Peter Smith vs. U.S. Army Corps of Engineers

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

LEE E. PETERS, NMSB No. 2068 1 E-mail: lep@lclaw-nm.com PETERS LAW FIRM, LLC 2 2100 North Main Street, Suite C Post Office Box 2796 3 Las Cruces, New Mexico 88001 Telephone: (575) 526-2101 4 Facsimile: (575) 526-2506 5 DAMIEN M. SCHIFF, CSB No. 235101 E-mail: dms@pacificlegal.org 6 JENNIFER M. FRY, No. CSB 280885 E-mail: jmf@pacificlegal.org 7 (Pro Hac Vice Applications Pending) Pacific Legal Foundation 8 930 G Street Sacramento, California 95814 9 Telephone: (916) 419-7111 Facsimile: (916) 419-7747 10 Attorneys for Plaintiffs 11 12

UNITED STATES DISTRICT COURT

13

FOR THE DISTRICT OF NEW MEXICO

14 15 PETER SMITH and FRANÇOISE SMITH, Plaintiffs,

16 17

v.

18 UNITED STATES ARMY CORPS OF ENGINEERS, 19 20

Defendant.

21 22 23 24 25 26 Complaint for Declaratory and Injunctive Relief

) ) ) ) ) ) ) ) ) ) )

No. ______________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

INTRODUCTION

2

1.

Plaintiffs Peter and Françoise Smith bring this action for declaratory and

3 injunctive relief pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 551, et 4 seq.

5

2.

Defendant United States Army Corps of Engineers has issued an unlawful

6 Approved Jurisdictional Determination (JD) determining that a dry arroyo on Plaintiffs’ 7 property is a water of the United States under the Federal Water Pollution Control Act, 33 8 U.S.C. § 1251, et seq., known as the Clean Water Act (CWA), and therefore subject to the

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9 Corps’ jurisdiction. As a result, Plaintiffs are unable to use and enjoy their property 10 without fear of a CWA enforcement action, fines, and penalties. The JD also subjects 11 Plaintiffs to an unlawful and burdensome permitting requirement.

12

3.

Plaintiffs seek by this action a declaration that the arroyo on their property

13 is not a water of the United States under the CWA. Plaintiffs also seek an injunction 14 enjoining Defendant from exercising jurisdiction over Plaintiffs’ property.

15

JURISDICTION AND VENUE

16

4.

This Court has jurisdiction over the subject matter of this action pursuant

17 to 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2201 (authorizing 18 declaratory relief); 28 U.S.C. § 2202 (authorizing further “necessary or proper relief”); and 19 5 U.S.C. § 702 (providing for judicial review of agency action under the APA).

20

5.

Venue in this judicial district is proper under 28 U.S.C. § 1931(e)(2) because

21 the property that is the subject of the action is located within this district.

22

PARTIES

23

6.

Plaintiffs Peter and Françoise Smith own the property that is the subject of

24 this action. They purchased the property for their retirement and built a home there where 25 they live. Prior to purchasing the property, Plaintiffs extensively researched the property’s 26

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1 title to determine whether it was encumbered. Nothing in the title documents or title policy 2 indicated any exercise of jurisdiction by the federal government or any limitations on use.

3

7.

Defendant United States Army Corps of Engineers (Corps) is a branch of

4 the Department of the Army and an agency of the United States. The Corps is authorized 5 under Section 404 of the CWA to issue permits for dredged and fill material into 6 “navigable waters.” 33 U.S.C. § 1344(a). By regulation, the Corps’ district engineers are 7 authorized to issue Approved Jurisdictional Determinations stating whether a particular 8 parcel of property may be regulated under the CWA. 33 C.F.R. §§ 320.1(a)(6), 331.2.

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

9

LEGAL BACKGROUND

10

8.

In 1972, Congress enacted the CWA to regulate “navigable waters.”

11

9.

Section 404 of the CWA, 33 U.S.C. § 1344, authorizes the Secretary of the

12 Army, through the Corps, to issue permits for the discharge of dredged and fill material into 13 “navigable waters.”

14

10.

Section 301(a), id. § 1311(a), prohibits the unpermitted discharge of dredged

15 and fill material into “navigable waters.”

16

11.

Section 502(7) of the CWA, id. § 1362(7) defines “navigable waters” to

17 mean the “waters of the United States, including the territorial seas.”

18

12.

