U.S. v. Bailey, 05-CV-2245 (PJS/RLE).

Decision Date25 September 2007
Docket NumberNo. 05-CV-2245 (PJS/RLE).,05-CV-2245 (PJS/RLE).
Citation516 F.Supp.2d 998
PartiesUNITED STATES of America, Plaintiff, v. Gary BAILEY, Defendant. Gary Bailey, Third-Party Plaintiff, v. Lake of the Woods County, Third-Party Defendant.
CourtU.S. District Court — District of Minnesota

Friedrich A.P. Siekert, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, Daniel R. Dertke, United States Department of Justice, Washington, DC, for Plaintiff.

Alan B. Fish and Rita Fish-Whitlock, Alan B. Fish, PA, Roseau, MN, for Defendant.

Scott T. Anderson and Sonya J. Guggemos, Ratwik Roszak & Maloney, PA, Minneapolis, MN, for Third-Party Defendant.

M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, Rita Fish-Whitlock, Alan B. Fish, PA, Roseau, MN, for amicus curiae Pacific Legal Foundation

MEMORANDUM OPINION AND ORDER

PATRICK J. SCHILTZ, District Judge.

Defendant Gary Bailey constructed a road on a parcel of wetland located in Lake of the Woods County, Minnesota, without obtaining a permit under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344. In October 2001, the United States Army Corps of Engineers ("the Corps") ordered Bailey to restore the land to its pre-violation condition. After Bailey refused to do so, the United States brought this action under Section 309(b) of the CWA, 33 U.S.C. § 1319(b), to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland.

The United States, Bailey, and third-party defendant Lake of the Woods County ("the County") have all moved for summary judgment. For the reasons set forth below, the Court denies Bailey's motion, grants in part the motion of the United States, and grants the County's motion. The Court orders Bailey to restore the wetland that he unlawfully polluted almost a decade ago.

I. BACKGROUND

Bailey owns a parcel of land located along the western shore of Lake of the Woods ("the Lake") in northern Minnesota. This 13-acre site ("the Site") consists mostly of wetland, as defined by the Corps.1 Eggers Decl. Ex. X ¶ 4.G, Jan. 30, 2007 ("Eggers Decl."). Bailey planned to plat the Site for residential development and sell lakeside lots. To that end, Bailey hired Mark LaValla in 1998 to construct an access road through the Site. In May and June of 1998, LaValla cleared a roadway sixty-six feet wide and approximately a quarter of a mile long. LaValla Dep. 22, 57, Oct. 16, 2006 ("LaValla Dep."). The roadway runs from north to south, parallel to the Lake of the Woods shoreline. The north end of the roadway connects to a preexisting road known as Sandy Shores Drive. Bailey's planned development was known as Sunny Beach, and the access road Bailey constructed is informally called Sunny Beach Road ("the Road"), although it is labeled "Sandy Shores Drive" on the plat Bailey later filed with the County. The Road was built along the western edge of the parcel (the edge furthest from the Lake). As platted, the Site has fourteen lots running from the Road to the Lake, and each lot has approximately 100 feet of lakefront. Bailey has sold some lots and continues to own the others.

LaValla dug a ditch on each side of the roadway and used the excavated material to construct the Road itself. LaValla Dep. 33-36, 41-42, 47. LaValla also installed two culverts beneath the north and south ends of the Road.2 LaValla Dep. 103-04 127 & Exs. 2, 20, 24. Finally, LaValla topped the Road with approximately 2000 square yards of gravel (about 130 truckloads) from his gravel pit. LaValla Dep. 82-84, 99.

Bailey was informed several times, by various government officials, that the Road was not legally authorized and that he should stop construction until he obtained a proper permit. On June 11, 1998, after LaValla had cleared the roadway but before work on the Road was complete, employees of the local Soil and Water Conservation District visited the Site and told LaValla that the Road was not properly permitted and that he should stop construction, which he did. LaValla Dep. 88-90 & Ex. 6. A few days later, a Corps official visited the Site with Bailey and several County employees. Administrative Record ("AR") at COE0438. The Corps official, Jeff Koschak, told Bailey to do no more work on the Road. Id. About a week later, a representative from the Environmental Protection Agency ("EPA") told Bailey that the EPA would not pursue enforcement action against him as long as no further work was done at the Site pending the issuance of a permit. Id. Even before June 1998, Bailey was aware that he would need a permit to construct a roadway on the Site, as Bailey had tried to develop the Site in 1993, and the Corps had informed him then that he would need a permit before placing any dredged or fill material on the Site. AR at COE0049 (August 18, 1993 letter advising Bailey that he needed a permit before placing dredged or fill material on his land for the purpose of developing residential lots).

