Froebel v. Meyer

• Citation: 217 F.3d 928
• Decision Date: 28 July 2000
• Docket Number: No. 98-3925,98-3925
• Parties: (7th Cir. 2000) Kurt Froebel, Plaintiff-Appellant, v. George E. Meyer, et al., Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 928

217 F.3d 928 (7th Cir. 2000)

Kurt Froebel, Plaintiff-Appellant, v. George E. Meyer, et al., Defendants-Appellees.

No. 98-3925

In the United States Court of Appeals For the Seventh Circuit

Argued May 14, 1999

Decided June 28, 2000

Rehearing and Rehearing En banc

Denied July 28, 2000.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97-C-654--Lynn Adelman, Judge. [Copyrighted Material Omitted] Before Flaum, Easterbrook, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

In 1992, the Wisconsin Department of Natural Resources ("WDNR") completed the process of destroying Funk's Dam, which had blocked the Oconomowoc River for nearly 150 years. After the dam was removed, silt and sediment that had built up over nearly 150 years damaged the river downstream from the former dam. Kurt Froebel believed that these actions violated state environmental laws, so he sought a Wisconsin administrative order requiring the defendants to fix the problem. His efforts were stymied both there and on appeal to the Wisconsin courts.

Froebel then turned to federal court, where he filed the complaint in this action under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. sec. 1365 (1994). The district court held that Froebel's suit was not barred by claim preclusion, but that his complaint should be dismissed for failure to state a claim. We agree that dismissal was proper, but for largely different reasons. Froebel's claims, except those against Waukesha County, are indeed barred by claim preclusion. We agree that Froebel has not stated a claim against the county, and we therefore affirm the district court's judgment in its entirety.

I

Funk's Dam was built in 1850. It dams the Oconomowoc River near the town of Merton, Wisconsin. Over the next 115 years, it was rebuilt twice, but in 1965 it washed out and was not repaired. In 1971, WDNR informed the dam's owner, Gerald Quinn, that it needed to be fixed, but Quinn refused and in 1975 the dam washed out again. Quinn again failed to comply with the agency's orders, prompting WDNR in 1982 to declare the dam unsafe and abandoned. At that point, the agency indicated that it intended to remove the dam. However, WDNR did not have access to the funds necessary for removal until nearly ten years later.

Finally, in August 1992, WDNR began the drawdown process and conducted hearings concerning the dam's removal. On October 2, removal began. In devising its removal strategy, WDNR relied on two studies conducted by its employees. The first was a 1986 sediment survey conducted by employee Mike Bozek. The goal of the survey was to try to predict the amount of silt and soft sediment that would be sent down the river after the dam was removed. Based on his study, Bozek recommended that WDNR construct a sediment pit upstream from the dam. The other study was a drawdown plan prepared by WDNR Assistant Dam Safety Engineer William Sturtevant. Sturtevant's plan recommended pumps and siphons to remove sediment, as well as traps both upstream and downstream from the dam. Based on the minimal consequences to the river if these plans were followed, WDNR decided that an environmental impact analysis would be unnecessary.

Unfortunately, the dam removal did not proceed in nearly as orderly a fashion as it would have if either Bozek's or Sturtevant's plan had been followed. WDNR officials and contractors concluded that Sturtevant's recommendations were not feasible given the conditions surrounding Funk's Dam, but they do not appear to have spent a great deal of time developing alternatives. No upstream sediment trap was put in place, and the downstream trap was inadequate for the task (though this may be because Bozek's study severely underestimated the likely sediment flow after removal). Moreover, there is at least some indication that WDNR's contractor took silt from the downstream trap and, rather than transporting it down river, pumped it right back into the channel near the dam. The consequences of all of this for the Oconomowoc River were severe--muck and silt bars replaced the gravel spawning grounds for indigenous fish and much of the local flora was buried under a foot of silt.

