1 M. REED HOPPER (Bar No. 131291) ANTHONY L. FRANÇOIS …€¦ · DUARTE’S OPPOSITION TO...

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DUARTE’S OPPOSITION TO GOVERNMENT’S MSJ ON COUNTERCLAIM CASE NO. 13-02095

M. REED HOPPER (Bar No. 131291)

ANTHONY L. FRANÇOIS (Bar No. 184100)

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

(916) 419-7111 (p)

(916) 419-7747 (f)

[email protected]

[email protected]

See next page for additional attorneys for

Plaintiffs and Counterclaim-Defendants

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

No. 2:13−CV−02095−KJM−AC (TEMP)

DUARTE’S OPPOSITION TO

GOVERNMENT’S MOTION FOR

SUMMARY JUDGMENT (DKT. #139)

ON ITS COUNTERCLAIM (DKT. #28)

Date: November 20, 2015

Time: 10:00am

Courtroom: 3

Judge: Hon. Kimberly J.

Mueller

Accompanying Papers: Declaration of Joel Butterworth

Declaration of Tom Skordal

Declaration of David Kelley

Objections to Evidence

Response to Separate Statement

UNITED STATES OF AMERICA Counterclaim- Plaintiff, v. DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, Counterclaim- Defendants.

Case 2:13-cv-02095-KJM-DB Document 150 Filed 11/06/15 of 27

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Additional attorneys for

Plaintiffs and Counterclaim-Defendants

DAVID M. IVESTER (Bar No. 76863)

PETER PROWS (Bar No. 257819)

Briscoe Ivester & Bazel LLP

155 Sansome Street, Seventh Floor

San Francisco, CA 94104

(415) 402-2700 (p)

(415) 398-5630 (f)

[email protected]

[email protected]

GERALD E. BRUNN (Bar No. 107004)

Law Offices of Brunn & Flynn

928 12th Street, Suite 200

Modesto, CA 95354

(209) 521-2133 (p)

(209) 521-7584 (f)

[email protected]


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................. 1

II. LEGAL AND FACTUAL BACKGROUND ......................................................................... 1

A. Plowing Is Broadly Excluded From Clean Water Act Regulation ............................... 1

B. The Farmland At Issue .................................................................................................. 4

C. Duarte Plows This Farmland To Plant Wheat— Without Changing Any Waters To Dry Land ..................................................................................................... 5

III. LEGAL STANDARD ............................................................................................................ 6

IV. DUARTE’S PRIMA FACIE SHOWING ON ITS RETALIATION CLAIM PRECLUDES SUMMARY JUDGMENT ON THE COUNTERCLAIM ............................. 7

V. THE GOVERNMENT’S ADMISSIONS THAT THE CORE ALLEGATIONS IN ITS COUNTERCLAIM ARE “WRONG” PRECLUDE SUMMARY JUDGMENT IN ITS FAVOR ...................................................................................................................... 8

VI. A GENUINE DISPUTE EXISTS ABOUT THE FACTS UNDERLYING WHETHER THE CLEAN WATER ACT APPLIES TO THIS FARMLAND AT ALL ........................................................................................................................................ 8

VII. THE PLOWING EXCLUSION PRECLUDES THE CLAIM THAT PLOWING THE PROPERTY INVOLVED A “DISCHARGE” ............................................................ 11

VIII. THERE IS A GENUINE DISPUTE ABOUT THE FACTS UNDERLYING WHETHER THE NORMAL-FARMING-PRACTICES EXEMPTION APPLIES ............ 13

A. Duarte’s 2012 Tillage Was Part Of An Established Farming Or Ranching Operation..................................................................................................................... 14

B. The Recapture Provision Does Not Apply.................................................................. 15

IX. DUARTE DID NOT “ADD A POLLUTANT”, AS SUPREME COURT AUTHORITY MAKES CLEAR .......................................................................................... 15

X. THE PLOW WAS NOT A “POINT SOURCE” CONVEYANCE ..................................... 18

XI. JOHN DUARTE CANNOT BE HELD PERSONALLY LIABLE ..................................... 18

XII. CONCLUSION .................................................................................................................... 20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................................................................... 6

Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d 810 (9th Cir. 2001).......................................................................................... 13, 16, 17

Borden Ranch Pshp. v. U.S. Army Corps of Eng'rs, 1999 U.S. Dist. LEXIS 21389 (E.D. Cal. 1999) ........................................................................ 17

Borden Ranch Pshp. v. U.S. Army Corps of Eng'rs, No. CIV-S-97-0858 GEB JFM, (E.D. Cal. Aug. 3, 1998) ........................................................ 17

Borden Ranch v. U.S. Army Corps of Eng'rs., 537 U.S. 99 (2002) .................................................................................................................... 13

Denney v. DEA, 508 F.Supp.2d 815 (E.D. Cal. 2007) ............................................................................................ 7

Humboldt Baykeeper v. Simpson Timber Co., 2006 U.S.Dist.LEXIS 91667, (N.D. Cal. 2006)......................................................................... 20

Illinois v. Commonwealth Edison Co., 490 F.Supp. 1145 (N.D. Ill. 1980) ............................................................................................. 20

In re Carsten, 211 B.R. 719 (Bankr. D. Mont. 1997) ....................................................................................... 15

Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990).................................................................................................... 19

L.A. Cty. Flood Control Dist. v. NRDC, Inc., 133 S.Ct. 710 (2013) ............................................................................................................ 16, 17

Meyer v. Holley, 537 U.S. 280 (2003) ............................................................................................................. 19, 20

Mt. Healthy City Board of Ed. v Doyle, 429 U.S. 274 (1977) ..................................................................................................................... 7

N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007)........................................................................................................ 9

National Mining Association v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) ................................................................................................. 18

Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng’rs, 2007 U.S.Dist.LEXIS 6366, (D.D.C. 2007) ............................................................................. 17

Northern Cal. River Watch v. Oakland Mar. Support Servs., 2011 U.S.Dist.LEXIS 14551, (N.D. Cal. 2011)......................................................................... 20


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


People v. Celotex Corp., 516 F.Supp. 716 (C.D. Ill. 1981) ............................................................................................... 20

Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 603 F.App’x 149 (4th Cir. 2015) ............................................................................................... 10

Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278 (4th Cir. 2011)...................................................................................................... 10

Rapanos v. United States, 547 U.S. 715 (2006) ............................................................................................................... 9, 10

Russello v. United States, 464 U.S. 16 (1983) ..................................................................................................................... 20

Schneider v. County of Sacramento, 2014 U.S.Dist.LEXIS 116809, (E.D. Cal. 2014) ........................................................................ 7

Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989)...................................................................................................... 7

South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) ............................................................................................................... 16, 17

Tri-Realty Co. v. Ursinus Coll., 2015 U.S.Dist.LEXIS 111455, (E.D. Pa. Aug. 24, 2015) .......................................................... 16

United States v. Akers, 785 F.2d 814 (9th Cir. 1986)................................................................................................ 14, 15

United States v. Park, 421 U.S. 658 (1975) ................................................................................................................... 19

United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993) ........................................................................................................... 18

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) ............................................................................................................... 2, 12

Yates v. United States, 135 S.Ct. 1074 (2015) ................................................................................................................ 12

