Greenfield Mills Inc v. Macklin, Larry ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1863
GREENFIELD MILLS, INCORPORATED, JUDI MEDLOCK,
GENE LEWIS, et al.,
Plaintiffs-Appellants,
v.
LARRY MACKLIN, as Director of the Indiana
Department of Natural Resources,
GARY ARMSTRONG, NEIL LEDET, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 00 C 219—William C. Lee, Judge.
____________
ARGUED DECEMBER 9, 2002—DECIDED MARCH 19, 2004
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. After employees of the Indiana
Department of Natural Resources (“DNR”) drained a
supply pond into the Fawn River, the plaintiffs, riparian
landowners, brought this action against DNR employees,
David Clary, Tom Meyer, Neil Ledet and Gary Armstrong,
in their individual capacities, and against the Director of the
2 No. 02-1863
DNR in his official capacity. The plaintiffs alleged that these
defendants had violated the Clean Water Act (“CWA”), 33
U.S.C. § 1251 et seq., and also had violated their rights
under the Takings and Due Process Clauses of the Constitu-
tion of the United States. The parties filed cross-motions for
summary judgment. The district court granted the defen-
dants’ motion for summary judgment on all claims. For the
reasons set forth in the following opinion, we reverse the
judgment of the district court with respect to the CWA
claim and remand for further proceedings. With respect to
the takings and due process claims, we affirm the judgment
1
of the district court.
I
BACKGROUND
2
A. Factual Background
The plaintiffs are riparian landowners along a five-mile
portion of the Fawn River that begins at Orland Dam and
ends at Greenfield Millpond. The defendants are an official
of the DNR and employees of the DNR who work at the
Fawn River State Fish Hatchery (“Hatchery”) located in
1
After oral argument, the court invited the Environmental
Protection Agency and the United States Army Corps of Engi-
neers to file a brief as amicus curiae. The Agency and the Corps
accepted the court’s invitation and filed a brief. The court
expresses its thanks to both for the assistance that they have
rendered.
2
Because the district court granted summary judgment to the
defendants, we take the facts as alleged by the plaintiffs to be
true. See Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.
1998).
No. 02-1863 3
Orland, Indiana. The Fawn River runs through the Hatchery
property. As it flows near the Hatchery’s main building, the
river has been dammed to form a 1.75 acre supply pond.
This supply pond feeds by gravity the Hatchery’s fish
rearing ponds. When the main flow control gates on the
dam are opened, the pond water flows from the supply
pond down the Fawn River and eventually to Greenfield
Millpond.
A bypass channel upstream of the supply pond is used to
divert the Fawn River before it reaches the supply pond.
The Fawn River, as it existed below the supply pond prior
to May 18, 1998, was a clean, clear body of water. The river
had a gravel bed and was used for swimming, fishing,
canoeing and other recreational activities. It also was home
to various plant and aquatic animal habitats. See R.4, Ex.5.
In 1993, there was discussion in the Town of Orland re-
garding a “proposed dike . . . and mill pond dredging
adjacent to the town park.” R.4, Ex.12. “The project [was]
being proposed to alleviate flooding of the Fawn River into
the town park.” Id. In a letter from a state senator to the
Orland Town Board, the senator noted the problem with the
supply pond and stated that “the Fawn River is a highly
protected environmental river and it may be difficult to
make any kind of repairs or dredging in that area.” R.4,
Ex.14. The DNR supported the project, stating in a June 18,
1993 letter that the supply pond had built up silt for more
than 12 years, and, as a result, it was not navigable “even in
a canoe.” R.4, Ex.12. The DNR stated also that “[a]quatic
vegetation ha[d] taken over the supply pond” and that the
DNR would “submit[] a work plan this summer to control
the vegetation using approved chemicals.” Id. In that same
letter, the DNR noted that “[s]uch a work plan will tie in
4 No. 02-1863
3
nicely with the town’s project.” Id. In 1994 and 1995, the
DNR applied chemicals, destroying much of the plant life in
the supply pond. After having destroyed the vegetation, the
DNR noted that the pond was “now navigable, by canoe, for
the first time in over a decade.” R.4, Ex.10.
In 1996, defendants David Clary, the Property Manager
for the Hatchery, and Tom Meyer, the Assistant Property
Manager for the Hatchery, noticed a problem with the main
flow control structure of the dam. The flow control structure
consisted of six separate gates. The gates were made of
horizontal wooden slats that were stacked in two rows and
slotted into four vertical metal I-beams. Some of the I-beams
appeared to be rusting. On March 31, 1997, Mr. Clary
consulted a local welder, who observed that repairs to the
I-beams were needed. Mr. Clary sent a project proposal and
budget for the repairs to Gary Armstrong, Hatcheries
Supervisor, on April 16, 1997. This proposal specifically
made reference to draining the supply pond in order to
complete the repair, but stated that the repair “would have
to be completed during a time of low water flow.” R.93,
Ex.21 at 2. Also, in the memo attached to this proposal, Mr.
Clary asked: “Will we need to get a permit for the dam
repair work?” Id. at 1. When Mr. Clary was asked during his
deposition whether he ever had received an answer to this
question, he replied: “I don’t think we ever received an
answer on that. . . . I have no documentation of an answer
from [Gary Armstrong].” R.93, Ex.16 at 64. Funding ap-
proval for the repairs was obtained on October 23, 1997.
Later, on March 12, 1998, Mr. Clary discovered a problem
with the river intake plumbing, specifically, the pump was
3
The “town’s project” was the proposed dredging of the supply
pond and construction of the dike. See R.4, Ex.12.
