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US District Court :ENVIRONMENTAL - wetland restoration order

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA,
Plaintiff,
v.
GARY BAILEY,
Defendant.
GARY BAILEY,
Third-Party Plaintiff,
v.
LAKE OF THE WOODS COUNTY,
Third-Party Defendant.
Case No. 05-CV-2245 (PJS/RLE)
MEMORANDUM OPINION AND ORDER
Friedrich A.P. Siekert, Assistant United States Attorney, UNITED STATES
ATTORNEYS OFFICE; and Daniel R. Dertke, UNITED STATES
DEPARTMENT OF JUSTICE, for plaintiff.
Alan B. Fish and Rita Fish-Whitlock, ALAN B. FISH, PA, for defendant.
Scott T. Anderson and Sonya J. Guggemos, RATWIK ROSZAK & MALONEY,
PA, for third-party defendant.
M. Reed Hopper, PACIFIC LEGAL FOUNDATION; and Rita Fish-Whitlock,
ALAN B. FISH, PA, for amicus curiae Pacific Legal Foundation.
Defendant Gary Bailey constructed a road on a parcel of wetland located in Lake of the
Woods County, Minnesota, without obtaining a permit under Section 404 of the Clean Water Act
(CWA), 33 U.S.C. 1344. In October 2001, the United States Army Corps of Engineers (the
Corps) ordered Bailey to restore the land to its pre-violation condition. After Bailey refused to
1Bailey admits that the Site includes some wetland, but he denies that the Site consists
primarily of wetland or that the roadway itself was constructed in wetland. Def.s Resp. to Pl.s
First Set of Req. for Admis. Nos. 11, 15, 18, 26. As discussed below, the problem for Bailey is
that he has not supported his position with anything like competent evidence. The United States,
by contrast, has offered expert evidence that the Site including the land on which Bailey
constructed the roadway consists almost entirely of wetland.
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do so, the United States brought this action under Section 309(b) of the CWA, 33 U.S.C.
1319(b), to enforce the restoration order and to enjoin Bailey from discharging further
pollutants into the wetland.
The United States, Bailey, and third-party defendant Lake of the Woods County (the
County) have all moved for summary judgment. For the reasons set forth below, the Court
denies Baileys motion, grants in part the motion of the United States, and grants the Countys
motion. The Court orders Bailey to restore the wetland that he unlawfully polluted almost a
decade ago.
I. BACKGROUND
Bailey owns a parcel of land located along the western shore of Lake of the Woods (the
Lake) in northern Minnesota. This 13-acre site (the Site) consists mostly of wetland, as
defined by the Corps.1 Eggers Decl. Ex. X 4.G, Jan. 30, 2007 (Eggers Decl.). Bailey
planned to plat the Site for residential development and sell lakeside lots. To that end, Bailey
hired Mark LaValla in 1998 to construct an access road through the Site. In May and June of
1998, LaValla cleared a roadway sixty-six feet wide and approximately a quarter of a mile long.
LaValla Dep. 22, 57, Oct. 16, 2006 (LaValla Dep.). The roadway runs from north to south,
parallel to the Lake of the Woods shoreline. The north end of the roadway connects to a
preexisting road known as Sandy Shores Drive. Baileys planned development was known as
2The record is somewhat unclear regarding the placement of culverts on the Site. As best
as the Court can tell, LaValla placed two culverts on the Site on the north and south ends of
the Road and individual landowners to whom Bailey sold plots installed culverts under the
spots where their driveways connect to the Road. There is apparently also a preexisting culvert
on the northern edge of the Site. Def.s Mem. Resp. Pl.s and Third Partys Mots. Summ. J. 11
n.4; Hasbargen Dep. 23-26, Aug. 26, 2005.
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Sunny Beach, and the access road Bailey constructed is informally called Sunny Beach Road
(the Road), although it is labeled Sandy Shores Drive on the plat Bailey later filed with the
County. The Road was built along the western edge of the parcel (the edge furthest from the
Lake). As platted, the Site has fourteen lots running from the Road to the Lake, and each lot has
approximately 100 feet of lakefront. Bailey has sold some lots and continues to own the others.
LaValla dug a ditch on each side of the roadway and used the excavated material to
construct the Road itself. LaValla Dep. 33-36, 41-42, 47. LaValla also installed two culverts
beneath the north and south ends of the Road.2 LaValla Dep. 103-04, 127 & Exs. 2, 20, 24.
Finally, LaValla topped the Road with approximately 2000 square yards of gravel (about 130
truckloads) from his gravel pit. LaValla Dep. 82-84, 99.
Bailey was informed several times, by various government officials, that the Road was
not legally authorized and that he should stop construction until he obtained a proper permit. On
June 11, 1998, after LaValla had cleared the roadway but before work on the Road was
complete, employees of the local Soil and Water Conservation District visited the Site and told
LaValla that the Road was not properly permitted and that he should stop construction, which he
did. LaValla Dep. 88-90 & Ex. 6. A few days later, a Corps official visited the Site with Bailey
and several County employees. Administrative Record (AR) at COE0438. The Corps official,
Jeff Koschak, told Bailey to do no more work on the Road. Id. About a week later, a
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representative from the Environmental Protection Agency (EPA) told Bailey that the EPA
would not pursue enforcement action against him as long as no further work was done at the Site
pending the issuance of a permit. Id. Even before June 1998, Bailey was aware that he would
need a permit to construct a roadway on the Site, as Bailey had tried to develop the Site in 1993,
and the Corps had informed him then that he would need a permit before placing any dredged or
fill material on the Site. AR at COE0049 (August 18, 1993 letter advising Bailey that he needed
a permit before placing dredged or fill material on his land for the purpose of developing
residential lots).
On June 17, 1998, Bailey filed a Local-State-Federal Project Notification Form with the
County proposing to construct an access road for logging in the Site. AR at COE0069-70. The
Corps received a copy of this form on August 17, 1998 and treated it as an after-the-fact
application for a permit under Section 404 of the CWA. Bailey Dep. Ex. 6, Nov. 17, 2006
(Bailey Dep.). Without waiting for a decision on his application, Bailey instructed LaValla to
complete the Road, which LaValla did later that summer. LaValla Dep. 105-06; Bailey Dep. 44-
46. Bailey alleges that Doug Easthouse of the Soil and Water Conservation District told him that
the Corps would approve the application and that he should go ahead and finish the Road.
Bailey Dep. 46. The timing of these events is somewhat unclear, but the record indicates that the
Road was complete by September 17, 1998 the date on which the Corps notified Bailey in
writing that the Road violated the CWA, that his application for an after-the-fact permit was
incomplete, that no additional work should be done on the Road before obtaining a permit, and
that, if his permit application was ultimately denied, Bailey might be required to restore the land
to its previous condition. Bailey Dep. Ex. 6.
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Bailey intended that, once the Road was completed, he would dedicate it to the County,
so that the Road would become public and the County would be responsible for maintaining it.
For that reason, Bailey solicited the Countys guidance on complying with County road
specifications. (Obviously, the question whether a road meets County road specifications is
entirely separate from the question whether a road meets federal environmental standards.) At
Baileys request, the County inspected the Road and, by letter dated September 16, 1998,
informed Bailey of certain improvements that were necessary to bring the Road into compliance
with County road standards. Bailey Dep. 52 & Ex. 5; LaValla Dep. Ex. 20. The County sent
Bailey another letter, in November 1998, containing more specific recommendations and
requiring Bailey to post a ,000 bond to ensure that the Road met County standards. Bailey
Dep. Ex. 4; AR at COE0633. In the spring of 1999, Bailey hired LaValla to make the
improvements to the Road, which included adding about 530 square yards of gravel and
replacing the culverts with new pipe. (The previous culverts were made of used pipe.) LaValla
Dep. 120-21 & Ex. 20. LaValla purchased the gravel from a County gravel pit. LaValla
Dep. 122-23 & Ex. 23.
At the same time that Bailey was working on the Road, he was preparing to gain approval
for platting the Site. In October 1998, Bailey filed an application with the County to plat
fourteen residential lots on the Site. Bailey Dep. 64; Lockner Dep. 16, Aug. 25-26, 2005. By
the time Bailey applied for the plat, he had already received the Corpss notice of violation.
