United States v. Huseby

• Court: U.S. District Court — District of Minnesota
• Writing for the Court: JOHN R. TUNHEIM
• Citation: United States v. Huseby, 862 F.Supp.2d 951 (D. Minn. 2012)
• Decision Date: 26 March 2012
• Docket Number: Civil No. 09–3737 (JRT/LIB).
• Parties: UNITED STATES of America, Plaintiff, v. Russ HUSEBY and Brady Huseby, Defendants.

862 F.Supp.2d 951

UNITED STATES of America, Plaintiff,

v.Russ HUSEBY and Brady Huseby, Defendants.

Civil No. 09–3737 (JRT/LIB).

United States District Court, D. Minnesota.

March 26, 2012.

Ana H. Voss, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, Molly A. McKegney, Assistant District Counsel, U.S. Army Corps of Engineers–Saint Paul District, Saint Paul, MN, for plaintiff.

R. Thomas Torgerson, Hanft Fride PA, Duluth, MN; Patrick S. Dinneen, Silver Bay, MN, for defendants.

MEMORANDUM OPINION AND ORDER ON CROSS SUMMARY JUDGMENT MOTIONS

JOHN R. TUNHEIM, District Judge.

The United States sued Russ Huseby and his son, Brady Huseby, for logging and land clearing in violation of the Clean Water Act (“CWA”). The United States asserts that the Husebys' non-permitted clearing discharged pollutants into waters of the United States. The United States moved for summary judgment on the issue of Russ Huseby's liability and is seeking a restoration order and civil penalty. Russ Huseby also moved for summary judgment on the issue of his liability, arguing that his activities were exempt from the CWA. The Husebys moved for summary judgment on the issue of Brady Huseby's liability, asserting that Brady Huseby did not perform any of the alleged acts. Because the Court finds that Russ Huseby's activities fall within the recapture provision of the CWA, the Court grants summary judgment to the United States on the issue of Russ Huseby's liability. Because the Court finds that the United States has failed to demonstrate a prima facie case against Brady Huseby, the Court grants the Husebys' motion for summary judgment with respect to Brady Huseby's liability. The Court denies the United States' motion for a restoration order and a civil penalty and will hold an additional hearing to address these questions.

BACKGROUND

I. THE SITE

The land at issue is located within an 80 acre area in Lake County, Minnesota (“the site”). (Ana H. Voss Decl., Aug. 1, 2011, Ex. 2, Huseby Dep. at 95: 11–17, Jan. 5, 2011, Docket No. 57.) The site consists of two 40 acre parcels. ( Id.) Russ Huseby (“Huseby”) purchased the northern 40 acres in 1991 and the southern 40 acres in 1999. ( Id.) Within the site are two areas subject to dispute: the Northern Area and the central eastern southern area (“CES area”). (Steve D. Eggers Decl., July 21, 2011, Expert Report § 3.1 & Fig. 2, Docket No. 54.) The site borders Fortythree Creek. (Voss Decl., Ex. 1, Defs.' Second Supp. Resp. Req. Admis. No. 8, Docket No. 57.)

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Huseby and his wife quitclaimed 10 acres of the Northern Area to Brady Huseby in February 2007. ( Id. No. 3.) In September 2008, Huseby and his wife sold 20 acres of the site to Daniel J. Enebo and Laura H. Crosby. (Defs.' Second Supp. Resp. Req. Admis. No. 5.) In June 2010, Huseby listed for sale the remaining land on the site. (Huseby Dep. at 37:13–24.) In December 2010, Huseby and his wife sold 10 acres of the Northern Area (including a house that had been constructed there) and 20 acres of the CES Area to Dallas Dean for $250,000. ( Id. at 39:15, 50:18–20, 51:18–20; Russ Huseby Aff. ¶ 16, Aug. 1, 2011, Docket No. 58.) In sum, of the original 80 acres, Huseby has transferred 60 acres and retains 20 acres of the site; his son, Brady (“Brady Huseby”), still owns 10 acres.

II. HISTORY OF THE SITE

At the time Huseby purchased the site, it was undeveloped forest. (Huseby Aff. ¶ 7.) Huseby asserts that the land “had a history of silviculture ¹ activities that date back to a century ago.” ( Id.) Specifically, Huseby claims that the land was logged in the early 1900s and in the 1960s or 1970s. (Huseby Dep. at 187:24–188:5.) To support his assertion, Huseby notes his abstract of title states that the rights to the pine timber on the site were transferred in 1902. (Torgerson Aff., Aug. 1, 2011, Ex. D, Docket No. 59.) Huseby testified in his deposition that the size of the trees indicated the land had been logged again in the 1960s or 1970s. (Huseby Dep. at 188:21–22.) Huseby also asserts that he talked to a man who helped log the land as a child. ( Id. at 100:24–101:5, 190:21–191:12.)

III. RUSS HUSEBY'S CLEARING AND DEVELOPMENT OF THE SITEA. Roads

Beginning in 2000, Huseby reestablished old logging roads and put in new logging roads in the Northern Area. (Huseby Dep. at 98:20–99:8, 116:9–11.) Huseby also built new logging roads ² in the CES Area. (Huseby Dep. at 114:2–10, 123:1–17.) The parties dispute whether Huseby followed best management practices (“BMPs”) in constructing and maintaining the roads. See33 C.F.R. § 323.4(6) (defining BMPs for forest roads).