No. 02-1863 5
not holding its prime. The pump is used to run water into
the Hatchery and rearing ponds and is critical to Hatchery
operations. After trying various small repairs, Mr. Clary and
Mr. Meyer concluded that the plumbing in the river inlet
structure needed to be exposed in order to make the plumb-
ing repairs. The Hatchery needed the pump system to be
working properly by June 1, 1998, for the Walleye harvest-
ing.
On May 18, 1998, Mr. Meyer and Mr. Clary decided to
draw-down the water in the supply pond to make the
plumbing repairs, to allow visual inspection of the gates and
to have a test draw-down for the future repairs that were to
be done to the gates. Mr. Armstrong, their supervisor, was
aware of the plans to open the dam and lower the supply
pond. However, Mr. Clary stated in his deposition that
initially they had not intended to drain fully the supply
pond. Mr. Clary also said that they had not intended to
“fully inspect the dam gates down to the bottom.” R.93,
Ex.16 at 23. In fact, Mr. Clary stated that, in determining
how low to draw down the supply pond, their “intentions
4
were only to expose the piping.” Id. at 67.
At approximately 8:30 a.m., Mr. Clary and Mr. Meyer
began the draw-down process by raising the upper three
gates of the main flow control structure. After waiting for
4
The plaintiffs take issue with Mr. Meyer’s and Mr. Clary’s
explanations that the purpose of opening the dam was to make
repairs to the pump. The plaintiffs point to evidence in the record
that, prior to the incident, the defendants were aware that it was
possible to drain the supply pond more slowly to avoid the
release of mud and sediment into the Fawn River. See, e.g., R.93,
Ex.1 at 197-99, 205 (deposition of Mr. Meyer) (conceding that “we
probably could have done it [drained the supply pond] slower
than we did”).
6 No. 02-1863
several minutes, the water level in the supply pond stabi-
lized, although there was still a considerable amount of
5
water flowing over the top of the three lower gates.
Mr. Clary and Mr. Meyer then proceeded to open one of the
three bottom gates. After several attempts and much
difficulty because of the water rushing over the top of the
gate, they succeeded in raising the gate a few inches. They
then continued to raise the gate incrementally until the
bottom of the gate was above the level of the water exiting
the supply pond. By 11:00 a.m., the supply pond was
drained to the point that the pipes and plumbing work were
exposed and all that remained of the pond was a meander-
ing channel of water cut into the floor of the supply pond
flowing toward the open gates. Leaving the gates open, Mr.
Clary and Mr. Meyer took a lunch break, made a visit to a
rock dam upstream of the supply pond, traveled to the east
unit of the hatchery to observe water levels, worked on a list
of materials needed for the plumbing repairs and then
traveled separately to purchase repair parts and plumbing
supplies.
Mr. Meyer was first to return to the dam from his errand
and was met at approximately 2:00 p.m. by defendant Mr.
Ledet, a DNR Fisheries Biologist. Standing next to the open
gate, Mr. Ledet noticed that “the water level in the supply
pond had been lowered to a distinct channel exposing the
silt-covered bottom. . . . Water flowing through this channel
was picking up silt and transporting it through the flow
control gate.” R.80 ¶ 5. Mr. Meyer testified that Mr. Ledet
remarked to him that the water flowing through the gate
“looked awful damn muddy.” R.93, Ex.1 at 200.
5
Mr. Meyer admitted that the water flow on the supply pond
was not low on May 18, 1998; instead he recollected “a normal
flow type of condition, neither high nor low.” R.93, Ex.1 at 69.
No. 02-1863 7
The two men were standing next to the open gate dis-
cussing the project when plaintiff Gene Lewis arrived;
he was visibly upset. Mr. Lewis pointed out that muck and
sediment were being flushed out of the supply pond,
through the open dam and into the river, and he requested
that the gates to the dam immediately be closed. The men
refused to comply with Mr. Lewis’ request, and, shortly
thereafter, Mr. Ledet returned to his office located on
Hatchery property.
Larry Koza, a DNR assistant Fisheries Biologist, who also
maintained an office on Hatchery property, stated in his
deposition that “when I looked out and I saw the water,
it was . . . black. It . . . apparently had a high silt load in
it from eroding a channel into the bottom” of the supply
pond. R.93, Ex.23 at 45. Concerned about the sediment being
flushed into the river and the adverse effect it could have on
the fish populations downstream, Koza and Mr. Ledet
decided to drive together upstream to the water control
structure of the bypass channel. Upon arrival, the men
opened completely the partially open water control struc-
ture “to divert as much clean water into the river below the
dam as possible, bypassing the hatchery [supply pond].”
6
R.80 ¶ 7.
6
In his deposition, when asked why, upon seeing the black
water flowing through the dam, he quickly attempted to increase
the amount of clean water in the river, Larry Koza responded:
Well, you hate to see a lot [of] heavy, you know, dark colored
sediment laden, whatever you call it, water going down the
stream. And if that has to happen, then you want to make
sure that you have as much fresh water, you know, coming
into there. My—you know, my first thought was for [the] fish
population to make sure that you were getting as much clean
water through as you could.
(continued...)
8 No. 02-1863
Meanwhile, around 2:15 p.m., Mr. Clary returned from his
errand to the site of the dam. Simultaneously, Attorney Neal
Lewis, son of Gene Lewis and counsel for the plaintiffs,
arrived on the scene. Attorney Lewis demanded that the
gate be shut immediately, but Mr. Meyer and Mr. Clary
informed him that they were working on some repairs to the
pump and would shut the gate as soon as the repairs were
finished. However, after a short discussion concerning the
day’s events, Mr. Meyer and Mr. Clary decided to shut the
gate without making the repairs. Around 3:00 p.m., Mr.
