Leslie Salt Co. v. U.S.

• Decision Date: 06 February 1990
• Docket Number: Nos. 89-15244,89-15337,s. 89-15244
• Citation: 896 F.2d 354
• Parties: , 20 Envtl. L. Rep. 20,477 LESLIE SALT CO., a Delaware corporation, Plaintiff-Appellee, v. UNITED STATES of America, et al., Defendants, and Save San Francisco Bay Association, a non-profit California corporation; National Audubon Society, a non-profit New York corporation, Defendant-Intervenors-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. LESLIE SALT CO., a Delaware corporation; and Cargill, Inc., a Delaware corporation, Defendants-Appellees. Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 354

896 F.2d 354

31 ERC 1139, 20 Envtl. L. Rep. 20,477

LESLIE SALT CO., a Delaware corporation, Plaintiff-Appellee, v. UNITED STATES of America, et al., Defendants, and Save San Francisco Bay Association, a non-profit California

corporation; National Audubon Society, a

non-profit New York corporation,

Defendant-Intervenors-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. LESLIE SALT CO., a Delaware corporation; and Cargill, Inc.,

a Delaware corporation, Defendants-Appellees.

Nos. 89-15244, 89-15337.

Ninth Circuit.

Argued and Submitted Nov. 16, 1989.

Decided Feb. 6, 1990.

Michael P. Healy, Dept. of Justice, Land & Natural Resources Div., Appellate Section, Washington, D.C., for defendants, plaintiff-appellant.

Edgar B. Washburn, Washburn, Briscoe & McCarthy, San Francisco, Cal., for plaintiff-appellee.

Clement Shute, Jr., Shute, Mihaly & Weinberger, San Francisco, Cal., for defendant-intervenors-appellants, Save San Francisco Bay Ass'n and National Audubon Soc.

Edwin F. Lowry, Deputy Atty. Gen., San Francisco, Cal., for the amicus curiae, State of Cal.

Appeal from the United States District Court for the Northern District of California.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

FARRIS, Circuit Judge:

This is an appeal from a district court decision denying the Army Corps of Engineers jurisdiction under the Clean Water Act, 33 U.S.C. Sec. 1251 et seq., over a parcel of land near the San Francisco Bay. 700 F.Supp. 476. The Corps had sought to require the landowner to obtain a permit before draining and filling the land, which over many years had acquired some aquatic characteristics. The district court found that because these conditions were artificial and were in part caused by the government, the Corps lacked jurisdiction. We reverse and remand.

BACKGROUND

This dispute revolves around a 153 acre tract of undeveloped land south of San Francisco, called the Newark Coyote Property, owned by Leslie Salt. A road separates the property into two parcels, one of 143 acres ("parcel 143") and one of 10 acres ("parcel 10"). The property abuts the San Francisco National Wildlife Refuge and lies approximately one quarter mile from the Newark Slough, a tidal arm of the San Francisco Bay.

The present condition of the property, or rather its condition in late 1985 through 1986 when the Corps claimed jurisdiction, is the result of many artificial changes to the property over the last 100 years. Originally the property was pasture land. The first change occurred early in this century, when Leslie's predecessors in interest constructed facilities for the manufacture of salt. They excavated pits on the eastern one-third of parcel 143 for depositing calcium chloride, and created large, shallow, water-tight basins on the western two-thirds for crystallizing salt. Salt production on the property effectively stopped in 1959. The calcium chloride pits and the crystallizers remained however, and each year they temporarily filled with water during the winter rainy season. ¹ The extent of ponding is limited, but standing water did form on the property and remain long enough for fish to live in the ponds. Plant The property was also substantially affected by construction of a sewer line and public roads on and around the property. This construction created ditches, road beds, and most importantly, culverts which hydrologically connected the property to the Newark Slough. Caltrans, the state highway authority, also breached a levy on the wildlife refuge adjacent to the property and destroyed a tidegate which had prevented the tidal backflow from reaching Leslie's property.

life, which had been nonexistent due to the high salinity and compaction of the soil, formed in the crystallizers after Leslie plowed the property in 1983 to combat a dust problem.

The effect of all this human activity was to foster natural, ecological developments: tidewater reached the edges of Leslie's property and caused the creation of some wetland features on the southern fringes. Migratory birds used the crystallizers and calcium chloride pits as habitat during the winter and spring when they were flooded. In addition, an endangered species, the salt marsh harvest mouse, used the property as habitat.

