ELR Citation: ELR 20083
No(s). 83-3140 (7th Cir. Jan 11, 1985)

The court holds that Federal Water Pollution Control Act §404(f)(1)'s agricultural exemption is to be construed narrowly to exempt only certain farming activities that do not reduce the size of wetlands or impede the circulation of water in wetlands. The owners of a cranberry farm containing the largest continuous area of wetlands in Wisconsin were properly held in civil contempt for violations of a consent decree with the Corps of Engineers (Corps) for maintenance and restoration of these wetlands. In narrowly construing the exemption, the court looks both to the legislative history and to the limitation on the exemption found in §404(f)(2).

The court goes on to affirm the trial court's findings of specific violations of the consent decree using the "clearly erroneous" standard. The consent decree prohibited the farm owners (the Huebners) from discharging dredged and fill material without a §404 permit and required them to notify the Corps prior to any discharge. The court holds that the Huebners violated the decree by plowing reservoirs to convert them to cropland, deepening and digging certain ditches, maintaining farm roads at a greater width than necessary, expanding cranberry beds without a permit, and scraping the wetlands with a bulldozer.

The court holds that the Huebners were not denied due process at the six day trial-type contempt hearing when the district court excluded evidence on, inter alia, the purpose of the phrase "maximum drainage control" in the consent decree and on their estoppel claim. The scope of a consent decree is interpreted within its four corners and not with reference to the purpose of the parties, so the court holds that no evidence beyond the plain meaning of the phrase was required. The Huebners' estoppel claim is groundless. Before estoppel applies against the government, the alleged estopping statements must be in writing and made by officials at a policymaking level. In any event, any erroneous oral statements by Corps personnel that permits were not required were followed by correction of which the Huebners took no heed.

Turning to the restoration plan imposed on the Huebners by the district court, the court notes that a lower court's remedies for civil contempt are reviewable under the abuse of discretion standard. The court holds that most of the order requiring restoration of wetlands and maintenance of certain water levels with within the district court's discretion. However, the order to destroy the Huebners' permitless expansion of a cranberry bed was an abuse. Although the expansion violated the consent decree, the destruction remedy is excessive where the expansion took several years and is not inherently incompatible with the wetlands, and where Corps personnel were aware of the expansion.

Counsel for Appellants
Arvid A. Sather
Michael, Best & Friedrich
First Wisconsin Plaza
P.O. Box 1806, Madison WI 53701-1806
(608) 257-3501

Counsel for Appellee
Sheree Gowey, U.S. Attorney
Western District of Wisconsin
120 N. Henry St., Rm. 403, Madison WI 53703
(608) 264-5158

Before BAUER, Circuit Judge, PELL, Senior Circuit Judge, and DUPREE, Senior District Judge.^*