MATTER OF ALAMEDA COUNTY ASSESSOR'S PARCEL NOS.

• Decision Date: 03 June 1987
• Docket Number: No. C-86-144 MISC. WHO.,C-86-144 MISC. WHO.
• Citation: 672 F. Supp. 1278
• Court: U.S. District Court — Northern District of California
• Parties: In the Matter of ALAMEDA COUNTY ASSESSOR'S PARCEL NOS. 537-801-2-4 AND XXX-XXX-X, et al.

672 F. Supp. 1278

In the Matter of ALAMEDA COUNTY ASSESSOR'S PARCEL NOS. 537-801-2-4 AND XXX-XXX-X, et al.

No. C-86-144 MISC. WHO.

United States District Court, N.D. California.

June 3, 1987.

Francis B. Boone, Asst. U.S. Atty., Land & Natural Resources Div., San Francisco, Cal., for applicants.

David M. Ivester, Washburn & Kemp, San Francisco, Cal., for petitioners.

ORRICK, District Judge.

Petitioners, the owners of a 286-acre farm in Newark, California, seek to quash an administrative warrant obtained by applicants, the United States Environmental Protection Agency ("EPA"), on August 20, 1986, for the purpose of entering petitioners' farm and determining what areas of the farm, if any, fall under the jurisdiction of the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq., commonly referred to as the "Clean Water Act" ("CWA"). For the reasons following, the motion to quash the warrant is denied.

I

The actual owners of the farm, and the petitioners in this action, are Boyd C. Smith, Trustee for the Richard T. Peery 1976 Children Trusts; Louis B. Sullivan, Trustee for the John Arrillaga 1976 Children Trusts; and Frank Joseph Siri, Jr., Trustee for the Siri Family Trust. Petitioners' farm, located in the city of Newark, California, is bounded by various private farms to the north, a railroad track on the east, and the man-made Alameda County Flood Control District levees running along Mowry Slough to the south and to the west. Declaration of Veronica D. Reynolds, filed Aug. 20, 1986 (hereinafter "Reynolds Declaration"), at 3-4, ¶ 4, and attached maps. It is undisputed that much of petitioners' property has been farmed by lessee farmers for at least the past twentyfive years, and possibly longer.

The present controversy arose in late 1984 when the farmer leasing petitioners' farm disced certain fields on the farm that allegedly contain "wetlands," as they are defined under the CWA,¹ installed new culverts and tide gates, and expanded a drainage ditch network in the alleged wetlands area. An agent of the United States Fish and Wildlife Service ("USFWS"), Ecological Services Branch, observed these activities and informed the Army Corps of Engineers ("Corps") on November 9, 1984, of their occurrence. Declaration of David M. Ivester in Support of Motion to Quash Administrative Warrant, filed Sept. 9, 1986 (hereinafter "Ivester Declaration"), Exhibit D. On December 3, 1984, the Corps sent investigators to petitioners' property in order to examine the area of the activities and assess whether wetlands were being destroyed.

The investigators, Corps personnel, concluded that the farmer had engaged in "unauthorized activity involving the sidecasting of fill material associated with the construction of new ditches and the placement of tide gates to facilitate the drainage of a wetland located" on petitioners' property. Ivester Declaration, Exhibit B at 1 (Corps cease and desist letter dated Dec. 21, 1984, to petitioners (hereinafter "Corps letter")). Based on these findings, the San Francisco Office of the Corps concluded that "extensive damage has occurred to the wetlands on the property" and, therefore, issued a "cease and desist" letter to petitioners on December 21, 1984. Id. The letter informed petitioners that all of the farmer's activities were in violation of § 404 of the CWA, 33 U.S.C. § 1344,² and directed petitioners' to stop all actions in connection with the aforementioned activities. Id.

In response to the Corps letter, petitioners eventually admitted that the farmer had replaced a culvert and tide gate, enlarged a levee by placing fill material on top of it, and altered and expanded an existing drainage ditch. However, petitioners argued that these activities were permissible under the "farming exceptions" provided for under § 404(f), 33 U.S.C. § 1344(f), of the CWA.³ Ivester Declaration, Exhibit H. Petitioners also argued that the alleged unlawful discing was something the lessee farmer "had done many times before, in order to prepare the land for seeding." See Petitioners' Memorandum of Points and Authorities in Support of Motion to Quash Administrative Warrant (hereinafter "Petitioners' Memorandum"), filed Sept. 15, 1986, at 4. The Corps maintained that all these activities were in violation of the CWA, and a long series of correspondence ensued between petitioners and the Corps.