Statutes

33 C.F.R. § 323.4(c) ....................................................................................................................... 15

33 U.S.C. § 1251 .............................................................................................................................. 1

33 U.S.C. § 1311(a) ..................................................................................................................... 1, 8

33 U.S.C. § 1314(f)(1) ..................................................................................................................... 2

33 U.S.C. § 1319(b) ....................................................................................................................... 19

33 U.S.C. § 1319(c) ................................................................................................................... 7, 19


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


33 U.S.C. § 1319(c)(6) ................................................................................................................... 19

33 U.S.C. § 1344(a) ......................................................................................................................... 2

33 U.S.C. § 1344(f) ........................................................................................................................ 13

33 U.S.C. § 1344(f)(1)(A) ................................................................................................................ 3

33 U.S.C. § 1344(f)(2) ................................................................................................................... 15

33 U.S.C. § 1344, para. (b)(1) .......................................................................................................... 2

33 U.S.C. § 1344, para. (c) ............................................................................................................... 2

33 U.S.C. § 1362(12) ................................................................................................................. 2, 16

33 U.S.C. § 1362(14) ..................................................................................................................... 18

Rules

Fed. R. Civ. P. 56(a) ......................................................................................................................... 6

Regulations

33 C.F.R. § 323.2(d)(1) .................................................................................................................. 17

33 C.F.R. § 323.2(e)(1) .................................................................................................................. 11

33 C.F.R. § 323.4(a)(1)(iii)(D) ............................................................................................... passim

40 Fed.Reg. 19766 (May 6, 1975) ................................................................................................... 2

40 Fed.Reg. 31320 (July 25, 1975) .................................................................................................. 3

42 Fed.Reg. 37122 (July 19, 1977) .................................................................................................. 3

45 Fed.Reg. 33290 (May 19, 1980) ........................................................................................... 3, 12

47 Fed.Reg. 31794 (July 22, 1982) .................................................................................................. 3

Miscellaneous

Corps Issues Interim Rules For Discharges Of Dredged And Fill Materials, 5 ENVT’L.L.REP. 10143 (1975) ................................................................................................................................ 3

Development of New Regulations by the Corps of Engineers, Implementing Section 404 of the Federal Water Pollution Control Act Concerning Permits for Disposal of Dredge or Fill Material: Hearing Before the Subcomm. on Water Res. of the Comm. on Pub. Works and Transp., 94th Cong. 74 (1975) (testimony of Alvin L. Alm, EPA) ............................................. 3

Jeffrey Stine, Regulating Wetlands In The 1970s, 27 J. FOREST HIST. 60 (1983) ................................................................................................... 2, 3


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Letter from EPA Adm’r Russel Train to Lt. Gen. William Gribble, Jr., Chief of Engineers (May 16, 1975), reprinted at Section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearing Before the S. Comm. On Pub. Works, 94th Cong. 355 (1976) ............................ 2

The Oxford Encyclopedic English Dictionary 525 (Joyce M. Hawkins & Robert Allen eds., 1991) ........................................................................ 12

U.S. Army Corps of Engineers, Regulatory Guidance Letter 86-01, Exemptions to CWA—Plowing, ¶¶ 2-3 (February 11, 1986), available at http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl86-01.pdf ................................ 4


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1


I. INTRODUCTION

This case is about plowing. From just reading the Government’s motion for summary

judgment on its counterclaim, though, one might never know it: the Government strains to

characterize the tilling on Duarte’s land using various terms other than “plowing.” Indeed, the

Government all but refuses to accept plowing as a term or concept with any real meaning;

plowing is not plowing, the Government suggests, if it “actually relocated earthen material into

ridges.” (“Corrected” Brief In Support Of United States’s Motion For Summary Judgment [etc.]

(“Br.”) (dkt. #145-1) at 14:26-27.) How one might plow land without actually relocating earthen

material into ridges the Government does not venture to explain.

Nor would one learn from the Government’s motion that the Corps has by regulation

recognized that “plowing” “will never involve a discharge.” (33 C.F.R. § 323.4(a)(1)(iii)(D).)

By mere semantic sleight of hand, it seems, the Government supposes that the law on plowing

can be ignored or avoided.

Beyond that, the Government engages in a detailed discussion of how chisel plowing

(without calling it that) moves particles of previously farmed soil a few inches up, down, or

sideways—all with the aim of persuading that the chisel plow thereby “removes” the soil particles

from a wetland and, in the process, transmogrifies them into a “pollutant,” and simultaneously

assumes the role of a “point source” that effects an “addition” and “discharge” of the former-soil-

particles-now-pollutant back into the wetland. Reading this discussion might well prompt one to

look around for other signs of having fallen into a rabbit hole.

In any event, even in their hyper technicality (and disregarding, for the sake of argument,

that they conflict with the law on plowing), the Government’s arguments do not withstand

scrutiny. Its motion for summary judgment should be denied.

II. LEGAL AND FACTUAL BACKGROUND

A. Plowing Is Broadly Excluded From Clean Water Act Regulation

In 1972, Congress enacted the Clean Water Act. (Pub. L. 92-500, 86 Stat. 816, codified at

33 U.S.C. §§ 1251 et seq. (the “Act”).) That Act prohibits “the discharge of any pollutant by any

person”, except as in compliance with certain other provisions. (33 U.S.C. § 1311(a).) One of


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2


those provisions, Section 404(a) (33 U.S.C. § 1344(a)), authorizes the U.S. Army Corps of

Engineers (“Corps”) to issue permits for the “discharge of dredged or fill material into the

navigable waters”. The Act defines “discharge” as “any addition of any pollutant to navigable

waters from any point source”. (33 U.S.C. § 1362(12).) Read together, “any discharge of

dredged or fill materials into ‘navigable waters’—defined as the ‘waters of the United States’—is

forbidden unless authorized by a permit issued by the [Corps] pursuant to § 404.” (United States

v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985).)

In 1975, the Corps issued proposed regulations to govern the Act’s permit program. (40

Fed.Reg. 19766 (May 6, 1975)), and explained in a press release that “federal permits may be

required … to … plow a field”, and “millions of people may be presently violating the law”,

subject to “fines up to $25,000 a day and one year imprisonment.” (Jeffrey Stine, Regulating

Wetlands In The 1970s, 27 J. FOREST HIST. 60, 67-71 (1983) (courtesy copy at dkt. #105-1).)

The Corps’s proposal provoked an exceptional backlash, and dissent from within the

Government. (Id.) The Secretary of Agriculture campaigned against the proposal. (Id.) The

Administrator of the Environmental Protection Agency (“EPA”) lobbied against the “false

impression” that “plowing” could result in a “discharge[]”.1 The EPA (which shares

responsibility with the Corps for the implementation of Section 4042) explained that the Act itself

prohibits the regulation of plowing: “Plowing is not dredging or filling. In our opinion, the

1 Letter from EPA Adm’r Russel Train to Lt. Gen. William Gribble, Jr., Chief of Engineers (May

16, 1975), reprinted at Section 404 of the Federal Water Pollution Control Act Amendments of

1972: Hearing Before the S. Comm. On Pub. Works, 94th Cong. 355 (1976) (courtesy copy at

dkt. #105-2). The full paragraph from that letter is worth quoting here:

We are particularly concerned that the false impression that farmers must obtain

permits whenever they plow a field be corrected. Since this was clearly not

contemplated by either the Corps or EPA and is not required by the statute, we

fail to understand how such a statement could appear in this press release. As you

are well aware, the primary concern of section 404 is to address situations where

dredged or fill material is discharged into wetland areas. By no stretch of the

imagination can the simple act of plowing be considered to fall under that

category.