B. Logging & Clearing

Huseby began logging the site in 2000 and completed logging by 2007. (Huseby Dep. at 110:16–18, 117:1–2, 256:15–22.) Huseby admits he cleared his land “completely,” taking out all of the trees. ( Id. at 120: 13–17.) In addition, many stumps were removed. ( Id. at 151:25–154:4.)

After removing the trees from the site, Huseby raked the brush into piles using a brush rake attached to the front of a bulldozer. ( Id. at 153:2–154:20.) He burned the piles of brush and disked ³ the area to mix the ash into the soil. ( Id. at 154:21–156:23.) Huseby intended to replant the area with red pine although he admits no red pine trees grew on the site before he began logging. ( Id. at 157:12–25.) Only a few trees were planted. ( Id. at 157:6–13.)

The U.S. Army Corps of Engineers (“Corps”) found that between 2003 and 2009 twenty-eight acres of the site were converted from a wetland dominated by woody vegetation to exposed soils. (Expert Report §§ 3.5, 7.1.) See Part V, infra. Huseby asserts he harvested the timber using BMPs and readied the site for future logging by preparing it for replanting and regeneration.

IV. ENFORCEMENT ACTIONS

Both Lake County, Minnesota and the Corps have undertaken evaluations of the site and subsequent enforcement actions against Huseby. Huseby asserts that no violation ever existed because his activities were exempt from the permit requirement of the CWA. The United States asserts that both Lake County and the Corps repeatedly determined a permit was required.

In 2006 and 2007, Huseby sought—and was denied—a wetlands exemption from Lake County. (Compl. ¶¶ 66–70, Docket No. 1; Answer ¶ 12, Docket No. 2.) In October 2007, the County prepared a violation report which found seven to ten acres of wetlands on the site had been filled, logged, or graded, resulting in “wetland violations” (Voss Decl., Ex. 8, Violation Report, Docket No. 57.) ⁴ In 2008, the County issued a Restoration Order and ordered Huseby to complete the restoration of the site by July 31, 2008. (Voss Decl., Ex. 9, Restoration Order, Docket No. 57.) In September 2008, after a site visit, the County reported multiple violations of the CWA ⁵ and several instances of non-compliance with the Restoration Order. ⁶ (Voss Decl., Ex. 11, Summ. of Huseby Wetland Restoration Site Visit, Docket No. 57.)

In response to a report of a CWA violation by Lake County, the Corps sent Huseby a notice of violation (“NOV”) on January 3, 2005. (Voss Decl., Ex. 4, Docket No. 57.) The NOV noted that fill had been discharged into wetlands on his property and advised Huseby not to perform any additional work that required a permit without authorization. ( Id.) Huseby responded verbally, asserting that his work fell within an exception to the CWA and he did not need a permit. (Compl. ¶ 60; Answer ¶ 12; Huseby Aff. ¶ 19.) The Corps sent a follow-up letter to Huseby on January 7, 2005, acknowledging his verbal response and requesting more information, including a site plan, within 30 days. (Voss Decl., Ex. 5, Docket No. 57.) Huseby never responded to the January 7, 2005 letter. (Compl. ¶ 63; Answer ¶ 12 (admitting).)

On October 25, 2006, the Corps and Minnesota Department of Natural Resources personnel completed a site investigation. (Compl. ¶ 64; Answer ¶ 12.) Corps personnel found “dredged and fill material had been discharged in wetlands for the construction of access roads and grading of a pasture area.” (Compl. ¶ 64; Answer ¶ 12.) On November 22, 2006 and October 1, 2009, the Corps sent additional NOVs to Huseby alleging unpermitted discharge of fill material into wetlands in violation of the CWA. (Compl. ¶¶ 64, 67, 86; Answer ¶ 12.) In response to what it believed to be ongoing violations, the Corps initiated litigation and a more thorough site investigation in 2009. ( See Compl. ¶¶ 79–85, 88.)

V. WETLAND DELINEATION OF THE SITE

In order to officially delineate which areas of the site are wetlands, the Corps performed site inspections in 2009 and 2010. (Defs.' Second Supp. Resp. Req. Admis. No. 30.) The Corps team that performed the inspections used these site visits and aerial photography records to produce the Expert Report in October 2010. (Eggers Decl. ¶¶ 5–6; Expert Report.) The Corps team was made up of Benjamin Cox, Steve Eggers, and Gregory Larsen. (Expert Report § 1.0.) Cox is an Enforcement and Compliance Specialist for the Corps. (Benjamin R. Cox. Decl. ¶ 3, July 26, 2011, Docket No. 56.) Eggers is a 33–year employee of the Corps, a certified Professional Wetland Scientist, and an expert on the CWA. (Eggers Decl. ¶ 3.) Larsen is a Senior Ecologist and Soil Scientist for the Corps with 20 years of experience in wetland management. (Gregory A. Larson Decl. ¶ 3, Aug. 1, 2011, Docket No. 55.) All three men are trained to make wetland delineations. (Cox. Decl. ¶ 3; Eggers Decl. ¶ 3; Larson Decl. ¶ 3.)

The Corps defines wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). The Corps uses The Corps of Engineers Wetlands Delineation Manual (“ 1987 Manual ”) as guidance when making wetland delineations....