U.S. v. Telluride Co., 97-1236

• Decision Date: 25 June 1998
• Docket Number: No. 97-1236,97-1236
• Parties: , 28 Envtl. L. Rep. 21,334, 98 CJ C.A.R. 3602 UNITED STATES of America, Plaintiff-Appellant, v. TELLURIDE COMPANY, named: The Telluride Company; Mountain Village, Inc., d/b/a Telluride Mountain Village, Inc.; Telluride Ski Area, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1241

146 F.3d 1241

46 ERC 1897, 28 Envtl. L. Rep. 21,334,

98 CJ C.A.R. 3602

UNITED STATES of America, Plaintiff-Appellant, v. TELLURIDE COMPANY, named: The Telluride Company; Mountain

Village, Inc., d/b/a Telluride Mountain Village,

Inc.; Telluride Ski Area, Inc.,

Defendants-Appellees.

No. 97-1236.

United States Court of Appeals, Tenth Circuit.

June 25, 1998.

Ellen J. Durkee (Lois J. Schiffer, Assistant Attorney General, Peter Coppelman, Acting Assistant Attorney General, Robert H. Foster, and Robert L. Klarquist, Environment & Natural Resources Division, Department of Justice, Washington, DC; Cathy Winer, Joseph G. Theis, and Alan Morrissey, Environmental Protection Agency, Washington, DC; Steven B. Moores, and Wendy I. Silver, Environmental Protection Agency, Denver, CO, with her on the briefs), Environment & Natural Resources Division, Department of Justice, Washington, DC, for Plaintiff-Appellant.

David C. Warren (James E. Scarboro, David S. Neslin, and Peter J. Krumholz, with him on the brief), of Arnold & Porter, Denver, CO, for Defendants-Appellees.

Before BRORBY, BARRETT and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.

The United States appeals the district court's grant of partial summary judgment to the appellees, Telluride Co., Mountain Village Inc., and Telluride Ski Area, Inc. (collectively "Telco"), dismissing the Government's claims for violations of the Clean Water Act, 33 U.S.C. § 1251 et. seq, that occurred prior to October 15, 1988. See United States v. Telluride Co., 884 F.Supp. 404 (D.Colo.1995). The issues on appeal are whether the five-year statute of limitations provided in 28 U.S.C. § 2462 applies to the Government's claims for injunctive relief, where § 2462 by its terms applies only to the "enforcement of any civil fine, penalty, or forfeiture," and whether the district court erred in applying the concurrent remedy rule to bar those claims. Our jurisdiction is exercised under 28 U.S.C. § 1291. For the reasons below, we reverse the district court's judgment.

BACKGROUND

On October 15, 1993, the United States filed a civil action against Telco in the United States District Court for the District of Colorado under § 309 of the Clean Water Act, 33 U.S.C. § 1319. ¹ As authorized by 33 U.S.C. § 1319, the Government sought civil monetary penalties and injunctive relief for Telco's illegal filling of approximately forty-five acres of wetlands between 1981 and 1989, in violation of 33 U.S.C. § 1311(a). In its request for injunctive relief, the Government sought to enjoin Telco from discharging additional material, and to require Telco to restore damaged wetlands to their prior condition or create new wetlands to replace those that could not be restored.

Telco subsequently filed a motion for partial summary judgment on all of the Government's claims for violations that occurred before October 15, 1988, contending these claims were barred by the five-year statute of limitations in 28 U.S.C. § 2462. Section 2462 states in relevant part: "[e]xcept as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued." 28 U.S.C. § 2462. The Government conceded § 2462 applied to its claim for civil penalties, but argued the statute did not bar its claims for injunctive relief. The district court disagreed, applying the concurrent remedy rule to hold § 2462 barred the Government's claims for injunctive relief. The court interpreted the concurrent remedy rule as providing when legal and equitable relief are available concurrently, and a statute of limitations bars the concurrent legal remedy, the court must withhold the equitable relief. Consequently, because § 2462 barred the Government's claims for legal relief, civil

                monetary penalties, the court held § 2462 barred its claim for injunctive relief.  On May 2, 1995, the court granted Telco's motion for partial summary judgment, dismissing all of the Government's claims for relief for wetlands illegally filled prior to October 15, 1988. 2  The Government appeals the district court's judgment, claiming § 2462 does not apply to its claims for injunctive relief, and the district court erred in applying the concurrent remedy rule to bar those claims
                

ANALYSIS

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The construction and applicability of a federal statute of limitation is a question of law we review de novo. Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1524 (10th Cir.1997) (stating this court reviews questions of law de novo ); Foutz v. United States, 72 F.3d 802, 804 (10th Cir.1995) (stating the construction of federal statues is a question of law); Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir.1994).

