U.S. v. Fabian

• Decision Date: 29 March 2007
• Docket Number: No. 2:02-CV-495.,2:02-CV-495.
• Citation: 522 F.Supp.2d 1078
• Parties: UNITED STATES of America, Plaintiff, v. Rowland A. FABIAN, Defendant. Rowland A. Fabian, Third-Party Plaintiff, v. Northern Indiana Public Service Company, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Indiana

522 F.Supp.2d 1078

UNITED STATES of America, Plaintiff, v. Rowland A. FABIAN, Defendant.

Rowland A. Fabian, Third-Party Plaintiff, v. Northern Indiana Public Service Company, Third-Party Defendant.

No. 2:02-CV-495.

United States District Court, N.D. Indiana, Hammond Division.

March 29, 2007.

Order Denying Reconsideration October 5, 2007.

Andrew J. Doyle, U.S. Department of Justice, Washington, DC, Carol A. Davilo-AUSA, Wayne T. Ault-AUSA, U.S. Attorney's Office, Hammond, IN, for Plaintiff.

Catherine L. Molnar-Boncela, Gouveia & Associates, Merrillville, IN, Patrick A. Mysliwy, Maish and Mysliwy, Hammond, IN, for Defendant/Third-Party Plaintiff.

Paul A. Rake, Robert J. Feldt, Eichhorn & Eichhorn, Hammond, IN, for Third-Party Defendant.

OPINION AND ORDER

RUDY LOZANO, District Judge.

This matter is before the Court on the: (1) Defendant's Motion for Summary Judgment to Dismiss Complaint, filed by Defendant, Rowland A. Fabian, on August 24 2005; (2) the United States' Motion for Summary Judgment and Memorandum of Law in Support, filed by Plaintiff, the United States of America, on August 24, 2005 (with a version corrected for scrivener's errors filed on August 30, 2005); and (3) Defendant's Request for Oral Argument on Motions for Summary Judgment, filed by Defendant, Rowland A. Fabian, on October 3, 2005. For the reasons set forth below, Fabian's motion for summary judgment is DENIED and the United States' cross-motion for summary judgment is GRANTED IN PART AND DENIED IN PART. The United States' motion for summary judgment is GRANTED with regards to liability, and DENIED WITH LEAVE TO REFILE with regards to the United States' request for injunctive relief and a civil penalty. Defendant's Request for Oral Argument is DENIED. This matter is set for a status conference at 9:00 a.m. on April 20, 2007 to discuss appropriate deadlines for addressing the damages issues that remain between Fabian and the United States.

BACKGROUND

On December 12, 2002, Plaintiff, the United States of America, filed suit against Defendant, Rowland Fabian, under the Clean Water Act ("CWA"), 33 U.S.C. section 1251 et seq., for damages and/or a remediation order pursuant to 33 U.S.C. section 1319 regarding real estate owned by Fabian, located in Lake and Porter County, Indiana ("Fabian Land"). (Complaint ¶ 1). The gist of the United States' complaint is that Fabian engaged in certain grading and filling activities on land that the United States claims are wetlands because they are adjacent to Burns Ditch (or the Little Calumet River), which is a tributary of navigable waters, including Lake Michigan and the Mississippi River. (Compl. ¶¶ 19-22). On May 15, 2003, Fabian filed a two-count third-party complaint naming Northern Indiana Public Service Company ("NIPSCO") as a third-party defendant.

Fabian moved for summary judgment on August 24, 2005. In his motion, Fabian argues that the Court should dismiss the complaint in its entirety because (1) the United States does not have jurisdiction to regulate the activities on the Fabian Land because there is no surface water connection to Burns Ditch or any other navigable waters of the United States; and (2)even if the land was determined to be wetlands, the areas would be "isolated wetlands," which would lie solely within the control of the State of Indiana, not the United States.

