U.S. v. Johnson

• Decision Date: 13 February 2006
• Docket Number: No. 05-1444.,05-1444.
• Citation: 437 F.3d 157
• Parties: UNITED STATES, Plaintiff, Appellee, v. Charles JOHNSON, Genelda Johnson, Francis Vaner Johnson, and Johnson Cranberries, LLP, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

437 F.3d 157

UNITED STATES, Plaintiff, Appellee, v. Charles JOHNSON, Genelda Johnson, Francis Vaner Johnson, and Johnson Cranberries, LLP, Defendants, Appellants.

No. 05-1444.

United States Court of Appeals, First Circuit.

Heard October 7, 2005.

Decided February 13, 2006.

COPYRIGHT MATERIAL OMITTED

Malcolm Reed Hopper, with whom Gregory T. Broderick was on brief for appellants.

John L. Smeltzer, with whom Kelly A. Johnson, Acting Assistant Attorney General and Ellen Durkee, Attorney, Department of Justice Environment & Natural Resources Division, were on brief for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO,^* District Judge.

LIPEZ, Circuit Judge.

In December 1999, the United States filed a civil action against Defendants, claiming that they had discharged pollutants into federally-regulated waters without a permit in violation of provisions of the Clean Water Act in the operation of their cranberry farm. Defendants challenged the United States' jurisdiction over the properties in question. In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government, reasoning that "there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands [the Johnsons' properties] are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries."

Defendants appeal the district court's judgment that the jurisdiction of the Clean Water Act extends to their property. They assert that their property is not covered by the regulation promulgated by the Environmental Protection Agency (the "EPA") in conjunction with the United States Army Corps of Engineers (the "Corps"), to carry out the mandate of the Clean Water Act, as interpreted by the EPA and the Corps. In the alternative, if their property is covered by the regulation, Defendants contend that either the regulation exceeds the authority granted by the Act, or the Act exceeds Congress' authority under the Commerce Clause. These contentions require us to determine whether the government's exercise of jurisdiction over the three parcels of land at issue complies with constitutional, statutory, and regulatory requirements. This opinion concludes that it does.

I.

A. Standards of Review

Review of a district court's grant of summary judgment is de novo. Johnson v. Gordon, 409 F.3d 12, 16 (1st Cir.2005). Review of an agency's interpretation of the statute that it administers is also de novo, subject to established principles of deference. See Perez-Olivio v. Chavez, 394 F.3d 45, 48 (1st Cir.2005). Constitutional challenges to a statute are also reviewed de novo. United States v. Lewko, 269 F.3d 64, 67 (1st Cir.2001).

B. Procedural Background

The United States (or "the government") brought this action in November 1999 to address alleged violations of the Clean Water Act (the "CWA" or the "Act"), 33 U.S.C. § 1241 et seq., by a group of cranberry farmers — Charles Johnson Genelda Johnson, Francis Vaner Johnson, and Johnson Cranberries, Limited Partnership (collectively, the "Johnsons" or "Defendants"). It asserted that the Johnsons discharged dredged and fill material¹ into wetlands at three sites in Carver, Massachusetts, without a permit issued pursuant to § 404 of the CWA, 33 U.S.C. § 1344, in violation of § 301(a) of the CWA, 33 U.S.C. § 1311. In February 2004, following extended discovery, the government filed a motion for summary judgment on liability. In May 2004, the district court granted the government's motion, expressly adopting as the bases for its ruling "the arguments set forth in the United States' Memorandum in Support of Its Motion for Summary Judgment on Liability."

In November 2004, the government filed a motion for summary judgment on remedy. On January 15, 2005, the district court issued a final order granting the government's motion and ordering the requested relief. On January 27, 2005, the Johnsons filed a motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. In February 2005, the district court issued an order denying the Johnsons' motion, stating that:

there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.

This appeal followed.²

C. Factual Background

The property at issue involves three sites in Carver, Massachusetts: (1) the Cross Street site; (2) the Fosdick Street site; and (3) the Forest/Fuller Street site (collectively, the "target sites"). These sites are "hydrologically connected" to the Weweantic River, a "navigable-in-fact"³ waterway that flows south from Carver, Massachusetts, to Wareham, Massachusetts, where it empties into Buzzards Bay and the Atlantic Ocean. "Hydrologically connected" here means that water from the three sites eventually drains into the Weweantic River. Consequently, any pollutants discharged on or from the target sites would reach the Weweantic River through this hydrological connection.

