U.S. v. Rapanos

• Decision Date: 04 August 1997
• Docket Number: No. 95-2169,95-2169
• Citation: 115 F.3d 367
• Parties: , 27 Envtl. L. Rep. 20,961 UNITED STATES of America, Plaintiff-Appellant, v. John A. RAPANOS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 367

115 F.3d 367

44 ERC 2097, 27 Envtl. L. Rep. 20,961

UNITED STATES of America, Plaintiff-Appellant, v. John A. RAPANOS, Defendant-Appellee.

No. 95-2169.

United States Court of Appeals,

Sixth Circuit.

Argued March 21, 1997.

Decided May 28, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

4, 1997. ^*

Jennifer J. Peregord, (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellant.

John L. Wildeboer, (argued and briefed), David R. Skinner, Skinner & Wildeboer, Bay City, MI, for Defendant-Appellee.

Before: LIVELY, NELSON, and MOORE, Circuit Judges.

LIVELY, J., delivered the opinion of the court, in which MOORE, J., joined. DAVID A. NELSON, J. (pp. 375-78), delivered a separate dissenting opinion.

OPINION

LIVELY, Circuit Judge.

This appeal requires us to consider the "open fields" doctrine in an unusual setting. After two trials, the first ending in a mistrial, a jury found the defendant, John A. Rapanos, guilty of two counts of discharging pollutants into wetlands in violation of 33 U.S.C. § 1311(a) (1988). In response to the defendant's post-trial motion for acquittal or for a new trial, the district court granted a new trial upon concluding that it had made a reversible evidentiary ruling. Defense counsel had not objected to admission of the testimony that the court determined had been erroneously received, but the court found that it had committed plain error. The government appeals, and we now reverse.

I.

The defendant, John A. Rapanos, owns a large amount of real estate in Michigan, including the 175 acre parcel of land in Williams Township that is the subject of the present controversy (Salzburg Road Property). In 1988, Mr. Rapanos negotiated an option agreement with a developer that contemplated the construction of a shopping mall on the Salzburg Road Property. To make the property more attractive to the optionee, the defendant then spent over $300,000 in late-1988 and 1989 in order to clear the heavily-wooded property of trees and shrubs and to eradicate wetlands by filling them with sand.

On December 2, 1988, the defendant's attorney provided the Michigan Department of Natural Resources (DNR) with an outline of the defendant's plan for development and a survey of the property. The DNR responded by notifying Mr. Rapanos that the property appeared to contain wetlands and that, if this were true, a permit would be required before development could begin. As a follow-up to this correspondence, two DNR officials toured the property with the defendant and his attorney on March 1, 1989. The DNR inspectors determined that the property did in fact contain some wetlands and observed that "[t]he vegetation on much of the site had been scalped, removed by using either a bulldozer, or some other type of heavy equipment...." At the conclusion of the meeting, the DNR officials reiterated that a state permit would be required before any development could take place and informed Mr. Rapanos that he would have to obtain a "wetlands delineation" (a map showing the boundaries of wetlands areas on a parcel of land) before receiving that permit.

The defendant quickly hired a wetlands consultant, Dr. Glenn Goff, to prepare the wetlands delineation, telling him, according to Dr. Goff, to "get [the DNR] off my back." Over a period of several weeks Dr. Goff gathered information pertaining to the property, including soil and plant samples, on which he would base his delineation. When Dr. Goff reported his preliminary finding that the property contained nearly 50 acres of wetlands, however, Mr. Rapanos discharged him and allegedly ordered Dr. Goff to destroy his study materials and preliminary report. Dr. Goff testified that the defendant was enraged and exclaimed that "he'd destroy all those (expletive deleted) wetlands."

After firing Dr. Goff, the defendant continued to prepare the property for development. Charles Dodgers, an employee in the DNR's Land and Water Management Division, periodically visited the property during the spring and summer of 1989 and witnessed this preparation, which the government characterizes as "systematic wetlands destruction." On July 24, 1989, the DNR directed Mr. Rapanos to "cease further filling activities immediately, and to contact [the DNR] regarding your intent for this wetland parcel." When the defendant ignored this cease and desist order, the DNR eventually held two meetings with Mr. Rapanos to discuss the status of the property.

