United States v. Robert Brace ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2966
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UNITED STATES OF AMERICA
v.
ROBERT BRACE; ROBERT BRACE FARMS,
a Pennsylvania Corporation,
Appellants
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 1-90-cv-00229)
District Judge: Honorable Susan Paradise Baxter
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Submitted Pursuant to Third Circuit L.A.R. 34.1
on October 4, 2022
Before: CHAGARES, Chief Judge, SHWARTZ, and SCIRICA, Circuit Judges.
(Filed: January 6, 2023)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
This case arises from a consent decree that Robert Brace and Robert Brace Farms,
Inc. (collectively, “Appellants”) entered into with the United States in 1996. Appellants
challenge the District Court’s decision to grant, in part, the United States’ motion to
enforce the consent decree, to decline to estop the Government from enforcing the
consent decree, and to deny Appellants’ motion to vacate or modify the consent decree.
Because Appellants’ conduct unambiguously violated the consent decree, the court did
not abuse its discretion in rejecting Appellants’ equitable estoppel defense and denying
their motion to vacate or modify the consent decree. We will affirm.
I.
In 1990, the United States brought an enforcement action against Appellants for
alleged violations of the Clean Water Act. Before that litigation was fully resolved,
Appellants and the Government entered into a consent decree. Among other provisions,
the consent decree permanently enjoined Appellants “from discharging any pollutants
(including dredged or fill material)” into an approximately 30-acre wetlands site on a
piece of their property called the Murphy Farm. JA141. The wetlands site covered by the
consent decree was depicted and delineated in a hand-drawn map attached to the consent
decree. The consent decree also incorporated a wetlands restoration plan, which required
Appellants to perform specific tasks to “restore the hydrologic regime” to the wetlands
site. JA146. Specifically, “[i]n order to restore the hydrology to the area,” the consent
decree mandated that Appellants disable and remove a drainage tile system located in the
wetlands, fill in two surface ditches, and construct a check dam in a specific location. The
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consent decree specified that “[a]ny stipulated modification of [the] Consent Decree must
be in writing, signed by the parties, and approved by [the] Court.” JA144.
Although Appellants initially complied with the terms of the consent decree, the
Government subsequently concluded Appellants were violating it. In January 2016, the
Government provided written notice to Appellants that they had violated the consent
decree by discharging dredged and fill material into approximately 18 acres of the
wetlands site, by installing drainage tile in the wetlands site, and by removing the check
dam required under the consent decree. After attempts to reach a negotiated resolution
failed, the Government moved to enforce the consent decree. Appellants opposed the
Government’s motion, arguing, in part, that the consent decree was ambiguous and the
allegedly violative conduct was expressly authorized by Government officials during on-
site visits to the Murphy Farm. Appellants also moved to vacate or modify the consent
decree.
In an 86-page opinion, the District Court granted, in part, the Government’s
motion to enforce the consent decree. The court found, by clear and convincing evidence,
that Appellants violated the consent decree by installing tile drains, excavating at least
one ditch, and discharging dredged or fill material into approximately 18 acres of the
wetlands site as a result of their clearing, plowing, and corn-planting activities. The court
also found by clear and convincing evidence that Appellants were in violation of the
consent decree because the check dam was not positioned in the location mandated by the
consent decree. The court rejected Appellants’ equitable estoppel defense and denied
their motion to vacate or modify the consent decree. Appellants timely appealed.
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II.1
Appellants contend the court erred in (1) concluding they violated the consent
decree, (2) refusing to estop the Government from enforcing the consent decree, and (3)
denying their motion to vacate or modify the consent decree.
A.2
Appellants argue the court erred in concluding they violated the consent decree.