2 See 33 U.S.C. § 1314(f)(1) (giving EPA the authority to “identify[] … nonpoint sources”); 33

U.S.C. § 1344, para. (b)(1) (requiring Corps permits to be based on EPA guidelines) & para. (c)

(giving EPA veto authority over Corps permits).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3


Corps does not have statutory authority to revise its regulations to include plowing.”3 Ultimately,

the Corps apologized (not a small thing for the Army), and committed to “dispel fallacies that the

Corps is proposing to regulate a farmer plowing his field”.4

The Corps’s resulting regulations reversed course from the draft, agreed with EPA, and

prescribed that plowing cannot cause a discharge.5 The Corps’s current regulations continue to

exclude plowing from regulation under the Act, by prescribing that “[p]lowing” (broadly

defined6) “will never involve a discharge”, unless it “changes any area of the waters of the United

States to dry land”. (33 C.F.R. § 323.4(a)(1)(iii)(D), emphasis added.)

Congress, in 1977, added separate statutory exemptions to the Clean Water Act, Section

404(f), for several types of activities, including “normal farming, silviculture, and ranching

activities” (33 U.S.C. § 1344(f)(1)(A)), subject to certain limitations (id. para. (f)(2)). This

exemption of normal farming activities (including particularly “plowing”, per §404(f)(1)(A)),

supplements and supports the existing regulatory exclusion for plowing. This belt-and-

suspenders approach clarifies, as the Corps has long explained, that plowing does not involve a

discharge and thus falls outside the scope of the Act’s regulation, and moreover, to the extent that

any plowing or other normal farming or ranching activity somehow could be associated with a

3 Development of New Regulations by the Corps of Engineers, Implementing Section 404 of the

Federal Water Pollution Control Act Concerning Permits for Disposal of Dredge or Fill

Material: Hearing Before the Subcomm. on Water Res. of the Comm. on Pub. Works and Transp.,

94th Cong. 74 (1975) (testimony of Alvin L. Alm, EPA); see also id. at 76 (“the difference

between the act of plowing and [the act of] dredging or filling is so apparent”) (courtesy copy at

dkt #105-4).

4 Corps Issues Interim Rules For Discharges Of Dredged And Fill Materials, 5 ENVT’L.L.REP.

10143 (1975) (courtesy copy at dkt. #105-3); Stine, supra, 27 J. Forest Hist. at 68-70.

5 40 Fed.Reg. 31320, 31325 (July 25, 1975) (excluding “material resulting from … plowing”

from regulation); 42 Fed.Reg. 37122, 37145 (July 19, 1977) (excluding “plowing, cultivating,

seeding and harvesting for the production of food, fiber, and forest products” from regulation); 45

Fed.Reg. 33290, 33473 (May 19, 1980) (EPA regulations prescribing that “[p]lowing … will

never involve a discharge” unless it actually converts wetlands “to dry land”); 47 Fed.Reg. 31794

(July 22, 1982) (Corps regulations prescribing same).

6 The regulations define plowing as: “all forms of primary tillage, including moldboard, chisel, or

wide-blade plowing, discing, harrowing and similar physical means utilized on farm, forest or

ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the

planting of crops.” (33 C.F.R. § 323.4(a)(1)(iii)(D).)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4


discharge, that discharge is exempt from regulation:

Since 1975, Corps regulations have excluded “plowing...for production of food,

fiber, and forest products” from the definition of a discharge of dredged or fill

material [citation]. “Plowing” is defined in 33 CFR 323.4(a)(1)(iii)(D).

Plowing for the purpose of producing food, fiber, and forest products and meeting

the definition in Section 323.4 will never involve a discharge of dredged or fill

material. Such plowing is not subject to any of the provisions of Section 404

including the Section 404(f) exemption limitations. Section 404(f) is applicable

to those activities that do involve a discharge but are statutorily exempted from

the need to obtain a 404 permit.7

In other words, plowing as defined in the Corps’s regulation does not itself involve a

discharge in the first place, and thus is not subject to the Act at all. To the extent nonetheless that

a discharge may somehow arise from plowing or any other normal farming or ranching activity,

that discharge may still be exempted by Section 404(f) from any need to obtain a permit.

B. The Farmland At Issue

The Property at issue in this case is in Tehama County, far from the navigable-in-fact

Sacramento River: approximately 7.2 miles as the crow flies, and likely quite a bit farther as the

water actually flows. (Dkt. #87-2 at 2; see Counterclaim (dkt. #28) ¶¶ 38, 45 (alleging that

Property is more than 8 miles upstream from Sacramento River); Br. at 5 (describing meandering

water flow towards Sacramento River).) The waters and wetlands on the Property also carry

exceedingly minor volumes of water: the waters and wetlands on the Property comprise, at most,

just 0.113% of the relevant watersheds. (Declaration of Joel Butterworth (“Butterworth Decl.”),

Exhibit (“Ex.”) 2 at 14-15.) The waters and wetlands on the Property are not similarly situated to

other lands in the region: those other lands are on different landforms, have different soils, drain

in different directions, and “have completely different slopes, aspects, vegetation potential,

biologic characteristics, parent materials, disturbance history, and time of residence.”

(Declaration of David Kelley (“Kelley Decl.”), Ex. 2 at 11-12.)

The wetlands on the Property consist of vernal pools and wetland swales. (Br. at 5:16-18,

7 U.S. Army Corps of Engineers, Regulatory Guidance Letter 86-01, Exemptions to CWA—

Plowing, ¶¶ 2-3 (February 11, 1986), available at

http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl86-01.pdf. This guidance

document also gives examples of uses of a plow that do not fall within the definition of

“plowing”. (Id. ¶ 4.)


www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl86-01.pdf

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5


6:24.) These pools and swales form atop thick subsurface layers of restrictive soils that

essentially block water from percolating downwards into the groundwater. (Declaration of Tom

Skordal (“Skordal Decl.”), Ex. 1 at 7-9.) During the rainy season, water perches atop those

restrictive layers; areas that become saturated from the top of the restrictive layer up to the ground

surface form wetlands. (Id.)

The agricultural and grazing history of the Property is similar to that of many dryland

farming and ranching operations in the region. (Kelley Decl., Ex. 1 at 5.) In this region, it is

conventional for a landowner to follow an “irregular … but persistent” cycle of grazing and then

cultivating a piece of farmland. (Id. at 5-6.) That cycle has been repeated on the Property here:

it has been in “rotational cultivation” since at least the 1960s (and possibly back to the 19th

century), with “matter-of-course cattle grazing on the parcel whenever it has not been in dryland

crop production”. (Id. at 9.) When not being grazed, the Property has been “plowed, deep ripped,

burned, dried out, wet up, planted to small grains, hayed, and otherwise disturbed many times in

the last few decades, before the latest tillage episode” in 2012. (Id., Ex. 2 at 13.)

Plowing can and often does expand the reach of wetlands. (Skordal Decl., Ex. 1 at 9.)