Meyer informed Mr. Lewis that the bottom gate had just
been lowered. Shortly thereafter the three top gates were
also lowered. By 4:00 p.m., most of the supply pond had
7
been refilled. See R.76 ¶ 12; see also R.77 ¶¶ 18-19.
The record contains extensive evidence regarding the
appearance and substance of the water that flowed through
the bottom gate on May 18, 1998. Mr. Clary stated in his
deposition that the water coming out of the bottom gate was
“somewhat muddy,” R.84, Ex.2 at 43; Mr. Meyer stated in
his deposition that the water “was a muddy color im-
mediately upon raising the bottom gate” and that “it was
muddy throughout that draining operation, muddy col-
(...continued)
R.93, Ex.23 at 45.
7
Whether the supply pond was refilled completely on the
afternoon of May 18, 1998, seems to be in dispute. Dr. Daniel
Willard personally inspected the supply pond on May 22, 1998,
and he noted that the supply pond “showed that it had recently
been drawn down considerably.” R.9, Ex.2 at 20. Additionally,
photographs taken on May 24, 1998, by plaintiffs Gene and
Sharon Lewis show that water still was collecting in the channel
cut on March 18, 1998, and that the upper supply pond had not
refilled to its former banks. See R.84, Ex.10D.
No. 02-1863 9
ored,” R.84, Ex.3 at 139; and Mr. Ledet stated in his deposi-
tion that the water coming through the dam “was very dark.
It had picked up a lot of—or whatever a lot is—it had
picked up, you know, bottom muck, sediment material,”
8
R.84, Ex.4 at 61.
Similarly, the plaintiffs submitted extensive evidence
detailing the effects of the released sediment on the Fawn
8
The defendants themselves offered conflicting testimony con-
cerning the water that came out of the gates and the effects on the
river below. In contrast to the statements recounted in the text,
the defendants made statements indicating that the water clarity
was “unremarkable.” See, e.g., R.77 ¶¶ 19-20. Mr. Clary, for
example, stated in his affidavit that, at about 5:00 p.m. on May 18,
1998, he traveled to the County Road 1100 East bridge that
overlooked part of the river and from there the river appeared
“normal and I could see the stream bottom.” R.76 ¶ 13. Mr. Ledet
made a similar statement that he went to the County Road 1100
East bridge and “[t]he water clarity and level at this bridge
crossing were normal. The water was not unusually turbid or
discolored with silt.” R.80 ¶ 9. Additionally, Mr. Meyer noted
that the water coming out of the bottom gate was “discolored”;
and that after closing the gates he “observed a thin layer of silt
and discolored water” downstream, but, from the County Road
1100 East bridge, “water clarity was unremarkable and [he]
observed no dead or distressed fish.” R.77 ¶¶ 19-20. The power
of these statements is diminished by Mr. Clary’s explanation in
his deposition that, when he went to the bridge and saw “no
indication [of] silt or sediment,” that he knew that the silt or
sediment cut from the dam “would have to have been” mostly
discharged (at that time) somewhere between the County Road
1100 East bridge and the dam. See R.84, Ex.2 at 167. Mr. Clary’s
deposition statement makes it clear that he knew that the silt and
deposit had to be somewhere above the County Road 1100 East
bridge and below the dam. Thus, the fact that the river color and
flow was unremarkable at County Road 1100 did not indicate to
him that the river was free from silt or other deposits.
10 No. 02-1863
River. Gene Lewis testified that he personally witnessed
mud flowing through the open dam. He stated:
While the DNR was cutting out the bottom of their im-
poundment by having opened fully their dam structure,
I entered the river immediately below the spillway
structure of the DNR dam where I was standing in a
semi-solid flow of mud which had the consistency of
loose cooked oatmeal and looked like chocolate-brown
pudding. I could feel this semi-solid flow of mud to
approximately my knees—about 2 feet deep. On top of
this flowing river of mud was a layer of very murky
water in a liquid state.
R.84, Ex.10 at ¶ 8. Mr. Lewis also presented photographs of
himself standing in the mud below the dam. Specifically the
photographs show him holding up black mud that was
flowing from his feet to his knees. See R.84, Ex.10A. Mr.
Lewis also took photographs of sections of the supply pond
after the channel had been cut through it; these photographs
show the water flowing through the channel with the
exposed black-mud floor on both sides. See id. He later had
photographs taken of himself standing in and measuring the
mud deposits in the Fawn River after the opening of the
dam; these deposits ranged in depth from a few inches to
two feet. See R.84, Ex.10C.
Plaintiffs also submitted expert testimony by professors at
Indiana University who performed in-depth analyses of the
river and the mud deposits therein after the dam had been
opened. Dr. Michael Zaleha’s study demonstrated that the
sediment in the river above the dam is different from the
mud that now exists in the river below it and that the
physical and chemical characteristics of the mud deposits in
the Fawn River are not typical of river muds; he also opined
that these deposits were caused by a rapid flow of a water
No. 02-1863 11
and mud mixture (40%-80% concentrated) resulting from
the opening of the dam. He further noted that he personally
had observed “the large volume of mud deposits” which
extend for several miles now on the Fawn River. R.84, Ex.7
at 15. John Gasper, a professional engineer, performed
studies to determine the amount of mud deposited by the
flow into the Fawn River. He concluded that “approxi-
mately one hundred thousand cubic yards of unconsoli-
dated material were discharged and deposited into the
lower reaches of the Fawn River”; this amount was gener-
ated from between 10,000 and 33,000 cubic yards of consoli-
dated material that was dredged from the supply pond.
