Summary of a Recent
Judicial Development in
Environmental Law

Court Applies Rapanos, Holds Landowner Accountable for Destroying Wetlands

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In United States v. Bailey, 516 F. Supp. 2d 998 (D. Minn. 2007), the United States District Court for the District of Minnesota granted in part and denied in part the United States' motion for summary judgment, granted the county's motion for summary judgment, and denied the landowner's motion for the same. The United States brought action against a landowner alleging violations of the Clean Water Act (CWA) and seeking enforcement of the United States Army Corps of Engineers' (USACE) restoration order. The landowner allegedly built a road in a wetlands area without a permit. Because the landowner had dedicated the road to the county, the landowner sought to implead the county as a third-party defendant. Thereafter, all parties moved for summary judgment. In applying Rapanos, the court held that the property on which the landowner built the road was a wetland adjacent to a navigable water sufficient to require restoration. Additionally, the court held that the injunction to require the landowner to restore the wetland, even though he had given the road to the county, was not inequitable.

Background

A landowner constructed a road on a wetland located near Lake of the Woods intending to provide access to a new housing development he anticipated. Id. at 1001. Upon completion of the road, the landowner planned to dedicate it to the county. Id. at 1002-03. After receiving notice from the USACE that construction of the road violated the CWA, the landowner obtained approval for the housing development plat and officially dedicated the road to the county. Id. at 1003. In October 2001, the USACE ordered the landowner to restore the wetland to its previous conditions, pursuant to § 404 of CWA, 33 U.S.C. § 1344. Id. The landowner refused. Id. Thereafter, "the United States brought . . . action under § 309(b) of the CWA, 33 U.S.C. § 1319(b), to enforce the restoration order and to enjoin [the landowner] from discharging further pollutants into the wetland." Id. The landowner impleaded the county as a third-party defendant, and all parties motioned for summary judgment. Id.

Arguments

The United States brought action to enforce the USACE's restoration order. Id. The landowner argued that the USACE did not have jurisdiction over the road at issue and that the USACE's order was arbitrary and capricious. Id. Additionally, the landowner alleged that the county should be required to pay restoration costs as the owner of the road. Id.

All parties moved for summary judgment. Id.

Analysis and Holdings

The court first addressed whether the USACE had jurisdiction over the site at issue. Id. at 1004. The landowner disputed the USACE's finding that "the land onto which he discharged . . . pollutants [constituted] 'navigable waters' for purposes of the CWA." Id. The Supreme Court addressed the navigable waters issue in Rapanos v. United States, 547 U.S. 715 (2006), but failed to produce a majority decision. Id. According to the Court's plurality's reasoning in Rapanos, the USACE could "not exercise jurisdiction over [the landowner's] property unless the Site ha[d] a 'continuous surface connection' with Lake of the Woods such that it [was] 'difficult to determine' where Lake of the Woods end[ed] and [the landowner's] land beg[an]." Id. Though the government argued to the contrary, the court held that it was easy to distinguish the landowner's land from Lake of the Woods. Id. However, a majority of the court rejected the plurality's opinion. Id. For instance, Justice Kennedy had stated that "he would find CWA jurisdiction whenever there [was] a 'significant nexus' between the wetlands in question and navigable-in-fact waters." Id. at 1005. Therefore, according to Justice Kennedy, the USACE could exercise jurisdiction over the landowner's land if the site had "a 'significant [ ][e]ffect' on the 'chemical, physical, and biological integrity' of Lake of the Woods." Id. (quoting Rapanos, 547 U.S. at 780).

Rather than adopting either the plurality's opinion or Justice Kennedy's opinion, the instant court adopted Justice Steven's interpretation. Id. Justice Stevens said, "the United States may establish jurisdiction under either Justice Kennedy's test or the plurality's test." Id. As explained above, the USACE could not exercise jurisdiction under the plurality's opinion, so the key question was whether there was a significant nexus between the landowner's land and Lake of the Woods. In Rapanos, Justice Kennedy said that "when the wetland [was] 'adjacent' to the navigable-in-fact waters, he would find that a significant nexus exists as a matter of law." Id. at 1006. Applying this standard to the instant case, the court held that

the [r]oad was built on wetlands 'adjacent' to Lake of the Woods for two reasons. First, [the USACE] has presented evidence that the wetland on the [s]ite extends to the edge of the Lake and thus is 'bordering' on or 'contiguous' to the Lake. Second, even if there were a factual issue concerning whether the wetland actually extends to the edge of the Lake, the [USACE] has presented sufficient evidence that the wetland is nevertheless 'adjacent' within the meaning of the [USACE's] definition, because any strip of dry upland separating the wetland and the Lake is akin to the 'man-made dikes or barriers, natural river berms, beach dunes and the like' that do not destroy adjacency under 33 C.F.R. § 328.3(c).
Id. at 1007.

Because the landowner's land was adjacent to Lake of the Woods, the court held that Justice Kennedy's standard, and therefore Justice Stevens' standard, was satisfied, and the USACE had authority to exercise jurisdiction over the landowner's land. Id.

The court then addressed the landowner's claim that he had the right to indemnity or contribution from the county. Id. at 1019-20. The court held that the landowner had failed to identify any "cognizable legal theory under which he has a right of indemnity or contribution against the [c]ounty." Id. at 1020. For this reason, the court granted the county's motion for summary judgment. Id.

The case was decided on January 14, 2005.