Bailey Dep. 64. The County environmental-services director, Gary Lockner, recommended
approval of the Sunny Beach plat, and the Countys Board of Commissioners approved the plat
on December 22, 1998. AR at COE0104; Bailey Aff. Ex. 2 6, Aug. 3, 2006. The plat states
3Bailey challenged the denial of the permit and lost. See Bailey v. U.S. Army Corps of
Engrs, No. 02-639, 2003 WL 21877903 (D. Minn. Aug. 7, 2003).
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that Bailey and his wife do hereby donate and dedicate to the public for public use forever
SANDY SHORES DRIVE, the road shown on this plat. Stromlund Aff. Ex. N, Feb. 1, 2007.
At oral argument, the County conceded that the Road became a public road upon the Boards
approval of the plat, although the County disputes the nature of its property rights over the Road.
On June 12, 2001, the Corps denied Baileys Section 404 permit application.3 Bailey
Dep. Ex. 7. On October 22, 2001, after a period of public notice and comment, the Corps
ordered Bailey to restore the property at his own expense. Specifically, the Corps ordered Bailey
to: (1) remove the dredged and fill material used to construct the Road; (2) fill in the ditches;
(3) seed the restored area with a specified seed mixture; and (4) control certain weed species for
three years following restoration. Id. The Corps ordered Bailey to complete the restoration and
seeding by October 15, 2002. Id.
After Bailey refused to comply with the restoration order, the United States brought this
action to enforce it. Bailey counterclaimed, arguing that the Corps does not have jurisdiction
over the Site and that the Corpss restoration order is arbitrary and capricious. Bailey also
brought a third-party complaint against the County, alleging that the County should have to pay
to restore the Site. Both Bailey and the United States move for summary judgment on the United
Statess claim and Baileys counterclaim, while the County moves for summary judgment on
Baileys third-party claim.
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II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). A dispute over a fact is material only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for either party. Ohio Cas. Ins. Co. v. Union
Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In considering a motion for summary judgment,
a court must assume that the nonmoving partys evidence is true and must draw all justifiable
inferences arising from the evidence in that partys favor. Taylor v. White, 321 F.3d 710, 715
(8th Cir. 2003).
B. The Corpss Jurisdiction Over the Site
The CWA prohibits the discharge of any pollutant from any point source into
navigable waters without a permit. See 33 U.S.C. 1311(a) (prohibiting the discharge of any
pollutant by any person absent compliance with other sections of the CWA); 33 U.S.C.
1362(12) (defining discharge of a pollutant as any addition of any pollutant to navigable
waters from any point source). Bailey concedes that the fill and gravel that he placed on the
Site during the construction of the Road were pollutants that were discharged from a point
source. Bailey also concedes that he discharged those pollutants without getting a permit from
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the Corps. But Bailey strongly denies that the land onto which he discharged those pollutants is
navigable waters for purposes of the CWA.
The CWA defines navigable waters as the waters of the United States, including the
territorial seas. 33 U.S.C. 1362(7). Under the Corpss regulations, navigable waters is not
restricted to waters that are navigable. Indeed, it is not even restricted to waters. Rather,
navigable waters is defined to include navigable-in-fact or traditionally navigable waters
and the wetlands that are adjacent to such waters. 33 C.F.R. 328.3(a)(7). The scope of the
Corpss wetlands jurisdiction has been fiercely litigated in the federal courts, and the issue was
addressed by the United States Supreme Court last year in Rapanos v. United States, 126 S. Ct.
2208 (2006).
1. The Rapanos Decision
In Rapanos, the Court clearly rejected the Corpss argument that it could regulate all
wetlands that were anywhere near navigable-in-fact waters. See id. at 2257 (Stevens, J.,
dissenting) (describing the Corpss interpretation of its jurisdiction as covering non-isolated
wetlands). Beyond that, however, Rapanos left the scope of the Corpss wetlands jurisdiction
unclear, in large part because the Court was unable to produce a majority opinion. Instead,
Justice Scalia authored a plurality opinion that was joined by three other justices; Justice Stevens
authored a dissenting opinion that was joined by three other justices; and Justice Kennedy
authored a concurring opinion that was joined by no one.
Writing for the plurality, Justice Scalia held that the Corps could exercise CWA
jurisdiction over wetlands when, [f]irst, . . . the adjacent channel contains a wate[r] of the
United States, (i.e., a relatively permanent body of water connected to traditional interstate
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navigable waters); and second, . . . the wetland has a continuous surface connection with that
water, making it difficult to determine where the water ends and the wetland begins. Id. at
2227. In the pluralitys view, then, the Corps cannot exercise jurisdiction over Baileys property
unless the Site has a continuous surface connection with Lake of the Woods such that it is
difficult to determine where Lake of the Woods ends and Baileys land begins. Although the
government argues to the contrary, it appears relatively easy to distinguish Baileys land from
Lake of the Woods, and thus it appears that the Rapanos plurality would find that the Corps does
not have jurisdiction over the Site.
Unfortunately for Bailey, though, the Rapanos plurality was a plurality; a majority of the
Court rejected Justice Scalias analysis. In his concurrence, Justice Kennedy stated that he
would find CWA jurisdiction whenever there is a significant nexus between the wetlands in
question and navigable-in-fact waters. Rapanos, 126 S. Ct. at 2248. The test for whether
wetlands possess a significant nexus to navigable-in-fact waters is whether the wetlands,
either alone or in combination with similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters more readily understood as
navigable. Id. In Justice Kennedys view, then, the Corps can exercise jurisdiction over
Baileys land as long as the Site has a significant[] [e]ffect on the chemical, physical, and
biological integrity of Lake of the Woods.
The Rapanos dissenters unlike the plurality and unlike Justice Kennedy would
have found that CWA jurisdiction existed over the wetlands at issue in the Rapanos case itself.
In other words, the Rapanos dissenters interpreted the CWA to provide wetlands jurisdiction that
was broader than the jurisdiction recognized by the plurality and broader than the jurisdiction
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recognized by Justice Kennedy. Writing for the dissenters, Justice Stevens also made explicit
what was implicit in his analysis: The dissenters would find jurisdiction when either the
pluralitys or Justice Kennedys test is met. Id. at 2265. In other words, if the plurality would
find CWA jurisdiction over a particular wetland, so would the four dissenters, meaning that at
least eight justices would deem jurisdiction to exist. And if Justice Kennedy would find CWA
jurisdiction over a particular wetland, so, too, would the four dissenters, meaning that at least
five justices would deem jurisdiction to exist. Thus, it appears that if either the plurality or
Justice Kennedy would find that the Corps has jurisdiction over Baileys property, this Court
must do likewise. Bailey, however, disagrees.
2. The Plurality vs. Justice Kennedy
Bailey argues that, under the approach sanctioned in Marks v. United States, 430 U.S.
188 (1977), the Rapanos plurality opinion alone controls this case. In Marks, the Supreme Court
said that [w]hen a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest grounds[.] Marks, 430
U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.)). According to Bailey, the Rapanos pluralitys test is the narrowest
ground because the scope of wetlands jurisdiction that it recognized was narrower than the
scope of wetlands jurisdiction recognized by Justice Kennedy.
Every court to address the question, however, has either (1) held that Justice Kennedys
opinion is controlling under Marks or (2) found that the Marks approach is unworkable as
applied to Rapanos and held instead that the Corps has jurisdiction if either the pluralitys test or
4Bailey contends that Chevron Pipe applied the pluralitys test. A close reading of
Chevron Pipe, however, indicates that the court assumed that Justice Kennedys test is
controlling, but found that test so ambiguous that it resorted to pre-Rapanos circuit precedent for
guidance. Chevron Pipe, 437 F. Supp. 2d at 613.
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Justice Kennedys test is met. See, e.g., United States v. Johnson, 467 F.3d 56, 66 (1st Cir.
2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam),
petition for cert. filed, No. 06-1331, 75 U.S.L.W. 3556 (Apr. 2, 2007); N. Cal. River Watch v.
