555 F.3d 200 (6th Cir. 2009), 05-5469, United States v. Cundiff

Docket Nº05-5469, 05-5905, 07-5630.
Citation555 F.3d 200
Party NameUNITED STATES of America, Plaintiff-Appellee, v. George Rudy CUNDIFF; Christopher Seth Cundiff, Defendants-Appellants.
Case DateFebruary 04, 2009
CourtUnited States Courts of Appeals, United States Court of Appeals (6th Circuit)

Page 200

555 F.3d 200 (6th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

George Rudy CUNDIFF; Christopher Seth Cundiff, Defendants-Appellants.

Nos. 05-5469, 05-5905, 07-5630.

United States Court of Appeals, Sixth Circuit.

February 4, 2009

Argued: Dec. 9, 2008.

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ARGUED:

Leslie E. Nunn, Leslie E. Nunn, P.C., Cynthiana, Indiana, for Appellants.

Jennifer Scheller Neumann, David Fishback, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Leslie E. Nunn, Leslie E. Nunn, P.C., Cynthiana, Indiana, for Appellants.

Jennifer Scheller Neumann, David Fishback, Ellen J. Durkee, United States Department of Justice, Washington, D.C., for Appellee. James Graham Murphy, National Wildlife Federation, Montpelier, Vermont, for Amicus Curiae.

Before MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.[*]

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OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

After eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging " pollutants" into " waters of the United States" without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362. The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs' wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs' array of statutory, common law, and constitutional counterclaims. While the original appeal in this case was pending, the Supreme Court issued its splintered ruling in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), which defined the Act's jurisdiction over " waters of the United States." In light of Rapanos, we returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs' wetlands. The district court determined that it was because the Cundiffs' wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds.

I.

Defendants Rudy and Seth Cundiff own two adjacent tracts of land in Muhlenberg County, Kentucky. Their properties together sit next to Pond and Caney Creeks, which are tributaries of the Green River. The Green River, in turn, flows into the Ohio River. In 1990, Rudy Cundiff bought the southern tract, which contains roughly eighty-five acres of wetlands and an upland area where his house sits. When Rudy bought it, portions of the wetlands contained exceptionally acidic orangish to reddish colored water that had drained out of an abandoned coal mine located on a neighbor's nearby property. As a result, locals referred to the Cundiffs' property as a putrid eyesore, and this stagnant, discolored water caused the wetlands to become a festering mosquito haven-though the Cundiffs knew all this when they bought it.1 Shortly after his purchase, Cundiff began excavating drainage ditches and clearing trees to make the wetlands suitable for farming.

In October 1991, federal officials from the Army Corps of Engineers and state officials from the Kentucky Division of Water observed ditches, artificially filled wetlands, and mechanically cleared land on the wetlands. The Corps suspected possible Clean Water Act violations. Rudy had failed to obtain a section 404 permit as required for such dredging and filling activities, and further inspection revealed that Cundiff had excavated ditches in the wetlands and placed dredged material into

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them as filler (known as " sidecasting" ). Consequently, the Corps sent him a cease-and-desist letter " specifically prohibiting any further activity involving the placement of excavated or fill material into these jurisdictional wetlands" without a federal permit.

Federal and state officials then began meeting with Cundiff in 1992, though they reached no agreement. Instead, he insisted on converting the wetlands into farmland and continued to drain and clear the property. The Corps referred the matter to the Environmental Protection Agency. Over the next several years, Cundiff continued his draining and ditch digging activities, simply ignoring whatever government directives came his way. In 1997 he planted wheat on the southern tract, and government officials observed downed trees in that area. The EPA issued an Order of Compliance informing him that he had violated the Clean Water Act by depositing fill material into waters of the United States without authorization, and it directed him to " immediately cease participating in or causing any additional discharges" of pollutants.

