ELR Citation: ELR 20830
No(s). 89-327- (E.D. Va. Aug 24, 1990)

The court denies defendants' post-trial motions for a new trial and judgments notwithstanding the verdict (JNOV) after a jury found that defendants discharged pollutants onto their wetlands without a Corps of Engineers permit in violation of §301(a) of the Federal Water Pollution Control Act (FWPCA). After the jury verdict, the court conducted a bench trial to determine the appropriateness of ordering injunctive relief, in the form of restoration and imposition of civil penalties, to which defendants moved for a new trial and JNOVs. the court first holds that defendants' motion for a new trial and lacks merit, incorrectly states the basis of the court's previous ruling, and is frivolous and wholly unsupported by the evidence. At the jury trial, defendants stipulated that they cleared, planted, and grubbed their property numerous times, and the jury was properly instructed that defendants' liability was not dependent on their ownership status, but on the evidence that each defendant engaged in activities constituting discharges of pollutants. In denying defendants' motions for JNOV or, in the alternative, new trials, the court holds that it correctly ruled during the jury trial that the Environmental Protection Agency (EPA) has independent authority to evaluate whether property is governed by the FWPCA. The court next holds that it did not effectively grant the United States a directed verdict at jury trial by permitting testimony to be introduced on the federal wetlands delineation manual. At the jury trial, the court held that compliance with the Administrative Procedure Act in enacting the federal delineation manual, the EPA manual, or the Corps manual, was unnecessary since the manual aided agency officials in "interpreting" the dictates of the FWPCA, and were thus guidance materials rather than legislation. Moreover, the jury was ultimately bound to evaluate the evidence in light of the regulatory definition of the term "wetlands," and the court instructed the jury that the United States bore the burden of proving that defendants' property constituted jurisdictional wetlands.

The court next holds that the forms of verdict submitted to the jury are not void and did not violate defendants' Seventh Amendment rights by leaving the court to decide factual matters, even though the court used special interrogatories without requiring the jury to render a general verdict. The court did not abuse the wide discretion accorded trial courts by entering separate verdicts based on the jury's answers to each issue of fact. The jury, based on the forms of verdict they returned, found that defendants' property is wetlands constituting a water of the United States, onto which defendants discharged pollutants. Moreover, the fact that the court did not require the jury to determine the date, location, or precise amount of the discharges is not fatal to a finding of liability. The court had sufficient information from the jury to proceed with the penalty phase of the trial, at which the court allowed the parties to present evidence on all relevant factors.

The court next holds that defendants' claim that the definition of "adjacency" in 33 C.F.R. §328.3(c) is void for vagueness is without merit. In light of the broad legislative intent of FWPCA §101(a), it was reasonable for the court to conclude that adjacent wetlands may be defined as waters under the FWPCA. Further, courts have consistently found jurisdictional wetlands to exist, even when the connection between the wetlands area and the adjacent tidal waters is artificial or man-made. Thus, defendants' claim that their property is adjacent to man-made, nontidal drainage ditches that are not waters of the United States, did not preclude the jury from determining that defendants' land is wetlands. The court next holds that defendants were not incorrectly denied categorization under statutory exemptions from the permitting process. Defendants were not entitled to exemption from the permitting process for discharges onto wetlands that result from normal agricultural activities, since the exemption is only available for discharges onto wetlands that have already been subject to agricultural activities. The evidence shows that defendants purchased the property in order to begin agricultural activities. Defendants are also not entitled to the exemption for silvicultural activities, since that exemption applies to normal timber harvesting, not to the clearing of timber to permanently change the wetlands into a non-wetland agricultural tract.

The court next holds that defendants were not denied due process when the court refused to permit them to present evidence of their good-faith belief that EPA's order for compliance was invalid. At jury trial, the court concluded that failure to comply with an EPA compliance order is governed by a strict liability standard, since the regulatory provisions of the FWPCA were written without regard to responsible persons' intentions. However, while defendants' good-faith belief was irrelevant for purposes of determining liability, the defendants' intent was a proper consideration for the court in determining civil penalties. The court also holds that the government is not estopped from enforcing the FWPCA against defendants. Defendants failed to show any affirmative misconduct by employees of the Soil Conservation Service on which they relied.

The court refuses to grant the United States' request that defendants' counsel be sanctioned, pursuant to Federal Rule of Civil Procedure 11, for submitting voluminous, repetitive, and often frivolous motions and objections throughout the litigation. However, the court places defense counsel on notice that subsequent repetitive motions and objections, without new legal authority or evidence, will be subject to scrutiny under Rule 11.

[The district court's prior decision in this litigation is published at 20 ELR 21299.]

Counsel for Plaintiff
Michael Rhine, Ass't U.S. Attorney
Walter Hoffman U.S. Courthouse, 60 Granby St., Rm. 401, Norfolk VA 23510
(804) 441-6631

David A. Carson, Craig B. Schaefer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Richard R. Nageotte, James S. Krein
Nageotte, McCormack, Krein & Gray
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 497-0000