City of Healdsburg, No. 04-15442, 2007 WL 2230186, at *6 (9th Cir. Aug. 6, 2007); United
States v. Cundiff, 480 F. Supp. 2d 940, 944 (W.D. Ky. 2007); Simsbury-Avon Preservation Soc.,
LLC v. Metacon Gun Club, Inc., 472 F. Supp. 2d 219, 226-27 (D. Conn. 2007); United States v.
Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006).4
The most cogent defense of the latter approach is the First Circuits opinion in Johnson,
which describes the shortcomings of using Marks to determine the controlling opinion in a case
like Rapanos:
Marks is workable one opinion can be meaningfully regarded as
narrower than another only when one opinion is a logical subset of
other, broader opinions. . . .
This understanding of narrowest grounds as used in Marks does
not translate easily to [Rapanos]. The cases in which Justice Kennedy
would limit federal jurisdiction are not a subset of the cases in which the
plurality would limit jurisdiction.
Johnson, 467 F.3d at 63-64 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en
banc)). Noting that the Supreme Court has moved away from the Marks formula, the First
Circuit held that, rather than following a literal reading of Marks, the better approach is to
examine Rapanos for a legal standard that, when applied, will produce results with which a
majority of the Court would agree. Id. at 64-66.
5Bailey argues that this is a misinterpretation of Justice Kennedys opinion. Citing
Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006), Bailey
argues that adjacency alone is not sufficient to meet the significant nexus test. Def.s Mem.
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As described above, and as Justice Stevens explained in his dissent, it is clear that at least
eight Justices would find wetlands jurisdiction under the CWA when the pluralitys test is met,
and that at least five justices would find wetlands jurisdiction under the CWA when Justice
Kennedys test is met. See Rapanos, 126 S. Ct. at 2265 (Stevens, J., dissenting) (stating that
[g]iven that all four Justices who have joined this opinion would uphold the Corps jurisdiction
in both of these cases and in all other cases in which either the pluralitys or Justice
Kennedys test is satisfied on remand each of the judgments should be reinstated if either of
those tests is met.). This Court will therefore follow the lead of Johnson and adopt the
approach suggested by Justice Stevens: The United States may establish jurisdiction under
either Justice Kennedys test or the pluralitys test.
3. Applying Justice Kennedys Test
Again, Justice Kennedy would find CWA jurisdiction whenever there is a significant
nexus between the wetlands in question and navigable-in-fact waters, and he would find such a
nexus whenever the wetlands significantly affect the chemical, physical, and biological
integrity of the navigable-in-fact waters. Rapanos, 126 S. Ct. at 2248. Significantly for this
case, Justice Kennedy made clear that, when the wetland is adjacent to the navigable-in-fact
waters, he would find that a significant nexus exists as a matter of law. Id. at 2248 (As applied
to wetlands adjacent to navigable-in-fact waters, the Corps conclusive standard for jurisdiction
rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction
for those wetlands is sustainable under the Act by showing adjacency alone.).5
Resp. Pl.s and Third Partys Mots. Summ. J. 4. Bailey is correct that Northern California River
Watch supports his position, but Northern California River Watch simply got it wrong. A
careful reading of Justice Kennedys opinion leaves no doubt that he distinguishes between
wetlands adjacent to navigable-in-fact waters (in which case adjacency alone is sufficient to
establish jurisdiction) and wetlands adjacent to nonnavigable tributaries of navigable-in-fact
waters (in which case the Corps must introduce evidence establishing a significant nexus).
Rapanos, 126 S. Ct. at 2248-49; see also United States v. Fabian, No. 02-495, 2007 WL
1035078, at *13 (N.D. Ind. Mar. 29, 2007) (noting the Ninth Circuits erroneous reading of
Rapanos). Indeed, the Ninth Circuit recently withdrew its original opinion in Northern
California River Watch and issued a new opinion clarifying that adjacency to a navigable-in-fact
water is sufficient. N. Cal. River Watch, No. 04-15442, 2007 WL 2230186 at *6.
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The Corps defines adjacent to mean bordering, contiguous, or neighboring and
provides that [w]etlands separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are adjacent wetlands. 33 C.F.R.
328.3(c). Justice Kennedy found the Corpss definition of adjacent to be reasonable when
applied to wetlands adjacent to navigable-in-fact waters. Rapanos, 126 S. Ct. at 2245-46. In
finding this definition reasonable, Justice Kennedy specifically noted that it may be the absence
of a hydrological connection between the wetland and the nearby navigable-in-fact waters that
creates a significant nexus, because the wetland may prevent polluted waters from reaching the
navigable-in-fact waters. Id.
All parties agree that Lake of the Woods is a navigable-in-fact water. The question, then,
is whether the Road was built on wetlands adjacent to Lake of the Woods for purposes of 33
C.F.R. 328.3(c) and thus for purposes of Justice Kennedys test. If it is, then five members
of the United States Supreme Court (Justice Kennedy and the four Rapanos dissenters) would
find that the Corps can exercise jurisdiction over Baileys property under the CWA.
The Court finds that the Road was built on wetlands adjacent to Lake of the Woods for
two reasons. First, the Corps has presented evidence that the wetland on the Site extends to the
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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
Corps has presented sufficient evidence that the wetland is nevertheless adjacent within the
meaning of the Corpss 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).
a. The Wetland Extends to the Lake
Regardless of the presence of adjacent wetlands, the Corpss jurisdiction over waters of
the United States extends to the ordinary high-water mark (OHWM) of non-tidal waters. 33
C.F.R. 328.4(c)(1). The OHWM is defined as
that line on the shore established by the fluctuations of water and indicated
by physical characteristics such as clear, natural line impressed on the
bank, shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate means
that consider the characteristics of the surrounding areas.
33 C.F.R. 328.3(e). The OHWM of Lake of the Woods is typically at the midpoint or higher
on the cut bank of the shoreline, Eggers Decl. 30, and the Corpss jurisdiction thus extends to
that point, even without the existence of an adjacent wetland.
The Corps defines wetlands as those areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions. 33 C.F.R. 328.3(b). To conduct wetlands delineations that is, formal
identifications of the presence and extent of wetlands for the purpose of determining jurisdiction
over them the Corps uses the criteria set forth in the 1987 Corps of Engineers Wetlands
6An updated, on-line edition of the 1987 Manual may be found at http://el.erdc.
usace.army.mil/wetlands/pdfs/wlman87.pdf.
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Delineation Manual (1987 Manual) and Corps memoranda interpreting the 1987 Manual.6
Eggers Decl. Ex. X 2.A.
In general, the 1987 Manual defines land as wetland when, under normal conditions:
1. The land consists of hydric soils (soils formed under
conditions of saturation, flooding, or ponding long enough during
the growing season to develop anaerobic conditions in the upper
part of the soil);
2. The land has wetland hydrology (inundation or
saturation of soils for at least 5% of the growing season in most
years); and
3. The land is dominated by hydrophytic vegetation (plants
that have the ability to grow, effectively compete, reproduce,
and/or persist in anaerobic soil conditions caused by inundated or
saturated soil conditions).
Eggers Decl. 9-12 & Ex. X 2.A- 2.D. In other words, to determine whether a particular
piece of property is wetland, the Corps looks at soil, water, and plants. To establish wetland
hydrology (the second factor), the Corps requires either a primary indicator (such as direct
observation of saturation within twelve inches of the surface) or two secondary indicators (such
as the FAC-neutral test and local soil survey data (explained below)). Eggers Decl. Ex. X 2.D.
In this case, the Corps presents expert evidence from three people: Steve Eggers, a senior
ecologist with the Corps; Rod Heschke, a soil scientist with the United States Department of
Agriculture; and Kelly Urbanek, a senior project manager and biologist with the Corps. See
Eggers Decl. Exs. X, Y. Eggers and Heschke conducted wetlands delineations at the Site in
August 2000 and May 2006. Eggers Decl. Ex. X 3.A. Urbanek accompanied Eggers and
7An area meets the FAC-neutral test if plants that almost always (greater than 99%
probability) and usually (67% to 99% probability) grow in wetlands outnumber plants that
almost always or usually grow in non-wetlands. Eggers Decl. 14(1) & Ex. X at Table 1. The
local soil survey data indicates that the soil types at the Site are Wabanica silt loam and Zippel
very fine sandy loam, which are both categorized as hydric soils. Heschke Decl. 7(A), Jan. 29,
2007. Heschke found hydric soils at every sample point, with the exception of one sample point
located within the upland island straddling lots 3 and 4. Heschke Decl. 7(B), Jan. 29, 2007.