On June 17, 1998, Bailey filed a Local-State-Federal Project Notification Form with the County proposing to construct an access road for logging in the Site. AR at COE0069-70. The Corps received a copy of this form on August 17, 1998 and treated it as an after-the-fact application for a permit under Section 404 of the CWA. Bailey Dep. Ex. 6, Nov. 17, 2006 ("Bailey Dep."). Without waiting for a decision on his application, Bailey instructed LaValla to complete the Road, which LaValla did later that summer. LaValla Dep. 105-06; Bailey Dep. 44-46. Bailey alleges that Doug Easthouse of the Soil and Water Conservation District told him that the Corps would approve the application and that he should go ahead and finish the Road. Bailey Dep. 46. The timing of these events is somewhat unclear, but the record indicates that the Road was complete by September 17, 1998 — the date on which the Corps notified Bailey in writing that the Road violated the CWA, that his application for an after-the-fact permit was incomplete, that no additional work should be done on the Road before obtaining a permit, and that, if his permit application was ultimately denied, Bailey might be required to restore the land to its previous condition. Bailey Dep. Ex. 6.

Bailey intended that, once the Road was completed, he would dedicate it to the County, so that the Road would become public and the County would be responsible for maintaining it. For that reason, Bailey solicited the County's guidance on complying with County road specifications. (Obviously, the question whether a road meets County road specifications is entirely separate from the question whether a road meets federal environmental standards.) At Bailey's request, the County inspected the Road and, by letter dated September 16, 1998, informed Bailey of certain improvements that were necessary to bring the Road into compliance with County road standards. Bailey Dep. 52. & Ex. 5; LaValla Dep. Ex. 20. The County sent Bailey another letter, in November 1998, containing more specific recommendations and requiring Bailey to post a $10,000 bond to ensure that the Road met County standards. Bailey Dep. Ex. 4; AR at COE0633. In the spring of 1999, Bailey hired LaValla to make the improvements to the Road, which included adding about 530 square yards of gravel and replacing the culverts with new pipe. (The previous culverts were made of used pipe.) LaValla Dep. 120-21 & Ex. 20. LaValla purchased the gravel from a County gravel pit. LaValla Dep. 122-23 & Ex. 23.

At the same time that Bailey was working on the Road, he was preparing to gain approval for platting the Site. In October 1998, Bailey filed an application with the County to plat fourteen residential lots on the Site. Bailey Dep. 64; Lockner Dep. 16, Aug. 25-26, 2005. By the time Bailey applied for the plat, he had already received the Corps's notice of violation. Bailey Dep. 64. The County environmental services director, Gary Lockner, recommended approval of the Sunny Beach plat, and the County's Board of Commissioners approved the plat on December 22, 1998. AR at COE0104; Bailey Aff. Ex. 2 ¶ 6, Aug. 3, 2006. The plat states that Bailey and his wife "do hereby donate and dedicate to the public for public use forever SANDY SHORES DRIVE, the road shown on this plat." Stromlund Aff. Ex. N, Feb. 1, 2007. At oral argument, the County conceded that the Road became a public road upon the Board's approval of the plat, although the County disputes the nature of its property rights over the Road.

On June 12, 2001, the Corps denied Bailey's Section 404 permit application.3 Bailey Dep. Ex. 7. On October 22, 2001, after a period of public notice and comment, the Corps ordered Bailey to restore the property at his own expense. Specifically, the Corps ordered Bailey to: (1) remove the dredged and fill material used to construct the Road; (2) fill in the ditches; (3) seed the restored area with a specified seed mixture; and (4) control certain weed species for three years following restoration. Id. The Corps ordered Bailey to complete the restoration and seeding by October 15, 2002. Id.

After Bailey refused to comply with the restoration order, the United States brought this action to enforce it. Bailey counterclaimed, arguing that the Corps does not have jurisdiction over the Site and that the Corps's restoration order is arbitrary and capricious. Bailey also brought a third-party complaint against the County, alleging that the County should have to pay to restore the Site. Both Bailey and the United States move for summary judgment on the United States's claim and Bailey's counterclaim, while the County moves for summary judgment on Bailey's third-party claim.

II. ANALYSIS
A. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party...

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