U.S. v. Buday, CR 00-19-BU-DWM.

• Decision Date: 11 April 2001
• Docket Number: No. CR 00-19-BU-DWM.,CR 00-19-BU-DWM.
• Citation: 138 F.Supp.2d 1282
• Parties: UNITED STATES of America, Plaintiff, v. Mitch BUDAY, Defendant.
• Court: U.S. District Court — District of Montana

138 F.Supp.2d 1282

UNITED STATES of America, Plaintiff, v. Mitch BUDAY, Defendant.

No. CR 00-19-BU-DWM.

United States District Court, D. Montana, Butte Division.

April 11, 2001.

W. Keith Goody, Attorney at Law, Jackson, WY, for Mitch Buday defendant.

Kris A. McLean, Office of the U.S. Attorney, Missoula, MT, for plaintiff.

ORDER

MOLLOY, Chief Judge.

I. Factual & Procedural Background

Fred Burr Creek wends its way through a small segment of southwestern Montana. "Creek" is a seasonal misnomer; during spring runoff, Fred Burr Creek thunders through its broad valley at a deafening roar. See Gov't Ex. 8 (videotape). The Creek is too wide to jump across, up to 20 or 30 feet wide in some locations, and approximately six inches to two or three feet deep, depending on location and time of year. See Transcript of Hearing, March 29-30, 2001 ("Tr."), at 19, 54, 67. While its level of flow varies, there is always water in the Creek. Tr. at 54-55, 57, 60.¹

Fred Burr Creek once sustained a population of several hundred people. Tr. at 16-17, 68-69. In the late 1880's, the Creek powered the Rumsey Mill, which was in operation for only a few years, Tr. at 72-73, and also supplied water for the townsfolk and for tailings ponds. Fred Burr Creek was also diverted to assist in powering two other mills — the Granite Mill and the Bimetallic Mill — in the next drainage over from its native bed. Tr. at 69; Def. Ex. 506. The Creek destroyed the tailings ponds in its own drainage in the flood of 1908, pushing 20,000 to 40,000 tons of debris downstream to Flint Creek. Tr. at 67. Tailings from other mining camps — the Londonderry Mill and the Moonlight Mine, in addition to the Bimetallic and Granite mills — probably also washed into Flint Creek in that year. See Def. Ex. 506. Flint Creek flows into the Clark Fork River. The Clark Fork carried a tremendous volume of debris downstream from the Butte mines. Tr. at 89, 90.

Today, at Milltown, Montana, impounded behind the first dam on the Clark Fork, lie more — by some estimates, a lot more — than 6 million tons of heavy metals debris. Tr. at 104. Arsenic and mercury are two of the principal and most dangerous contaminants that now lie behind the dam. Tr. at 91. Some estimates place Flint Creek's contribution to the total tonnage of toxic waste in the Clark Fork at Milltown Dam at 43%. Tr. at 103.

Roughly 190 miles downstream,² at the town of Clark Fork, Idaho, just across the Montana border, the Clark Fork River is navigable-in-fact,³ a few miles above the point where the River flows into Pend Oreille Lake. Gov't Ex. 7 (Army Corps of Engineers report on navigability), at ¶¶ 3 8. Emerging from the Lake,⁴ the Clark Fork flows north and west, meeting the Columbia River in northeastern Washington. The full proper name of the Clark Fork is "the Clark Fork of the Columbia River." Id. at ¶ 10. "Clark" is William Clark, Meriwether Lewis' traveling companion. See, e.g., Journals of Lewis & Clark, June 6, 1806 (entry of Captain Clark referring to "Clark River").

On August 11, 1996, Defendant Mitch Buday "used a bulldozer and an excavator to dig ponds" near Fred Burr Creek and "used the material to create berms" at the Mountain Valley subdivision site in Granite County, Montana. Change of Plea Transcript, Jan. 9, 2001, at 21. He knew he needed a permit from the Army Corps of Engineers. Id. at 23-24, 25. Fred Burr Creek runs through Mountain Valley, below the site of the old Rumsey Mill. Wetlands lie on either side of the Creek in that area. In the spring of 1997, Fred Burr Creek destroyed the berms, drained the ponds, scattered hay bales, dirt, and debris throughout the Valley, and pushed an unknown quantity of dirt and debris into Flint Creek. See Gov't Ex. 8.

It is extremely unlikely that any of the sediment dumped into Fred Burr Creek reached the Clark Fork at the time. Tr. at 97-98. The sediment would eventually reach the Pacific Ocean, if it were not blocked by dams or other artificial obstructions, but only in a "decade." Tr. at 103. Ranchers in the area reported, at the time the excavations began in 1996, that Fred Burr Creek was "running chocolate-milk colored." Tr. at 34-35.