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Heschke during the May 2006 delineation, and Urbanek and several other representatives of the
Corps conducted a third site inspection on October 19, 2006. Eggers Decl. Ex. X 3.A; id. Ex.
Y 2.0.
In conducting wetlands delineations, the Corpss general rule is to establish at least one
sample point where a change in soils, hydrology, vegetation, or topography occurs. Eggers Decl.
Ex. X 3.B. In total, Eggers and Heschke established forty-six sample points at the Site along a
number of transects extending west from the Lake. Eggers Decl. Ex. X 3.B & Figs. 3, 4. At
each sample point, Eggers and Heschke dug depressions in the ground to check soil types and
saturation levels. Eggers Decl. Ex. X 4.B(2), 4.E. To check for hydrophytic vegetation,
Eggers and Heschke sampled plant species around each sample point in a five-foot radius (in the
case of herbaceous species) and a thirty-foot radius (in the case of saplings and shrubs). Eggers
Decl. Ex. X 4.F. They also counted trees. Id. Eggers selected representative sample points
and located additional points where he observed changes in vegetation. Eggers Decl. 38.
Thirteen of the sample points were within 15 to 101 feet of the cut bank of the shoreline.
Eggers Decl. Ex. X 4.H. All thirteen of these sample points contained hydric soils and were
dominated by hydrophytic vegetation. Id. Eleven of the thirteen points had a primary indicator
of wetland hydrology (saturation within twelve inches of the surface). Id. A twelfth had two
secondary indicators of wetland hydrology (the FAC-neutral test and local soil survey data).7
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Eggers Decl. Ex. X 4.B(2), 4.H. The thirteenth sample point, which lacked sufficient
indicators of wetland hydrology, is located in a corridor on the southern boundary of the plat that
extends westward from the shore of the Lake and encompasses most of lot 1. Eggers Decl. Ex.
X 4.G, 4.H & Fig. 8. Eggers and Heschke determined that this corridor, which is drained by a
preexisting ditch, is not wetland. Id.
Based on their observations and on photographs of the Site, Eggers and Heschke opine
that the entire Sunny Beach plat is wetland, with the exception of a small island straddling lots
3 and 4 and the corridor that encompasses most of lot 1. Eggers Decl. Ex. X 4.G & Fig. 8. The
wetland at the Site includes nearly all of the land on which Bailey built the Road, id., and
extends to the cut bank of the Lake, Eggers Decl. 38. The vegetation of the wetland extends to,
and sometimes below, the OHWM. Eggers Decl. 30.
Bailey makes a lackluster attempt to dispute whether the wetlands criteria in the 1987
Manual are met. For example, Bailey contends that there is no soil saturation within one foot of
the surface for 5% of the growing season, that there is a lack of soil saturation within 100 feet of
the Lake (thus creating a barrier between the wetland and the Lake), and that the first 100 feet
from the Lake is upland. Def.s Mem. Supp. Mot. Summ. J. 4, 6. Bailey cites no record support
for these particular assertions, however, and the primary evidence he offers in support of his
assertions about the non-wetland characteristics of the Site is his own affidavit. Bailey has a
bachelors degree in marketing and finance and disavows any expertise in identifying wetlands.
Bailey Dep. 73-74. He obviously lacks the expertise necessary to identify what portions of the
Site are wetlands. Although Bailey, like any other non-expert, is competent to testify about his
8Much of this evidence (for example, Lockners testimony at a state administrative
proceeding and Lockners August 25-26, 2005 deposition in a state case) is clearly hearsay and
does not come within the hearsay exception for former testimony. See Fed. R. Evid. 804(b)(1)
(permitting the admission of former testimony if the declarant is unavailable as a witness and the
party against whom the testimony is offered had an opportunity and similar motive to develop
the testimony). The United States has not objected to Baileys introduction of this testimony,
however, and in general the parties have relied without objection on depositions and other
testimony taken in the course of the many other proceedings that have been spawned by Baileys
actions and litigiousness.
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direct observations of the Site, he has failed to show that any of his observations are relevant to
determining to what extent the Site is a wetland as defined in the 1987 Manual.
At various points in his briefing, Bailey also cites to documents and testimony that reflect
the opinions of Gary Lockner (the County environmental services director) and other County and
state officials, who at one time concluded that there was no wetland within 100 feet of the Lake.
See, e.g., Def.s Answer Ex. 1 at 498-516 (transcripts of Lockners testimony from a state
administrative proceeding); Koschak Dep. Ex. 60, Dec. 2, 2004 (October 14, 1999 letter from
Lockner to the Minnesota Pollution Control Agency opining that the water table was lower than
12 inches below the surface within 100 feet of the Lake). Putting aside the fact that much of this
evidence is inadmissible,8 none of these individuals has been identified as an expert in this case,
nor did any of them conduct a formal delineation of the Site. Instead, they came to their
conclusions on the basis of a single soil sample that happened to come from the upland island
on the Site. These officials (apparently with the exception of Lockner) later concluded that the
soil sample did not accurately represent the soil conditions of the entire 100-foot corridor of land
nearest the Lake. Bailey Aff. Ex. 2 at 7 17-18, Aug. 3, 2006. Insofar as this evidence is
offered to prove that the 100-foot corridor of land nearest the Lake is not wetland, it is patently
unreliable and thus inadmissible under Fed. R. Evid. 702.
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Rather than offering competing expert evidence of the hydrologic characteristics of the
Site, Bailey focuses his efforts on disputing whether the United States has offered sufficient
evidence that the wetland extends to the Lake. Specifically, Bailey argues that Eggers failed to
establish any sample points within fifteen feet of the Lake and that therefore the United States
has failed to prove that the wetland is adjacent to the Lake.
Eggers established sample points where he observed changes in vegetation. He did not
establish any sample points within fifteen feet of the Lake because he observed no changes in
vegetation between the Lake and the sample points closest to the Lake. Eggers Decl. 38;
Eggers Dep. 59-60, Nov. 16, 2006 (Eggers Dep.). Moreover, Eggers relies not only on
primary indicators of wetland hydrology (direct observation of saturated soil), but also on
secondary indicators of wetland hydrology (the FAC-neutral test and local soil survey data).
Eggers found that the FAC-neutral test was met close to the Lake through his own observation.
Eggers Decl. 38; Eggers Dep. 59-60. True, Eggers did not formally sample herbaceous
vegetation beyond the five-foot radius surrounding each sample point, but he did sample saplings
and shrubs in a thirty-foot radius around each sample point, and he observed no changes in
vegetation closer to the Lake that would have necessitated additional sample points. As for the
other secondary indicator (local soil survey data), Heschke concluded, based on his observations
of the Site, the local soil survey data, and the prevalence of hydric soils in the surrounding area,
that the soils within fifteen feet of the Lake are hydric. Heschke Decl. 8, Jan. 29, 2007. Thus,
the Corps has offered sufficient evidence for a factfinder to conclude that the wetland is adjacent
to the Lake which, under Justice Kennedys test, means that the Corps can exercise
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jurisdiction over it. As Bailey offers no competent evidence to the contrary, the United States is
entitled to summary judgment on this issue.
b. Separation by a Fifteen-Foot Strip of Land Does Not Destroy Adjacency
Alternatively, even if the Corpss evidence is insufficient to establish that the fifteen feet
of land just west of the cut bank is wetland, the Corpss definition of adjacency which
Justice Kennedy found reasonable, Rapanos, 126 S. Ct. at 2245-46 is broad enough to include
the wetland west of that fifteen-foot corridor. The Corpss definition of adjacency makes clear
that some separation of wetlands and navigable-in-fact waters does not destroy adjacency. 33
C.F.R. 328.3(c).