By regulation, the Corps may determine whether a particular parcel of

19 property contains “waters of the United States” by issuing an Approved Jurisdictional 20 Determination. 33 C.F.R. §§ 320.1(a)(6), 331.2.

21

13.

The Corps has promulgated regulations defining “waters of the United

22 States.” Id. § 328.

23

14.

Under those regulations, navigable waters, interstate waters, intrastate waters

24 with uses that could affect interstate or foreign commerce, impoundments of waters, 25 tributaries of waters, territorial seas, and wetlands adjacent to other waters that are not 26 themselves wetlands, are considered “waters of the United States.” See id. § 328.3.

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1

15.

In 2001, the United States Supreme Court, in Solid Waste Agency of

2 Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 3 (2001), held that isolated, intrastate, non-navigable bodies of water are not “waters of the 4 United States.”

5

16.

In response to the SWANCC opinion, the Corps, along with the United States

6 Environmental Protection Agency (EPA), issued an Advance Notice of Proposed 7 Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United 8 States,” seeking comment on whether and how the agencies should amend the definition

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9 of the term in order to account for the Supreme Court’s decision. 68 Fed. Reg. 1991 10 (Jan. 15, 2003).

11

17.

The Corps did not follow through with the rulemaking.

12

18.

Notwithstanding SWANCC, the Corps and EPA continued to interpret their

13 authority under the CWA to extend to waterbodies and wetlands so long as these features 14 had at least a “hydrological connection” to navigable-in-fact waterbodies. See, e.g., United 15 States v. Rapanos, 376 F.3d 629, 638 (6th Cir. 2004), vacated, remanded by Rapanos v.

16 United States, 547 U.S. 715 (2006).

17

19.

In Rapanos v. United States, the Supreme Court rejected the agencies’

18 hydrological connection theory of CWA jurisdiction. See 547 U.S. at 739 (plurality 19 opinion); id. at 780-82 (Kennedy, J., concurring in the judgment).

20

20.

In that decision, Justice Scalia authored a plurality opinion, joined by three

21 other Justices, which concluded that the Corps’ jurisdiction over non-navigable waters only 22 extends to “relatively permanent, standing or continuously flowing bodies of water” that 23 are “connected to traditional interstate navigable waters.” Id. at 739, 742 (plurality 24 opinion).

25

21.

Justice Kennedy concurred in the judgment but adopted a broader

26 interpretation of the Corps’ jurisdiction over non-navigable waters, finding them Complaint for Declaratory and Injunctive Relief

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1 jurisdictional if they “possess a ‘significant nexus’ to waters that are or were navigable in 2 fact or that could reasonably be so made.” Rapanos, 547 U.S. at 759 (Kennedy, J., 3 concurring in the judgment). According to Justice Kennedy, a significant nexus exists 4 where non-navigable waters, either alone or in combination with similarly situated 5 waterbodies, “significantly affect the chemical, physical, and biological integrity” of 6 navigable-in-fact waters (also known as “traditional navigable waters”). Id. at 780.

7

22.

After Rapanos, the Corps, in conjunction with EPA, issued a non-binding

8 guidance document opining on the scope of the agencies’ CWA jurisdiction. See Clean

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9 Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United 10 States & Carabell v. United States (Dec. 2, 2008). In that guidance document, the Corps 11 and EPA assert their intention to exercise jurisdiction over “waters of the United States” 12 that satisfy either the Scalia “relatively permanent” test or the Kennedy “significant nexus” 13 test.

14

23.

In April, 2011, the Corps and EPA issued a new draft guidance document,

15 but it has not yet been finalized. See Draft Guidance on Identifying Waters Protected by 16 the Clean Water Act (2011). In that guidance document, the Corps and EPA state their 17 intention to continue to assert jurisdiction over “waters of the United States” that satisfy 18 either the Scalia or the Kennedy test. The document also notes the agencies’ intention to 19 engage in APA rulemaking after finalizing the new guidance.

20

FACTUAL ALLEGATIONS

21

The Property

22

24.

Plaintiffs own approximately 20 acres of property located at 64 Coyote Trail

23 in Santa Fe, New Mexico.

24

25.

Prior to purchasing the property in 2005, Plaintiffs researched the title of the

25 property to determine if there were any easements or other encumbrances on the title. Only 26 after determining that title was clear did they purchase the property.

Complaint for Declaratory and Injunctive Relief

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1

26.