Congress adopted the Clean Water Act (the "Act") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To accomplish this purpose, the Act prohibits the discharge of any pollutants, including dredged or fill material, into waters of the United States without a permit. See 33 U.S.C. §§ 1311(a), 1344. Certain wetlands enumerated under 33 C.F.R. § 328.3(a) qualify as waters of the United States. Unpermitted dredging and filling of these wetlands, as in Telco's case, are subject to the Act's enforcement sections. A violator may be subject to a "civil action for appropriate relief, including a permanent or temporary injunction," 33 U.S.C. § 1319(b), and a civil penalty not to exceed $25,000 per day for each violation of 33 U.S.C. §§ 1311 and 1319(d). It is under these sections that the Government sought relief for Telco's violations of 33 U.S.C. § 1311 that occurred prior to October 15, 1988.

The parties do not dispute 28 U.S.C. § 2462 is the applicable federal statute of limitations to the Government's actions for civil penalties under the Act. See also United States v. Banks, 115 F.3d 916, 918 (11th Cir.1997) (applying § 2462 as the default limitation provision for actions under the Act), cert. denied, --- U.S. ----, 118 S.Ct. 852, 139 L.Ed.2d 752 (1998). However, the Government claims the district court erred in applying § 2462 to bar its claims for equitable relief, because the ruling is contrary to the well-settled principles restricting the application of time limitations against the government, and is contrary to the plain language of the statute.

Section 2462's Applicability

We interpret § 2462 narrowly because "an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly imposing it." E.I. Dupont De Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 68 L.Ed. 788 (1924). ³ In addition, "[s]tatutes of limitation sought to be applied to bar rights of the government, must receive a strict construction in favor of the government." Id.

Section § 2462 clearly applies to "action[s], suit[s] or proceeding[s] for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise." 28 U.S.C. § 2462. The express language of a statute is controlling, absent a clearly expressed legislative intention to the contrary. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). The Government claims the statute is inapplicable to non-monetary penalties because the phrase "pecuniary or otherwise" only modifies "forfeiture" not "penalty." Although we might agree based on a common-sense reading of the statute as the commas are now located, and in light of the last antecedent rule that applies modifying words or phrases to the immediately preceding word or phrase, the history of § 2462 does not support such a reading. See Nobelman v. American Sav. Bank, 508 U.S. 324, 330, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (stating the rule of the last antecedent is not compelled). Prior versions of § 2462 read "penalty or forfeiture, pecuniary or otherwise." See 3M Co. v. Browner, 17 F.3d 1453, 1458 n. 7 (D.C.Cir.1994). Based on this construction, we view "pecuniary or otherwise" as modifying both the terms penalty and forfeiture. See Bingham, Ltd. v. United States, 724 F.2d 921, 926 n. 3 (11th Cir.1984) (applying a supplementary "rule of punctuation," that provides when a "modifier is set off from two or more antecedents by a comma, ... the modifier relate[s] to more than the last antecedent"). In addition, according to the Reviser's Notes on revisions made to the statute in 1947, when the phrase "civil fine" was placed before "penalty," the purpose of the revisions was for a change in phraseology. See 28 U.S.C. § 2462 (Historical and Statutory Notes); Johnson v. SEC, 87 F.3d 484, 488 n. 5 (D.C.Cir.1996); 3M, 17 F.3d at 1458. Because a change in phraseology does not render the new statute substantively different from its predecessor, unless such intent is clearly expressed, see, e.g., Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993), we construe § 2462 as applying to non-monetary penalties.

The Government also maintains the plain language of § 2462 does not apply to claims for equitable relief. We agree that actions...