Bailey argues that the examples of barriers in the regulation man-made dikes or
barriers, natural river berms, beach dunes and the like are all either artificial (thus
interrupting what would have been a natural hydrological connection) or indicate the movement
of water (thus implying a hydrological connection). As Justice Kennedy explained, however, the
Corpss jurisdiction over adjacent wetlands does not require a hydrological connection.
Rapanos, 126 S. Ct. at 2245-46. Because wetlands sometimes protect adjacent waters by
absorbing flood water and impurities, the absence of a hydrological connection in those cases is
the reason why the wetland has a significant nexus with the navigable water. Id.
Baileys theory is that the Lake draws down the water table of the adjoining land, thus
creating a barrier of non-wetland around the shore. Assuming (contrary to the evidence) that this
is true, that barrier is exactly the type of separation that does not destroy adjacency under
328.3(c). Bailey points out that the Corps refused to indicate what the outer limit of
adjacency might be. Although another case might require a precise answer to that question, a
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wetland abutting a fifteen-foot corridor of land drained by the navigable water is well within any
conceivable outer limit. Thus, even if the Corps has failed to prove that the wetland is actually
bordering on or contiguous to the Lake, the wetland is still adjacent to the Lake within the
meaning of 328.3(c), and the Corps has properly exercised jurisdiction over it.
4. Request to Exclude
Bailey asks the Court to disregard Eggerss November 9, 2006 supplemental expert
report because it was served after the October 1, 2006 expert-disclosure deadline. See Docket
No. 35 at 3. The facts relevant to this request are as follows:
On September 1, 2006, the United States asked Bailey for permission to conduct a third
site inspection, but Bailey did not cooperate and the United States ultimately brought a motion to
compel entry on land. Chief Magistrate Judge Raymond L. Erickson granted the motion on
October 13, see Docket No. 56, and Bailey did not appeal that order. The United States
conducted the third inspection on October 19, and Eggerss November 9, 2006 supplemental
report sets forth the findings and conclusions from that inspection.
Bailey argues that the November 9 report is untimely and that the United States did not
disclose Rod Heschke, the soils scientist, as an expert before serving the report. As the
foregoing makes clear, however, the supplemental report was untimely only because Bailey
himself refused to give the government access to the Site. Bailey also fails to cite any prejudice
caused by the untimeliness of the report. He had access to the report before deposing Eggers and
long before the hearing on the pending motions. In addition, whether or not the United States
fully complied with the expert-disclosure requirements of Fed. R. Civ. P. 26(a)(2) with respect to
Heschke before November 9, Heschke was clearly identified as a soils scientist and author of the
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original report, and his identity and role were thus no surprise to Bailey. The Court therefore
rejects Baileys attempt to exclude the supplemental report.
5. Rule 702 Challenge
As an alternative to his argument that the November 9 report is untimely, Bailey argues
that Eggerss opinion that the wetland extends to the Lake is inadmissible under Fed. R. Evid.
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 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.
Bailey argues that Eggerss opinion that the wetland extends to the Lake is unreliable
under Rule 702 for two reasons: (1) the Corps uses facultative plants as an indicator of the
presence of hydrophytic vegetation, and (2) Eggers failed to consider the drainage effect of the
Lake on the land nearest the Lake. The Court considers each argument in turn.
a. The Use of Facultative Plants
To identify the presence of hydrophytic vegetation, the Corps uses a list of plant species
published by the United States Fish and Wildlife Service (the USFWS). Eggers Decl. Ex. X
2.C. The USFWS categorizes plant species according to the probability that they will grow in
wetlands as compared to the probability that they will grow in non-wetlands. Eggers Decl. Ex.
X 2.C. According to the 1987 Manual, hydrophytic vegetation is present if more than 50% of
the dominant plant species are obligate wetland plants (which grow in wetlands more than
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99% of the time), facultative wetland plants (which grow in wetlands 6799% of the time), or
facultative plants (which grow in wetlands 3367% of the time). Eggers Decl. Ex. X 2.C &
Table 1. The Corps further distinguishes between plants in the facultative categories by
assigning a positive (+) or a negative () to indicate the wetter and drier ends of the categories.
Eggers Decl. Ex. X Table 1. In determining whether hydrophytic vegetation is present, the
Corps excludes plants in the negative () facultative category. Eggers Decl. Ex. X 2.C.
Bailey argues that using facultative plants as an indicator of wetlands renders the Corpss
conclusions unreliable because such plants are equally likely to grow in non-wetlands. As
explained above, however, the presence of hydrophytic vegetation is just one of three criteria
used to define wetlands (the other two being hydric soils and wetland hydrology). Thus, while
the mere presence of facultative plants may mean that the area has only a 50% likelihood of
being wetlands, the Corpss use of additional criteria ensures that its method of distinguishing
wetlands from non-wetlands is reliable. Moreover, even if it is theoretically possible for the
Corps to conclude that hydrophytic vegetation is present solely on the basis of facultative plants,
the Corps did not do so in this case. The Corps found obligate wetland plants and facultative
wetland plants, both of which are much more likely to grow in wetlands than in non-wetlands.
Eggers Decl. Ex. X Tables 1, 2. Finally, the Corps does not use all facultative plants as
indicators of hydrophytic vegetation; instead, the Corps considers only those facultative plants
that are on the wetter end of the facultative spectrum.
More importantly, in challenging the Corpss use of facultative plants to identify
wetlands, Bailey is really challenging the Corpss definition of wetlands. The purpose of the
1987 Manual, which permits the use of facultative plants to identify wetlands, is to delineate
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wetlands for jurisdictional purposes. Baileys challenge is therefore not really a Daubert
challenge; it is more akin to an argument that the Corpss definition of wetlands in the 1987
Manual is unreasonable. Congress has provided, however, that the Corps shall continue to use
the 1987 Manual until a final wetlands-delineation manual is adopted after notice and public
comment. Energy and Water Development Appropriations Act, 1993, Pub. L. No. 102-377, 106
Stat. 1315 (1992). Even aside from this Congressional mandate, the 1987 Manual is entitled to
deference, whether it is viewed as an interpretation by the Corps of its own regulations, or as a
long-standing technical interpretation that is within the Corpss particular expertise. See United
States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219 (2001) (an agencys reasonable
interpretation of its own regulations is entitled to deference); United States v. Mead Corp., 533
U.S. 218, 228 (2001) (noting that courts accord deference to agency interpretations in keeping
with the degree of the agencys care, the consistency, formality, and persuasiveness of its
position, and the extent to which the subject is a technical one within the agencys area of
expertise). Cf. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985)
(noting that the Corps is entitled to deference in its construction of the CWA). The Court
therefore rejects Baileys challenge to the Corpss use of facultative plants as an indicator of the
presence of hydrophytic vegetation.
b. Failure to Consider Drainage Effect of the Lake
Bailey next argues that Eggerss opinion that the wetland extends to the Lake is
unreliable because Eggers refused to consider the drainage effect of the Lake on the surrounding
land. In the original report, Eggers used something called the van Schilfgaarde equation to
estimate the impact of man-made ditches on the Site. According to this equation, a two-foot-
25-
deep ditch in Wabanica soils (one of the soil types found on the Site) would have a lateral
drainage effect of 105 feet. Eggers Decl. Ex. X 4.D. During Eggerss deposition, he was
asked whether the drop in elevation at the cut bank of the Lake would similarly drain the
surrounding lakeshore. Eggers Dep. 71-74. Eggers testified that he had never heard of using the
van Schilfgaarde equation to determine the drainage effect of a lake and that he thought it would
be inappropriate to do so. Eggers Dep. 72-73.
Bailey points to testimony by County environmental services director Gary Lockner, in
which Lockner described using a chart apparently a chart that was based on the van
Schilfgaarde equation to estimate the drainage effect of Lake of the Woods on surrounding
land. Def.s Answer Ex. 1 at 498-516. But, as noted above, Lockner has not been qualified as
an expert in this case; Lockner did not conduct a wetlands delineation of the Site; and there is no
evidence that he knows what he is doing in using the van Schilfgaarde equation in estimating the
drainage effect of a huge natural lake, as opposed to relatively small man-made ditches.
