U.S. v. Deaton

Decision Date28 October 1999
Docket NumberNo. 98-2256,PLAINTIFF-APPELLANT,98-2370,PLAINTIFF-APPELLEE,DEFENDANTS-APPELLEES,DEFENDANTS-APPELLANTS,98-2256
Citation209 F.3d 331
Parties(4th Cir. 2000) UNITED STATES OF AMERICA,, v. JAMES S. DEATON; REBECCA DEATON, ENVIRONMENTAL DEFENSE FUND, INCORPORATED; AMERICAN FARM BUREAU FEDERATION; PACIFIC LEGAL FOUNDATION; THE CHESAPEAKE BAY FOUNDATION, INCORPORATED, AMICI CURIAE. UNITED STATES OF AMERICA,, v. JAMES S. DEATON; REBECCA DEATON, ENVIRONMENTAL DEFENSE FUND, INCORPORATED; AMERICAN FARM BUREAU FEDERATION; PACIFIC LEGAL FOUNDATION; THE CHESAPEAKE BAY FOUNDATION, INCORPORATED, AMICI CURIAE. . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeals from the United States District Court for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge. (CA-95-2140-MJG) Argued: Ethan Gregory Shenkman, Environment & Natural Resources Division, United States Department OF Justice, Washington, D.C., for Appellant. Raymond Stevens Smethurst, Jr., Adkins, Potts & Smethurst, L.L.P., Salisbury, Maryland, for Appellees.

ON Brief: Lois J. Schiffer, Assistant Attorney General, Lynne A. Battaglia, United States Attorney, James C. Howard, Assistant United States Attorney, David C. Shilton, Environment & Natural Resources Division, United States Department OF Justice, Washington, D.C., for Appellant. Duane J. Desiderio, National Association OF Homebuilders, Washington, D.C.; Virginia S. Albrecht, Hunton & Williams, Washington, D.C., for Appellees. Timothy D. Searchinger, Environmental Defense Fund, Washington, D.C., for Amicus Curiae Environmental Defense Fund. John J. Rademacher, General Counsel, American Farm Bureau Federation, Park Ridge, Illinois; Timothy S. Bishop, Jeffrey W. Sarles, Mayer, Brown & Platt, Chicago, Illinois, for Amicus Curiae Farm Bureau. Robin L. Rivett, Anne M. Hayes, Pacific Legal Foundation, Sacramento, California, for Amicus Curiae Pacific Legal Foundation. Roy A. Hoagland, Virginia Staff Attorney, The Chesapeake Bay Foundation, Inc., Richmond, Virginia, for Amicus Curiae Chesapeake Bay Foundation.

Before Wilkinson, Chief Judge, and Luttig and Michael, Circuit Judges.

Reversed in part, dismissed in part, and remanded by published opinion. Judge Michael wrote the opinion, in which Chief Judge Wilkinson and Judge Luttig concurred.

OPINION

Michael, Circuit Judge

The United States sued James and Rebecca Deaton, alleging that they violated §§ 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311, 1344, by sidecasting dredged material as they dug a drainage ditch through a wetland. The district court ultimately awarded summary judgment to the Deatons, and the government appeals. We reverse, holding that sidecasting in a jurisdictional wetland is the discharge of a pollutant under the Clean Water Act. We dismiss the Deatons' cross-appeal for lack of appellate jurisdiction.

I.

On November 22, 1988, James Deaton signed a contract to buy a twelve-acre parcel of land in Wicomico County, Maryland, subject to the condition that it was suitable for developing a small residential subdivision. Deaton immediately applied to the Wicomico County Health Department for a sewage disposal permit for a five-lot "single family subdivision." The Health Department denied the permit on April 26, 1989, because the groundwater elevations were unacceptably high at the disposal sites proposed by Deaton and his consultant. The department commented that "[t]he majority of the parcel... is very poorly drained and would severely restrict the function of the onsite sewage disposal systems." There was a "very limited area" that might warrant evaluation, the department said, if it proved to be within the property boundary. In late April 1989, after the permit was denied, Deaton contacted the U.S. Department of Agriculture, Soil Conservation Service (SCS), to discuss the wetness problem on the twelve-acre parcel. Deaton was referred to Glen Richardson, who agreed to examine the site. According to Deaton, Richardson suggested that the problem could be corrected by digging a ditch through the middle of the property. Deaton and his wife (Rebecca) decided to go ahead with the purchase of the land, and title was transferred to them in June 1989.