The first meeting occurred on August 22, 1989, when five DNR officials met the defendant at the boundary of his property. Although their trial testimony does not indicate precisely what they intended to accomplish at this "relatively short meeting," these officials apparently hoped to make a cursory inspection of the property to determine the extent to which it could be classified as wetlands and the extent to which unauthorized filling activity had already occurred. Steven Spencer, a DNR district supervisor present at the meeting, testified that, had they been granted access to the property, the DNR officials likely would have made a "wetlands determination" (a routine, generally visual inspection to determine whether a tract of land contains any wetlands). At any rate, all of the parties agree that the DNR did not plan to conduct a full-blown "wetlands delineation," which would have involved the taking of numerous soil and plant samples, among other things. Mr. Rapanos, in fact, testified that none of the DNR officials present had the "ability or capacity" to perform a delineation. Moreover, all of the parties agree that, whatever its purpose, the meeting ended when the defendant refused to allow the DNR officials onto the property without a search warrant.

The second meeting occurred on August 30, 1989, at the corporate headquarters of the defendant's Rapanos Investments Group. This meeting proceeded in much the same manner as the first, with Mr. Rapanos denying the officials access to the Salzburg Road Property. The DNR investigators ultimately obtained a search warrant, which they executed on November 7, 1989. At this point, they took numerous plant and soil samples and were able to document the presence of at least 28 acres of wetlands notwithstanding their significant degradation.

II.

A.

On April 13, 1994, a federal grand jury charged the defendant with knowingly discharging pollutants into wetlands in violation of 33 U.S.C. § 1311(a), stemming from the clearing and filling activities at the Salzburg Road Property. Although the defendant's first trial on these charges ended in a mistrial, some aspects of it--particularly the trial court's ruling regarding whether the defendant had a Fourth Amendment right to preclude a warrantless inspection of his property--are relevant to this appeal.

In its opening statement at the first trial, the government alluded to the defendant's refusal to allow a warrantless inspection of his property by DNR officials on August 22 and August 30, 1989. The government's first witness testified in greater detail about the defendant's refusal, which prompted the defense to object on the basis that this testimony constituted an improper comment on the defendant's assertion of his Fourth Amendment right to be free from unreasonable searches and seizures. The parties then submitted memoranda of law on the issue to the trial court, which, after reviewing these memoranda during a five minute break in the trial, ruled that the testimony was admissible. The defense later objected to Charles Dodgers's testimony about observations that he made during five warrantless entries onto the property during the spring and summer of 1989. The government responded that the objection was not timely because it should have been made in a motion in limine. The government also filed a brief with the court discussing the open fields doctrine and its relevance to Mr. Dodgers's inspections of the property. The court ultimately admitted the testimony on the basis that the defendant's suppression motion was not timely made. It is not clear whether the court considered the open fields argument. The case proceeded for several weeks after these rulings until a mistrial was declared due to juror scheduling problems.

After the mistrial, a grand jury re-charged the defendant with unlawfully filling wetlands in violation of 33 U.S.C. § 1311(a) in two counts of a four-count superseding indictment. Although the defendant obviously knew that the government would again seek to introduce testimony about the defendant's assertion of his alleged Fourth Amendment rights, he filed no motion in limine addressing the issue. The second trial began on February 1, 1995, and during this trial both parties examined witnesses during the government's case-in-chief about the defendant's refusal to allow the DNR officials onto his property without a search warrant. The defense did not object to the government's introduction of this evidence but rather cross-examined the government's witnesses. The August meetings were also discussed during the defendant's case-in-chief, especially when the defendant was cross-examined without objection about his conduct at these meetings. The following colloquy occurred during this cross-examination:

Q. And this August 30th meeting, again, you had not let the DNR on the property?

* * *

A. He [Jake Allan, the defendant's attorney] told him just point blank, you will not be allowed on the property.

Q. And you agreed with that?

A. He said you cannot go on the property without a search warrant, I think.

Q. And you said the same thing?

A. [not responsive]

Q. I would like you to answer the question, though. You also told the DNR that they could not go back on the property without a search warrant?

A. I didn't say those words.

Q. Words to that effect?

A. No.

Q. Since you were certain in your own mind that there were no wetlands there, why not let the DNR on the property?

A....