Eggers conducted the delineation according to the standards set out in the 1987 Manual.
In keeping with those standards, Eggers relied on his own observation of both primary and
secondary indicators of wetland hydrology. Bailey has not pointed to anything in the 1987
Manual requiring the Corps to determine wetland hydrology on the basis of the possible drainage
effect of a neighboring lake, much less anything requiring the Corps to use the van Schilfgaarde
equation to estimate the drainage effect of a lake. Nor has Bailey offered any competent
evidence that it is appropriate to use the van Schilfgaarde equation to estimate the drainage effect
of lakes. In short, nothing in the record indicates that Eggerss failure to apply the van
Schilfgaarde equation to Lake of the Woods renders his opinions unreliable. Finally, the Court
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notes that, even if it excluded Eggerss opinion that the wetland includes the fifteen feet nearest
the edge of the Lake, the Corps has still offered sufficient evidence that the wetland is adjacent
to the Lake within the meaning of its regulations and thus within CWA jurisdiction under Justice
Kennedys test.
C. Other Challenges to the Corps Assertion of Jurisdiction
Bailey raises several other arguments challenging the Corpss assertion of jurisdiction
over the Site, all of which are plainly meritless.
First, Bailey argues that the Corps has unconstitutionally invaded an area of authority
reserved to the states. Essentially, Bailey argues that the Countys approval of the plat precludes
the Corps from enforcing the CWA. This claim is frivolous. Under the Supremacy Clause, a
board of county commissioners obviously cannot block the enforcement of federal
environmental laws by platting a parcel of wetland. U.S. Const. Art. VI, cl. 2.
Second, Bailey argues that, in directing the restoration order to him rather than to the
County, the Corps has acted arbitrarily and capriciously within the meaning of the
Administrative Procedure Act. See 5 U.S.C. 702, 706(2) (persons harmed by arbitrary and
capricious agency action are entitled to judicial review of that action). Agency action is
arbitrary and capricious only when it lacks any rational basis. Falk v. United States ex rel.
Dept of Interior, 452 F.3d 951, 953 (8th Cir. 2006). As discussed below, the Corps had ample
reason to direct the restoration order solely at Bailey, and thus its action was not arbitrary or
capricious.
Finally, Bailey argues that the Corps has violated the Equal Protection Clause by
administering its regulations in a disparate manner. Bailey points out that the preexisting County
9The portion of the record to which Bailey cites does not indicate what became of the
Countys after-the-fact permit application. See Hasbargen Dep. 55-64, Aug. 26, 2005.
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road to the north of the Site (to which the Road connects) was built without a Section 404
permit. Bailey complains that, when the County applied for an after-the-fact permit for that
preexisting road, the Corps apparently permitted the County to mitigate, rather than requiring
restoration.9 Yet when Bailey applied for an after-the-fact permit for his road, the Corps
required restoration. Thus, Bailey claims, the Corps violated the Equal Protection Clause by
treating him less favorably than the County.
Bailey is incorrect. To make out a violation of the Equal Protection Clause, Bailey
would have to show that he was similarly situated to the County and that the Corpss disparate
treatment of the two lacked a rational basis. Geach v. Chertoff, 444 F.3d 940, 945 (8th Cir.
2006). Bailey has not made such a showing. The County applied for an after-the-fact permit for
a road that had been in existence for many years and that served many long-time residents a
road that apparently was not built in knowing defiance of the law. Bailey applied for an afterthe-
fact permit for a brand-new road that served almost no one a road that Bailey persisted in
building despite being warned that he was breaking the law. Under these circumstances, it is
obviously not irrational for the Corps to treat Bailey differently from the County.
D. The Restoration Order
The Court has found, for the reasons described at length above, that the Corps does
indeed have jurisdiction over the Site under the CWA. Other than disputing the jurisdiction of
the Corps, Bailey does not deny that construction of the Road violated the CWA and thus
Bailey does not deny that the United States is entitled to relief of some type. But Bailey raises a
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host of challenges to the particular restoration order entered against him on October 22, 2001
the restoration order that the United States now asks this Court to enforce.
The CWA authorizes injunctive relief for violations of 1311(a). 33 U.S.C. 1319(b).
Both the United States and Bailey have addressed the propriety of injunctive relief under the
standards set forth in United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).
Under the Sexton Cove line of cases, a restoration plan must: (1) be designed to confer maximum
environmental benefits tempered with a touch of equity; (2) be practical and feasible from an
environmental and engineering standpoint; (3) take into consideration the financial resources of
the defendant; and (4) include consideration of the defendants objections. Id. at 1301; see also
United States v. S. Inv. Co., 876 F.2d 606, 615 (8th Cir. 1989).
On June 12, 2001, the same day that the Corps denied Baileys after-the-fact permit
application, the Corps issued a public notice soliciting input on the potential environmental
remedy/solution for the unauthorized road fill. AR at COE0623-0624. The Corps received a
number of responses to this public notice. AR at COE0638-0660. While the Corps was
considering possible remedies, Bailey proposed a mitigation plan, AR at COE0663-0665, which
the Corps considered and rejected (along with Baileys original mitigation plan proposed as part
of his Section 404 permit application). AR at COE0675-0676. The Corps explained that
Baileys proposed mitigation plans were inadequate because they would result in a net loss of
wetland function. Id.
After considering the responses to its public notice and the Sexton Cove factors, the
Corps ordered restoration of the wetland. AR at COE0700-01. Specifically, the Corps ordered
Bailey to: (1) remove the dredged and fill material used in construction of the Road; (2) fill in
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the ditches; (3) seed the restored area with a specified seed mixture; and (4) for three years
following restoration, control certain weed species via hand removal or spot use of an herbicide
approved for wetland use. Id. The Corps found, and Bailey does not dispute, that removal of the
Road can be accomplished using the same equipment that was used to clear the roadbed. Id.
The Corps also found that restoration would confer maximum environmental benefits because it
would reestablish a high-quality wetland near an important international waterbody. Id.; see
also Eggers Decl. Ex. X 5.A (giving a rating of high to 5 out of 11 wetland functions of the
subject wetland, including vegetative diversity, downstream water quality, and wetland water
quality).
Bailey does not seriously dispute that restoration, as outlined in the restoration order,
would provide the maximum possible environmental benefit, nor does he dispute that restoration
is practical and feasible from an environmental and engineering standpoint. Bailey also does not
argue that restoration is beyond his financial means; in fact, Bailey conceded at oral argument
that removing the Road will probably not cost much more than building the Road did. Although
Bailey argues that it is not practical to restore the wetland because it would take twenty-five
years for newly planted trees to mature, from an environmental standpoint twenty-five years is
but the blink of an eye. Moreover, long before the trees have matured, the wetland will serve to
enhance water quality by trapping and filtering runoff. Eggers Decl. Ex. X 5.A, 6.A.
The focus of Baileys Sexton Cove argument is that the restoration order is inequitable.
To hear Bailey tell it, the County directed Bailey to build the Road, yet now is unfairly trying to
duck responsibility for it. Bailey emphasizes the Countys actions in approving the Sunny Beach
plat, informing Bailey how to build the Road to County standards, requiring Bailey to post a
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bond, and issuing permits for culverts to individuals who purchased lots from Bailey. Bailey
argues that the County took over the Road and the responsibility for obtaining the required
permit. Bailey notes that the County has performed some maintenance work on the Road, and
has even widened and seeded the ditches, and Bailey points out that LaValla obtained some of
the gravel for the Road from a County gravel pit. Because the County was so heavily involved
with the Road, Bailey contends, the Corps acted inequitably in failing to require the County to
restore the wetland.
An examination of the record demonstrates that Baileys contentions are meritless. The
undisputed fact is that, at all relevant times, Bailey and Bailey alone was the driving force behind
the creation of the Road. It was Baileys decision to clear the sixty-six-foot wide roadway
through the wetland and build the Road. It was Bailey who hired LaValla to perform the work.
It was Bailey who told LaValla to resume the work after LaValla had been told to stop. And it
was Bailey who stood to profit from the construction of the Road.