Before any ditching work began, the property was also inspected by Michael Sigrist, District Conservationist at the SCS in Wicomico County. Deaton and Sigrist walked over the property together, and Deaton told Sigrist that he wanted to dig a large ditch to drain the area. Sigrist saw hydric soils (which are typical of wetland areas), areas of standing water, "a large, low wet area" in the center of the parcel, and non-tidal wetlands. Water was flowing from the property into a culvert that connects to (or is part of) Perdue Creek. (The waters of Perdue Creek end up in the Wicomico River, a tributary of the Chesapeake Bay.) Sigrist advised Deaton that a large portion of his property contained non-tidal wetlands and that he would need a permit from the U.S. Army Corps of Engineers (the Corps) before undertaking any ditching work. Deaton ignored Sigrist's advice and hired a contractor to dig a drainage ditch across the property. Using a back hoe, a front-end track loader, and a bulldozer, the contractor dug a 1,240 foot ditch that intersected the areas that Sigrist had identified as wetlands. As he dug, the contractor piled the excavated dirt on either side of the ditch, a practice known as sidecasting.

In July 1990 the Corps learned of possible Clean Water Act violations on the Deaton property. A Corps ecologist, Alex Dolgos, inspected the site and concluded that it contained wetlands, that those wetlands were "waters of the United States" under the Clean Water Act, and that the ditching and fill work that had taken place required a permit. On August 7 and 8, 1990, the Corps issued stop-work orders to Deaton and his contractor, warning them that their placement of fill material in a non-tidal wetland violated § 404 of the Clean Water Act, 33 U.S.C. § 1344, and that no further work should be done without a permit. Deaton filed a joint state and federal application in December 1990, seeking permits to ditch and fill wetlands in order to construct an eighteen-lot subdivision. That application was returned as incomplete on February 15, 1991, and was never resubmitted. Over the next three years Deaton engaged several consultants to inspect the property, negotiate with the Corps, and prepare a remediation plan. No remediation ever took place, however, and on July 21, 1995, the government filed a civil complaint alleging that the Deatons had violated the Clean Water Act by discharging fill material (the dirt excavated from the ditch) into a regulated wetland.

The government moved for partial summary judgment, seeking rulings that jurisdictional wetlands (waters of the United States) existed on the property, that the Deatons had violated the Clean Water Act by filling those wetlands, and that the Deatons were therefore liable for the restoration of the property and subject to civil penalties. The Deatons cross-moved for summary judgment, asserting that the portions of the property affected by the fill material were not wetlands under the Corps' regulations, that the property was not a wetland adjacent to waters of the United States (and thus was not subject to the Clean Water Act), see 33 C.F.R. § 328.3, and that sidecasting dirt excavated from a ditch in a wetland did not require a permit under the Act. On September 22, 1997, the district court granted partial summary judgment to the government, holding that any wetlands on the property were subject to the Clean Water Act and that sidecasting excavated material into those wetlands was the discharge of a pollutant under the Act. The Deatons' motion for summary judgment was denied. According to the district court, further proceedings would be necessary to determine the size and location of any wetlands on the Deaton property.

On December 23, 1997, this court decided United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). One issue in that case was whether sidecasting in a wetland without a permit violated the Clean Water Act. The panel split three ways, with one judge concluding that sidecasting did not constitute the discharge of a pollutant under the Act, one judge concluding that it did, and one judge concurring in the judgment without reaching the sidecasting question. After Wilson was decided, the district court reconsidered its award of partial summary judgment to the government. In a subsequent order (entered June 23, 1998) the district court noted that although it agreed with the judge in Wilson who said that unauthorized sidecasting in a wetland is against the law, see Wilson, 133 F.3d at 266-75 (op. of Payne, J.), it predicted that this court would adopt the reasoning of the judge who concluded that sidecasting is not the discharge of a pollutant, see Wilson, 133 F.3d at 258-60 (op. of Niemeyer, J.). On that analysis the district court vacated its prior determination that sidecasting is the discharge of a pollutant under the Act; it then granted summary judgment for the Deatons.

The government now appeals the judgment awarded to the Deatons, and the Deatons cross-appeal the district court's (earlier) September 22, 1997, rulings (1) that the Corps properly applied its criteria for determining the presence of wetlands on the Deaton property and (2) that any wetlands on the property are subject to the Clean Water Act. For the reasons discussed below, we hold that sidecasting is the discharge of a pollutant that violates the Act. Our disposition of the sidecasting issue requires a remand and restores the case to its status as of the September 22, 1997, order. Because the September 22, 1997, order is non-final and non-appealable, we lack jurisdiction to consider the issues raised by the Deatons in their cross-appeal.

II.

The Clean Water Act prohibits the discharge, without a permit, of any pollutant...

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