Plaintiffs purchased the property for their retirement, investing their life

2 savings and building their dream home.

3

27.

A dry creek bed, or arroyo, runs across Plaintiffs’ property.

4

28.

Water only flows in the arroyo during and immediately after major storms.

5 Such events occur on average three times a year. Within a half hour after such storms, the

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

6 water in the arroyo either evaporates or is absorbed into the porous ground.

7

29.

The arroyo is not a traditional navigable water.

8

30.

Boats do not and cannot use the arroyo.

9

31.

The arroyo does not contain relatively permanent, standing, or continuously

10 flowing water.

11

32.

There is no significant nexus between the arroyo and the Rio Grande or any

12 other traditional navigable water.

13

33.

The arroyo does not, either by itself or in combination with similarly situated

14 waterbodies in the area, significantly affect the chemical, physical, and biological integrity 15 of the Rio Grande or any other traditional navigable water.

16

34.

The Rio Grande is located approximately 25 miles from Plaintiffs’ property.

17

35.

Before Plaintiffs purchased the property, prior owners or unknown persons

18 had used the arroyo as a place to dump trash. Also, many trees on the property and in the 19 arroyo had died from a pine beetle infestation and posed a fire hazard.

20

36.

Plaintiffs smoothed out the ground in the bottom of the arroyo so they could

21 safely use a truck and tractor to remove the trash and dead trees. They did not introduce 22 any new fill material or dirt into the arroyo.

23 24

The Corps’ Jurisdictional Determination 37.

On May 25, 2011, without Plaintiffs’ knowledge or permission, Defendant’s

25 agent visited and inspected Plaintiffs’ property. Corps Project Manager William Oberle 26 was joined by Neal Schaeffer of the New Mexico Environment Department Surface Water Complaint for Declaratory and Injunctive Relief

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1 Quality Bureau and Plaintiffs’ neighbor, John Baumgartel, who facilitated access to 2 Plaintiffs’ property. Baumgartel had requested that the Corps investigate Plaintiffs for a 3 CWA violation upon sending the Corps photographs of Plaintiffs’ property. See Exhibit 4 A. 5

38.

Following the site visit, the Corps prepared an Approved Jurisdictional

6 Determination (JD), with which EPA concurred on June 9, 2011. See Exhibit B, p. 1.

7

39.

The JD asserts that Plaintiffs’ arroyo is a “water of the United States” and

8 therefore jurisdictional under the CWA.

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9

40.

The JD relies on Justice Kennedy’s “significant nexus” test to assert

10 jurisdiction over Plaintiffs’ arroyo, which is noted on the JD as a “Non-Relatively 11 Permanent [Water] that flow[s] directly or indirectly into [a] Traditional Navigable 12 [Water].” See Exhibit B, p. 1.

13

41.

The JD’s “Significant Nexus Determination” alleges that a significant nexus

14 exists between Plaintiffs’ arroyo and the Rio Grande. It reasons that: (a) removal of 15 vegetation from the arroyo is “anticipated to increase channel scour during storm events 16 and increase the stream’s erosion and sediment transport;” (b) nitrates and other chemicals 17 from fertilizers and run-off from nearby residences may be present in the arroyo during 18 storm events; and (c) the Rio Grande silvery minnow, a fish species protected under the 19 Endangered Species Act, 16 U.S.C. § 1531, et seq., is an inhabitant of the Rio Grande.

20 Therefore, “[b]ased upon increased sediment loading, the transport of household chemicals 21 and fertilizers, and these pollutants’ effects on the habitat of the R[io] G[rande] silvery 22 minnow, it is likely that the review reach of the arroyo would have more than a speculative 23 effect on the physical, biological and chemical integrity of the [Rio Grande].” See Exhibit 24 B, p. 5.

25

42.

The JD does not demonstrate how Plaintiffs’ arroyo, either quantitatively

26 or qualitatively, affects the physical, biological, and chemical integrity of the Rio Grande.

Complaint for Declaratory and Injunctive Relief

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1 It asserts that the arroyo will have a non-speculative effect on the Rio Grande, but makes 2 no attempt to quantify or qualify that alleged non-speculative effect. Thus, the JD 3 impermissibly and illogically equates purported non-speculative effects with “signficance” 4 for purposes of the Kennedy Rapanos significant nexus test.

5

43.