The wetlands on the Property are resilient to plowing. (Kelley Decl., Ex. 2 at 13.)

C. Duarte Plows This Farmland To Plant Wheat—

Without Changing Any Waters To Dry Land

In early 2012, Duarte Nursery, Inc. (“Duarte”) purchased the Property. (Dkt. #104 ¶ 2.)

After purchasing the Property, Duarte instructed a third party, Brad Munson, to plant, maintain,

and harvest a wheat crop on the Property. (Munson deposition (dkt. #112) at 50:13-51:3.)

Duarte’s purpose in doing so was “purely for planting wheat.” (John Duarte deposition (dkt.

#109) at 54:18-22.)

Mr. Munson instructed another third party, Mr. Unruh, to “till the soil 12 inches or less”,

and to plant “wheat and wheat only.” (Unruh deposition (dkt. #114) at 54:23-56:18.) In

November and December 2012, Mr. Unruh used a chisel plow, set up with a gauge wheel to limit

the depth of plowing to no more than 12 inches, to plow parts of the Property. (Id. at 123:21-

125:5; 217:14-218:2; id. at 230:12-232:20 (describing labeling of a photo of the tractor and gauge

wheel used); dkt. #129-8 8 (the photo).) The chisel plow made only one pass. (Unruh deposition


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6


(dkt. #114) at 148:4-5.) It moved soil mere inches from its previous location. (Dkt. #130-2 at 2-

4.) It tilled the Property to approximately 3-4 inches in most places, and in no place any deeper

than 14 inches. (Butterworth Decl., Ex. 2 at 1-3.) The plowing was not deep enough to disturb

any subsurface restrictive layers on the Property. (Id. at 9.)

After the plowing, wheat seed was broadcast on the Property by aircraft. (Unruh

deposition (dkt. #114) at 159:4-11.) A mature stand of dryland (i.e. unirrigated) wheat then grew

on the Property. (Id. at 163:13-164:11, 165:23-166:4; Kelley Decl., Ex. 1 at 10-11.)

As might be expected, given the persistence of wetlands at the Property following the

previous agricultural activities there, and the fact that the subsurface restrictive layers were

unaffected, the plowing and wheat planting in 2012 did not convert any waters to dry land.

(Skordal Decl., Ex. 1 at 4 & 10, Ex. 2 at 3-7; Butterworth Decl., Ex. 1 at 12-13; Dkt. #132-1 at 4-

11; Dkt. #132-2 at 1-2, 8-9.) Nor did Duarte’s 2012 plowing affect the flow, circulation, or reach

of any wetlands on the Property. (Skordal Decl., Ex. 1 at 4-11; Dkt. #132-1 at 4-11.) The

wetlands on the Property continue to support vibrant and resilient plant and animal communities.

(Kelley Decl., Ex. 2 at 13, 16-18; Dkt. #132-2 at 2-6.)

III. LEGAL STANDARD

The Government argues that it is entitled to summary judgment on its counterclaim that

Duarte Nursery, Inc. and its President, John Duarte, are liable for alleged Clean-Water-Act

violations. (Br. at 1.)

Summary judgment is appropriate only when the moving party shows “there is no genuine

dispute as to any material fact”, and that it “is entitled to judgment as a matter of law.” (Fed. R.

Civ. Proc. 56(a).) The evidence is to be viewed in the light most favorable to the non-moving

party, and “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to

be drawn in [its] favor.” (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).)

The Government’s motion for summary judgment should be denied because it cannot

show that the undisputed facts, when viewed in the light most favorable to Duarte, entitle the

Government to judgment as a matter of law.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7


IV. DUARTE’S PRIMA FACIE SHOWING ON ITS RETALIATION CLAIM

PRECLUDES SUMMARY JUDGMENT ON THE COUNTERCLAIM

The Government should not be granted summary judgment on its Counterclaim because

that would effectively deny Duarte a hearing on its Sixth Cause of Action: First Amendment

retaliation (dkt. #90). The relief that Duarte seeks on that claim is enjoining the Government

from prosecuting the Counterclaim if it cannot show that it would have sued absent Duarte’s

lawsuit against the Corps. (See Denney v. DEA, 508 F.Supp.2d 815 (E.D. Cal. 2007) (physician

had standing to seek injunctive relief against federal investigation retaliating against his speech in

favor of medical marijuana).)

A First Amendment retaliation claim requires “three elements: (1) that the plaintiff was

engaged in a constitutionally protected activity, (2) that the defendant’s actions caused the

plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to

engage in that activity; and (3) that defendant's adverse action was substantially motivated as a

response to the plaintiff’s exercise of constitutionally protected conduct.” (Dkt. #63 (March 23,

2015, Order on United States’ Second Motion to Dismiss) at 7:26-8:3.) Once this prima facie

showing is made, the burden shifts to the Government to show that it would have taken the same

action even without the plaintiff’s First Amendment activity. (Mt. Healthy City Board of Ed. v

Doyle, 429 U.S. 274, 287 (1977).)

Duarte can make a prima facie case of First Amendment retaliation. Duarte sued the

Corps (dkt. #1), which is a protected First Amendment action. (Soranno’s Gasco, Inc. v. Morgan,

874 F.2d 1310, 1314 (9th Cir. 1989).) Being sued by the Government for civil penalties that

accumulate at tens of thousands of dollars per day per alleged violation, 33 U.S.C. § 1319(c), is a

sufficient injury to chill a person of ordinary firmness in the exercise of First Amendment rights.

(Schneider v. County of Sacramento, 2014 U.S.Dist.LEXIS 116809, *21 (E.D. Cal. 2014)

(increase in financial assurances exceeding value of mining property sufficient injury).) The

Corps’s staff here admit that Duarte’s lawsuit was the reason that a previously planned referral to

EPA (of which staff had low expectation for further EPA enforcement) was abandoned in favor of

referral to the Justice Department for a civil lawsuit against Duarte. (Robb deposition (dkt. #113)

at 122:25-123:2, 138:5-9, 142:10-21, 150:6-17, 154:20-155:1.) And counsel for the Government


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8


told Mr. Unruh that Duarte had “sued us” and so “we’re suing them back”, which immediately

gave Mr. Unruh “a feeling of retaliation”. (Unruh deposition (dkt. #114) at 204:13-205:17.)

Because Duarte has made a prima facie showing, the Court can and should enjoin the

prosecution of the Counterclaim until the Government proves, by a preponderance of the

evidence, that it would have brought the Counterclaim absent Duarte’s suit against the Corps.

Summary judgment for the Government on the Counterclaim should be denied because that

would be granting relief now that the Court may later determine is unavailable to the Government

because of First Amendment retaliation.

V. THE GOVERNMENT’S ADMISSIONS THAT

THE CORE ALLEGATIONS IN ITS COUNTERCLAIM ARE “WRONG”

PRECLUDE SUMMARY JUDGMENT IN ITS FAVOR

The Government acknowledges that it is deemed to have admitted that “the central

allegation” in the Counterclaim—that “Duarte violated 33 U.S.C. § 1311(a)”—is “wrong”. (Dkt.

#101-1 at 4:16-27.) The Government also acknowledges that it is deemed to have admitted that

its other “fundamental allegations” (including that Duarte caused a “discharge”) are also “wrong”.