R.84, Ex.8 ¶ 6. Gasper stated that, had the vegetation not
been killed in 1994 and 1995, the amount of sediment cut
out of the supply pond would have been significantly less.
He also stated that these deposits
have elevated the bottom of Fawn River, are impairing
the flow and circulation of those waters and are reduc-
ing the pre-event reach of the waters. In addition, cer-
tain areas of the channel that were once flowing are
currently stagnant and other areas of quiet waters have
been significantly filled with mud.
R.84, Ex.8 ¶ 7.
Dr. Daniel Willard, a professor of environmental sciences,
reached a similar conclusion after conducting a study on the
effects of the draw-down that occurred on May 18, 1998. Dr.
Willard stated:
The volume of reservoir sediments released from [the
supply pond] is estimated to have occupied a channel of
20 feet wide, 5,000 feet long and average 5 feet thick (8
feet near the dam and 2 feet 5,000 feet upstream from
the dam). This represents a volume of 500,000 cubic feet
of reservoir sediment.
12 No. 02-1863
R.84, Ex.9B at 14. Dr. Willard also stated:
I have further observed the condition of the small lake
at Greenfield Mills, Indiana prior to May 18, 1998, and it
has under gone a substantial and extraordinary trans-
formation since the events of May 18, 1998. What was
once a mostly [] open water shallow lake environment
is now an emergent wetland environment dominated by
marshy conditions as a result of massive deposits of
sedimentation from the events of May 18, 1998.
9
R.84, Ex.9 ¶ 12. Dr. Willard’s report also contains extensive
research into the adverse effects of the mud on the Fawn
River plant and animal life. Specifically, the report contains
his own eyewitness account of the fish kill that occurred as
a result of the release of mud into the river:
At several points along the way large numbers of dead
fishes were laid out on the bank. . . . These fishes
included many species with notably large Northern and
Walleye, plus Smallmouth, suckers, carp, and a variety
of other fishes. Several of these fishes showed gills
covered with muck on examination. I saw several,
hundred, dead fishes total.
9
Plaintiffs also placed into the record affidavits and photographs
regarding the substantial deposits of mud into Greenfield
Millpond. The affidavits demonstrate that the Greenfield
Millpond, which is located approximately five miles downstream
from the Orland Dam, was converted from a primarily open
water environment before May 18, 1998, to a primarily vegetative
environment after the dam was opened. See R.84, Ex.12 ¶4,
Exs.12A-12B.
No. 02-1863 13
10
Id. ¶ 21. The defendants do not dispute with affidavits or
other evidence any of the expert or lay testimony brought
by the plaintiffs showing that massive amounts of sediment
were deposited into the river or onto the plaintiffs’
11
property.
Mr. Meyer stated in his deposition that he and Mr. Clary
made no repairs to the plumbing on May 18, 1998. He also
stated that the repairs on the plumbing that had been
planned for May 18, 1998, were actually accomplished a few
weeks later. The actual repairs were accomplished without
drawing-down, lowering or draining the supply pond. Mr.
Clary noted that a DNR diver completed the plumbing
10
This observation was corroborated by several other documents
in the record. For example, Gene Lewis stated in an affidavit that
he found ninety-four dead fish the day after the opening of the
dam and has observed the death or disappearance of many fresh
water mussels and snails. See R.84, Ex.10 ¶¶10, 23. Indeed, the
DNR acknowledged the fish kill. See R.4, Ex.8.
11
In fact, the defendants’ own evidence supports the plaintiffs’
theory that the water cut a channel through the floor and that the
displaced sediment went into the Fawn River. Mr. Clary stated in
his deposition that the water coming out of the dam became
“somewhat muddy after the pond was drained and it was cutting
the channel as it went through the pond bottom.” R.84, Ex.2 at 43.
He went on to explain that, although he “didn’t make any
measurements” he would guess that the “meandering” channel
was “anywhere from one to three feet” deep. Id. at 44. Mr. Ledet,
upon arrival at the supply pond, noticed that “the water level in
the supply pond had been lowered to a distinct channel exposing
the silt covered bottom. Water flowing through this channel was
picking up silt and transporting it through the flow control gate.”
R.80 ¶5. Thus, according to the defendants’ evidence, the force of
the water flowing out of the dam cut a channel into the floor of
the supply pond.
14 No. 02-1863
repair in less than three hours. See R.93, Ex.16 at 21. With
respect to the repair to the dam gates, DNR Structural
Engineer Larry Wayland suggested three different alterna-
tive repair scenarios, none of which required a rapid
draining of the supply pond. Two alternatives involved
using a coffer dam to retain the water in the pond while the
repairs were being performed; these options did not require
the supply pond to be drained at all. Indeed, the repair
eventually was accomplished using such a device.
According to the defendants, the only repair work that
Mr. Meyer and Mr. Clary accomplished on May 18, 1998,
was attaching a chain to two of the lower gates. Mr. Meyer
admitted, however, that this attachment was not really a
“repair”; he explained that the action “was kind of an af-
terthought” taken as a result of the difficulty they experi-
enced raising the three lower gates. R.93, Ex.1 at 221.
B. District Court Proceedings
The plaintiffs brought this action against Mr. Clary, Mr.
Meyer, Mr. Ledet and Mr. Armstrong, in their individual
capacities, and against the Director of the DNR in his official
capacity. They alleged that the defendants had violated §
402 and § 404 of the CWA, 33 U.S.C. §§ 1342 and 1344,
respectively, by failing to obtain a permit prior to draining
the supply pond. The plaintiffs also pursued two constitu-
tional claims: They claimed that the deposit of mud on their
property constituted an illegal taking by the State and that
draining the supply pond without prior notice and hearing
violated their due process rights. The defendants moved for
summary judgment on all of these claims, and the plaintiffs
filed a cross-motion for summary judgment on the § 404
claim.