Appellants’ main contention is that the consent decree is facially ambiguous and,
accordingly, the court should have construed it in Appellants’ favor. Because the consent
1
The parties’ initial dispute arose under the Clean Water Act. Accordingly, the District
Court had subject matter jurisdiction under 28 U.S.C. § 1331. When the parties resolved
that dispute by entering into a consent decree, the court retained jurisdiction to enforce,
interpret, and modify the consent decree. See Frew ex rel. Frew v. Hawkins, 540 U.S.
431, 440 (2004); Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 281–83 & n.15 (3d Cir.
2001). We exercise jurisdiction under 28 U.S.C. § 1292(a)(1). See Harris v. City of
Phila., 47 F.3d 1333, 1338 (3d Cir. 1995).
2
In deciding the Government’s motion to enforce the consent decree, the District Court
referenced the standard for civil contempt, noting that civil contempt requires clear and
convincing evidence of (1) a valid court order, (2) the party’s knowledge of that order,
and (3) disobedience, and found that the evidence supported each factor. It did not,
however, hold Appellants in contempt. Therefore, we do not analyze the District Court’s
order as one for civil contempt. See Harris, 47 F.3d at 1322 (noting that “notwithstanding
the district court’s reference to contempt, we should not analyze the . . . order as an order
for civil contempt [because] [t]here is no explicit finding of contempt,” rather a finding
that the party disregarded the consent decree). Rather, we have before us an order
granting a motion to enforce a judicial order and denying a motion to vacate that order.
We review a district court’s order enforcing, vacating, or modifying its own orders,
including consent decrees, for abuse of discretion. See Holland, 246 F.3d at 281; see also
Democratic Nat’l Comm. v. Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012)
(holding appellant must show the court’s decision was “arbitrary, fanciful or clearly
unreasonable”). We review legal determinations, including interpretation of the consent
decree, de novo, see Holland, 246 F.3d at 281, and we review any factual findings for
clear error, see United States v. Brace, 41 F.3d 117, 122 (3d Cir. 1994).
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decree unambiguously prohibited Appellants’ conduct, the court properly determined that
Appellants violated it.
We review a district court’s interpretation of a consent decree de novo. Holland v.
N.J. Dep’t of Corr., 246 F.3d 267, 278 (3d Cir. 2001). “[A]s consent decrees have many
of the attributes of contracts, we interpret them with reference to traditional principles of
contract interpretation.” United States v. New Jersey, 194 F.3d 426, 430 (3d Cir. 1999).
Accordingly, “[w]e discern the scope of a consent decree by examining the language
within its four corners,” and “we must not strain the decree’s precise terms or impose
other terms in an attempt to reconcile the decree with our own conception of its purpose.”
Harris v. City of Phila., 137 F.3d 209, 212 (3d Cir. 1998). Resort to extrinsic evidence is
permissible “only when the decree itself is ambiguous.” New Jersey, 194 F.3d at 430.
“[A] provision in a decree is ambiguous only when, from an objective standpoint, it is
reasonably susceptible to at least two different interpretations.” Id.Here, Appellants assert the consent decree is facially ambiguous because the area
covered by the consent decree is only an approximation and the consent decree does not
define the term “hydrologic regime.” Appellants contend that, as a result, it is unclear
whether their conduct on the Murphy Farm—which included installing tile drains,
excavating at least one ditch, and planting corn—violated the consent decree. Thus, the
court should have construed these ambiguities in Appellants’ favor and concluded that
their conduct did not violate the consent decree. We are not persuaded.
First, in unambiguous terms, the consent decree permanently enjoined Appellants
“from discharging any pollutants (including dredged or fill material) into the
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approximately 30 acre wetland site” on the Murphy Farm. JA141. Although Appellants
are correct that the map attached to the consent decree that portrayed the Murphy Farm
and delineated the wetlands site was hand drawn and explicitly stated that all locations on
the map were approximations, that is not dispositive. Through their clearing, plowing,
and planting activities, Appellants discharged dredged or fill material into approximately
18 acres of the 30-acre wetlands site. Any ambiguity in the precise borders and
boundaries of the wetlands site cannot reasonably account for the prohibited discharges in
such a wide-ranging area. Accordingly, the consent decree unambiguously prohibited
Appellants’ clearing, plowing, and planting activities, and the court properly concluded
Appellants violated the consent decree by engaging in those activities.