(Id.)8 Because the Government has admitted that the central and fundamental allegations in its

Counterclaim are wrong, summary judgment in the Government’s favor should be denied.

As explained below and in Duarte’s opposition to the Government’s motion to withdraw

its admissions (dkt. #103), the Government had good reasons to admit that its allegations of Clean

Water Act violations were wrong. Even if the Government had not made these admissions, the

good reasons for denying the Government’s motion for summary judgment remain.

VI. A GENUINE DISPUTE EXISTS ABOUT THE FACTS UNDERLYING WHETHER

THE CLEAN WATER ACT APPLIES

TO THIS FARMLAND AT ALL

The Government asserts that “there is no triable issue” on whether the waters and

wetlands on the Property have a “significant nexus” with the Sacramento River and are thus

“waters of the United States” under the Act. (Br. at 16:26-17:20.) The Government is wrong.

Duarte’s evidence on this issue creates a genuine dispute about whether any of the waters and

8 The Government has moved to withdraw these deemed admissions, but that motion should be

denied for the reasons Duarte gave in its opposition brief. (Dkt. #103.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9


wetlands on the Property have this “significant nexus”. This dispute alone is sufficient to defeat

the Government’s entire motion.

The Ninth Circuit has held that Justice Kennedy’s concurrence in Rapanos “provides the

controlling rule of law” for determining which waters or wetlands qualify as “waters of the

United States”. (N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.

2007), citing Rapanos v. United States, 547 U.S. 715 (2006).)9 According to Justice Kennedy,

the test is whether there is “a significant nexus between the wetlands in question and navigable

waters in the traditional sense”. (Rapanos at 779, emphasis added.) This significant nexus exists,

wrote Justice Kennedy, “if the wetlands, either alone or in combination with similarly situated

lands in the region, significantly affect the chemical, physical, and biological integrity” of

traditional navigable waters. (Id. at 780.) No significant nexus exists, however, when the

wetlands’ effects on downstream water quality are “speculative or insubstantial”—such as for

features “remote from any navigable-in-fact water and carrying only minor water volumes toward

it”. (Id. at 780-781.) Whether a significant nexus exists must be determined “on a case-by-case

basis”. (Id. at 782.)

The Property is remote from the navigable-in-fact Sacramento River: approximately 7.2

miles as the crow flies, and likely quite a bit more as the water actually flows. (See Section II.B

above.) The wetlands on the Property also carry exceedingly minor volumes of water: they

comprise at most just 0.113% of the relevant watersheds. (Id.)

The Government counters that “similarly situated lands in the region” should be combined

with the wetlands on the Property for purposes of the analysis. (Br. at 18:1-4.) The Government

cites no evidence showing that the wetlands on the Property are similarly situated to other lands

in the region.10 And the Government fails to mention that Duarte does have evidence that the

Property’s wetlands are not similarly situated to other lands in the region: other lands in the

9 Duarte’s position is that the Ninth Circuit is wrong on this issue (dkt. #128 at 14-17), but this

need not be addressed in resolving this motion.

10 If the Government’s position is that all wetlands are similarly situated to all other wetlands in a

given region as a matter of law, that would conflict with Justice Kennedy’s requirement of a case-

by-case evaluation.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10


region are on different landforms, have different soils, drain in different directions, and have

completely different slopes, aspects, vegetation potential, biologic characteristics, parent

materials, disturbance history, and time of residence. (See Section II.B above.) Because the

wetlands on the property are remote from the Sacramento River, contribute exceedingly minor

water towards the Sacramento River, and are not similarly situated with other lands in the region,

they do not have a significant nexus with the Sacramento River and are thus not “waters of the

United States” under the Act. Summary judgment for the Government should be denied.

The unpublished Fourth Circuit decision, Precon Dev. Corp. v. U.S. Army Corps of

Eng’rs, 603 F.App’x 149 (4th Cir. 2015) (“Precon II”), is distinguishable. Precon II involved the

appeal following remand from a prior (published) decision that had vacated in part a decision by

the Corps, as part of its adjudication of a Section-404-permit application, that certain wetlands on

a piece of property had a significant nexus to a traditionally navigable water. (Id. at 150,

discussing Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278 (4th Cir. 2011)

(“Precon I”).) Precon I and Precon II each applied the arbitrary-and-capricious standard of the

Administrative Procedure Act, Section 706(2)(A), to the Corps’s adjudication that the wetlands at

issue were “similarly situated” to other lands in the region. (Precon I at 292; Precon II at 151-

152.) In both cases, the Fourth Circuit held that the Corps’s similarly-situated adjudication was

not arbitrary and capricious because it was supported by substantial evidence from the Corps in

the record. (Id.)11

Here, the issue is not whether the Government’s assertion that the wetlands at issue are

similarly situated to others in the region is arbitrary and capricious for purposes of the

Administrative Procedure Act. It is whether Duarte has evidence creating a genuine dispute.

(See Section III above.) It does. The Government’s motion should be denied.12

11 The language the Government quotes from Precon II cannot have been intended to be a

statement of the law, for it conflicts with Justice Kennedy’s test, which requires that wetlands

must first be shown to be “similarly situated” with other wetlands in the region before they can be

combined for purposes of the significant-nexus analysis.

12 That other consultants have suggested that wetlands on the Property are “waters of the United

States” is both hearsay and irrelevant. The 1994 delineation was completed pre-Rapanos, and has

expired by its own terms. (Dkt. # 126-1 at 14.) The unverified 2012 delineation was only a

“draft”. (Dkt. #131-4 at 1.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11


VII. THE PLOWING EXCLUSION PRECLUDES THE CLAIM THAT PLOWING THE

PROPERTY INVOLVED A “DISCHARGE”

The Government has only one argument why the regulation excluding plowing from the

Act, 33 C.F.R. § 323.4(a)(1)(iii)(D), does not apply here, which goes something like this: as the

plow tines combed the soil a few inches deep, they left shallow furrows, and caused soil to mound

in small ridges immediately adjacent (Br. at 11:23-12:7, 14:12-17); the soil combed from those

furrows, and parted into those ridges, supposedly changed the “bottom elevation” of streams and

wetlands, and thus is “[f]ill material” (id. at 14:12-17 (quoting 33 C.F.R. § 323.2(e)(1)); that “fill

material” is then equated with causing waters and wetlands “to fill in”, which thus supposedly

makes Duarte’s tillage something other than “plowing” as defined in the regulation.

Apart from defying a common sense understanding of plowing, this argument proves too

much. The regulation excluding plowing, as defined, from the Act, begins from the premise that

“[p]lowing means all forms of primary tillage, including moldboard, chisel, or wide-blade

plowing, discing, harrowing and similar physical means utilized on farm, forest or ranch land for

the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops.”

(33 C.F.R. § 323.4(a)(1)(iii)(D), emphasis added.) Any tillage that breaks up, cuts, turns, or stirs

soil is going to roughen the surface of the land; that is the very purpose of tillage. Roughening

the surface will always leave that surface somewhat more uneven. If causing unevenness in a

wetland were equivalent to changing its “bottom elevation”, and if such a change were equivalent

to causing the wetland “to fill in”, then what primary tillage in a wetland would ever qualify as

the “plowing” that the regulation has long excluded from the Act? Under the Government’s

interpretation, the regulation excluding plowing from the Act would be a nullity.