In 1998 Rudy's son, Seth, purchased a tract of land located north of Rudy's which contains roughly 103 acres of wetlands. (Seth leases this property back to Rudy for the exact amount of the mortgage payment.) Rudy quickly began excavating and clearing that property as well, activity of which Seth was aware. In October 1998, officials from the EPA informed Rudy Cundiff that he needed a permit for this work too. Rudy-somewhat surprisingly-said that, though he knew he needed a permit, he thought the Corps would never grant him one so he planned on digging his ditches anyway. He eventually completed a two-hundred foot ditch through the wetlands that extended all the way to Caney Creek, and the dredged material was " sidecast" into the wetlands to dry them out to make them arable. In 1999, Kentucky officials told Cundiff that he was destroying wetlands without a permit in violation of state law (he ignored this too), and the EPA issued additional Orders of Compliance to both Rudy and Seth Cundiff requiring them to cease their excavation activities and to restore the unauthorized ditches by refilling them. The Cundiffs responded to these orders as they had to the others.

The United States finally sued both Rudy and Seth Cundiff, alleging that they violated Section 301(a) of the Clean Water Act for discharging pollutants into waters of the United States without a permit. 33 U.S.C. § 1311(a). The district court granted the United States's motion for summary judgment, thus finding the Cundiffs liable, and, after a bench trial, permanently enjoined them from discharging dredged or fill material or any other pollutants into waters of the United States (which it concluded that the Cundiffs' wetlands were) and imposed a civil penalty of $225,000 but suspended $200,000 of that pending the Cundiffs' adequate implementation of the restoration plan. The defendants appealed, and while that appeal was pending, the Supreme Court decided Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), which addressed the scope of the term " waters of the United States" in the Clean Water Act. The parties jointly moved for a limited remand from this Court so the district court could reconsider whether jurisdiction over the wetlands was proper, and this Court remanded the case on that question. The district court concluded that the Cundiffs' wetlands were " waters of the United States," and the Cundiffs now appeal the district court's: (1) grant of summary judgment in the government's favor; (2) imposition of a civil penalty and injunctive

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relief; and (3) the dismissal of their counterclaims.

II.

We review the district court's legal conclusions de novo, Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005), and its factual findings for clear error. Id. The imposition of a monetary penalty and injunctive relief is reviewed for abuse of discretion. United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1205 (6th Cir.1995); United States v. Norris, 937 F.2d 286, 288 (6th Cir.1991). We review the dismissal of the Cundiffs' counterclaims de novo. Blakely v. United States, 276 F.3d 853, 863 (6th Cir.2002).

III.

Congress enacted the Clean Water Act in 1972 " to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 301(a) of the Act prohibits " the discharge of any pollutant by any person" except in compliance with the Act. 33 U.S.C. § 1311(a). " [D]ischarge of any pollutant" is broadly defined to mean " any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). In turn, " pollutant" is defined to include not only traditional contaminants, but also solids such as " dredged spoil, ... rock, sand [and] cellar dirt." 33 U.S.C. § 1362(6). The Act defines " navigable waters" to mean " the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).

The Act also sets up two permit schemes. Section 404(a) authorizes the Secretary of the Army (through the United States Army Corps of Engineers), or a state with an approved program, to issue permits " for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a).Section 402 authorizes the Environmental Protection Agency (or a state with an approved program) to issue a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of pollutants other than dredged or fill material. 33 U.S.C. § 1342. The Corps and the EPA share responsibility for implementing and enforcing Section 404. See, e.g., 33 U.S.C. § 1344(b)-(c).

Although at one time the term " navigable waters" included only waters that were navigable in fact, The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870), " navigable waters" is a defined term in the Act that expressly includes all " waters of the United States." 33 U.S.C. § 1362(7). The Supreme Court has...

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    ...516 F.3d 316, 327 (5th Cir. 2008) (upholding jury's finding that all of the Rapanos standards had been met); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009) (finding that jurisdiction is proper under both Justice Kennedy's and the plurality's tests); see also United States v. Mo......
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    ...v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006). (187) United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009); United States v. Lucas, 516 F.3d 316, 326-27 (5th Cir. 2008). (188) Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 2......
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