464 F.3d 723 (7th Cir. 2006), 04-3941, United States v. Gerke Excavating, Inc.

Docket Nº04-3941.
Citation464 F.3d 723
Party NameUNITED STATES of America, Plaintiff-Appellee, v. GERKE EXCAVATING, INC., Defendant-Appellant.
Case DateSeptember 22, 2006
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 723

464 F.3d 723 (7th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

GERKE EXCAVATING, INC., Defendant-Appellant.

No. 04-3941.

United States Court of Appeals, Seventh Circuit.

September 22, 2006

Rehearing and Rehearing en Banc Denied Dec. 1, 2006.

Leslie K. Herje (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Gregory T. Broderick (argued), Sacramento, CA, for Defendant-Appellant.

Before Posner, Easterbrook, and Evans, Circuit Judges.

Per Curiam.

This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into "navigable waters" from "point sources" without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. 33 U.S.C. §§ 1311(a), 1362(12). The district judge granted summary judgment for the government and imposed a civil penalty. We affirmed. 412 F.3d 804 (7th Cir. 2005).

Page 724

Gerke filed a petition for certiorari. The Court granted the petition, --- U.S. ----, 126 S.Ct. 2964, 165 L.Ed.2d 947 (2006), and remanded the case to us for further consideration in light of Rapanos v. United States, --- U.S. ----, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), where the Court reversed two judgments by the Sixth Circuit upholding federal authority over wetlands, as had we.

There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over "navigable waters" to "those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and covered by the [Clean Water Act]. Wetlands with only an intermittent, physically remote hydrologic connection to 'waters of the United States' . . . thus lack the necessary connection to covered waters that we described as a 'significant nexus.' Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: 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." Id. at...

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29 practice notes
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), cert. denied, 552 U.S. 1180 (2008); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006), cert. denied, 552 U.S. 810 (2007). The Fifth and Sixth Circuits did not choose a controlling standard because the water......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...Kennedy's significant nexus test as the governing definition of navigable waters under Rapanos); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006) (remanding the case to determine if a "significant nexus" exists); cf. Taylor Romigh, Comment, The Bright Line of Rapan......
  • Bringing a judicial takings claim.
    • United States
    • Stanford Law Review Vol. 64 Nbr. 1, January 2012
    • January 1, 2012
    ...See, e.g., N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993,999-1000 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam). Others have used a similar but more nuanced analysis, finding jurisdiction under the Clean Water Act whenever......
  • Regulation of Wetlands and Waters of the United States
    • United States
    • Wetlands Law: A Course Source. Second Edition
    • June 13, 2017
    ... 4 th Circuit: Precon Development Corp. v. Corps, 633 F.3d 278 (4 th Cir. 2011)  7 th Circuit: United States v. Gerke Excavating, Inc. , 464 F.3d 723 (7 th Cir. 2006)  9 th Circuit: Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9 th Cir. 2007 ) Kennedy Only  11 th......
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6 firm's commentaries
  • Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction
    • United States
    • JD Supra United States
    • January 15, 2019
    ...Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). [14] See supra note 1 at 80-81, 116-21, 156-60. [15] Supra note 1 at ......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • Mondaq United States
    • March 7, 2017
    ...633 F.3d 278, 288 (4th Cir. 2011); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007). In 2008 guidance, EPA and the Corps sta......
  • President Trump Signs WOTUS Rule's Death Warrant
    • United States
    • JD Supra United States
    • March 7, 2017
    ...633 F.3d 278, 288 (4th Cir. 2011); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. In 2008 guidance, EPA and the Corps stated tha......
  • Finally Finality? The Trump Administration’s Answer to One of Environmental Law’s Most Contested Questions: What Are “Waters of the United States”?
    • United States
    • JD Supra United States
    • February 21, 2020
    ...Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. [17] Rule pp. 80, 142. Ankur TohanEndre Szalay...
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21 books & journal articles
  • Questioning marks: plurality decisions and precedential constraint.
    • United States
    • Stanford Law Review Vol. 69 Nbr. 3, March - March 2017
    • March 1, 2017
    ...Id. at 787. (72.) Id. at 787-88 (Stevens, J., dissenting). (73.) Id. at 810. (74.) See, e.g., United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam) (concluding that Justice Kennedy's rule would do less to "rein[] in federal authority"); cf. Rapano......
  • Justice Kennedy and ecosystem services: a functional approach to Clean Water Act jurisdiction after Rapanos.
    • United States
    • Environmental Law Vol. 38 Nbr. 3, June 2008
    • June 22, 2008
    ...(129) Id. (Kennedy, J., concurring). (130) Id. at 2249 (Kennedy, J., concurring). (131) E.g., United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006) (per curiam) (applying Marks v. United States, 430 U.S. 188 (1977)); United States v. Robison, 505 F.3d 1208, 1221-22 (11t......
  • Bringing a judicial takings claim.
    • United States
    • Stanford Law Review Vol. 64 Nbr. 1, January 2012
    • January 1, 2012
    ...See, e.g., N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993,999-1000 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam). Others have used a similar but more nuanced analysis, finding jurisdiction under the Clean Water Act whenever......
  • ATOMIZING THE CLEAN WATER ACT: IGNORING THE WHOLE STATUTE AND ASKING THE WRONG QUESTIONS.
    • United States
    • Environmental Law Vol. 50 Nbr. 1, January 2020
    • January 1, 2020
    ...is less restrictive of CWA jurisdiction than the plurality test) (citing Marks, 430 U.S. at 193); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006) ("as a practical matter the Kennedy concurrence is the least common In United States v. Johnson, 467 F.3d 56, 63-......
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2 provisions
  • Definition of “Waters of the United States” Under the Clean Water Act
    • United States
    • Federal Register April 21, 2014
    • April 21, 2014
    ...City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), cert. denied, 552 U.S. 1180 (2008); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006), cert. denied, 552 U.S. 810 (2007). The Fifth and Sixth Circuits did not choose a controlling standard because the water......
  • Revised Definition of “Waters of the United States”
    • United States
    • Army, Corps Of Engineers Department,Defense Department
    • Invalid date
    ...Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 5. Post-Rapanos Implementation of the 1986 Regulations For nearly a decade after Rapanos, the agencies did not revise their regulat......

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