US v. Larkins

• Decision Date: 16 January 1987
• Docket Number: No. 84-0044-P(J).,84-0044-P(J).
• Citation: 657 F. Supp. 76
• Parties: UNITED STATES of America, Plaintiff, v. Thomas R. LARKINS and Herbert M. Larkins, Defendants.
• Court: U.S. District Court — Western District of Kentucky

657 F. Supp. 76

UNITED STATES of America, Plaintiff, v. Thomas R. LARKINS and Herbert M. Larkins, Defendants.

No. 84-0044-P(J).

United States District Court, W.D. Kentucky, Paducah Division.

January 16, 1987.

COPYRIGHT MATERIAL OMITTED

David E. Dearing, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

J. William Phillips, Murray, Ky., for defendants.

MEMORANDUM OPINION

JOHNSTONE, Chief Judge.

This action arises out of alleged violations of Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants into "navigable waters"—defined as the "waters of the United States" and including adjacent freshwater wetlands¹—unless authorized by permit issued by the Army Corps of Engineers (Corps) pursuant to Section 404, 33 U.S.C. § 1344. The United States contends that Defendants Thomas R. and Herbert M. Larkins, brothers who own and operate a farm in Carlisle County, Kentucky, constructed earthen dikes and levees on wetlands adjacent Obion Creek without a permit, thereby damaging the aquatic environment and causing harm to fish and wildlife resources.² In remedy of these violations, the United States seeks restoration of the site, a permanent injunction against future violations of the CWA, and imposition of a $20,000 penalty under 33 U.S.C. § 1319(b), (d).

The Larkins, who acquired title to the site in 1976, do not deny constructing the dikes and levees. Nor do they claim ignorance of the permit requirement.³ Rather, they argue that the property in question does not contain wetlands as defined by 33 C.F.R. § 323.2(c),⁴ and that even if it does, their use of the land qualifies for a permit exemption under 33 U.S.C. § 1344(f).⁵

This matter was tried before the court without a jury on January 14-15, 1986. At trial, the United States called six witnesses qualified as experts in soil analysis, surveying, forestry, wildlife biology, and wetland delineation. The defense called the defendants, two neighboring farmers, and an expert botanist. Approximately 50 exhibits were introduced including correspondence between the parties, photographs of the disputed site, experts' reports, and technical materials used by the Corps in identifying wetlands. The court, having studied the parties' arguments and reviewed the evidence, enters these findings of fact and conclusions of law in accordance with Fed. R.Civ.P. 52(a). To the extent that these findings of fact constitute conclusions of law, they are adopted as such, and to the extent that the conclusions of law constitute findings of fact, they are so adopted.

I. FINDINGS OF FACT

A. HISTORY OF THE SITE

The record contains a detailed history of the parcel on which the Larkins constructed their dikes and levees. The Larkins acquired the site in 1976 with the purchase of a 550 acre tract lying along Obion Creek. At the time of purchase, Thomas Larkins observed that as many as 10 to 12 acres of the site were covered knee-deep with water. He noted the presence of oak, hickory, and other bottomland hardwoods, but also observed cypress on the site. After inspecting the inundated parcel, Larkins concluded that beaver, reintroduced to the area in 1950 by the Kentucky Department of Fish and Wildlife Resources, were responsible for poor drainage.

After acquiring the property, the defendants dug drainage ditches, cut back dead and damaged timber, blasted out beaver dams and lodges, and began filling gullies and washouts. Site improvements continued without interruption until May 9, 1979, when Mr. L.D. Blanchard, an attorney for the Corps, requested permission to make an inspection. Blanchard's verbal request was followed by a written one (Plaintiff's Exhibit 3) to which Defendant Thomas Larkins responded in writing on June 28, 1979: "We will let two men from the Corps come on a part of our land if one of them is the BOSS and if he can answer my questions." Plaintiff's Exhibit 4.

On July 31, 1979, the Corps dispatched Colonel William H. Reno to meet with the Larkins and a group of neighboring landowners in Carlisle County. After explaining the Corps' enforcement responsibilities under the CWA, Reno renewed the inspection request. The Larkins refused, informing Reno that they would consider the request only after he divulged the identity of the person responsible for reporting their activities to the Corps. Reno rejected the Larkins' terms and, on November 23, 1979, informed them that the matter had been turned over to the Justice Department. Plaintiff's Exhibit 8.