The Government’s error stems mostly from a misreading of the “to fill in” language from

the plowing regulation. That language is really just shorthand for the concept, clearly expressed

in the prior sentence of the regulation, that primary tillage is not “plowing” when it “changes any

area of the waters of the United States to dry land”:

The term [‘plowing’] does not include the redistribution of soil, rock, sand, or

other surficial materials in a manner which changes any area of the waters of the

United States to dry land. For example, the redistribution of surface materials by

blading, grading, or other means to fill in wetland areas is not plowing.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12


(33 C.F.R. § 323.4(a)(1)(iii)(D), emphasis added.) “Dry land” is a term of art in the Clean-Water-

Act context: it means land that is not a wetland or other type of water at all. (See United States

v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985) (“between open waters and dry land

may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not

wholly aquatic but nevertheless fall far short of being dry land” (emphasis added)).) By giving

the filling-in of a wetland as an “example” of how a wetland might be “change[d] … to dry land”,

the phrase “to fill in” is best read as meaning “change … to dry land”, rather than (as the

Government would have it) ‘add any amount of fill’. (See Yates v. United States, 135 S.Ct. 1074,

1085 (2015) (rejecting Government’s broad reading of a prohibition because “we rely on the

principle of noscitur a sociis—a word is known by the company it keeps—to avoid ascribing to

one word a meaning so broad that it is inconsistent with its accompanying words”, internal

quotation marks omitted).) EPA clearly had the former meaning in mind when it promulgated the

regulation that first contained the language in question. (See 45 Fed.Reg. 33290, 33398-33399

(May 19, 1980) (“the redistribution of soil or other surface materials to fill in waters of the U.S.

are not included in this definition [of ‘plowing’]”; “redistribution of material should be subject to

the permit process when it results in the conversion of waters of the United States to dry land”

(emphasis added)).) This reading of the verb “to fill in” also happens to comport with the

dictionary definition. (See The Oxford Encyclopedic English Dictionary at 525 (1991) (defining

the verb “fill in” as “fill (a hole etc.) completely” (emphasis added)).) In short, primary tillage

that does not convert wetlands to dry land is “plowing” that the Act does not regulate.

In any event, Duarte’s tillage did not involve “fill material”. The EPA has explained that

“[p]lowing is not dredging or filling.” (Dkt #105-4 at 74.). Nor did the plowing here change the

“bottom elevation” of any wetlands. The Government assumes that the “bottom” of the wetlands

is the same thing as the “ground surface”. (Br. at 12:5, 14:26-28.) It is not. The wetlands on the

Property consist of vernal pools and wetland swales. (See Section II.B above.) These pools and

swales form atop thick subsurface layers of restrictive soils that essentially block water from

percolating downwards into the groundwater. (Id.) During the rainy season, water perches atop

those restrictive layers; areas that become saturated from the top of the restrictive layer up to the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13


ground surface form wetlands. (Id.) The “bottom” of these wetlands is the restrictive layer, not

the soil surface.13 (See Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d 810, 815

(9th Cir. 2001) (describing the “bottom layer of soil” that “trapped” water, “holding the wetland

in place”); Transcript of Oral Argument at 37-38, Borden Ranch, 537 U.S. 99 (2002) (No. 01-

1243) (Government agrees that the “bottom” of the wetland is the subsurface restrictive layer).)

The plowing Duarte conducted starting in November 2012 was not deep enough to disturb any

restrictive layers on the Property. (See Section II.C above.) So Duarte’s plowing did not change

the bottom elevation of any of the wetlands and thus, according to the Government’s

interpretation, caused none of those wetlands “to fill in”.

Duarte’s operations were “primary tillage” within the meaning of 33 C.F.R. section

323.4(a)(1)(iii)(D). (See Counterclaim, dkt. #28, ¶¶ 93-94 (admitting that Duarte used “shanks”

to “prepare much of the Site for planting”).) That tillage did not convert any wetlands or waters

to “dry land”. (See Section II.C above.) Because this primary tillage did not convert any

wetlands or waters to dry land, it is “plowing” that is excluded from regulation under the Act.

Summary judgment for the Government on its counterclaim should be denied.

VIII. THERE IS A GENUINE DISPUTE ABOUT THE FACTS UNDERLYING WHETHER

THE NORMAL-FARMING-PRACTICES EXEMPTION APPLIES

Summary judgment should also be denied because, even if Duarte’s tillage was not the

type of “plowing” excluded from regulation under the Act, any “discharge” that might be

associated with that tillage would still be exempted from regulation by the separate normal-

farming-practices exemption of Section 404(f) (33 U.S.C. § 1344(f)). That exemption applies,

according to the Corps’s regulations, for “activities” that are “part of an established (i.e. ongoing)

farming … or ranching operation”, subject to certain limitations. (33 C.F.R. § 323.4(a)(1)(ii).)14

13 Were it otherwise, leaving even a footprint in a wetland would violate the Act, because

footprints are small depressions (a “change in elevation” in the Government’s view).

14 This sub-sub-sub-section of the regulation also affirms that, “[i]f an activity … does not

involve a discharge, it does not need a section 404 permit, whether or not it is part of an

established farming … or ranching operation.” (See Section II.A above.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14


A. Duarte’s 2012 Tillage Was Part Of An Established Farming Or Ranching Operation

It is undisputed that, as the Government emphasizes (Br. at 19:6-15), the Property has not

been planted in crops since the 1980s, and has primarily been grazed since then. But those facts

do not mean that the wheat plowing and planting conducted in 2012 were not, as a matter of law,

part of an established farming or ranching operation.15

The Corps’s regulation on what constitutes an “established” farming or ranching operation

provides that, if an activity is “part of a conventional rotational cycle”, it is established, but if

“modifications to the hydrological regime are necessary to resume operations”, it is not. (33

C.F.R. § 323.4(a)(1)(ii).) Duarte’s plowing for wheat was part of an established farming or

ranching operation under this regulation.

The agricultural and grazing history of the Property is similar to that of many dryland

farming and ranching operations in the region. (See Section II.B above.) In this region, it is

conventional for a landowner to follow an irregular but persistent cycle of grazing and then

cultivating a piece of farmland. (Id.) That cycle has been repeated on the Property here: it has

been in rotational cultivation since at least the 1960s, with matter-of-course cattle grazing

whenever it has not been in dryland crop production. (Id.) When not being grazed, the Property

has been plowed, deep ripped, burned, dried out, wet up, planted to small grains, hayed, and

otherwise disturbed many times in the last few decades, before 2012. (Id.)

Nor was it necessary to modify the hydrological regime in order to resume plowing and

planting on the Property. The 2012 tillage was readily performed without any need to modify the

Property’s hydrology beforehand. Nor did the tillage itself modify the Property’s hydrology. The

hydrology of the Property is driven by the persistence of a subsurface restrictive layer. (See

Section II.B above.) The 2012 tillage was not deep enough to damage or penetrate that restrictive

15 The Government quotes language from Akers in which the Ninth Circuit recited a factual

finding by the District Court. (Br. at 20:4-6, quoting United States v. Akers, 785 F.2d 814, 819

(9th Cir. 1986).) That factual finding is obviously not a rule of law. Corps enforcement staff in

this case admit that they “don’t have a standard” for determining how-long-is-too-long between

crop plantings. (Robb deposition (dkt. #113) at 71:5-72:7.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15


layer. (See Section II.C above.)16

Because the farming and ranching history of the Property is consistent with the

conventional rotational cycle of the region, and did not alter the Property’s hydrology, Duarte’s

2012 plowing is part of an “established” farming or ranching operation for purposes of the

normal-farming-practices exemption.