The controversy over this property arose in late 1985 when Leslie started to dig a feeder ditch and siltation pond on parcel 143 in order to drain the land. The Corps soon became aware of this activity and responded by issuing a cease and desist order pursuant to its authority under Section 404 of the Clean Water Act. ² In that Act Congress directed the Corps, through the Secretary of the Army, to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). The Corps claimed that Leslie was discharging a pollutant (fill) into waters of the United States in violation of section 301 of the Act. ³ The Corps also claimed that Leslie's activities were obstructing the navigable waters of the United States in violation of section 10 of the Rivers and Harbors Appropriations Act. ⁴ The Corps issued a second cease and desist order in early 1987 to stop Leslie from placing fill on parcel 10. The Corps issued that order in response to Leslie's attempts to block a culvert that connected its property to the Newark Slough.

In sum, the Corps claimed jurisdiction over the majority of the property. Leslie challenged that claim of jurisdiction and filed suit; the Corps countersued. The district court found in favor of Leslie on all grounds, holding that the property was not subject to the Corps' jurisdiction. The United States appealed that decision. Save San Francisco Bay Association and the National Audubon Society intervened on behalf of the United States.

The Corps now asserts jurisdiction over the property based on two separate theories which apply to two distinct portions of Leslie's land. First, the Corps argues that most of parcel 10 and the southern tip of parcel 143 are adjacent wetlands that are part of the Corps' Clean Water Act jurisdiction. ⁵ To resolve this dispute we must first

determine whether Congress intended that Clean Water Act jurisdiction should extend to property which government actions helped make aquatic. Because we find that it did, we then look to the Corps' regulations interpreting the Act, to determine whether they allow Corps jurisdiction. The Corps' second theory relates to the former crystallizers and calcium chloride pits. The Corps claims that these features are "other waters," as defined by Corps' regulations, that are subject to its jurisdiction.

STANDARD OF REVIEW

The district court's findings of fact are subject to a clearly erroneous standard of review. Issues of law, as well as mixed questions of fact and law that involve consideration of legal concepts rather than essentially factual inquiries, are reviewable de novo. United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

When considering the Corps' interpretation of the Clean Water Act we defer to the agency's analysis if it is "reasonable and not in conflict with the expressed intent of Congress." United States v. Riverside Bayview Homes, 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The agency's interpretation of its own regulations is entitled to greater deference, amounting to a plain error standard. Montana Power Co. v. EPA, 608 F.2d 334, 345 (9th Cir.1979); Chemical Waste Management, Inc. v. EPA, 873 F.2d 1477 (D.C.Cir.1989).

THE SOUTHERN PORTIONS OF THE PROPERTY

The Corps claims that the southern portions of the property are wetlands within its jurisdiction. ⁶ The district court denied the Corps jurisdiction for three reasons: (1) the wetland conditions were caused by the government, (2) the conditions were not "normal," as required by 33 C.F.R. Sec. 328.3(b), and (3) the property was not adjacent to waters of the United States, as required by 33 C.F.R. Sec. 328.3(a)(7).

A. Governmentally Caused Inundation

We agree with the district court that Congress intended to create a very broad grant of jurisdiction in the Clean Water Act, extending to any aquatic features within the reach of the commerce clause power. See Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir.1978) (citing California v. EPA, 511 F.2d 963, 964 n. 1 (9th Cir.1975), rev'd on other grounds, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). However, the district court made an exception to this broad Congressional mandate and held that changes to the property caused by the government do not create jurisdiction. The court reasoned that a contrary holding would allow the Corps "to expand its own jurisdiction by creating some wetland conditions where none existed before." While this is a valid concern, the facts of this case do not present such a problem.

The district court relied upon United States v. City of Fort Pierre, 747 F.2d 464 (8th Cir.1984). In Fort Pierre, the Corps asserted section 404 jurisdiction over a dry slough that had begun to exhibit wetland characteristics as a direct result of the Corps' dredging activity on a nearby river. The Eighth Circuit held that the Corps did not have jurisdiction due to the "peculiar facts and unique circumstances" of that case, in which "the Corps, as an unintended by-product of ordinary river maintenance, inadvertently create[d] a wetland-type ecological system on private property where no such system previously existed." Id. at 466, 481. The Eighth Circuit recently reaffirmed The factual situation in this case differs substantially from that in Fort Pierre. Here, the Corps was not directly and solely responsible for flooding Leslie's land: Caltrans constructed the culverts which allowed water to flow onto Leslie's property; Caltrans and the Fish and Wildlife Service...