On June 14, 2011, Defendant issued Plaintiffs a Notice of Violation, Action

6 Number SPA-2011-00244-ABQ, stating that unauthorized work had occurred in a water 7 of the United States without a Section 404 CWA permit and, for that reason, Plaintiffs had 8 violated Section 301(a) of the CWA. The Notice informed Plaintiffs that Defendant was

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9 considering an enforcement action and directed Plaintiffs to provide Defendant with 10 information regarding Plaintiffs’ property, including: (1) the “[p]urpose of the activity 11 along with a clear description of work;” (2) the “description of any future planned work that 12 would occur in waters of the United States;” and (3) “any other information which may be 13 pertinent to [the] activity.”

14

44.

On June 17, 2011, Plaintiffs responded to the Notice of Violation and

15 addressed Defendant’s questions regarding the activities on the property. Plaintiffs 16 explained that the work’s purpose was to clean up the property by removing trash and dead 17 trees.

18

45.

On June 28, 2011, Defendant sent Plaintiffs a letter notifying them that it

19 would not pursue enforcement proceedings for the time being because it had determined 20 that restoration of the arroyo to its original condition was not practicable. Defendant also 21 notified Plaintiffs that the violation would be kept on record and that failure to obtain a 22 permit before undertaking additional work in the arroyo could result in penalties and fines.

23

INJUNCTIVE RELIEF ALLEGATIONS

24

46.

Plaintiffs hereby reallege and incorporate by reference the allegations

25 contained in all preceding paragraphs as though fully set forth herein.

26

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1

47.

Plaintiffs wish to continue cleaning up and otherwise maintaining their

2 property, activities that the Corps wrongfully claims to be subject to its CWA permitting 3 authority.

4

48.

Plaintiffs are and will continue to be directly affected and injured by the

5 Corps’ expansive and unlawful assertion of CWA jurisdiction over their property.

6

49.

The Corps’ JD imposes significant injury on Plaintiffs by preventing them

7 from using their property as they wish without risking an enforcement proceeding, fines, 8 and penalties. The Corps’ JD also imposes on Plaintiffs the illegal, burdensome, and

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

9 expensive requirement that they obtain a Section 404 CWA permit in order to continue 10 their clean-up and maintenance activities. As a result, Plaintiffs’ use and enjoyment of their 11 property have been, are being, and—unless the Court grants relief—will continue to be 12 adversely affected. Hence, the Corps’ unlawful exercise of jurisdiction causes Plaintiffs 13 irreparable injury.

14

50.

Setting aside the Corps’ JD will redress Plaintiffs’ injuries by allowing

15 Plaintiffs to continue their clean-up and other maintenance efforts and to use and enjoy 16 their property.

17

51.

Plaintiffs have no plain, speedy, and adequate remedy at law. Absent

18 judicial intervention, Plaintiffs will continue to suffer irreparable injury.

19

52.

Defendant’s JD is a final agency action subject to judicial review under the

20 APA. See 5 U.S.C. § 702; 33 C.F.R. § 320.1(a)(6).

21

53.

22

Accordingly, injunctive relief is appropriate.

DECLARATORY RELIEF ALLEGATIONS

23

54.

Plaintiffs hereby reallege and incorporate by reference the allegations

24 contained in all preceding paragraphs as though fully set forth herein.

25

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26

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1

55.

An actual and substantial controversy exists between Plaintiffs and

2 Defendant over Defendant’s failure to comply with the CWA in determining that Plaintiffs’ 3 property contains a jurisdictional waterbody.

4

56.

Plaintiffs contend that their property contains no jurisdictional waterbodies,

5 whereas Defendant, through its JD, contends that it does. Therefore, no further factual 6 development is necessary to resolve the legal issues raised by this action.

7

57.

Defendant’s JD is a final agency action subject to judicial review under the

8 APA. See 5 U.S.C. § 702; 33 C.F.R. § 320.1(a)(6).

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9

58.

The case is currently justiciable because Defendant has unlawfully asserted

10 jurisdiction over Plaintiffs’ property.

11

59.

Plaintiffs are currently and continuously injured by the Corps’ unlawful

12 exercise of jurisdiction because the existence of the JD decreases the value of their 13 property.

14

60.

Plaintiffs are currently and continuously injured by the Corps’ unlawful

15 exercise of jurisdiction because they cannot continue their clean-up and other maintenance 16 efforts on their property without fear of an enforcement action being brought against them.