B. The Recapture Provision Does Not Apply

The other limitation on the normal-farming-practices exemption (the “recapture”

provision, 33 U.S.C. § 1344(f)(2)) also does not apply here. The recapture provision applies to

activities “whose purpose is to convert an area of the waters of the United States into a use to

which it was not previously subject, where the flow or circulation of waters of the United States

nay [sic] be impaired or the reach of such waters reduced.” (33 C.F.R. § 323.4(c).) A “change

from one wetland crop to another” does not trigger the recapture provision. (United States v.

Akers, 785 F.2d 814, 820 (9th Cir. 1986).) “[M]inor conversions of tiny areas of wetlands to

marginal drylands” also do not trigger the recapture provision. (In re Carsten, 211 B.R. 719, 735

(Bankr. D. Mont. 1997).) The recapture provision does not apply here.

The purpose of the activities conducted on the Property in 2012 was to plow and plant

wheat on those areas of the Property that are not waters of the United States (see Section II.C

above; dkt. #104 ¶ 3; dkt. #121 ¶ 4), not to convert the previously farmed wetlands on the

Property into a totally new use. Nor did Duarte’s 2012 plowing affect the flow, circulation, or

reach of any wetlands. (See Section II.C above.) Because the purpose of Duarte’s 2012 tillage

was not to convert any area of the waters of the United States into a new use, and did not affect

the flow, circulation, or reach of any wetlands, the recapture provision does not apply to Duarte’s

otherwise-exempt plowing. Summary judgment for the Government should be denied.

IX. DUARTE DID NOT “ADD A POLLUTANT”,

AS SUPREME COURT AUTHORITY MAKES CLEAR

The Government argues that Duarte “added a pollutant” within the meaning of the Act

when its tractor caused “earthen materials” (soils) to move a few inches laterally “within waters

16 Indeed, dryland wheat depends upon an intact restrictive layer to hold moisture near the

surface. (Kelley Decl., Ex. 1 at 10-11.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16


of the United States.” (Br. at 13:19-24.)17 The Government asserts that these soils “were not

pollutants in their natural state”, but somehow were transmogrified and “became pollutants” once

plowed. (Id.) The Government is wrong.

Even accepting, arguendo, the strange premise that merely plowing productive soil on

farmland, for the purpose of enhancing its productivity, could transmogrify that soil into a

“pollutant”, the soil on this Property was not in its “natural state”: it had been plowed and planted

many times before over the preceding decades. (See Section II.B above.) If plowing soil in its

natural state transmogrifies that soil into a pollutant, then, under the Government’s logic, the soil

on the Property was already a pollutant when Duarte plowed it. Merely plowing “polluted” soil

within a wetland could not add any new pollutants to that wetland, and cannot be the basis for

liability under the Act. (See 33 U.S.C. § 1362(12) (defining “discharge of a pollutant” to mean

the “addition of any pollutant to navigable waters from any point source”, emphasis added).)

Two recent U.S. Supreme Court cases (which the Government neglects to mention in its

brief) confirm that merely redistributing what might be a pollutant within the “same water body”

causes no “addition” under the Act. (L.A. Cty. Flood Control Dist. v. NRDC, Inc., 133 S.Ct. 710,

713 (2013); South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-110

(2004); see Tri-Realty Co. v. Ursinus Coll., 2015 U.S.Dist.LEXIS 111455, *140 (E.D. Pa. Aug.

24, 2015) (“[i]t is well established that the spread of pollution within a single body of water does

not constitute the ‘discharge of a pollutant’ under the [Act]”, citing L.A. County Flood Control

District).) The same principle applies here. Redistributing previously plowed soil (a “pollutant”,

in the Government’s view) within a wetland on the Property does not add any pollutant to that

wetland. Summary judgment for the Government should be denied.

Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d 810 (9th Cir. 2001), is

distinguishable. Borden Ranch involved deep ripping “rangeland” that apparently had not been

17 The Government ticks off a parade of other supposed soil-related horribles (Br. at 11:11-22).

To the extent those might be taken seriously, each is disputed. (See Butterworth Decl., Ex. 2 at

15-17 (2012 tillage “did not cause” soil clumps or slabs to slough into waters); id. at 9 (tillage

was not deep enough to penetrate any restrictive layers).)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17


plowed before (and thus was supposedly in its “natural state”18) to convert it to permanent crops

(id. at 812), whereas this case involves plowing previously plowed soil (supposedly “polluted”

already) to plant wheat (see sections II.B and II.C above). Borden Ranch also focused on the

addition caused by the restrictive subsurface layer having been “wrenched up, moved around, and

redeposited somewhere else” (id. at 815), whereas here the restrictive layer was not affected (see

section II.C above). And in Borden Ranch the wetlands were “completely obliterated” (1999

U.S. Dist. LEXIS 21389 *13 (E.D. Cal. 1999)), whereas here the wetlands remain vibrant and are

all still there (see section II.C above).19

The Government’s assertion that the soil moved by Duarte’s plowing was not “incidental

fallback” excluded from regulation (Br. at 14:3-11) helps Duarte, not the Government. To make

that argument, the Government has to concede that “dredging … did not occur here”. (Id. at

14:6-9.) This is consistent with the District Court’s holding in Borden Ranch that “plowing land”

is not a “dredging activit[y]”. (Borden Ranch Pshp. v. U.S. Army Corps of Eng'rs, No. CIV-S-97-

0858 GEB JFM, dkt. #74, at n.7 (E.D. Cal. Aug. 3, 1998).) And it is consistent with EPA’s

position that “[p]lowing is not dredging”. (See Section II.A above; see also dkt. #130-2 at 2

(“[d]redging is not used to describe the process of plowing”).) Because plowing is not dredging,

it cannot result in the discharge of dredged material.

Even if Duarte’s plowing could be characterized as dredging, it resulted merely in

“incidental fallback” that is excluded from regulation per 33 C.F.R. section 323.2(d)(1).

“Incidental fallback” is not defined in the Corps’s current regulations. But several courts have

considered the term, holding it applies to material that is not moved beyond “substantially the

same place as the initial removal”. (Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng’rs,

18 The Government, in its Supreme Court merits brief in Borden Ranch, emphasized that the

wetlands at issue had not previously been plowed. (Brief for the Respondents at 41 n.27,

available at http://www.justice.gov/osg/brief/borden-ranch-v-united-states-army-corps-engineers-

and-epa-brief-merits.)

