661 F.3d 174 (3rd Cir. 2011), 10-4295, United States v. Donovan

Docket Nº:10-4295.
Citation:661 F.3d 174
Opinion Judge:RENDELL, Circuit Judge.
Party Name:UNITED STATES of America v. David H. DONOVAN, Appellant.
Attorney:Richard A. Barkasy, Esq., Schnader Harrison Segal & Lewis, Pittsburgh, PA, Marieke T. Beck-Coon, Esq., Stephen A. Fogdall, Esq. [argued], Schnader Harrison Segal & Lewis, Philadelphia, PA, Counsel for Appellant. Katherine J. Barton, Esq. [argued], United States Department of Justice, Environment ...
Judge Panel:Before: RENDELL, SMITH and FISHER, Circuit Judges.
Case Date:October 31, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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661 F.3d 174 (3rd Cir. 2011)

UNITED STATES of America

v.

David H. DONOVAN, Appellant.

No. 10-4295.

United States Court of Appeals, Third Circuit.

October 31, 2011

Argued on July 12, 2011.

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Richard A. Barkasy, Esq., Schnader Harrison Segal & Lewis, Pittsburgh, PA, Marieke T. Beck-Coon, Esq., Stephen A. Fogdall, Esq. [argued], Schnader Harrison Segal & Lewis, Philadelphia, PA, Counsel for Appellant.

Katherine J. Barton, Esq. [argued], United States Department of Justice, Environment & Natural Resources Division, Kent E. Hanson, Esq., United States Department of Justice, Environmental Defense Section, Washington, DC, Patricia C. Hannigan, Esq., Assistant U.S. Attorney, Office of United States Attorney, Wilmington, DE, Counsel for Appellee.

Before: RENDELL, SMITH and FISHER, Circuit Judges.

OPINION

RENDELL, Circuit Judge.

David H. Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is " wetlands" subject to the

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Clean Water Act (" CWA" or " Act" ). The Government brought an enforcement proceeding against him under the Act to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. However, the District Court disagreed, granting summary judgment in the Government's favor and imposing a $250,000 fine. In this appeal, we are called upon to decide what test to apply in order to determine whether land is " wetlands" subject to the CWA after the Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is " wetlands" subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm.

I. Background

A. Facts and Procedural Posture

Donovan has owned a four-acre parcel of land bordering Route 13 near Smyrna in New Castle County, Delaware since September 29, 1982. The land is situated within the watershed of the Sawmill Branch, which flows into the Smyrna River, and then into the Delaware Estuary and on to the Delaware Bay. The Sawmill Branch becomes tidal approximately 2.5 miles from Donovan's property. In August 1987, the land was inspected by the United States Army Corps of Engineers (" Corps" ). Following this inspection, the Corps categorized the property as wetlands, concluded that approximately 3/4 of an acre had been recently filled by Donovan, and warned Donovan that federal law required him to obtain a permit should he wish to fill more than one acre of his property.

In early 1993, the Corps again inspected Donovan's land and found that he had continued to fill his property without a permit. In July 1993, the Corps sent a cease-and-desist notice to Donovan, ordering him to remove 0.771 acres of fill material, or to submit a pre-discharge notification. Donovan rebuffed this initial notice and the similar notices that followed. Donovan's emphatic response to the notices was that the Corps had no right to regulate the use of his land.

In 1996, the United States sued Donovan, alleging that he had violated the CWA, 33 U.S.C. § 1311(a). In March 2002, the United States District Court for the District of Delaware concluded that Donovan had violated the CWA. Donovan appealed, but we dismissed the appeal for lack of jurisdiction because the District Court's order was not then final. On December 21, 2006, the District Court entered a final judgment against Donovan, imposing a $250,000 fine and requiring him to remove 0.771 acres of fill from his land.

Donovan appealed the December 21, 2006 judgment, arguing that the CWA did not give the Corps jurisdiction over his land. On July 24, 2008, we appointed amicus to address whether the Supreme Court's decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), would require remand in this case.1 The Government then filed a motion requesting that the case be remanded to the District Court so that a record could be developed on the issue of the Corps' jurisdiction over Donovan's

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land. We granted that motion and remanded the case to the District Court on April 13, 2009.