Buday was indicted for Clean Water Act violations on October 17, 2000. On January 9, 2001, Buday pled guilty to an Information charging him with knowingly discharging pollutants, including dredge and fill material, "into navigable waters, including wetlands," in violation of the Clean Water Act (33 U.S.C. § 1311(a) and 1319(c)(2)(A)). At the plea colloquy, Buday and the Government were asked whether Fred Burr Creek is a "navigable water" within the meaning of the Clean Water Act. The parties agreed that it was.

Hours after Buday pled guilty, the United States Supreme Court decided Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). In that case, the Supreme Court held that seasonal ponds and wetlands, which were not adjacent to any navigable streams or tributaries and which lay entirely within one state's borders, could not be considered "navigable waters" within the meaning of the Clean Water Act solely because they were used as habitat by migratory birds. Id. at 680, 683-84.

In light of that case, the Court asked the parties to submit supplemental briefs on the following question: does the United States have jurisdiction to prosecute Mitch Buday? The briefs were submitted on January 26, 2001. Buday argued that Solid Waste Agency precluded federal jurisdiction over the offense to which he pled guilty. The Court construed Buday's brief as a motion to withdraw his guilty plea, pursuant to Fed.R.Crim.P. 32(e),⁵ and scheduled a hearing on the motion so construed for Thursday, March 29, at 9:00 a.m.

Currently pending before the Court are at least two other cases based, at least in part, on the same events. See United States v. Larry Zinger, CR 01-01-BU-DWM (Jan. 22, 2001); United States v. David Phillips, CR 01-07-BU-DWM (Mar. 7, 2001).

In this case, after considering all the evidence and arguments in light of Solid Waste Agency, I conclude the motion to withdraw should be denied. There is jurisdiction to prosecute this case in the United States District Court.

II. Analysis

The briefs discuss whether the wetlands adjacent to Fred Burr Creek are "waters of the United States" within the meaning of the Clean Water Act. No one disputes that the sites in question are "wetlands," and no one disputes that they are adjacent to and empty into Fred Burr Creek.⁶ Federal jurisdiction over wetlands is based on their being adjacent to "navigable waters." The real question here is whether Fred Burr Creek is a "navigable water" in the sense contemplated by Congress in the Clean Water Act.

Buday advances three arguments against federal jurisdiction. First, he contends that the statute does not extend federal jurisdiction to Fred Burr Creek and its environs. This argument is built on Solid Waste; in that case, the Supreme Court held that a regulation of the Army Corps of Engineers improperly expanded the agency's jurisdiction beyond the boundaries envisioned by Congress. Second, he argues that if Congress' intent is unclear, the statute must be narrowly construed to avoid constitutional difficulties that would be posed by the Government's proposed reading. Finally, in the event the Court finds that the Government correctly reads the statute, he invokes the Supreme Court's recent Commerce Clause jurisprudence to preclude the statute's extension to Fred Burr Creek.

The Government argues that Fred Burr Creek and the wetlands surrounding it fall squarely within interpretations of the Clean Water Act that predate Solid Waste Agency and that have been upheld by the Supreme Court in the past and, in dicta, even in Solid Waste Agency. I find the Government's position is persuasive on all issues.

A. Did Congress intend to reach Fred Burr Creek?

Buday's first argument is that the Corps' regulation defining "navigable waters" exceeds the scope of Congress' intent, because Congress did not intend to extend its jurisdiction over waters so slight and remote as those that flow in Fred Burr Creek. Contrary to Buday's argument, courts have been virtually unanimous in deciding that creeks like Fred Burr fall within the scope of the federal Clean Water Act.

1. The Clean Water Act and Interpretive Regulations

Congress defines "navigable waters" as "waters of the United States." 33 U.S.C § 1362(7). The Army Corps of Engineers defines "waters of the United States," in relevant part, as follows:

The term "waters of the United States" means

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters, including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purpose by industries in interstate commerce; ...

(5) Tributaries of waters identified in [subparagraphs (1), (2), and (3)] of this section; ...

(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in [subparagraphs (1), (2), (3), or (5)] of this section.

33 C.F.R. § 328.3(a).

2. The Migratory Bird Rule and Solid Waste Agency

The "Migratory Bird Rule," which drew the Court's fire and ire in Solid Waste Agency, arises out of 33 C.F.R. § 328.3(a)(3)(i)....