United States District Court, D. Wyoming
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW
ALAN B. JOHNSON, District Judge.
The dispute in this case arises from a channelization project in north-central Wyoming. The Government alleged that the project violated the Clean Water Act's permit requirements, and the defendant landowner argued that the project was exempt under the statute. Following a jury trial in which the jury found for the defendant landowner, the Government has moved for judgment as a matter of law arguing that there was insufficient evidence for the jury to find the defendant escaped the Clean Water Act's recapture provision, 33 U.S.C. § 1344(f)(2). For the following reasons, the Government's motion for judgment as a matter of law is DENIED.
This Court has previously described the general background for this case in its previous order, United States v. Hamiltion, 952 F.Supp.2d 1271 (D.Wyo. 2013). Following that order, this case was bifurcated into liability and remedy phases. The liability phase of trial was tried before a jury starting on March 31, 2014. After nine days of evidence, the jury returned with a verdict in favor of Defendants David L. Hamilton and Hamilton Properties (collectively "Hamilton"). [ See ECF No. 160].
The Clean Water Act generally prohibits a person from discharging dredged or fill material into waters of the United States. See 33 U.S.C. §§ 1311(a), 1362(6). However, a person does not need a permit for discharging dredged or fill material if that discharge falls within a statutory exemption under 33 U.S.C. § 1344(f)(1) and is not "recaptured" pursuant to 33 U.S.C. 1344(f)(2).
Hamilton claimed that their activities were exempt under the "normal farming and ranching activities" exemption, § 1344(f)(1)(A), and the "construction or maintenance of... irrigation ditches" exemption, § 1344(f)(1)(C). The jury found that Hamilton had established their discharge was exempt under both statutory exemptions, and it further found that Hamilton had established that their discharge was not "recaptured" under § 1344(f)(2)'s first prong. [ECF No. 160]. Because the jury found that Hamilton's discharge was not recaptured under 1344(f)(2)'s first prong, it did not proceed to answer whether "the flow or circulation of navigable waters" was impaired or its reach reduced. Id.
During trial, the Government moved for judgment as a matter of law arguing that Hamilton had not introduced sufficient evidence to escape the "recapture" provision of § 1344(f)(2). The Court denied that motion during trial, and the Government has renewed it via the instant motion, ECF No. 173. The Government argues that Hamilton introduced insufficient evidence to establish that the purpose of filling an approximately half mile length of Slick Creek was not to bring "an area of the navigable waters into a use to which it was not previously subject." 33 U.S.C. § 1344(f)(2). It also argues that Hamilton did not introduce sufficient evidence to show that the reach of Slick Creek was not reduced. With some flourish and hyperbole, Hamilton argues that they did present sufficient evidence, through witnesses and documentary evidence, to confirm that their channelization "project was not done for the purpose of bringing an area of the navigable waters into a use to which it was not previously subject.'" [ECF No. 178 at 6].
STANDARD OF REVIEW
"Judgment as a matter of law is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Wilson v. Tulsa Junior Coll., 164 F.3d 534, 536 (10th Cir. 1998) (internal quotation marks omitted). The Court does "not weigh the evidence, pass on the credibility of the witnesses, or substitute [its] conclusions for that of the jury. However, [it] must enter judgment as a matter of law in favor of the moving party if there is no legally sufficient evidentiary basis... with respect to a claim or defense... under the controlling law.'" Harolds Stores, Inc. v. Dillard Dep't Stores, 82 F.3d 1533, 1546-47 (10th Cir.1996) (citation omitted) (quoting Fed.R.Civ.P. 50(a)). In conducting this review, "[t]he evidence and inferences therefrom must be construed most favorably to the nonmoving party." Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir. 1997).
It is well established that the Clean Water Act's "recapture" provision has two prongs.
[T]he discharge of dredge or fill materials into navigable waterways is "recaptured" and subject to the permitting requirement when two conditions are met: 1) the discharge is "incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject"; and 2) "the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced" by the discharge.
Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 954 (7th Cir. 2004) (emphasis added); see also United States v. Brace, 41 F.3d 117, 129 (3d Cir. 1994); Borden Ranch P'ship v. United States Army Corps of Eng'rs, 261 F.3d 810, 815 (9th Cir. 2001) aff'd 537 U.S. 99 (2002).
The Government relies on the recapture provision's first prong to argue that Hamilton did not introduce sufficient evidence to prove that Hamilton's purpose of filling an approximately half mile length of the Slick Creek channel was not to bring "an area of the navigable waters into a use to which it was not previously subject." Unfortunately for the Government, when the evidence is viewed in the light ...