U.S. v. Rapanos, No. 03-1489.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtReeves
Citation376 F.3d 629
Docket NumberNo. 03-1489.
Decision Date26 July 2004
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John A. RAPANOS; Judith A. Nelkie Rapanos; Prodo, Inc.; Rolling Meadows Hunt Club; Pine River Bluff Estates, Inc., Defendants-Appellants.
376 F.3d 629
UNITED STATES of America, Plaintiff-Appellee,
v.
John A. RAPANOS; Judith A. Nelkie Rapanos; Prodo, Inc.; Rolling Meadows Hunt Club; Pine River Bluff Estates, Inc., Defendants-Appellants.
No. 03-1489.
United States Court of Appeals, Sixth Circuit.
Argued June 9, 2004.
Decided and Filed July 26, 2004.

Appeal from the United States District Court for the Eastern District of Michigan, Bernard A. Friedman, Chief Judge.

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COPYRIGHT MATERIAL OMITTED

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Katherine W. Hazard (argued and briefed), U.S. Department of Justice, Environment

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Division Appellate Section, Washington, D.C., for Plaintiff-Appellee.

David E. Dearing (argued and briefed), Indianapolis, IN, for Defendants-Appellants.

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

OPINION

REEVES, District Judge.


Plaintiff-Appellee United States brought suit against the Defendants pursuant to the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C. § 1251 et seq., commonly known as the Clean Water Act ("CWA"). Defendants-Appellants John Rapanos, Judith Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. appeal the district court's entry of judgment in favor of the United States. Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. are wholly owned by John and Judith Rapanos. For the reasons discussed below, we AFFIRM the judgment of the district court.

BACKGROUND

The Rapanos, through their wholly-owned companies, owned various parcels of land in Bay, Midland, and Saginaw Counties in Michigan. These parcels are known as the Salzburg, Hines Road, Pine River, Freeland, Mapleton, and Jefferson Avenue sites. The Rapanos were charged with illegally discharging fill material into protected wetlands at these sites between 1988 and 1997. The United States alleges that the Rapanos attempted to fill these wetlands to make the land more conducive to development.

I. The Salzburg Site

Before filling wetlands subject to CWA jurisdiction, a landowner must first obtain a permit from the Army Corps of Engineers ("Corps"). 33 U.S.C. § 1344. In December 1988, John Rapanos asked the state to inspect the Salzburg site in hope of obtaining a permit to construct a shopping center at this location. The state informed him that the site was likely a regulated wetland and sent him an application for the necessary permits. A state representative toured the site in March 1989, noting that the site probably contained wetlands but could be developed if the necessary permits were issued. Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report detailing the wetlands on the Salzburg site. Dr. Goff concluded that there were between 48 and 58 acres of wetlands on the site, presenting his findings in the form of a report and a map. Upset by the report, Mr. Rapanos ordered Dr. Goff to destroy both the report and map, as well as all references to Mr. Rapanos in Dr. Goff's files. However, Dr. Goff was unwilling to do so. Mr. Rapanos stated he would "destroy" Dr. Goff if he did not comply, claiming that he would do away with the report and bulldoze the site himself, regardless of Dr. Goff's findings.

In April 1989, workers began leveling the ground, filling in low spots, clearing brush, removing stumps, moving dirt, and dumping sand to cover most of the wetland vegetation. This activity caused Dr. Goff to note that the site now looked "like nothing more than a beach." In August 1989 the state attempted to inspect the Salzburg site, but was denied access.

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Three months later, authorities from the state returned, armed with a search warrant.

In 1991, a state representative returned to the Salzburg site, noting that the site had been "tiled" to drain subsurface water. When Mr. Rapanos refused to comply with an administrative compliance order issued by the Environmental Protection Agency ("EPA") (requiring him to immediately cease his filling of the Salzburg site), the EPA referred the matter to the Department of Justice.

