EUGENE, Ore. — Rather than convince a jury, the U.S. Environmental Protection Agency wants a federal judge to declare that an Oregon farmer violated the Clean Water Act by stabilizing a riverbank.
Because the evidence “conclusively” shows large rocks were unlawfully discharged into the North Santiam River, the judge should proclaim the farmer liable instead of referring the matter to a jury, according to EPA.
The farmer, Bill Case of Linn County, Ore., argues a jury trial is necessary because it’s “hotly disputed” that his erosion-control activities ran afoul of the Clean Water Act.
Attorneys representing Case likely expect he’d be a sympathetic defendant to jury members.
The key question in the case is whether Case deposited large rocks under the river’s “ordinary high water mark,” below which the federal government has Clean Water Act jurisdiction, said Kent Hanson, an attorney representing the EPA.
The government’s experts have determined the farmer worked below that level based on historical photographs and LIDAR — or Light Detection and Ranging — a remote sensing technology, Hanson said during Feb. 21 oral arguments in Eugene, Ore.
“The defendants have questioned that but have presented absolutely no evidence,” Hanson said. “They have no expert testimony.”
Crystal Chase, the farmer’s attorney, acknowledged the defendant hasn’t produced an expert witness, but said that’s not necessary to establish a controversy to be decided upon by a jury — rather than a “summary judgment” ruling by a judge.
“Expert testimony is not the only way to create a fact dispute,” Chase said.
The federal government hasn’t sufficiently shown that the entirety of Case’s bank stabilization project fell below the ordinary high water mark, she said.
“There has not been a jurisdictional determination,” Chase said. “The government has not met its burden of proving where it is.”
If the EPA convinces the judge to rule that Case was liable, the judge would proceed to determine “remedies” for the violations. He could be fined up to $37,500 per day of violation dating back roughly nine years.
Attorneys for the EPA filed a lawsuit against Case two years ago, claiming that in 2009 he placed riprap and other fill materials in an 835-foot-long trench along the river without the required CWA permit.
During the oral arguments, U.S. Magistrate Judge Thomas Coffin appeared skeptical the farmer wouldn’t realize he was working below the ordinary high water mark.
“It’s not all that difficult of a concept to grasp if you live along the river,” Coffin said.
Case argued the government’s lawsuit should be blocked because he was relying on the advice of another federal agency — the U.S. Army Corps of Engineers — in carrying out the stabilization project.
However, the EPA argues the farmer can’t rely on this doctrine — known as “equitable estoppel” — because government officials didn’t purposely mislead Case, even if he’s accurately representing their instructions.
“Does all that add up to a deliberate lie? The answer is no,” said Hanson. “It does not add up to a pattern of false promises.”
Case countered that relying on “repeated, affirmative statements” is enough of an injustice to invoke “equitable estoppel” and block the lawsuit.
It’s not necessary to show the government intentionally lied, said Chase. “That’s not the standard.”
Apart from the original project in 2009, the EPA alleges that Case built an 800-foot-long dike along the river in 2012 and then extended it by 170 feet the following year, also without the proper permits.
Altogether, the EPA claims he deposited more than 20,000 cubic yards of fill material under the river’s “ordinary high water mark.”
According to Case, floodwaters had washed away roughly 2 acres of a field adjacent to the river, prompting him to undertake the original stabilization project in 2009 with the consent of the U.S. Army Corps of Engineers and Oregon’s Department of State Lands.
As for the activities in 2012 and 2013, Case argues that he was simply repairing dikes that had been built by the U.S. Army Corps of Engineers more than a half-century earlier, which doesn’t require CWA permitting.
However, the EPA claims he doesn’t qualify for the maintenance exemption because the dikes he rebuilt were more than twice as tall and three times wider than any pre-existing structure.
“What’s there is much bigger than what was there before,” said Hanson.