In 1980, ignoring the Corps' still pending inspection request, the Larkins began construction of the contested dikes and levees. On February 1, 1982, the Corps notified Thomas Larkins that aerial inspection had revealed "unauthorized deposition of material into water of the United States," a violation of the CWA. Plaintiff's Exhibit 10. Disregarding the Corps' objections, the Larkins completed construction of the dikes and levees, forming an 18 acre impoundment designed to capture upland drainage. Before construction of the dikes and levees, upland runoff often inundated the low lying lands adjacent Obion Creek.⁶ By creating the impoundment, the Larkins were able to cultivate formerly inundated lowlands.⁷

On February 10, 1984, after completion of the dikes and levees and almost five years after the Corps made its initial inspection request, the Justice Department filed an action against the Larkins in this court. Thereafter, the court ordered two on-site inspections of the Larkins' property—the first on August 30, 1984, and the second on May 29, 1985. The results of those inspections are discussed below.

B. IDENTIFICATION OF WETLANDS

In 1972, with passage of the Federal Water Pollution Control Act Amendments, 86 Stat. 816, Congress empowered the Corps to issue regulations for enforcement of the CWA. The Corps' current regulations, which have survived scrutiny by the Supreme Court,⁸ define 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. § 323.2(c).⁹ This definition focuses on two essential indicia of wetlands: hydrology and vegetation.

In most instances of alleged violations of the CWA involving land adjacent to waters of the United States, the Corps is immediately admitted to the site to conduct hydrological and vegetation studies, thus enabling it to make a timely determination of whether wetlands are present. In a few instances, however, vegetation is removed and drainage patterns are altered before the Corps can make an on-site inspection. In such instances, of which this case is one, other means must be called upon to determine whether wetlands were present on a site prior to the commencement of landowner improvements. Two of those means are soil analysis for determining the likely hydrology of a site prior to landowner alterations,¹⁰ and aerial photography for memorializing drainage patterns and vegetation types when a timely on site inspection is not possible.¹¹ Because the Larkins refused to allow an on-site inspection before completion of the dikes and levees, the court's findings of fact regarding hydrology and vegetation are based on soil analysis and aerial photography.

1. HYDROLOGY

Evidence of soil saturated by surface or ground water is essential for positive wetland identification. At trial, the Corps' experts testified that the impoundment area and areas east, northeast, and southwest thereof possess this hydrological characteristic.¹²

Aerial photographs, described supra note 6, attest to repeated inundation of the property prior to construction of the dikes and levees.¹³ Soil analysis performed by Charles Newling, an expert presently in charge of training Corps personnel in the use of soil analysis for wetland identification, revealed that the impoundment area and the area lying southwest thereof contained hydric soil. Hydric soil is a wetland soil type which is low in oxygen and formed under saturated conditions.¹⁴ Because wetland plants, which require less oxygen than their upland rivals, are uniquely adapted for growth in hydric soil, Newling's soil analysis is a strong, though not conclusive, indicator that the impoundment and southwest areas are wetlands.¹⁵ Although Newling was unable to perform soil tests in the areas east and northeast of the impoundment, a soil analysis by Thomas Welborn, an expert for the Environmental Protection Agency (EPA), revealed that the eastern area contained hydric soil, and a soil survey made by the United States Department of Agriculture's Soil Conservation Service in 1937 attests that hydric soil types dominate the northeastern area.¹⁶

Although the defendants presented no expert challenge to the Corps' soil analysis, the defendants did present testimony from two individuals—Messrs. W.R. Tyler and M.H. Mix—who had witnessed inundation of the property for fifty years. The testimony of these witnesses in no way impeached the conclusions of the Corps' experts regarding the predominance of saturated soil types on the site.

Where experts present unequivocal, uncontradicted, unimpeached testimony on a technical matter beyond the competence of lay determination, a court cannot lightly disregard the experts' conclusions. Webster v. Offshore Food Service, Inc., 434 F.2d 1191, 1193 (5th Cir.1970); Stafos v. Missouri Pacific Railroad Company, 367 F.2d 314, 317 (10th Cir.1966). When, as here, those conclusions are presented by officials charged with the administration and enforcement of the CWA, they are entitled to even greater deference. United States v. Lambert, 589 F.Supp. 366, 370 (M.D.Fla.1984). Consequently, the court finds that the impoundment area and areas east, northeast, and southwest thereof possessed hydrological...