ELR Citation: ELR 21323
No(s). CV 88-278-BLG-JFB (D. Mont. Dec 21, 1990)

The court holds that a Montana ranch company, which rearranged indigenous materials in a riverbed to cut off high water channels, protect riverbanks from accelerated erosion, and maintain the existing river channel, violated the Federal Water Pollution Control Act (FWPCA) by not obtaining a §404 permit from the Army Corps of Engineers. The ranch company had its employees perform river channel maintenance on a two-mile stretch of the Little Bighorn River that flowed through ranch company land, including the use of a bulldozer in the stream. The court first holds that because the only issue before the court is defendant's liability under the FWPCA, summary judgment on that issue is appropriate. The court next holds that the redeposit of indigenous riverbed material requires a §404 permit. The case law uniformly holds that the operation of a bulldozer in a river channel constitutes a point source subject to regulation under §404. Moreover, the seminal case Avoyelles Sportsmen's League, Inc. v. Marsh, 13 ELR 20942, holds that a redeposit of native materials into a wetland requires a §404 permit. Also, case law exists that the term "addition" in the FWPCA's definition of "discharge" is broad enough to include the redeposit of native materials. The court next holds that the ranch company is liable for not obtaining a §404 permit before it performed river channel work, because the Corps' definition of fill material does not distinguish between indigenous and foreign material. The court also holds that its decision is not affected by the ranch company's intent in performing the work, since intent in redepositing fill materials is irrelevant to liability under the FWPCA's strict liability standard.

Counsel for Plaintiff
Lorraine Gallinger
U.S. Attorney's Office
P.O. Box 1478, Billings MT 59103
(406) 657-6101

Counsel for Defendant
Douglas Freeman
P.O. Box 429, Hardin MT 59034
(406) 665-1412