The district court granted summary judgment to the
defendants on all grounds and denied the plaintiffs’ cross-
No. 02-1863 15
motion for summary judgment. Turning first to the § 404
claim, the district court determined that the hydraulic
dredging or sluicing that occurred on May 18, 1998, came
within the prohibition of dredging without a permit. How-
ever, it further determined that the dredging fell within the
maintenance exception to the permit requirement set forth
in 33 U.S.C. § 1344(f)(1)(b). In doing so, the court rejected
the plaintiffs’ argument that the defendants’ actions could
not constitute maintenance under the applicable regulation
because, according to the regulation, “maintenance does not
include any modification that changes the character, scope,
or size of the original fill design . . . .” 33 C.F.R. § 323.4(a)(2).
According to the district court, “original fill design” referred
to the supply pond, and there was no evidence that the size
or depth of the supply pond was altered by the draw-down.
The district court also determined that the defendants’
actions did not fall within the “recapture” provision, 33
U.S.C. § 1344(f)(2). That section provides:
Any discharge of dredged or fill material into the navi-
gable waters 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, where the
flow or circulation of navigable waters may be impaired
or the reach of such waters be reduced, shall be required
to have a permit under this section.
33 U.S.C. § 1344(f)(2). The district court held that the
purpose of the May 18, 1998 draw-down was to perform
maintenance and not to “ ‘bring[] an area of the navigable
waters into a use to which it was not previously subject.’ ”
R.131 at 22-23 (quoting § 1344(f)(2)). Consequently, the
defendants’ actions were not “recaptured” by § 1344(f)(2),
and a permit was not required.
With respect to the § 402 permit claim, the district court
found that the sediments dredged from the supply pond
16 No. 02-1863
were pollutants under recent CWA case law. However, the
court stated, the plaintiffs’ § 402 claim failed nonetheless
because “[a]ny ‘churning’ or movement of the soil or sedi-
ment in this case was entirely incidental to a maintenance
activity that had no purpose of excavating and redepositing
soil downstream.” R.131 at 29.
The court then turned to the constitutional claims. With
respect to the takings claim, the district court acknowledged
that a physical invasion usually constitutes a taking.
Nevertheless, the district court held that the plaintiffs’ claim
should be dismissed because the plaintiffs had not brought
an action in state court for inverse condemnation and,
therefore, had failed to exhaust their state remedies
as required by Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172
(1985). With respect to the procedural due process claim, the
district court held that the plaintiffs had failed to come
forward with any evidence that the defendants had the
requisite intent to deprive the plaintiffs of their property—
a requirement of a due process violation. Alternatively,
the district court stated that, “even if the acts alleged were
intentional as Plaintiffs allege, this does not violate due pro-
cess so long as adequate state post-deprivation remedies are
available,” and “Plaintiffs[’] brief altogether fail[ed] to
address why state post-deprivation remedies were inade-
quate nor d[id] they set forth any legal analysis on this
point.” R.131 at 36.
II
DISCUSSION
A. Standard of Review
“We review the grant of summary judgment de novo.”
Harley-Davidson Motor Co. v. PowerSports, Inc., 319 F.3d 973,
No. 02-1863 17
980 (7th Cir. 2003). Summary judgment is appropriate if,
viewing the facts in the light most favorable to the non-
moving party, there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of law.
See id.
B. The Clean Water Act Statutory Scheme
The CWA makes the “discharge of any pollutant” into
12 13
navigable waters, by any person unlawful, absent com-
pliance with specific provisions of the Act. See 33 U.S.C.
§§ 1311(a), 1362(7), 1362(12). Two of those provisions are
§ 1342 (§ 402) and § 1344 (§ 404), which create permitting
systems for the discharge of pollutants. Generally, in order
to avoid liability under the CWA, a defendant who wishes
to discharge a pollutant must first obtain a permit either
under § 1344 (a § 404 permit) for the discharge of dredged
or fill material or under § 1342 (a § 402 permit) for other
pollutants. Because the plaintiffs allege that the defendants
discharged dredged materials into the Fawn River, the
question of whether a permit is required is answered by
14
reference to § 404.
12
“Navigable waters,” is defined as the “waters of the United
States,” 33 U.S.C. § 1362(7). The parties do not dispute that the
Fawn River, an interstate river, falls within “waters of the United
States.” See Appellants’ Br. at 21 n.14.
13
“Person” is defined to include a “State, municipality, commis-
sion, or political subdivision of a state.” 33 U.S.C. § 1362(5).
14
The district court and the parties discussed CWA liability on
the part of the defendants in terms of both § 402 and § 404.
However, § 404 is the permitting scheme that regulates dis-
charges of dredge and fill material, which is the category of dis-
(continued...)
18 No. 02-1863
(...continued)
charge at issue here, and thus is the permitting scheme relevant
to this case. If a defendant falls within an exception to the
permitting requirements of § 404 under § 1344(f)(1), as argued
here, then the defendant is not liable under § 1311 for having
“discharged a pollutant” or subject to the § 1342 (§ 402) permit-
ting requirements. See 33 U.S.C. § 1344(f)(1) (explaining that the
exemptions for obtaining a § 404 permit for the discharge of
dredge and fill material also exempt the discharge from regula-
tion under §§ 1311 or 1342). As explained in the amicus brief of
the Environmental Protection Agency and the Army Corps of
Engineers (collectively “amici”),
[t]he discharge of pollutants other than dredged or fill
material are generally regulated under section 402, which
creates the EPA-administered National Pollutant Discharge
Elimination System [“NPDES”] permitting program. See 33
U.S.C. § 1342. Discharges of dredged or fill material are
generally regulated under section 404, which creates the
Corps-administered dredge-and-fill permitting program. 33
U.S.C. § 1344.