The government introduced the testimony of a number of experts in support of its Motion for Summary Judgment on Liability. These experts had reviewed topographic and other maps, aerial photographs, and EPA reports, and had performed visual inspections to reach their conclusion that the targets sites are hydrologically connected to the Weweantic River. Defendants do not dispute this conclusion; in fact, the government's experts relied on some of the testimony and analysis of Defendants' expert in reaching their conclusion.

As will become apparent later in the discussion, the particular bodies of water that form the connection between the target sites and the Weweantic River are vital to the question of whether the exercise of CWA jurisdiction is valid. Each target site is immediately adjacent to, i.e. connected to, a stream, creek, or ditch; and every wetland, bog, or swamp in the chain of waters connecting the target sites to the Weweantic River is also immediately adjacent to a stream, creek, ditch, or pond.

Defendants do not dispute either the factual descriptions of the target sites or the waters that link the target sites to the Weweantic River. Defendants' arguments on appeal are purely legal.

1. The Weweantic River

The Weweantic River is formed by the merging of two brooks: the Rocky Meadow Brook and the South Meadow Brook. Water from the target sites — after it travels through a number of intermediary waters — makes its way into these brooks a short distance before the two brooks join and form the Weweantic. Prior to the Johnsons' actions on the target sites, water from the target sites had surface water (as distinguished from ground water⁴) hydrological connections to the Weweantic River via the Rocky Meadow or South Meadow Brooks.

2. The Cross Street site

Prior to the Johnsons' activities, the Cross Street site contained an area of forested wetlands in the north and an area of grassy marsh and scrub-shrub wetlands in the south. The northern wetlands drained into an unnamed stream/ditch that flowed across the site and into Beaver Dam Brook. The southern wetlands were adjacent to Beaver Dam Brook and were part of a larger wetland area that stretches to South Meadow Brook. The southern wetlands drained into either Beaver Dam Brook or to South Meadow Brook. Beaver Dam Brook joins South Meadow Brook just south of the Cross Street site. Therefore, in summary, water from the Cross Street site drains into an unnamed stream/ditch, which in turn drains into another stream/ditch (Beaver Dam Brook and/or South Meadow Brook), which in turn flows into the navigable-in-fact Weweantic River.

3. The Fosdick Street site

The Fosdick Street site lies north of the Cross Street site. Prior to the Johnsons' activities, the site contained a shallow reservoir formed by the historic impoundment of the confluence of two unnamed streams, one perennial, the other intermittent. The site also contained forested wetlands along the two streams, and scrub-shrub wetlands near the reservoir. All of these wetlands drained into an unnamed perennial stream that flowed through cranberry bogs south of the reservoir and then into a pond. The pond drains through a channel to Rocky Meadow Brook, and then into the Weweantic River. Therefore, in summary, water from the Fosdick Street site flows from the wetlands into a stream, into another wetland, then into a pond, into a channel, into another stream (Rocky Meadow Brook), and finally into the navigable-in-fact Weweantic River.

4. The Forest/Fuller Street site

The Forest/Fuller Street site lies north of the Fosdick Street site. Prior to the Johnsons' activities, the site contained forested, shrub, and shrub/emergent wetlands, all surrounding an existing cranberry bog ("Bog A"). Bog A and the surrounding wetlands drain into an unnamed stream, which in turn flows into the Log Swamp Reservoir. From there, water moves through another bog system into a stream that travels through a wetland and into a pond. Water then flows from the pond through another bog system, and then into the Rocky Meadow Brook, which flows into the Weweantic. Therefore, in summary, water flows from the Forest/Fuller site through a stream, a reservoir, a bog, another stream, a wetland, a pond, another bog, a third stream (Rocky Meadow Brook), and then finally into the navigable-in-fact Weweantic River.

5. The Johnsons' activities

At various times between 1979 and 1999, the Johnsons and their agents discharged dredged and fill material at all three of the target sites in order to construct, expand, and maintain cranberry bogs. The Johnsons did not obtain permits from the Corps for these discharges pursuant to 33 U.S.C. § 1344. Defendants do not dispute their activities on the target sites, nor their failure to obtain a permit from the Corps for those activities.

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