Meanwhile, the North Lake Management District ("District") filed a petition for a contested case hearing to challenge WDNR's actions. Froebel, an area resident who frequently used that region of the river for hunting and fishing, intervened. The District and WDNR settled, leaving Froebel as the sole plaintiff against WDNR. The first step was an administrative hearing before Wisconsin Administrative Law Judge Jeffrey Boldt. Froebel requested an order requiring WDNR to undertake remedial steps to repair damage done to the river. However, ALJ Boldt concluded that WDNR had acted within the discretion conferred by Wisconsin statutes and refused to order any remedial actions. Under Wisconsin's administrative review statute, Froebel's next stop was the circuit court (Wisconsin's first level of courts) for Waukesha County. That court affirmed the ALJ's conclusions, also finding that a provision of Wisconsin's dam removal code conferred upon WDNR the discretion to remove the dam as it saw fit. Froebel appealed to the Wisconsin Court of Appeals, which also affirmed. Froebel v. Wis. Dept. of Natural Resources 579 N.W.2d 774 (Wis. Ct. App. 1998). The appellate court reasoned that since Froebel did not show that WDNR had acted contrary to any Wisconsin statute, the circuit court could not order injunctive relief against it.

Having no luck in Wisconsin courts, Froebel then brought a citizen's suit under the CWA. See 33 U.S.C. sec. 1365. He sued WDNR, as well as Sturtevant and WDNR Secretary George Meyer (collectively, the "state defendants"), alleging that WDNR's actions violated both Section 402, 33 U.S.C. sec. 1342, and Section 404, 33 U.S.C. sec. 1344, of the CWA. Section 402 establishes the National Pollutant Discharge Elimination System ("NPDES"), which creates a permitting program for the discharge of pollutants. Froebel contends that the silt that was sent through the dam is a pollutant and that WDNR thus violated Section 402 by failing to comply with the permit requirement. Section 404 regulates the discharge of fill materials into navigable waters and creates a permitting scheme administered by the U.S. Army Corps of Engineers. Froebel argues that the removal of Funk's Dam led to a discharge of fill materials for which WDNR should have sought a permit.

Additionally, Froebel added a new defendant in his federal complaint, Waukesha County. The county was not involved in the removal of Funk's Dam, but it owned the property on which the dam was located at the time Froebel brought his federal suit. Froebel concedes that Waukesha County had nothing to do with the events of 1992, but he argues that the county continues to violate Sections 402 and 404 because the particles that naturally flow down the river past the point where the dam used to be constitute both a pollutant and fill material.

The district court dismissed WDNR on sovereign immunity grounds. In Froebel's favor, it ruled both that the action against Meyer and Sturtevant was a proper application of Ex parte Young, 209 U.S. 123 (1908), and that the Wisconsin judgment did not have the effect of precluding Froebel's federal claims. Having won these battles, Froebel nonetheless lost the war: the district court ultimately ruled that Froebel had failed to state a claim under either Section 402 or Section 404. Froebel now appeals everything except the dismissal of WDNR.

II

Since Wisconsin courts have already rendered a judgment in an action between Froebel and WDNR, claim preclusion is an obvious concern. By not having raised his CWA claims before either the Wisconsin administrative law judge or the Wisconsin courts, Froebel may now be precluded from asserting a Clean Water Act violation in conjunction with the very same dam removal that formed the basis of his earlier Wisconsin action.

A

Before we examine claim preclusion, however, we must first address a waiver problem created by the defendants' briefing strategy. On appeal, only Waukesha County raises a preclusion argument. The state defendants dedicate their entire brief to the merits of Froebel's Section 402 and 404 claims, as well as their argument that they enjoy sovereign immunity. Ordinarily, this would be a substantial problem, since arguments not raised in a brief are usually deemed waived. See, e.g., Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School, 167 F.3d 1170, 1173 (7th Cir. 1999); Finance Investment Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 531 (7th Cir. 1998); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). The state defendants did not even coordinate their briefing with that of the county and indicate that they were adopting the county's preclusion argument by reference, as they might have done. See Fed. R. App. P. 28(i); Bruner Corp. v. R.A. Bruner Co., 133 F.3d 491, 498 n.7 (7th Cir. 1998). Under the circumstances we think it inappropriate to extend the County's preclusion arguments to the state defendants.

Nonetheless, the fact that the district court ruled in the defendants' favor, and explicitly addressed the preclusion issue, saves them from themselves. Because their position on appeal seeks only to maintain the status quo, we apply "a degree of leniency" to the state defendants' failure to raise all possible grounds for affirming the lower court. See Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996) (noting that "[t]he urging of alternative grounds for affirmance is a privilege rather than a duty"). This means that so long as the state defendants did not waive their preclusion argument by failing to present the issue to the district court, we may consider it. Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 173 (7th...