II. The Hines Road Site

The Defendants undertook to expand drains, build roads, and fill the wetlands at the Hines Road site. However, in July 1992, the state issued a cease and desist letter to stop the ongoing activity. Mr. Rapanos did not reply to this letter. Thereafter, the state conducted an examination of the site pursuant to a search warrant in June 1994. In June 1997, the state returned to the site and noted that fill had been added to certain areas since the 1994 search. Accordingly, the EPA issued an administrative compliance order. The EPA alleges that Mr. Rapanos did not comply with this order.

III. The Pine River Site

Mr. Rapanos also hired contractors at the Pine River site to construct ditches, spread dirt and sand, construct roads, and clear vegetation. The state sent Mr. Rapanos a cease and desist order after an official observed that portions of the wetlands had been filled. The EPA issued an administrative compliance order in September 1997 after Mr. Rapanos refused to comply with the cease and desist order. The EPA alleges that Mr. Rapanos also did not comply with the administrative order.

IV. The Criminal Proceedings

Criminal charges were brought simultaneously with the instant civil action. In July 1994, the district court declared a mistrial in Mr. Rapanos' criminal trial. The trial was moved to Flint, Michigan and, on March 7, 1995, the jury in the second trial returned a guilty verdict on two counts. United States v. Rapanos, 895 F.Supp. 165, 166 (E.D.Mich.1995). Following trial, the district court granted Rapanos' motion for a new trial, finding that the court had improperly allowed the United States to pursue a line of questioning that was prejudicial to the defendant. Id. at 169-70. This court, however, determined that the line of questioning was not improper and reversed the district court's grant of a new trial and remanded for sentencing. United States v. Rapanos, 115 F.3d 367, 374 (6th Cir.1997). The district court sentenced Rapanos to three years probation and ordered him to pay a $185,000 fine. On appeal, this court affirmed the conviction but remanded for resentencing. United States v. Rapanos, 235 F.3d 256, 261 (6th Cir.2000).

The Supreme Court granted Rapanos' request for a writ of certiorari, vacating and remanding this court's order in light of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ("SWANCC"). Rapanos v. United States, 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001). Following remand from the Supreme Court, this court remanded the case to the district court for further consideration. United States v. Rapanos, 16 Fed.Appx. 345 (6th Cir.2001). On remand, the district court set aside the conviction, finding that the United States lacked jurisdiction in the wake of the Supreme Court's ruling in SWANCC. United States v. Rapanos, 190 F.Supp.2d 1011 (E.D.Mich.2002). On

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appeal, this court reversed the order of the district court, reinstated the previous conviction and remanded to the district court for resentencing. United States v. Rapanos, 339 F.3d 447, 454 (6th Cir.2003). A panel of this court determined that, despite the Supreme Court's decision in SWANCC, the United States retained jurisdiction over the wetlands at issue by virtue of the CWA.1 Recently, the Supreme Court denied Rapanos' petition for a writ of certiorari. Rapanos v. United States, ___ U.S. ___, 124 S.Ct. 1875, 158 L.Ed.2d 467 (2004).

V. The Civil Proceedings

The United States initiated this civil action in February 1994, confining its scope to the Salzburg site and naming only Mr. Rapanos as a defendant. In June 1996, the United States added Mrs. Rapanos to the complaint, as well as Prodo, Inc., a company owned by Mr. Rapanos. In February 1998, the United States amended its complaint to add allegations concerning the Hines Road and Pine River sites. Pine River Bluffs Estates was also added as a defendant.

Following a 13-day bench trial, the district court concluded that Rapanos had filled 22 of 28 acres of protected wetlands at the Salzburg site, 17 of 64 acres of protected wetlands at the Hines Road site, and 15 of 49 acres of protected wetlands at the Pine River site. The district court concluded that the government had established that 54 of the filled acres fit the three parameters for wetlands, i.e., vegetation, soils, and hydrology. In addition, the court found that the United States did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered these findings and conclusions on March 22, 2000.2

STANDARD OF REVIEW

Following a bench trial, this court reviews the district court's findings of fact for clear error and reviews its conclusions of law de novo. Pledger v. United States, 236 F.3d 315, 320 (6th Cir.2000). Factual determinations of a trial court are not clearly erroneous unless we are "left with the definite and firm conviction that a mistake has been committed." Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504.