Second, the consent decree incorporated a wetlands restoration plan. The primary
objective of the plan was to “restore the hydrologic regime” to the wetlands. JA146.
Although Appellants are correct that the plan did not define “hydrologic regime,” it
unambiguously provided that “[i]n order to restore the hydrology to the area, the drainage
tile system currently located in the wetlands is to be disabled, surface ditches filled in,
and a check dam constructed.” JA146. Accordingly, the plan detailed specific tasks
Appellants were required to perform to establish and maintain the hydrological regime
mandated by the plan. Appellants initially complied with these requirements, but
subsequently installed tile drainage in the same places from which they had previously
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removed it, excavated at least one ditch in a central location in the wetlands,3 and
positioned the check dam in a different location than that required by the plan.4 This
conduct was contrary to the remedial measures mandated by the plan. Therefore, the only
reasonable interpretation of the plan is that such conduct was prohibited because it would
disturb the hydrological regime required by the plan and return the hydrology of the
wetlands to its previously problematic state. As a result, the plan unambiguously
prohibited Appellants’ activities—reinstalling tile drainage, excavating a ditch, and
failing to install a check dam in the specified location. See New Jersey, 194 F.3d at 430.
Accordingly, the court properly determined that Appellants violated the plan and, in turn,
the consent decree.
Because the consent decree unambiguously prohibited Appellants’ conduct, the
court did not abuse its discretion in granting, in part, the Government’s motion to enforce
the consent decree. See Holland, 246 F.3d at 281.
B.
Appellants argue the court erred in refusing to estop the Government from
enforcing the consent decree. Appellants contend the court should have estopped the
Government from enforcing the consent decree because the Government’s “repeated,
3
Because the ditch was excavated in a central location in the wetlands, this violation of
the consent decree cannot be explained by any ambiguity in the precise boundaries of the
30-acre wetlands site.
4
Although the Government agrees that Appellants initially complied with the wetlands
restoration plan, it is unclear whether the check dam was originally installed at the proper
location and then moved to a different location, as the Government contends, or whether
the check dam has always been at a different location than that specified in the plan.
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material misrepresentations easily satisf[ied] estoppel’s traditional requirements and
constitute[d] affirmative misconduct as well.” Appellants’ Br. 23. Because the court did
not abuse its discretion in rejecting Appellants’ estoppel defense, we will affirm. See
Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 162 (3d Cir. 2011).
“Parties attempting to estop another private party must establish that they relied to
their detriment on their adversary’s misrepresentation and that such reliance was
reasonable because they neither knew nor should have known the adversary’s conduct
was misleading.” Fredericks v. Comm’r, 126 F.3d 433, 438 (3d Cir. 1997). When a party
attempts to estop the government, there is an additional burden—the party must also
establish some affirmative misconduct on the part of government officials. Id. We review
a district court’s decision whether to invoke equitable estoppel for abuse of discretion.
See Meyer, 648 F.3d at 162; Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989).
Here, the court thoroughly considered Appellants’ estoppel defense. The court
concluded that it failed because any reliance on government officials’ alleged verbal
authorization to perform the subject activities in the wetlands site was not reasonable and
Appellants failed to establish any affirmative misconduct by a government official.
Appellants contend that their reliance on verbal authorization from the officials was
reasonable because the consent decree was ambiguous. But, as discussed previously, the
consent decree unambiguously prohibited Appellants’ conduct, and the consent decree
also unambiguously prohibited any modifications without court approval. Accordingly,
even if we assume that government officials expressly authorized Appellants to reinstall
tile drain, plant corn, and perform the other subject activities in the wetlands site, the
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court did not err in concluding that Appellants’ reliance on that authorization was not
reasonable. See Heckler v. Cmty. Health Servs., 467 U.S. 51, 59 n.10 (1984).