After numerous communications, petitioners agreed that the Corps could enter the property for the limited purpose of investigating the contested activities. On March 24, 1986, the Corps conducted the planned visit, accompanied by David Ivester, attorney and representative for petitioners, and by representatives of the EPA, the USFWS, and the California Department of Fish and Game ("DFG"). During that visit, Ivester allowed the state and federal agencies' representatives to enter the farm and observe the area of the alleged violations outlined in the Corps letter, but refused to allow the agencies' representatives to collect soil samples or conduct tests in order to determine whether the property was a "wetland" under the provisions of the CWA.

The EPA representatives accompanied the Corps on the March 24 visit, at the Corps request, for the express purpose of providing "technical support and expertise in determining" the existence of wetlands on the property and determining "the extent of federal jurisdiction" over petitioners' property under the CWA. Declaration of Thomas G. Yocom, filed Aug. 20, 1986, (hereinafter "Yocom Declaration") at 6, ¶ 11. Representatives of the DFG and the USFWS accompanied the Corps and the EPA, at the Corps request, in order to render assistance in identifying "wetland plants and animal life on the site" that would indicate whether the area was a wetland under the provisions of the CWA. Id. at 7, ¶ 14. The Corps and the EPA wished to make the technical determination of the wetland status of petitioners' property in order to determine the existence and extent of petitioners' violations of the CWA, as well as to determine the federal jurisdiction over petitioners' property under the CWA. If wetlands existed on the property, the agencies wanted to ensure that wetland vegetation and habitat were not being destroyed in order to prepare for future development of the farm.

After viewing the site of the alleged violations of the CWA, but without being allowed to take soil samples or conduct tests, the agencies' representatives ended the March 24 visit and left petitioners' property. After the visit, the Corps again contacted the EPA, and "requested the EPA's assistance in obtaining access to the petitioners' property for purposes of making a final technical determination as to the extent and location" of wetlands on the property. Yocom Declaration at 7, ¶ 13. The EPA agreed, and the Corps and the EPA contacted petitioners again and informed them that they wished to have access to the property in order to conduct a "jurisdictional" determination of the wetland status of the property. Petitioners refused, and stated that they would oppose any efforts in the courts seeking to gain access to the property for such a determination.

Soon after this exchange, in May 1986, a representative of the Corps learned that a game warden of the DFG, Warden David Fox, had observed the lessee farmer dumping and spreading fill material in the fall of 1984 on the same potential wetland areas that the EPA and the Corps had examined in their March 24, 1986, visit. Reynolds Declaration at 9-10, ¶ 14. The DFG warden, who had monitored petitioners' property since 1981, stated that the farmer had "not disced or plowed those particular fields between the fall of 1981 and the fall of 1984." Declaration of David Fox, filed Aug. 20, 1986 (hereinafter "Fox Declaration"), at 2 ¶ 4. Rather than "merely plowing and discing" those areas for routine farming in the fall of 1984, as petitioners have claimed the farmer was doing, the game warden stated that he observed the farmer using "graders and a bulldozer ... to spread earthen fill ... brought onto the property and dumped from large earthmoving trailer trucks." Id. at 2, ¶ 5. In the eyes of the warden, "the fill was being spread to raise the elevation and to contour the surface of the low-lying areas" where there had previously been significant wetland vegetation. Id.

The warden stated that he had returned to the site a few weeks later, still in the fall of 1984, and had observed that the farmer had covered the wetland vegetation completely, contoured the property to drain away any standing water, altered and deepened the nearby drainage ditch, and removed vegetation from the drainage ditch. Id. at 2-3, ¶ 6. The purpose of these various activities apparently was to turn these potential wetland areas into nonwetland property.

Petitioners' have since claimed that the activity observed by DFG Warden Fox was merely the farmer fertilizing certain fields. Petitioners allege that the farmer was dumping manure transported by dump trucks stored on the property, and then spreading the manure for crop fertilization with a grader. Petitioners' Memorandum at 31. However, petitioners' have failed to convincingly address the warden's statement that he observed several large trailertrucks and graders dumping and spreading large amounts of fill on the property. Even more important, petitioners have failed to convincingly refute the warden's statement that a few weeks later the area had been extensively graded and contoured, significant amounts of wetland vegetation had been covered up or destroyed, and new drainage ditches had been constructed, all with the apparent purpose of draining existing wetlands.

The EPA and the Corps redoubled their efforts to gain access to petitioners' property after receiving notice of DFG Warden Fox's observations. Shortly thereafter, on August 15, 1986, the EPA received information that still another DFG warden had observed unusual...