DISCUSSION

On appeal, Rapanos argues that the district court erred when it (1) held that the disturbed wetlands were adjacent wetlands because they had a surface connection to waters of the United States; (2) failed to make subsidiary findings to support its conclusion that the Salzburg, Hines Road, and Pine River sites had a hydrological connection to navigable waters; (3) allowed plaintiff's expert Dr. Willard to testify;...

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25 practice notes
  • Rapanos v. U.S., No. 04-1034.
    • United States
    • United States Supreme Court
    • June 19, 2006
    ...Circuit held that the wetland was adjacent to navigable waters. Held: The judgments are vacated, and the cases are remanded. No. 04-1034, 376 F.3d 629, and No. 04-1384, 391 F.3d 704, vacated and JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO, concluded: [547 ......
  • U.S. v. Marion L. Kincaid Trust, No. 02-10149.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 3, 2006
    ...and the like are `adjacent wetlands.'" 33 C.F.R. § 328.3(c). This view was accepted by the Sixth Circuit. See United States v. Rapanos, 376 F.3d 629, 639-40 (6th Cir.2004), vacated by Rapanos v. United States, ___ U.S. ___, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In Marion Kincaid's letter ......
  • Marquette Cnty. Rd. Comm'n v. U.S. Envtl. Prot. Agency, File No. 2:15-CV-93
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 18, 2016
    ...government and the State of Michigan each have their own, separate and independent clean water regulations. See United States v. Rapanos , 376 F.3d 629, 646 (6th Cir.2004) (discussing the differing definitions of wetlands under Michigan and federal law), overruled on other grounds in Rapano......
  • List of Case Citations
    • United States
    • Wetlands deskbook. 4th edition Appendices
    • April 11, 2015
    ...United States, 190 F. Supp. 2d 1011 (E.D. Mich. 2002), rev’d , 339 F.3d 447 (6th Cir. 2003), cert. denied , 124 S. Ct. 1875 (2004), af’d , 376 F.3d 629 (6th Cir. 2004), vacated and remanded , 547 U.S. 715, 36 ELR 20116 (2006) .... 1, 16-23, 26-31, 35-47, 58-59, 74, 91, 103, 165, 174, 185, 2......
  • Request a trial to view additional results
20 cases
  • Rapanos v. U.S., No. 04-1034.
    • United States
    • United States Supreme Court
    • June 19, 2006
    ...Circuit held that the wetland was adjacent to navigable waters. Held: The judgments are vacated, and the cases are remanded. No. 04-1034, 376 F.3d 629, and No. 04-1384, 391 F.3d 704, vacated and JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO, concluded: [547 ......
  • Marquette Cnty. Rd. Comm'n v. U.S. Envtl. Prot. Agency, File No. 2:15-CV-93
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 18, 2016
    ...government and the State of Michigan each have their own, separate and independent clean water regulations. See United States v. Rapanos , 376 F.3d 629, 646 (6th Cir.2004) (discussing the differing definitions of wetlands under Michigan and federal law), overruled on other grounds in Rapano......
  • U.S. v. Marion L. Kincaid Trust, No. 02-10149.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 3, 2006
    ...the like are `adjacent wetlands.'" 33 C.F.R. § 328.3(c). This view was accepted by the Sixth Circuit. See United States v. Rapanos, 376 F.3d 629, 639-40 (6th Cir.2004), vacated by Rapanos v. United States, ___ U.S. ___, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In Marion Kincaid's letter......
  • U.S. v. Hubenka, No. 05-8006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 21, 2006
    ...in holding that the Corps' tributary rule is owed deference under the second step of the Chevron framework. See United States v. Rapanos, 376 F.3d 629, 641 (6th Cir.2004), cert. granted, ___ U.S. ___, 126 S.Ct. 414, 163 L.Ed.2d 316 (2005); Deaton, 332 F.3d at 708, Proceeding under Chevron's......
  • Request a trial to view additional results

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