Similarly, the court did not err in concluding that Appellants failed to establish any
affirmative misconduct by government officials. Although Appellants contend that
government officials acted with reckless disregard for the truth when they allegedly
authorized Appellants to engage in activities prohibited by the consent decree, the court
did not err when it concluded that—to the extent government officials even authorized
prohibited conduct—the officials were merely negligent. Because mere negligence does
not qualify as affirmative misconduct, the court properly determined that estoppel is
inappropriate here.5 See United States v. Pepperman, 976 F.2d 123, 131 (3d Cir. 1992).
Accordingly, the court did not abuse its discretion in rejecting Appellants’
equitable estoppel defense.
C.
Appellants argue the court abused its discretion in denying their motion to vacate
or modify the consent decree. Appellants contend the court should have vacated or
modified the consent decree because “the government’s repeated, material
misrepresentations on issues surrounding the consent decree” have made it unworkable
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Appellants also argue that the Government committed affirmative misconduct when it
broke its promise that it would not penalize Appellants for the prohibited conduct in
which they engaged in reliance on government officials’ erroneous authorization. This
argument is a nonstarter, though, because the Government promised only to not penalize
Appellants for any sediment removal from Elk Creek and its tributaries that they
performed based on government officials’ representation that such work was permissible,
and the current enforcement action does not concern that conduct.
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and its continued enforcement inequitable. Appellants’ Br. 31. Because the court
thoroughly considered Appellants’ motion and did not abuse its discretion in denying the
motion, we will affirm. See Democratic Nat’l Comm. v. Republican Nat’l Comm., 673
F.3d 192, 201 (3d Cir. 2012).
Federal Rule of Civil Procedure 60(b)(5) provides that a “court may relieve a party
or its legal representative from a final judgment, order, or proceeding . . . [if] applying it
prospectively is no longer equitable.” “[A] party seeking modification of a consent decree
bears the burden of establishing that a significant change in circumstances warrants
revision of the decree.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992).
To obtain modification or vacatur, the party “must establish at least one of the following
four factors by a preponderance of the evidence . . . : (1) a significant change in factual
conditions; (2) a significant change in law; (3) that ‘a decree proves unworkable because
of unforeseen obstacles’; or (4) that ‘enforcement of the decree without modification
would be detrimental to the public interest.’” Democratic Nat’l Comm., 673 F.3d at 202(quoting Rufo, 502 U.S. at 384). A district court’s decision regarding whether to vacate or
modify a consent decree is reviewed for abuse of discretion. Id. at 201.
Here, Appellants have failed to demonstrate that the court’s decision to deny their
motion to vacate or modify the consent decree was an abuse of discretion. Indeed, the
court thoroughly considered Appellants’ arguments regarding changed factual and legal
circumstances and persuasively articulated its reasons for rejecting those arguments and
finding that none of the alleged changes rendered continued enforcement of the consent
decree unworkable or inequitable. The court also weighed the hardship to Appellants of
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continued enforcement of the consent decree against the benefits of its continued
enforcement, and the court reasonably concluded that the environmental benefits derived
from continued enforcement of the consent decree outweighed any hardship to
Appellants from such enforcement. Accordingly, the court did not abuse its discretion in
denying Appellants’ motion to vacate or modify the consent decree.6
III.
For the foregoing reasons, we will affirm the judgment of the court.
6
The court also denied Appellants’ motion to vacate or modify the consent decree on the
ground that it was untimely. See Fed. R. Civ. P. 60(c)(1) (“A motion under Rule 60(b)
must be made within a reasonable time.”). Because we will affirm the court’s decision to
deny the motion on its merits, we need not—and do not—address the court’s
determination that the motion was untimely. See Blunt v. Lower Merion Sch. Dist., 767
F.3d 247, 265 (3d Cir. 2014).
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