Bailey did have extensive interactions with the County, but the focus of those interactions
was not on the Roads compliance or lack of compliance with federal environmental standards
something that the County had no authority to address. Rather, the focus of Baileys
interaction with the County was on getting the land platted and getting the County to take over
responsibility for maintaining the Road. None of this makes the County responsible for Baileys
violations of the CWA. At every step of the way, Bailey was well aware, as he had been since at
least 1993, that he needed a Section 404 permit to place fill on the Site. AR at COE0049. He
chose to defy the law by starting construction on the Road without a permit, and then he chose to
defy the law again by resuming work after the Corps told him to stop.
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Bailey implies that the County led him to believe that it would obtain the Section 404
permit on his behalf and that he finished the Road in reliance on the Countys promise. The
timing of events, however, belies this claim. The work on the Road was performed in three
stages: During the initial stage, in June 1998, LaValla cleared the roadway and began building
the Road. This stage was interrupted when LaValla and Bailey were told to stop work on the
Road. At some point later that summer, Bailey instructed LaValla to finish building the Road.
Although the record is not entirely clear as to when LaValla completed this second stage of the
work Bailey must know, but fails to mention this fact in his briefing the record reflects that
the Road was completed sometime before September 17, 1998, when the Corps notified Bailey
in writing that the completed Road violated the CWA. Bailey Dep. Ex. 6. The third stage of
work took place in 1999, when LaValla upgraded the Road by replacing the culverts and adding
gravel.
There is no evidence that Bailey sought input from the County before he cleared the
roadway and began building the Road in June 1998, so it is difficult to know how the County
could be blamed for that. Bailey does try to blame the County for his decision to resume
construction of the Road during the late summer of 1998. Specifically, Bailey claims that, after
he stopped work on the Road, the County instructed him to complete it. In support of his claim,
Bailey points to a September 16, 1998 letter from the County to Bailey. See Def.s Mem. Resp.
to Pl.s and Third Partys Mot. Summ. J. 24; Bailey Dep. Ex. 5 (Sept. 16, 1998 letter from the
County to Bailey stating [p]er your telephone request, I inspected your road construction . . . for
compliance with [county standards]. . . . Before recommendation to the County Board for
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acceptance as an unorganized Township Road, all of these deficiencies would have to be
addressed.).
There are two problems with Baileys argument. First, as described above, the Road was
essentially completed by the time that Bailey received the Countys September 16 letter.
Obviously, then, Bailey did not rely on the letter in ordering LaValla to resume construction.
Second, the September 16 letter does not, in fact, instruct Bailey to complete the Road. Rather,
the letter reflects that Bailey solicited the Countys input on how to build the Road to County
standards because Bailey wanted the County to take over the Road. The fact that a government
informs a citizen of the legal requirements for taking a certain action does not mean that the
government is thereby directing the citizen to take that action, much less assuming legal
responsibility for the citizens violation of federal law. If, for example, Bailey had asked what
kind of building permit he needed before constructing a restaurant on the Site, and the County
responded, that would be a far cry from the County instructing Bailey to build a restaurant.
Bailey also claims that Doug Easthouse of the Soil and Water Conservation District told
him that the Corps would approve the application and that he was free to finish the Road. Bailey
Dep. 46. Putting aside the fact that Easthouse did not work for the federal government and thus
did not have authority to make decisions on behalf of the Corps, Easthouse also did not work for
the County, and thus his actions cannot be blamed on the County. See Minn. Stat. 103C.331,
subd. 1 (soil and water conservation districts are governmental and political subdivisions of the
state). More importantly, Bailey was told in June 1998 by the federal government both the
Corps and the EPA to cease work on the Road until he obtained the proper permit from the
Corps. AR at COE0438. It defies belief that Bailey, after being told by the Corps to stop work
10Bailey also cites a May 1, 2006 order of state district-court judge Charles H. LeDuc as
evidence that the County induced Bailey to build the Road. Fish Decl. Ex. 10, March 5, 2007.
Judge LeDuc dismissed criminal charges brought against Bailey by the state on the basis of
equitable estoppel, apparently concluding that the County bore some responsibility for
development at the Site. (It is not entirely clear what Bailey was charged with, but it appears
that he was charged with violating state environmental law.) Judge LeDuc did not cite any
evidence that the County induced Bailey to build the Road, but simply relied on Baileys
memorandum in support of dismissing the charges. Id. at 3. Nowhere in that memorandum did
Bailey point to any evidence that the County induced Bailey to build the Road. Moreover, the
United States was not a party to that action, and it does not appear that Judge LeDuc had the
benefit of the evidence of Baileys culpability that the United States has presented in this case.
11Bailey also identifies other items, such as spoil that the County cast onto his land when
it recently cleaned the ditch on the southern border of the Site. The spoil was not cast onto the
Road, however, and Bailey is not being asked to remove it. See Crompton Dep. 13, Nov. 28,
2006 (Q. [The spoil] was placed into the farmers field? A. Yes.).
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on the Road until he got a permit from the Corps, would resume work on the road without
checking first with the Corps. Thus, even under the most charitable reading of the record, Bailey
cannot claim ignorance of the fact that any additional work would be at his own risk.10 Cf.
Sexton Cove, 526 F.2d at 1300 (developers who did not contact the Corps before beginning
construction, and were later notified that a permit was required, were not misled into believing
that they were exempt from permit requirements).
Bailey next argues that the restoration order is inequitable because it requires him to
remove items placed on the land by others. Specifically, Bailey identifies culverts and fill placed
by owners of the lots on the Site, a culvert and fill that the County allegedly placed on the Site,
the seeding of the ditches by the County, and road grading by the County. Bailey also argues
that the County widened the ditches and used the excavated material for more road base.11
Even assuming that Baileys factual allegations are true, it is not inequitable for Bailey to
be required to remove these items in conjunction with his removal of the Road. The United
-34-
States is seeking the removal of a quarter-mile long road that runs through a sixty-six-foot wide
roadway, for which Bailey is entirely responsible. In comparison, the burden of removing a few
additional items is minimal. Moreover, Bailey bears some share of the responsibility for these
items. Obviously, if he had not built the Road, none of these items would now be on the Site.
Bailey is directly responsible for some items, such as the gravel placed on the Road by
LaValla in 1999. Other items, such as most of the culverts, were placed near the Road by those
to whom Bailey sold lots. Bailey apparently did not tell these purchasers that he did not have the
necessary permit for the Road and that, in fact, he might be required to remove the Road. He can
hardly be heard to complain now about having to remove a few culverts that these innocent lot
owners placed near the Road; the fact that the County issued permits to the lot owners to place
these culverts does not make Bailey any less culpable. Cf. United States v. Cumberland Farms
of Conn., Inc., 826 F.2d 1151, 1165 (1st Cir. 1987) (finding that the restoration order was
equitable because, while it placed a heavy burden on the defendant, the defendant had no one
but itself to blame for its predicament).
Bailey cites to County timesheets as evidence that the County placed fill on the Road, but
these timesheets do not distinguish between Sandy Shores Drive and the Road, and thus there is
no proof that the County placed fill on the Road. Hasbargen Dep. 11-12, Aug. 26, 2005.
Although there is some evidence that the County widened the ditches, see Fish-Whitlock Aff.
Ex. 9, Jan. 25, 2006, that widening (along with the seeding of the ditches) will have little impact
on the cost to Bailey of restoring the Site. Finally, with respect to the preexisting culvert to the
north of the Road, the restoration order does not include that culvert, and the fact that the County
12Bailey argues that the United States has taken inconsistent positions with respect to
Baileys ownership of the Road. See Def.s Mem. Resp. Pl.s and Third Partys Mots. Summ. J.
23. Specifically, Bailey claims that the United States has argued, in a pending takings case in the
Federal Court of Claims, that Bailey has no interest in the Road. Id. The United States has
moved to supplement the record with a copy of Baileys memorandum in the takings case, which
the Court grants. Pointing to that memorandum, the United States argues that it is Bailey who
has taken inconsistent positions with respect to his ownership interest in the Road. Each side
apparently seeks to estop the other from taking an inconsistent position in this case. The Court
need not involve itself in this skirmish, however, because the nature of Baileys property rights
over the Road is irrelevant.
