Idaho Dep't of Envtl. Quality v. Gibson, Docket No. 46217

• Citation: 461 P.3d 706,166 Idaho 424
• Decision Date: 11 March 2020
• Docket Number: Docket No. 46217
• Parties: Idaho DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff-Respondent, v. David R. GIBSON, dba Black Diamond Compost Products, and VHS Properties, LLC, Defendants-Appellants.
• Court: United States State Supreme Court of Idaho

166 Idaho 424
461 P.3d 706

Idaho DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff-Respondent,
v.
David R. GIBSON, dba Black Diamond Compost Products, and VHS Properties, LLC, Defendants-Appellants.

Docket No. 46217

Supreme Court of Idaho, Boise, December 2019 Term.

Opinion Filed: March 11, 2020
Petition for Rehearing Denied: May 7, 2020

Vernon K. Smith Law Office, Boise, for Appellants. Vernon K. Smith argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Mark Cecchini-Beaver argued.

BURDICK, Chief Justice.

The Department of Environmental Quality ("DEQ") brought a civil enforcement action under the Environmental Protection and Health Act against David Gibson and VHS Properties, LLC, ("VHS"), for illegally operating a composting facility. After a three-day bench trial, the district court determined that Gibson was operating a "Tier II Solid Waste Processing Facility" without prior approval from DEQ. The district court assessed a civil penalty and issued an injunction. On appeal, Gibson raises numerous issues regarding DEQ's authority to regulate compost and its inspection of the property. DEQ responds and argues that Gibson's appeal is partially time-barred. We hold that although Gibson's appeal is not time-barred, he has failed to show error. We affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On "largely bare desert" land southwest of the Boise Airport, in a roughly ten-acre lot enclosed by a three-foot-high barbed-wire fence, several large windrows jut from the earth. Comprised of grass clippings, straw, leaves, stale hay and dirt, these long lines of materials are the work of David Gibson, the owner and operator of Black Diamond Composting.

The facility has operated at this location, on property owned by VHS, since 2010. It features an "Open 24-7" sign asking all "lawn care professionals" to sign in with their name and information. A second sign details the fees¹ per load deposited ($5 per load, $100 per load if the depositor fails to sign in, and $1,000 if the deposit contains branches). Arrows painted on 55-gallon metal drums direct traffic into the facility. Gibson's operation depends on landscapers, lawn-care professionals, farmers, and municipal agencies to deliver grass clippings, leaves, stale hay, and straw. Some deposits are made on an ad hoc basis, but others are more routine. Boise City and the Ada County Highway District, for instance, paid Gibson a modest fee in order to deposit leaves and grass clippings from their seasonal maintenance activities. Gibson combines the materials with dirt by turning the piles into windrows to assist the decomposition process.

On March 28, 2013, DEQ was alerted to possible odor issues concerning Black Diamond Composting while investigating a different company. After conducting some preliminary research, DEQ employees Dean Ehlert and Jack Gantz drove to the site, parked outside the fence, followed the signs in, and observed the facility. Unable to locate anyone, Ehlert and Gantz left the property. A few months later, in July 2013, DEQ notified Gibson that, based on its research and observations, he was in apparent violation of DEQ's Solid Waste Management Rules. In response, Gibson asserted that his facility was not subject to regulation by DEQ or its Solid Waste Management Rules.

In March 2015, DEQ filed a complaint against Gibson and VHS under the Environmental Protection and Health Act ("EPHA"). It alleged that Gibson, as the operator of the composting facility, and VHS Properties, as the owner of the property, were in violation of DEQ's Solid Waste Management Rules found at IDAPA 58.01.06.012.02. Specifically, DEQ alleged that Gibson was operating a "Tier II" solid-waste processing plant and had failed to: provide documentation demonstrating compliance with siting requirements; submit an operating plan; or obtain approval

461 P.3d 713

for the site or operating plan. DEQ sought relief in the form of a permanent injunction that would require Gibson to submit an application and plan, and then comply with the plan once approved. It also requested statutory penalties and attorney's fees and costs under Idaho Code sections 12-117 and 12-121.

In answer, Gibson asserted numerous affirmative defenses. Those relevant to this appeal included: DEQ's Solid Waste Management Rules exclude "plant or crop residue" from its definition of solid waste; the facility is regulated by the Department of Agriculture, thereby triggering another exception to the definition of solid waste; and DEQ's regulatory scheme is preempted by Idaho's Right to Farm Act or the Soil and Plant Amendment Act.

