United States v. Roberts

Decision Date17 November 2011
Docket NumberNo. 3:09–0812.,3:09–0812.
Citation86 Fed. R. Evid. Serv. 1570,830 F.Supp.2d 372
CourtU.S. District Court — Middle District of Tennessee
PartiesUNITED STATES of America, Plaintiff, v. Richardson M. ROBERTS and Bucksnort RR Ranch LLC, Defendants.


Meredith Weinberg, Paul Cirino, Washington, DC, David A. Carson, Denver, CO, Matthew John Everitt, Nashville, TN, for Plaintiff.

William Harris Farmer, William B. Hawkins, III, Jones Hawkins & Farmer, PLC, Nashville, TN, for Defendants.


KEVIN H. SHARP, District Judge.

This dam case involves claims by the United States that Defendants' creation of an earthen dam and its consequent impoundment of water violates the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. Defendants have filed Motions in Limine regarding the proffered expert testimony of Rodney R. Knight (Docket No. 68); Richard D. Martin (Docket No. 71); Peter M. Stokely (Docket No. 73); Nicholas E. Crawford (Docket No. 75); and Donald W. Hubbs (Docket No. 77).

The Motions in Limine have been extensively briefed. Indeed, the Motions and supporting and opposing Memoranda consist of almost 200 pages. Additionally, the Court held evidentiary hearings on the Motions from November 8–10, 2011. For the reasons which follow, Defendants' Motions in Limine will be denied, except in relation to the expert witness testimony of Donald W. Hubbs.1


Sometime in the summer of 2005, Defendants constructed a 60–foot–high and 400–foot–long dam by placing dirt, sand, gravel, rock and other fill material into what the Government has characterized as “a pristine stream ecosystem” in southeastern Humphreys County, Tennessee. The dam is in the middle of a 2,000–plus acre ranch owned by Defendants, and impounds water creating a 60 acre reservoir.

According to the Government's theory of the case, the dam was built on a perennial stream which constitutes a “water of the United States,” without a permit from the Corp of Engineers. Specifically, the dam is on Snake Creek (part of the upper channel of Egypt Hollow) which is a tributary to Tumbling Creek, which, in turn, is a tributary to the Duck River, the nearest traditionally navigable water.


The expert witnesses who are the subject of Defendants' Motions in Limine all purport to offer opinions on the central issue of this case, to wit, whether the dam was built on a perennial stream and a “water of the United States.” Defendants seek to exclude those experts from testifying, or to prohibit those experts from opining about certain matters. They raise a host of arguments, all of which center around the contentions that the evidence the experts offer is not relevant within the meaning of Fed.R.Evid. 401, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice within the meaning of Fed.R.Evid. 403, and/or the proposed experts and their opinions do not meet the requirements of Fed.R.Evid. 702.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. The present version of Rule 702 codified the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which held that the then-effective Rule 702 “clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify” and “assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 589 & 597, 113 S.Ct. 2786. This “gatekeeping” function has as its objective “to ensure the reliability and relevancy of expert testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.

In considering challenges to the reliability of scientific evidence, the focus is on the methodology utilized by the expert, not on the conclusion drawn. See, Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Factors which the Supreme Court in Daubert identified as being possibly relevant include: (1) whether the theory, conclusion, or technique has been tested or is testable; (2) whether it has been published or subjected to peer review; (3) whether it has a potential or known error rate; and (4) whether the theory, conclusion, or technique enjoys general acceptance within the relevant scientific community. Id. at 593–94, 113 S.Ct. 2786; see, Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 251 n. 5 (6th Cir.2001).

These factors do not apply to every situation, nor are they exclusive. “Rather, ... the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152, 119 S.Ct. 1167. “That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.” Id.

In short Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science’ on the other.” Best v. Lowe's Home Centers, Inc., 563 F.3d 171, 176–77 (6th Cir.2009). Still, [v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786.

Because the Court is required to determine whether the proffered expert testimony in this case “both rests on a reliable foundation and is relevant to the task at hand,” id. at 597, 113 S.Ct. 2786, some consideration must be given to what the Government must prove to establish its claims under the CWA.

“To establish liability under the Act, the government must prove that (1) a person (2) discharged a pollutant (3) from a point source (4) into waters of the United States (5) without a permit.” United States v. Cundiff, 555 F.3d 200, 213 (6th Cir.2009). The Court has previously granted summary judgment in favor of the Government on all of these elements, except whether the creeks and tributaries at issue in this case are “waters of the United States.” (Docket No. 180).

Even with the case so limned, what the Government must actually prove to establish liability is open to considerable debate. In its most recent discussion of “waters of the United States,” the Supreme Court entered what has been oft-characterized as a “fractured” opinion. See, e.g., United States v. Robison, 505 F.3d 1208, 1221 (11th Cir.2007); United States v. Freedman Farms, Inc., 786 F.Supp.2d 1016, 1018 (E.D.N.C.2011); United States v. Fabian, 522 F.Supp.2d 1078, 1084 (N.D.Ind.2007).

In Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), the Supreme Court considered consolidated cases from the Sixth Circuit about “whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute ‘waters of the United States' within the meaning of the Act.” Id. at 729, 126 S.Ct. 2208. In a 4–1–4 decision, the Court vacated the Sixth Circuit's conclusion that the Corp of Engineers had jurisdiction and remanded for further proceedings to determine whether the wetlands were subject to the restrictions of the CWA.

The authors of each of the three separate opinions considered earlier Supreme Court cases interpreting “navigable water” under the CWA, including United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), and 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 ”). Even though agreeing that the statutory phrase “waters of the United States” encompasses some waters not navigable in the traditional sense, the opinions set forth different views as to how courts should determine whether particular wetlands are subject to the CWA. The Fourth Circuit succinctly summarized the three views as follows:

Although recognizing the continuing validity of Riverside Bayview Homes, a majority of the Court found troubling the Corps' assertion of jurisdiction over wetlands adjacent to tributaries far away from, and unimportant to, any traditional navigable water. See [ Rapanos ] at 726, 730–33, 106 S.Ct. 455 (plurality opinion); id. at 776, 779–80 (Kennedy, J., concurring in the judgment). Accordingly, a fractured Court proposed two different ways to limit the reach of its earlier ruling so as not to allow jurisdiction over wetlands lying alongside “remote and insubstantial” ditches and drains. Id. at 778, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). The Rapanos plurality suggested that wetlands should only fall within CWA jurisdiction when they: (1) are adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters”; and (2) have “a continuous surface connection with that water.” Id. at 742, 126 S.Ct. 2208 (plurality opinion). Justice Kennedy, concurring, found this test too limiting. Instead, he borrowed language from SWANCC to establish an alternative new test for jurisdiction over adjacent wetlands. Id. at 779–80...

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