The United States also filed a motion for summary judgment on August 24, 2005. The United States argues that Fabian is liable under Count I of the complaint, for violation of section 1311, because he added a pollutant from a point source into the waters of the. United States without a permit. The United States argues that Fabian's leveling and grading work added pollutants into the waters of the United States because the wetlands that Fabian filled were "adjacent" to a navigable body of water, and thus qualify as "waters of the United States" under 33 U.S.C. section 1362(7). The United States also argues that Fabian is liable under Count II of the complaint, for violation of section 1319(d), because he violated a valid order issued by the United States Environmental Protection Agency ("EPA"). Finally, the United States contends that injunctive relief is appropriate, the Court should order restoration of the filled wetlands, and that Defendant should pay a substantial civil penalty.

On March 7, 2006, this Court issued an order staying ruling on the instant motions until the Supreme Court issued its decision in Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir.2004). The parties were given 45 days to submit supplemental briefs following the Supreme Court's decision in Carabell. The Supreme Court consolidated the cases of Rapanos v. United States and Carabell v. United States, and issued its decision on June 19, 2006. Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). After extensions of time to file supplemental briefs were granted, supplemental briefs were filed on August 3, 2006, August 17, 2006, and August 31, 2006. Additionally, the United States filed a notice of supplemental authority on September. 25, 2006, to which Fabian responded on September 29, 2006. After protracted briefing, this case is now fully briefed and ripe for adjudication.

DISCUSSION

The standards that generally govern summary judgment motions are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Carp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the record must reveal that no reasonable jury could find for the nonmovant. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, a court must view all facts in the light most favorable to the nonmovant. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 583 (7th Cir.1994).

The burden is upon the movant to identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," if any, that the movant believes demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the movant has met this burden, the nonmovant may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir.1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

"[A] party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988) (emphasis in original); see also Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir.1993). Therefore, if a party fails to establish the existence of an essential element on which the party bears the burden of proof at trial, summary judgment will be appropriate. Where the parties file cross-motions for summary judgment, the Court must consider each motion, but despite the parties' agreement that no genuine issue of material fact exists, the Court can deny all motions if the parties do not establish their rights to judgment as a matter of law. Grabach v. Evans, 196 F.Supp.2d 746, 747 (N.D.Ind.2002).

Factual Overview¹

Fabian is the sole beneficiary of a trust that owns a 30-acre parcel of real estate in Lake Station, Lake County, Indiana. The United States contends that this land contains wetlands, a contention which Fabian denies. The Little Calumet River (also known as the Burns Ditch), borders the Fabian Land on the southern and eastern end. There is some dispute among the parties regarding whether this body of water is navigable in fact. It is, however, undisputed that it is a tributary to other navigable in fact bodies of water because it shares a surface water connection with Lake Michigan, the Des Plaines River, Illinois River, and Mississippi River. (U.S. Ex. 5, p. 3; U.S. Ex. 1, pp. 24-27; U.S. Ex. 6, p. 1-2.)

It is also undisputed that Fabian's Land is separated from the surface waters of Burns Ditch by an approximately 15 foot high and 130 feet wide levee of Burns Ditch. (U.S. Ex. 8, p. 5; Fabian Aff., ¶¶ 16-18.) It is undisputed that Fabian's land has no surface water connection to Burns Ditch or any navigable waters of the United States because of the elevation of the berm. (See United States' Resp. to Det's First Request for Admissions Nos. 1, 3, 4 & 5; U.S. Ex. 8.) "The levee prevents direct runoff of surface water from the site to the Little Calumet River." (U.S. Ex. 8, p. 6.) Nevertheless, the United States contends that the wetlands allegedly present on Fabian's land contribute to the base flow of the Little Calumet River. (U.S. Ex. 5, p. 7).

In 1997, a state agency expressed interest in acquiring the Fabian land to construct a facility. (U.S. Ex. 7 at 2, ¶ 4). The prospective buyer hired an environmental engineering consulting firm to determine if wetlands were present. (U.S. Ex. 7 at 1-2, ¶¶ 1, 4). The inspector, Robert Wolfe ("Wolf...