The discharges in this case fall within the purview of the
section 404 program. . . .
Amicus Br. at 4-5. This distinction is also made clear in the reg-
ulations implementing § 1342. See 40 C.F.R. § 122.1(a)(1). (“The
regulatory provisions contained in this part and parts 123, and
124 of this chapter implement the National Pollutant Discharge
Elimination System (NPDES) Program under section 318, 402,
and 405 of the Clean Water Act . . . .”). According to the regula-
tions, “[t]he following discharges do not require NPDES permits:
. . . (b) Discharges of dredged or fill material into waters of the
United States which are regulated under section 404 of the
CWA.” 40 C.F.R. § 122.3(b).
We note in passing that the regulations implementing § 404
set forth certain exceptions to the definition of “discharge of
(continued...)
No. 02-1863 19
(...continued)
dredged material” including “[d]ischarges of pollutants into
waters of the United States resulting from the onshore subse-
quent processing of dredged material that is extracted for any
commercial use (other than fill).” 33 C.F.R. § 323.2(d)(3)(i). “These
discharges,” the regulations explain, “are subject to section 402 of
the Clean Water Act even though the extraction and deposit of
such material may require a permit from the Corps or applicable
state Section 404 program.” Id. However, such materials are not
at issue in the present case, and § 404 is the only permitting
process applicable here. Consequently, we affirm that portion of
the district court’s judgment holding that the defendants were
not required to obtain a § 402 permit for their actions on May 18,
1998, but on the ground set forth above.
Nevertheless, we note our disagreement with the district
court’s conclusion that the defendants’ purpose and intent were
relevant in determining whether § 402 had been violated. See
R.131 at 29 (stating that the defendants were not liable under
§ 402 because they “had no purpose of excavating and redeposit-
ing soil downstream”). Liability for discharging a pollutant
without a § 402 permit and absent an exemption is strict; a de-
fendant’s intent or purpose is irrelevant. See Kelly v. EPA, 203 F.3d
519, 522 (7th Cir. 2000) (citing cases).
20 No. 02-1863
1. Section 404 Permit Requirement
The CWA generally prohibits “the discharge of any pol-
lutant by any person” absent compliance with one of the
permitting schemes set forth in the Act. 33 U.S.C. § 1311(a).
The Act defines “discharge of pollutant[s]” to mean “any
addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1362(12). Under the CWA,
pollutant includes “dredged spoil, solid waste, . . . biological
materials, . . . rock, sand . . . .” 33 U.S.C. § 1362(6). Here, the
plaintiffs maintain that the DNR employees made an
15
addition of “dredged spoil,” namely the materials emptied
from the supply pond, into the Fawn River from a point
16
source, the Orland Dam.
15
In the district court, the parties disputed whether “dredged”
materials included materials that had been hydraulically dredged
or “sluiced”; however, the defendants do not urge any such
distinction in this court.
16
The CWA defines a point source as
any discernable, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.
33 U.S.C. § 1362(14). We noted in Froebel v. Meyer, 217 F.3d 928
(7th Cir. 2000), that several other circuits had addressed the issue
whether a dam could be considered a point source and that “all
have concluded that, at least under some circumstances, a dam
can meet the statutory definition of point source.” Id. at 937.
Although we were not required to resolve the issue in Froebel
(continued...)
No. 02-1863 21
The defendants argue on appeal that there was no “addi-
tion” of dredged spoil to the Fawn River because the supply
pond and the Fawn River constitute the same body of water.
In support of their position, they point to National Wildlife
Federation v. Gorsuch, 693 F.2d 156, 174-75 (D.C. Cir. 1982),
and National Wildlife Federation v. Consumers Power Co., 862
F.2d 580, 584 (6th Cir. 1988), which hold that the discharge
of pollutants from one body of water to a contiguous one is
not an “addition” because it does not add a pollutant from
the outside world.
More recent cases, however, have undercut severely the
holdings of Gorsuch and Consumers Power. For example,
the Fourth Circuit in United States v. Deaton, 209 F.3d 331
(4th Cir. 2000), held that “sidecasting” (digging dirt from a
ditch and casting it onto the contiguous wetland) was still
an “addition” of a pollutant even though nothing was
“added” from the outside world. The court stated:
Once it was removed, that material became “dredged
(...continued)
(because the dam largely had been removed), we stated that “the
CWA’s definition of ‘point source’ . . . connotes the terminal end
of an artificial system for moving water, waste, or other materi-
als.” Id. at 938. We also noted that “[t]he broad reach of ‘naviga-
ble waters’ pushes the natural reading of ‘point source’ back to
the point at which an artificial mechanism introduces a pollut-
ant.” Id. Here, the artificial mechanism of the dam was used to
convey pollutants into the Fawn River, a navigable waterway.
Consequently, we believe that the dam constitutes a “point
source.” See Catskill Mountains Chapter of Trout Unltd., Inc. v. City
of New York, 273 F.3d 481, 493 (2d Cir. 2001) (noting that “point
source” refers to “the proximate source from which the pollutant
is directly introduced to the destination water body,” giving the
example of a pipe).
22 No. 02-1863
spoil,” a statutory pollutant and a type of material that
up until then was not present on the Deaton property.
It is of no consequence that what is now dredged spoil
was previously present on the same property in the less
threatening form of dirt and vegetation in an undis-
turbed state. What is important is that once that mate-
rial was excavated from the wetland, its redeposit in
that same wetland added a pollutant where none had
been before.