DEQ filed a motion for summary judgment on all claims, including Gibson's affirmative defenses. Gibson opposed the motion and argued for the first time that the statute of limitations prohibited DEQ from bringing the action. The district court granted DEQ's motion for summary judgment in part, ruling that regulation of compost does not fall under the authority of the Idaho Department of Agriculture and that DEQ's Solid Waste Management Rules are not precluded by the Idaho Right to Farm Act or the Soil and Plant Amendment Act. However, the district court denied DEQ's motion in part, finding that a genuine issue of material fact remained as to the source of the materials. This, the court reasoned, would determine whether there was merit to Gibson's defense that his facility fell under the Solid Waste Management Rules' exception for "crop (plant) residue ultimately returned to the soil at agronomic rates."

Gibson then filed a motion to dismiss, again raising the statute of limitations under Idaho Code section 39-108(4). The district court denied the motion, ruling that it was an improperly filed motion for summary judgment and was untimely under both Rule 56(b)(1) and the court's scheduling order. Gibson then moved to amend his answer to include the statute of limitations defense. Gibson raised this defense again the day before trial in his "Pre-Trial Memorandum to Support Motion for Directed Verdict," but, this time, asserted that Idaho Code section 39-108(4) was a statute of repose.

The district court focused the trial issues on whether the grass clippings and leaves were "discarded material" subject to DEQ regulation as "solid waste"; whether composting is "processing solid waste" under the Act; and whether Gibson's operation processed solid waste in excess of 600 cubic yards, triggering "Tier II" status. A three-day court trial took place in September 2017.

At trial, while cross-examining Dean Ehlert, Gibson's counsel moved to strike all the testimony Ehlert had offered concerning his initial visit to Black Diamond Composting. Gibson's counsel argued that Ehlert's testimony should be excluded because DEQ's initial investigation amounted to an unconstitutional search. The district court denied the motion, but, at the close of trial, requested briefing on the issue. Thereafter, the district court again denied the motion to strike, ruling Ehlert's initial investigation did not amount to a "search" implicating constitutional protections.

On March 1, 2018, the district court entered its Findings of Facts and Conclusion of Law. The court concluded that Gibson was operating a Tier II solid waste processing facility without having complied with the application and siting requirements of the Solid Waste Management Rules. The district court determined that the grass clipping and leaves constituted "solid waste" under the Solid Waste Management Rules and the Environmental Protection and Health Act, and that DEQ had proved that more than 600 cubic yards of such material had been brought to and processed at Gibson's facilities in 2013 and 2014. However, the district court determined that compost and humus products were not solid waste under the EPHA. Given this conclusion, the district court reasoned that it could not determine the amount of solid waste processed at Gibson's facilities in other years because the grass clippings and leaves eventually transformed into humus or compost. Lastly, the court also ruled that Idaho Code section 39-108(4) was not a statute of repose and did not bar DEQ's suit.

461 P.3d 714

The district court entered a final judgment assessing penalties against Gibson and VHS in the amount of $1,000 and $250, respectively. Additionally, the district court awarded DEQ $3,466.53 in expenses to be paid, jointly and severally, by the defendants, and also issued an injunction that required Gibson to comply with the Solid Waste Management Rules commensurate with the amount of solid waste he would receive.

Twelve days after the district court entered its findings and conclusions, Gibson filed a "motion for reconsideration" citing Rule 11 of the Idaho Rules of Civil Procedure. The district court construed the motion as a Rule 52(b) motion to amend the court's findings and conclusions, and summarily denied it. Gibson appealed, and DEQ moved this Court to dismiss the appeal as untimely, arguing that Gibson's "motion for reconsideration" was insufficient to toll the time period to timely file an appeal under Idaho Appellate Rule 14. This Court denied the motion without prejudice.

II. ISSUES ON APPEAL

1. Did Gibson's mistitled "motion for reconsideration" fail to toll the period for a timely appeal under Idaho Appellate Rule 14 ?

2. Did Gibson waive his arguments under the Idaho Solid Waste Facilities Act, the Resource Conservation and Recovery Act, federal regulations, and Idaho Code section 39-108(4) by failing to properly raise them below?

3. Did the district court err in denying Gibson's motion to strike by finding no Fourth Amendment search took place?

4. Does substantial and competent evidence support the district court's factual findings that Gibson's facility was processing sufficient amounts of solid waste to qualify as a Tier II solid waste processing facility?

5. Did the district court properly conclude that grass clipping and leaves were "solid waste" under the

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