Meyer began the draw-down process by raising the upper three gates of the main flow control structure. After waiting for several minutes, the water level in the supply pond stabilized, although there was still a considerable amount of water flowing over the top of the three lower gates.5 Mr. Clary and Mr. Meyer then proceeded to open one of the three bottom gates. After several attempts and much difficulty because of the water rushing over the top of the gate, they succeeded in raising the gate a few inches. They then continued to raise the gate incrementally until the bottom of the gate was above the level of the water exiting the supply pond. By 11:00 a.m., the supply pond was drained to the point that the pipes and plumbing work were exposed and all that remained of the pond was a meandering channel of water cut into the floor of the supply pond flowing toward the open gates. Leaving the gates open, Mr. Clary and Mr. Meyer took a lunch break, made a visit to a rock dam upstream of the supply pond, traveled to the east unit of the hatchery to observe water levels, worked on a list of materials needed for the plumbing repairs and then traveled

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separately to purchase repair parts and plumbing supplies.

Mr. Meyer was first to return to the dam from his errand and was met at approximately 2:00 p.m. by defendant Mr. Ledet, a DNR Fisheries Biologist. Standing next to the open gate, Mr. Ledet noticed that "the water level in the supply pond had been lowered to a distinct channel exposing the silt-covered bottom.... Water flowing through this channel was picking up silt and transporting it through the flow control gate." R.80 ¶ 5. Mr. Meyer testified that Mr. Ledet remarked to him that the water flowing through the gate "looked awful damn muddy." R.93, Ex.1 at 200.

The two men were standing next to the open gate discussing the project when plaintiff Gene Lewis arrived; he was visibly upset. Mr. Lewis pointed out that muck and sediment were being flushed out of the supply pond, through the open dam and into the river, and he requested that the gates to the dam immediately be closed. The men refused to comply with Mr. Lewis' request, and, shortly thereafter, Mr. Ledet returned to his office located on Hatchery property.

Larry Koza, a DNR assistant Fisheries Biologist, who also maintained an office on Hatchery property, stated in his deposition that "when I looked out and I saw the water, it was ... black. It ... apparently had a high silt load in it from eroding a channel into the bottom" of the supply pond. R.93, Ex.23 at 45. Concerned about the sediment being flushed into the river and the adverse effect it could have on the fish populations downstream, Koza and Mr. Ledet decided to drive together upstream to the water control structure of the bypass channel. Upon arrival, the men opened completely the partially open water control structure "to divert as much clean water into the river below the dam as possible, bypassing the hatchery [supply pond]." R.80 ¶ 7.6


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