An Oregon farmer should be held liable without a jury trial for violating the Clean Water Act by stabilizing a riverbank, according to a federal judge.
U.S. Magistrate Judge Thomas Coffin has agreed with the U.S. Environmental Protection Agency that “ample evidence” shows farmer Bill Case of Albany, Ore., broke the law by working below the North Santiam River’s ordinary high water mark.
The farmer hasn’t proven “a reasonable jury could find a serious injustice had been committed” in holding him liable, Coffin said.
Because there is no question regarding a “genuine issue of material fact,” the issue can be resolved on “summary judgment” by a judge instead of a jury, he said.
The judge also rejected the argument that Case should not be held liable because he didn’t know a Clean Water Act permit was necessary, government officials had been aware of the work, and he had relied on the federal government’s advice when stabilizing the riverbank.
Although the farmer “presented sufficient evidence” that these elements were satisfied, he didn’t show the government had committed “affirmative misconduct” — such as a “deliberate lie” or a “pattern of false promises” — as required by legal precedent, Coffin said.
Under the Clear Water Act, it’s illegal to discharge material below the ordinary high water mark of a navigable water without a permit, with penalties of up to $37,500 per day of violation.
The U.S. Environmental Protection Agency filed a lawsuit against Case in 2016, claiming he violated the statute by placing large “riprap” rocks along the river in 2009 and later expanding levees in 2012 and 2013.
The judge said that Case’s own photos indicate that fill material was placed beneath the North Santiam river’s ordinary high water mark during the 2009 stabilization, but there’s no evidence the government approved him going below that level.
Case also didn’t provide evidence, apart from testimony, that the 2012 and 2013 work occurred above the ordinary high water mark, Coffin said.
The government, meanwhile, had sufficient evidence the levee improvements occurred below that level, he said.
“Although Mr. Case may have been unaware that the areas in which he worked and the types of changes to the dike he performed were subject to permit requirements, the CWA imposes strict liability upon its violators,” the judge said.
While the magistrate judge has found that Case should be held liable, that is not the final word on the matter. His recommendation has now been referred to U.S. District Judge Ann Aiken.
Case said he plans to challenge the recommendation and is also negotiating with EPA about mitigation work to the riverbank.
The U.S. Army Corps of Engineers never mentioned he’d have to stay above the ordinary high water mark when stabilizing the riverbank, Case said.
“The only thing they said was stay out of the river,” he said.
Case said it’s implausible that he’d document the stabilization work with photos if he thought the work was unlawful.
“We weren’t trying to hide anything, we were just doing what they told,” he said.
A jury would likely have understood the situation and thrown out the lawsuit, which is why the judge didn’t like that option, Case said. “You get a judge on the side of the EPA, he’s going to go in that direction.”