U.S. v. Larkins
Decision Date | 19 September 1988 |
Docket Number | No. 87-5300,87-5300 |
Citation | 852 F.2d 189 |
Parties | , 18 Envtl. L. Rep. 21,416 UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. LARKINS and Herbert M. Larkins, Defendants-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
J. William Phillips (argued), Murray, Ky., for defendants-appellants.
Joseph Whittle, U.S. Atty., Louisville, Ky., James L. Kerr, David C. Shilton (argued), Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Martin W. Matzen, for plaintiff-appellee.
Before MERRITT, KENNEDY and KRUPANSKY, Circuit Judges.
Defendants-appellants Thomas R. Larkins and Herbert M. Larkins (defendants) appealed from the district court's order permanently enjoining them from modifying "wetlands" 1 adjacent to the Obion Creek in Carlisle County, Kentucky, ordering them to restore wetlands they had earlier destroyed, and imposing a penalty of $40,000. 2 The record disclosed the following facts.
This action arose out of alleged violations of Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. Sec. 1311(a), which prohibits the discharge of pollutants, including fill dirt, into navigable waters of the United States and the fresh water wetlands adjacent thereto without first obtaining a permit from the Secretary of the Army, Army Corps of Engineers. 33 U.S.C. Sec. 1344(a). The defendants, brothers, acquired 550 acres of land in the flood plain of Obion Creek, a tributary of the Mississippi River 3 in Carlisle County, Kentucky in 1976. When they purchased the land, Thomas Larkins noted that 10-12 acres were covered with knee deep water. After acquisition of the land, the defendants dug drainage ditches, cut timber, blasted beaver dams, and began filling low spots. In 1980, the defendants began constructing dikes and levees on the land. On February 1, 1982, the Corps notified the defendants that its aerial inspection disclosed that the defendants had been discharging materials into approximately 110 acres of the land which the Corps believed were classified as wetlands subject to the CWA. The defendants nevertheless completed the dikes and levees. The levees formed an 18 acre impoundment or pond, which collected much of the water that previously saturated the land.
On February 10, 1984, the United States commenced the present action in the United States District Court for the Western District of Kentucky alleging CWA violations as a result of the construction of the dikes and levees. At trial, the government introduced a number of aerial photographs showing standing water on the land where the impoundment was eventually constructed and the land northeast thereof. The defendants acknowledged that much of this land was covered by standing water, but attributed that condition to beaver activity. Photographs taken in 1972 and 1979 also revealed that this area was forested and contained numerous sloughs and depressions which collected standing water.
The government presented three expert witnesses to identify the vegetation depicted in the various aerial photographs. These experts had been trained in identifying vegetation from aerial photographs by its "signature," i.e., the color, shade, tint, and texture of the vegetation. Martin Keller (Keller) testified that the area was "an area of black willow, buttonbush and several different species of herbaceous aquatic and semi-aquatic plants." Keller further testified that a 1980 photograph was "typical of the many thousands of similar sites that we have seen over the last 10 years of areas such as this, and in every case these areas have been classified as wetlands."
Thomas Welborn (Welborn) of the U.S. Environmental Protection Agency, testified that he had inspected the land in 1984 and discovered an undisturbed area of vegetation consisting of spike rush, wild millet, and nut sedge, all vegetation indicative of wetland conditions. Welborn testified that in a 1980 aerial photograph the signature of this area was the same as the area where the impoundment is now located and the land northeast thereof. Welborn therefore concluded that the entire area was wetlands in 1980.
In 1980, a forested area was located due east of what is now the impoundment which forest was subsequently cleared by the defendants. Expert David Parsons (Parsons) examined aerial photographs of this area and concluded that it was "palustrum forested broadleaf deciduous seasonally inundated wetlands."
Another government expert witness, Charles Newling (Newling), dug soil samples in 1984 in the northeast area and concluded from the reduced amount of oxygen in the soil that in the past 2,000 years the soil had developed under wetland conditions. Parsons acknowledged that this oxygen test was incapable of disclosing whether the area had been wetlands for the last 200 years. Welborn took a soil sample east of the impoundment and reached a similar conclusion. An official Carlisle County Soil Survey compiled by the U.S. Department of Agriculture in 1937 indicated that the entire area north and east of the impoundment was composed of Waverly and Falaya soils which are "hydric" or wetland soil types.
With regard to the land southwest of the impoundment, Newling testified that during a court ordered inspection of the land in May, 1985, he observed water marks or silt marks on the trees approximately 30 inches above ground level. Keller, Welborn, and Parsons all conducted a vegetation survey of this area and discovered that the predominant vegetation in this area was that which thrived in saturated soil ("group 1 vegetation") and that which could tolerate saturated soil ("group 2 vegetation"). 4
Newling conducted soil tests on this area of land and concluded that this soil also developed under wetlands conditions. Newling also observed that water filled the sample holes while he was taking samples in this area.
The defendants introduced the testimony of two local farmers who stated that flood waters on the property tended to drain away quickly. On cross-examination, both witnesses agreed that, before being purchased by the defendants, the land tended to be covered by standing water.
Following a bench trial, the district court found that the 110 acres in dispute were indeed wetlands subject to regulation under the CWA. The court further concluded that the defendants' construction activities were not entitled to the "farm exception" under 33 U.S.C. Sec. 1344(f) which exempts normal farming activity from the permit requirement so long as no "discharge of dredged or fill material into the navigable waters incidental to any activity [has] as its purpose bringing an area of the navigable waters into a use to which it was not previously subject...." 33 U.S.C. Sec. 1344(f)(2). The court determined that the defendants "constructed the dikes and levees for the purpose of bringing the wetlands adjacent to Obion Creek under cultivation, a use to which the site was not previously subject," and that they were not therefore entitled to the exemption. Their failure to obtain a permit before constructing the dikes and levees was, therefore, in violation of the CWA. United States v. Larkins, 657 F.Supp. 76 (W.D.Ky.1987). The defendants thereafter commenced this timely appeal.
On appeal, defendants first asserted that the district court erred in concluding that the land in question was "wetlands" as defined in 33 C.F.R. Sec. 328.3(b) prior to 1980 because the court failed to examine the amount and frequency of the soil's saturation, i.e., its "hydrology," in making its determination. This assignment of error is without merit. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court rejected the notion that 33 C.F.R. Sec. 328.3(b) required that land be frequently inundated to be considered wetlands and concluded that the regulation's only requirement was that "the saturation is sufficient to and does support wetland vegetation." 474 U.S. at 130, 106 S.Ct. at 461. The presence of vegetation that requires saturated soil conditions for growth and reproduction on land adjacent to a body of navigable water is sufficient to bring the land under the regulation's definition of "wetlands." 474 U.S. at 130-31, 106 S.Ct. at 461. See also United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1154 (1st Cir.1987) (), cert. denied, --- U.S. ----, 108 S.Ct. 1016, 98 L.Ed.2d 981 (1988). Accordingly, the district court properly found that the land adjacent to the Obion Creek was "wetlands" under 33 C.F.R. Sec. 328.3(b) because it was sufficiently saturated to and did support wetland vegetation. Furthermore, given the evidence summarized above, the finding that the land was sufficiently saturated to and did support wetland vegetation was not clearly erroneous. Fed.R.Civ.P. 52(a).
The defendants also argued that the district court erroneously concluded that they were not entitled to the "farm exception" under 33 U.S.C. Sec. 1344(f), which provides, in part:
(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material--
(A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;
* * *
* * *
is not prohibited by or otherwise subject to regulation under this Section....
(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to...
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