19 The other cases cited by the Government (Br. at 13:6-18) are also distinguishable on the ground

that they did not involve plowing previously plowed soil. To the extent that Borden Ranch or

those other cases hold that merely redistributing a “pollutant” within a wetland constitutes an

“addition”, they are no longer good law after L.A. County Flood Control District and Miccosukee.


http://www.justice.gov/osg/brief/borden-ranch-v-united-states-army-corps-engineers-and-epa-brief-merits

http://www.justice.gov/osg/brief/borden-ranch-v-united-states-army-corps-engineers-and-epa-brief-merits

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18


2007 U.S.Dist.LEXIS 6366, *11 (D.D.C. 2007) (quoting National Mining Association v. U.S.

Army Corps of Eng’rs, 145 F.3d 1399, 1410 (D.C. Cir. 1998) (Silberman, J., concurring)).) The

plowing here moved soil mere inches from its previous location. (See Section II.C above.)

Because the soil remained in substantially the same place as it was prior to the plowing, that soil

movement constitutes incidental fallback that is excluded from regulation.

X. THE PLOW WAS NOT A “POINT SOURCE” CONVEYANCE

The Government argues that, because the tractor used here was “discernible, confined and

discrete”, it “necessarily” was a “point source” under the Act. (Br. at 15:1-9 (quoting 33 U.S.C. §

1362(14)).) The Government’s argument depends upon a misleading quotation of the key

definition in the Act: a “point source” must be a “discernible, confined and discrete conveyance”.

(33 U.S.C. § 1362(14), emphasis added.) This definition “evoke[s] images of physical structures

and instrumentalities that systematically act as a means of conveying pollutants from an industrial

source to navigable waterways.” (United States v. Plaza Health Laboratories, Inc., 3 F.3d 643,

646 (2d Cir. 1993), emphasis added.) The Government cites no evidence that the plow used here

conveyed soil or any pollutant anywhere. The evidence is that the plow used here did not convey

soil. (Dkt. #130-2 at 2-3 (“shanks are not designed to move soil”, and there is “[no] sign that soil

or sediment moved off the property”).) EPA has likewise agreed that “plowing … is not a point

source”. (45 Fed.Reg. 33290, 33398 (May 19, 1980).) That distinguishes this case from the

others cited by the Government (Br. at 15:4-19), which each involved significant conveyances of

soil. Because the plow here did not convey soil, it is not a “point source”. Summary judgment

for the Government should be denied.

XI. JOHN DUARTE CANNOT BE HELD PERSONALLY LIABLE

The Government contends that John Duarte should be held personally responsible for

Duarte’s plowing, not because he personally operated the tractor or instructed the tractor operator,

but merely because he “could provide instructions” to the tractor operator. (Br. at 9:21-22.) The

Government is wrong, for three reasons.

First, the Government’s counterclaim does not allege that Mr. Duarte could have provided

instructions to the tractor operator. It is too late now for the Government to change its theory for


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19


why Mr. Duarte should be held liable. (See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387–

1389 (9th Cir. 1990) (changing theory of liability after discovery cut-off and summary-judgment

motion filed is unduly prejudicial).)

Second, the Government advances the wrong standard for when a corporate officer may

be held personally liable for the acts of the corporation. It cites Park for the proposition that, for

“public welfare statutes”, corporate officers may be held personally liable when they had

“responsibility and authority either to prevent in the first instance, or promptly to correct, the

violation complained of”. (Br. at 9:22-10:1 (quoting United States v. Park, 421 U.S. 658, 673-

674 (1975)).) But the Government neglects to mention the most recent Supreme Court case on

this issue, which put strict limits on such personal liability. In Meyer v. Holley, 537 U.S. 280

(2003), the Court clarified Park to hold that such personal liability may exist “only where

Congress has specified that such was its intent.” (Meyer at 287.) Congressional “silence” on the

issue of such personal liability is insufficient. (Id. at 290.) Meyer specifically rejected the

argument, which the Government’s invocation of “public welfare statutes” attempts to resurrect

here, that a statute’s “overriding societal priority” brings with it the “legal rule that would hold

every corporate supervisor personally liable without fault for the unlawful act of every corporate

employee whom he or she has the right to supervise.” (Id. at 289-291.)

Congress in the Clean Water Act expressly intended that corporate officers should not be

held civilly liable for the acts of their corporations. Congress’s intent becomes apparent upon

contrasting the subsection of the Act providing for civil enforcement (33 U.S.C. § 1319(b)) with

the subsection providing for criminal enforcement (33 U.S.C. § 1319(c)). The criminal

enforcement subsection specifies that, “[f]or purposes of this subsection [i.e., 33 U.S.C. §

1319(c)], the term ‘person’ means … any responsible corporate officer.” (33 U.S.C. §

1319(c)(6), emphasis added.) But the civil enforcement subsection is silent on holding corporate

officers personally liable. (See 33 U.S.C. § 1319(b) (no provision relating to corporate officers).)

Congress’s choice to add responsible corporate officers to the types of persons who may

personally be subject to criminal enforcement, but to omit them from civil enforcement, shows

that Congress did not intend for responsible corporate officers to be held personally liable in civil


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20


enforcement actions. “Where Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” (Russello v. United States,

464 U.S. 16, 23 (1983).) Courts have applied this principle to analogous provisions in the Clean

Air Act to hold that corporate officers may not be held personally liable in those types of

enforcement actions where the authorizing subsection does not include it. (Illinois v.

Commonwealth Edison Co., 490 F.Supp. 1145, 1148 (N.D. Ill. 1980); People v. Celotex Corp.,

516 F.Supp. 716, 719 (C.D. Ill. 1981).) Because Congress did not intend for corporate officers to

be held personally liable in civil enforcement actions under the Clean Water Act, it cannot be

used to impose liability on Mr. Duarte here. (See Meyer v. Holley, supra.)20

Third, the District Court cases in this Circuit that have (wrongly) held corporate officers

personally liable under the Act have also imported the requirement, from the criminal

enforcement subsection, that the officer must have acted “knowingly”. (Humboldt Baykeeper v.

Simpson Timber Co., 2006 U.S.Dist.LEXIS 91667, *10, *12-*13 (N.D. Cal. 2006); Northern Cal.

River Watch v. Oakland Mar. Support Servs., 2011 U.S.Dist.LEXIS 14551, *9 (N.D. Cal. 2011).)

Mr. Duarte did not intend that waters of the United States be prepared for planting; his intent was

for the tillage to avoid all waters of the United States. (Dkt. #121 ¶ 4.) Because Mr. Duarte did

not have the requisite “knowingly” intent, summary judgment against him should be denied.

XII. CONCLUSION

The Government’s motion for summary judgment on its Counterclaim should be denied.

BRISCOE IVESTER & BAZEL LLP By: /s/ Peter Prows

Peter S. Prows Attorneys for DUARTE NURSERY, INC. and JOHN DUARTE

20 United States v. Osborne also does not cite or apply the standard from Meyer. (2012

U.S.Dist.LEXIS 44742 (N.D. Ohio 2012).) Duarte is unaware of any case that cites or applies the

Meyer standard to conclude that corporate officers may be held civilly liable under the Clean

Water Act. Those District Court cases that have found corporate officers civilly liable under the

Act, without citing or applying the standard from Meyer, were simply wrongly decided.


1 M. REED HOPPER (Bar No. 131291) ANTHONY L. FRANÇOIS …€¦ · DUARTE’S OPPOSITION TO...

Documents

Transcript of 1 M. REED HOPPER (Bar No. 131291) ANTHONY L. FRANÇOIS …€¦ · DUARTE’S OPPOSITION TO...