Id. at 335; see also Avoyelles Sportsmen’s League, Inc. v. Marsh,
715 F.2d 897, 923-24 & n.43 (5th Cir. 1983) (noting that term
“addition” may reasonably be understood to include “rede-
posit,” that “ ‘dredged’ material is by definition material
that comes from the water itself,” and that “[a] requirement
that all pollutants must come from outside sources would
effectively remove the dredge-and-fill provision from the
statute”); Borden Ranch P’ship v. United States Army Corps of
Eng’rs, 261 F.3d 810, 814 (9th Cir. 2001).
The rationale for limiting the holdings of Gorsuch and
Consumers Power to the very circumscribed facts upon which
they were based and to employ a broader definition of
addition was well stated by the Second Circuit in Catskill
Mountains Chapter of Trout Unlimited, Inc. v. City of New York,
273 F.3d 481, 489-94 (2d Cir. 2001). The Second Circuit noted
that the decisions of the courts in Gorsuch and Consumers
Power were based on deference to the EPA’s interpretation
of “addition.” The Second Circuit continued:
If the EPA’s position had been adopted in a rulemaking
or other formal proceeding, deference of the sort ap-
plied by the Gorsuch and Consumers Power courts might
be appropriate. Instead, the EPA’s position is based on
a series of informal policy statements made and consis-
tent litigation positions taken by the EPA over the years,
primarily in the 1970s and 1980s. Recent Supreme Court
No. 02-1863 23
cases emphasize that such agency statements do not
deserve broad deference of the sort accorded by the
Gorsuch and Consumers Power courts. See United States v.
Mead Corp., 533 U.S. 218 (2001); Christensen v. Harris
County, 529 U.S. 576 (2000).
Id. at 490 (parallel citations omitted). The court then held
that the narrow definition of addition simply could not be
applied to the facts before it:
The present case, however, strains past the breaking
point the assumption of “sameness” made by the
Gorsuch and Consumers Power courts. Here, water is
artificially diverted from its natural course and travels
several miles from the Reservoir through Sandaken
Tunnel to Esopus Creek, a body of water utterly unre-
lated in any relevant sense to the Schoharie Reservoir
and its watershed. . . . When the water and the sus-
pended sediment therein passes from the Tunnel into
the Creek, an “addition” of a “pollutant” from a “point
source” has been made to a “navigable water,” and
terms of the statute are satisfied.
Id. at 492.
Unlike the position espoused by the EPA in Gorsuch
and Consumers Power, here the EPA, participating at the
court’s invitation as an amicus curiae, has urged upon this
court the broader definition of “addition” employed by the
courts in the more recent § 404 cases. See Amicus Br. at 5
(stating that “the courts of appeals have consistently rec-
ognized that materials that have been scooped up and then
redeposited in the same waterbody can result in a discharge
of a pollutant” and citing, inter alia, Avoyelles Sportsmen’s
League and Borden Ranch). The EPA’s position, which
follows the holdings of recent circuit cases, is persuasive for
several reasons. First, such a reading is compatible with the
24 No. 02-1863
purpose of the CWA to “restore and maintain the chemical,
physical and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a). Second, it is logical to believe that soil and
vegetation removed from one part of a wetland or waterway
and deposited in another could disturb the ecological
balance of the affected areas—both the area from which the
material was removed and the area on which the material
was deposited. Finally, we agree with our colleagues on the
Fifth Circuit that excluding such dredged materials from the
concept of “addition” “would effectively remove the
dredge-and-fill provision from the statute.” Avoyelles, 715
F.2d at 924 n.43. We therefore follow the interpretation of
the amici and of our sister circuits and hold that the dis-
charge of dredged material, such as that removed from the
supply pond, into a contiguous body of water or wetland,
here the Fawn River, constitutes an “addition” of dredged
17
spoil under the statute.
The defendants’ actions of May 18, 1998, therefore, con-
stituted an addition of dredged spoil into the Fawn River
and were subject to the permit requirement of § 404. In
order to escape liability under the CWA, the defendants
therefore must establish that their actions fall into one of the
narrow exemptions to the permit requirements.
2. Maintenance Exception
17
The amici note that the situation in National Wildlife Federation
v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife
Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988),
concerned normal dam operations that resulted in changes to
water quality. Here, by contrast, the sediment had settled out of
the navigable waters, and the DNR’s opening of the flow
structure control gates dredged those materials from their resting
place and added them to the navigable downstream waters.
No. 02-1863 25
Section 1344(f)(1) provides an exemption to the federal
permit requirements “for narrowly defined activities spe-
cifically identified in paragraphs A-F that cause little or
no adverse effects either individually or cumulatively.”
Envtl. Policy Div. of the Cong. Research Serv. for the Senate
Comm. on Envtl. and Pub. Works, 95th Cong., 3 A Legislative
History of the Clean Water Act of 1977, 420 (Comm. Print 1978)
(hereinafter “Legislative History”). For these specified
activities, a discharge of dredged or fill material “is not
prohibited by or otherwise subject to regulation under this
section or section 1311(a) or 1342 of this title [except 1317 of
the CWA].” 33 U.S.C. § 1344(f)(1).
In order to be exempt from the § 404 permit requirement,
however, a party must show not only that it is exempt un-
der one of the provisions in § 1344(f)(1), it also must show
that its activities do not fall within the “recapture” provi-
sion, § 1344(f)(2). “Read together the two parts of Section
404(f) provide a narrow exemption for . . . activities that
have little or no adverse effect on the waters of the U.S.”