17 The JD increases the likelihood that Plaintiffs will be subject to an enforcement action 18 should they continue their activities. Further, the JD increases Plaintiffs’ potential civil and 19 criminal liability should they continue their activities.

20

61.

Plaintiffs are currently and continuously injured by the JD because it

21 obligates them to obtain a Section 404 permit from the Corps before continuing their 22 activities.

23

62.

24

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25

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26

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Declaratory relief is, therefore, appropriate to resolve this controversy.

Complaint for Declaratory and Injunctive Relief

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1

FIRST CLAIM FOR RELIEF

2

(Violation of the Administrative Procedure Act and Clean Water Act)

3

63.

Plaintiffs hereby reallege and incorporate by reference the allegations

4 contained in all preceding paragraphs as though fully set forth herein.

5

64.

Plaintiffs’ property is not subject to the CWA because it does not contain

6 any “waters of the United States.”

7

65.

The controlling test for defining “waters of the United States” is Justice

8 Scalia’s plurality opinion in Rapanos v. United States.

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9

66.

Because Defendant’s JD does not rely on Justice Scalia’s plurality opinion

10 for its assertion of jurisdiction, the JD is necessarily contrary to law.

11

67.

Relatedly, no substantial evidence supports the JD, because Plaintiffs’

12 property does not contain any “relatively permanent, standing or continuously flowing 13 bod[y] of water.” Rapanos, 547 U.S. at 739 (plurality opinion).

14

68.

Therefore, the JD is arbitrary and capricious, contrary to law, and

15 unsupported by substantial evidence. See 5 U.S.C. § 706(2).

16

SECOND CLAIM FOR RELIEF (IN THE ALTERNATIVE)

17

(Violation of the Administrative Procedure Act and Clean Water Act)

18

69.

Plaintiffs hereby reallege and incorporate by reference the allegations

19 contained in all preceding paragraphs as though fully set forth herein.

20

70.

Plaintiffs’ property is not subject to the CWA because it does not contain

21 any “waters of the United States.”

22

71.

Assuming that Justice Kennedy’s concurring opinion in Rapanos articulates

23 a valid jurisdictional test, Defendant’s JD is still illegal.

24

72.

No substantial evidence supports the JD’s conclusion that a significant

25 nexus exists between Plaintiffs’ arroyo and the Rio Grande. Similarly, no substantial 26 evidence supports the conclusion that a significant nexus exists between (a) Plaintiffs’ Complaint for Declaratory and Injunctive Relief

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1 arroyo and similarly situated waterbodies and (b) the Rio Grande. The JD does not 2 establish a significant nexus because there is no evidence to determine the qualitative or 3 quantitative effect on the Rio Grande. Such evidence is necessary to distinguish between 4 a jurisdictional significant nexus and a non-jurisdictional insignificant nexus.

5

73.

No substantial evidence exists to support the JD’s conclusion that a

6 significant nexus exists between Plaintiffs’ arroyo and the Rio Grande. Rather, the JD 7 impermissibly assumes, contrary to Justice Kennedy’s concurring opinion in Rapanos, that 8 a non-speculative effect is necessarily a significant effect.

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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9

74.

Therefore, the JD is arbitrary and capricious, contrary to law, and

10 unsupported by substantial evidence. See 5 U.S.C. § 706(2).

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Complaint for Declaratory and Injunctive Relief

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1

PRAYER FOR RELIEF

2

Wherefore, Plaintiffs pray for judgment as follows:

3

1.

A declaration that Plaintiffs’ property is not subject to the CWA;

4

2.

A declaration that Defendant’s Approved Jurisdictional Determination is

5 invalid; 6

3.

An injunction enjoining Defendant from exercising jurisdiction over

930 G Street Sacramento, CA 95814 (916) 419-7111 FAX (916) 419-7747

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7 Plaintiffs’ property; 8

4.

An award of attorney’s fees, expenses, and costs; and,

9

5.

For any such other and further relief that the Court deems proper under the

10 circumstances of this case.

11

DATED: December 11, 2012.

12

Respectfully submitted,

13 PETERS LAW FIRM, LLC

14 15

By _____________________________ LEE E. PETERS

16 17

PACIFIC LEGAL FOUNDATION Damien M. Schiff (pro hac vice pending) Jennifer M. Fry (pro hac vice pending)

18 19

Attorneys for Plaintiffs

20 21 22 23 24 25 26 Complaint for Declaratory and Injunctive Relief

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