-35-
placed it there is therefore irrelevant. AR at COE0703 (map attached to restoration order
showing the area to be restored).
Bailey also argues and the County concedes that the County has owned the Road
since December 1998, when the County Board approved the Sunny Beach plat.12 Bailey and the
County make detailed arguments about state property law with respect to public roads. But
nowhere does Bailey explain why the current ownership of the Road is relevant under the CWA.
There is no doubt that it was Bailey who violated the CWA, and nothing in the statute or the case
law interpreting it suggests that Bailey can escape liability by passing the Road on to the County.
Certainly, a violators lack of continuing control over polluted property may be relevant to
whether restoration is practical. But the practicality of restoration is not a problem in this case,
as the County represented at oral argument that it will take all steps necessary to allow Bailey to
comply with the restoration order.
The Court therefore concludes that the Corpss restoration order meets all of the
requirements of Sexton Cove, and the Court will enter an injunction requiring Bailey to comply
with that order. The Court will not, however, enjoin Bailey from discharging further pollutants
into the Site, as the government requests. Before the Court could enter such an order, the United
13The United States cites only one district-court case for the proposition that it is entitled
to an injunction restraining Bailey from future violations. See Leslie Salt Co. v. United States,
820 F. Supp. 478, 484 (N.D. Cal. 1992). The court in Leslie Salt did not cite any authority or
provide any analysis supporting its conclusion, and thus its opinion is not persuasive.
-36-
States would have to show the likelihood of a future CWA violation by Bailey. See, e.g., United
States v. Sea Bay Dev. Corp., No. 06-624, 2007 WL 1378544, at *3 (E.D. Va. May 8, 2007);
United States v. Fabian, No. 02-495, 2007 WL1035078, at *17 (N.D. Ind. Mar. 2, 2007). The
United States has made no such showing. True, Bailey has demonstrated a willingness to defy
the instructions of the Corps, but he did so while his permit application was pending, and there is
no suggestion that Bailey intends to place more fill on the Site or otherwise violate the CWA.
An injunction prohibiting him from doing so is therefore unwarranted.13 Cf. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 193 (2000) (federal courts should
narrowly frame relief to fit the precise facts of the case); Weinberger v. Romero-Barcelo, 456
U.S. 305, 320 (1982) (courts retain discretion to grant or deny injunctions restraining violations
of the CWA).
E. Baileys Claim Against the County
The United States filed this action against Bailey in September 2005. In January 2006,
Bailey moved to join the County as a third-party defendant under Fed. R. Civ. P. 19. Docket
No. 14. Judge Erickson found that joinder of the County was not proper under Rule 19, but
granted Bailey permission to implead the County under Fed. R. Civ. P. 14. Docket No. 25.
Contrary to Baileys representation at oral argument, Judge Erickson did not order Bailey to
implead the County under Rule 14. Indeed, Judge Erickson expressly noted that the Court might
ultimately find Baileys Rule 14 allegations unsustainable. Id. at 18. Bailey did not object to the
-37-
denial of his Rule 19 motion, but instead brought a third-party complaint against the County
under Rule 14.
In his third-party complaint, Bailey alleges that the County is responsible for the CWA
violation, and asks that the Court order the County instead of Bailey to restore the wetland
at its own expense in the event that the United States prevails on its claim. Docket No. 26. This,
however, is not a proper basis for a Rule 14 claim. A defendant may not use Rule 14 to implead
a third-party defendant who may have liability to the plaintiff instead of the defendant or in
addition to the defendant. Rather, a defendant may use Rule 14 to implead a third-party
defendant only if that third party will be liable to the defendant if the defendant is found liable to
the plaintiff. Moreover, the liability of the third-party defendant to the defendant must be
contingent on the defendant being held liable to the plaintiff:
Rule 14(a) allows a defendant to assert a claim against any person not a
party to the main action only if that third persons liability on that claim is
in some way dependent upon the outcome of the main claim. Rule 14(a)
does not allow the defendant to assert a separate and independent claim
even though the claim arises out of the same general set of facts as the
main claim.
Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003) (quoting United States v.
Olavarrieta, 812 F.2d 640, 643 (11th Cir. 1987)). Thus, Baileys claim against the County
cannot be an independent claim (such as, say, misrepresentation or negligence), because such
claims cannot be brought under Rule 14. Instead, his claim must be in the nature of a claim for
indemnity or contribution, such as the type of claim that an insured might bring against his
insurer after being sued for damages in connection with a car accident.
The problem with Baileys claim against the County is that Bailey has identified no
cognizable legal theory under which he has a right of indemnity or contribution against the
14The County argues that Baileys claims are precluded by the doctrines of claim and
issue preclusion. It is unnecessary to address this argument, given the dismissal of the Rule 14
claim on other grounds. The Court notes, though, that if Bailey had asserted an independent
claim against the County in this case that is, if he had simply sued the County and argued
you are liable to me whether or not I am held liable to the government then Baileys claim
would most likely be precluded, as Bailey has already sued the County more than once on claims
arising out of the same set of facts alleged in this case. See Bailey v. U.S. Army Corps of Engrs,
No. 02-CV-639, 2002 WL 31728947, at *11-13 (D. Minn. Nov. 21, 2002) (dismissing Baileys
detrimental-reliance claim against the County). But, as described in the text, Baileys Rule 14
claim is necessarily a contingent claim a claim that if and only if I am held liable to the
United States, then you should be held liable to me. Bailey has yet to incur any liability, and
thus any claim for contribution or indemnity against the County has yet to be adjudicated.
-38-
County. Bailey can, of course, defend against the United Statess lawsuit by arguing that it was
the County, and not he (or not just he), who violated the CWA. But to implead the County under
Rule 14, Bailey must be able to claim based on an insurance contract or statutory
indemnification provision or something else that, if he is held liable to the United States, then
the County should be held liable to him. Bailey has identified nothing in the CWA or any law or
contract that gives him such a right against the County, and thus his Rule 14 claim fails.14
At oral argument, Bailey seemed surprised when the Courts line of questioning revealed
that he had not asserted a proper Rule 14 claim, and Bailey asked that the Court give him a
chance to come up with a theory for why the County might have the type of obligation that could
be enforced under Rule 14. The Court declines the invitation. Bailey impleaded the County
over a year ago, and he has had ample time to determine whether he has a proper legal basis for
his claim. Moreover, Bailey cannot reasonably argue that Judge Ericksons decision to permit
him to implead the County was a kind of judicial imprimatur of his claim. Rule 14 is simply a
procedural device; it does not create a substantive right to relief. 6 Charles Alan Wright et al.,
Federal Practice and Procedure 1446 (2d ed. 1990). If Bailey did not wish to be limited by
-39-
the strictures of Rule 14, he could have objected to Judge Ericksons denial of his Rule 19
motion. But he did not. Baileys third-party complaint against the County is therefore
dismissed.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Baileys motion for summary judgment [Docket No. 58] is DENIED.
2. Lake of the Woods Countys motion for summary judgment [Docket No. 82] is
GRANTED, and Baileys third-party complaint against the County [Docket
No. 26] is DISMISSED WITH PREJUDICE AND ON THE MERITS.
3. The United Statess motion to supplement the record [Docket No. 143] is
GRANTED.
4. The United Statess motion for summary judgment [Docket No. 76] is
GRANTED IN PART AND DENIED IN PART as follows:
a. Baileys counterclaim [Docket No. 2] is DISMISSED WITH PREJUDICE
AND ON THE MERITS.
b. The Court will enter an injunction requiring Bailey to restore the Site, at
his own expense, to its pre-violation condition in accordance with the
Restoration Order dated October 22, 2001 (Restoration Order), a copy
of which is in the record at AR at COE0700-0705.
c. Bailey shall file and serve a restoration plan no later than ninety days from
the date of this order. The restoration plan shall contain a schedule of the
-40-
activities to be conducted to comply with the restoration order and a
timeline for implementing each activity.
d. The United States shall file and serve any comments on the restoration
plan no later than forty-five days after Bailey has filed and served the
plan. The Court will then review the submissions of the parties and issue
a final injunction.
5. The United Statess motion is DENIED in all other respects.
Dated: September 25 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

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