On remand, the District Court referred the case to a Magistrate Judge for all pretrial matters. On March 15, 2010, Donovan moved for judgment on the pleadings and the Government moved for summary judgment. The Government submitted two expert reports: one from wetland scientist Edward M. Launay (" Launay report" ) and the other from scientists at the Stroud Water Research Center (" Stroud report" ). Both reports were based on extensive analysis and testing of Donovan's property between June 2009 and November 2009. Launay used a variety of methods to map stream channels on and around Donovan's property and to demonstrate that they were perennial. The Stroud scientists examined the physical, chemical, and biological connections between the wetlands on Donovan's property and downstream waters of the Sawmill Branch. The Stroud scientists analyzed, inter alia, the wetlands' hydrological connections to downstream waters, the wetlands' potential for filtering pollutants, and the wetlands' role in the aquatic ecosystem for fish and invertebrates.

Donovan did not present any expert evidence in support of his motion, relying instead on his own affidavit, in which he expressed familiarity with the pattern of water flow on his property and stated that " the amount of water flowing on my Property in a given period is completely dependent on the amount of rainfall in the area during that period" and " [t]he only source of water flow on my Property is rainwater run-off from the adjacent highway." JA 639. His affidavit claimed that " in periods of no rain" the channels on his property are " completely dry." JA 640. Donovan also claimed that " 2009 and 2010 are the rainiest and wettest years that I can recall in the nearly 50 years I have lived in the Smyrna region" and that the channels on his property were " completely dry for significant periods" in 2008, including " the summer months." Id. Donovan also stated that " [i]n periods of heavy rainfall, when there is water flowing on my Property, the rainwater channels are clearly defined and easy to differentiate from the neighboring land." JA 641.

The Magistrate Judge recognized that the sole issue to be decided was whether the property on which Donovan placed fill material is subject to regulation under the CWA. The Magistrate Judge issued a Report and Recommendation (" R & R" ) on July 23, 2010, which recommended that the District Court deny Donovan's motion and grant summary judgment in favor of the Government. In the R & R, the Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rapanos. The Magistrate Judge then analyzed the Government's expert reports and noted that they " offered sufficient evidence to support a finding" that the first Rapanos test was met, JA 17, and that they " adequately show[ed]" that the second Rapanos test was met, JA 22. The Magistrate Judge did not cite or credit Donovan's declaration. The Magistrate Judge also recommended that Donovan's motion for judgment on the pleadings be denied, stating that the Government had adequately pled a basis for asserting jurisdiction over Donovan's land.

Donovan objected wholesale to the R & R. On September 13, 2010, the District Court overruled Donovan's objections to the R & R, granted the Government's motion for summary judgment, and denied Donovan's motion for judgment on the pleadings. The District Court rejected Donovan's contention that the Magistrate Judge misapplied the legal standard for

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summary judgment, saying that " there is no genuine issue of material fact as to whether the wetlands are subject to CWA jurisdiction, and ... [Donovan] failed to come forward with evidence to enable a jury to reasonably find for ... him on that issue." JA 30. The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapanos test. As to the first Rapanos test (which we will call the " continuous surface connection test" or the " plurality's test" ), the District Court concluded that the Government " propounded significant evidence" that the test was met, and that Donovan's declaration failed to create a genuine issue of material fact as to whether the test was satisfied. JA 33. The District Court was also " satisfied that the Government's evidence ... establishes" that the second Rapanos test (which we will call the " significant nexus test" or " Justice Kennedy's test" ) was met and noted that Donovan had " largely relie[d] on arguments by counsel concerning alleged deficiencies with the Government's evidence, but put[ ] forth no evidence of his own." JA 35-36. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government's motion for summary judgment. Finally, the District Court denied Donovan's motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan's property is subject to the CWA.

On November 8, 2010, Donovan appealed, arguing that the District Court applied the wrong legal standard to determine whether the Corps had jurisdiction over Donovan's property and misapplied the summary judgment standard.

B. Legal Background

The CWA provides that " the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a). According to the...

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