United States v. Brace, 41 F.3d 117, 124 (3d Cir. 1994). The
defendants bear the burden of establishing both that they
qualify for one of the exemptions of § 1344(f)(1) and that
18
their actions are not recaptured by § 1344(f)(2).
Turning first to the exemptions, the defendants maintain
that their actions fall within the maintenance exemption
set forth at § 1344(f)(1)(B). Paragraph (B) of § 1344(f)(1)
exempts the discharge of dredged or fill material “for the
purpose of maintenance, including emergency reconstruc-
18
Amici construe the recapture provision as containing two dis-
tinct elements: that the activity (1) has “ ‘as its purpose bringing
an area of the navigable waters into a use to which it was not
previously subject,’ and (2) has the consequence of impairing the
flow or circulation of navigable waters or reducing the reach of
such waters.” Amicus Br. at 8.
26 No. 02-1863
tion of recently damaged parts, of currently serviceable
structures such as dikes, dams, levees, groins, riprap,
breakwaters, causeways, and bridge abutments or ap-
proaches, and transportation structures.” 33 U.S.C.
§ 1344(f)(1)(B). The regulations provide that “[m]aintenance
does not include any modification that changes the charac-
ter, scope, or size of the original fill design.” 33 C.F.R. §
323.4(a)(2). We have construed § 1344(f)(1) narrowly
because “Congress intended that Section 1344(f)(1) exempt
from the permit process only ‘narrowly defined activities .
. . that cause little or no adverse effects either individually
or cumulatively [and which do not] convert more extensive
areas of water into dry land or impede circulation or reduce
the reach and size of the water body.’ ” United States v.
Huebner, 752 F.2d 1235, 1240-41 (7th Cir. 1985) (quoting 3
Legislative History 420).
The plaintiffs contend that the defendants do not fall
within the exemption under § 1344(f)(1) for the follow-
ing reasons: (1) There is a genuine issue of material fact
regarding whether the defendant’s actual purpose in drain-
ing the supply pond was “maintenance” or merely a pretext
for dredging the pond without a permit; (2) The exemption
does not include dredging that was not reasonably neces-
sary or at least proportional to the maintenance performed;
and (3) The dredging of the pond was not maintenance
because it impermissibly modified “the character, scope, or
size of the original fill design.” 33 C.F.R. § 323.4(a)(2). We
consider each of these in turn.
a. pretext
The plaintiffs first argue that the district court erred in
granting summary judgment to the defendants because
there is a genuine issue of material fact with respect to
whether the defendants actually raised the gate to perform
No. 02-1863 27
maintenance on the dam or whether the “maintenance” was
just a pretext to dredge the pond without a permit.
In determining the “purpose” of the defendants’ actions,
“reviewing courts have consistently looked beyond the
stated or subjective intentions and determined the effect or
‘objective’ purpose of the activity conducted.” United States
v. Sargent County Water Res., 876 F. Supp. 1090, 1101 (D.N.D.
1994) (“Sargent County II”) (reviewing cases and noting that
in those cases “[a]lthough each of the defendants stated a
purpose facially worthy of an exemption, it was clear by
their actions that the only ‘purpose’ each had was to
circumvent the Act”). In Sargent County II, for example, the
county’s stated purpose was to remove accumulated silt
from an existing ditch. In evaluating whether that stated
purpose was the county’s true purpose, the court observed:
“Rather than approach the project haphazardly, it hired an
engineer to determine the original depth, and it hired and
directed a reputable contractor to perform clean-out mainte-
nance work only. . . . The court has previously noted that the
stated purpose [of maintenance] was confirmed by the actions of
those who performed work on the drain.” Id. (emphasis
added). The court found that the defendants’ activities of
removing silt from a ditch fell within the § 1344(f)(1)
exemption for “maintenance of drainage ditches,” noting
that the defendants’ actions “were consistent with the stated
intention of maintaining the drain.” Id. at 1099.
Based on the record before us, we cannot reach the same
conclusion with respect to the defendants’ actions. The
defendants were slow to repair, performed quite “haphaz-
ardly,” and let the supply pond drain substantially farther
(and for much longer) than was needed to do the repairs. By
11:00 a.m. on May 18, 1998, the supply pond was drained to
a level where the pump was exposed and the lower gate
was open such that the defendants could inspect the gate.
28 No. 02-1863
However, the defendants allowed the gate to remain open
for four more hours; during this time, the defendants had
lunch, purchased supplies and examined other areas of the
hatchery. At the end of the day, the defendants had not
repaired, or even attempted to repair, the pump. The
defendants also have not brought forth evidence explaining
the importance or necessity of a test draw-down to the
subsequent repair of the gates. Finally, the plaintiffs submit-
ted evidence that the DNR had expressed an interest in
dredging the supply pond in the years prior to the draw-
down and had been informed that obtaining a permit for
this action would be difficult. Viewing the evidence in the
light most favorable to the plaintiffs, and primarily noting
the length of time during which the bottom gate was open
and the pump was exposed without any attempt at making
repairs, we hold that the plaintiffs have brought forth
sufficient evidence to create a genuine issue of material fact
with respect to the defendants’ purpose in drawing down
the water in the supply pond. On the basis of the record
before us, a reasonable finder of fact could conclude that the
purpose of drawing down the water in the supply pond was
not to perform maintenance on either the pump or the dam,
but rather was to dredge the supply pond without a permit.
b. necessity of dredging to maintenance
The plaintiffs argue that, in order for a dredging activity
to fall within the maintenance exception, the dredging also
must be reasonably necessary to the proposed maintenance.
The EPA and the Army Corps of Engineers, as well, con-
strue the maintenance exemption to carry a requirement of
reasonable necessity. They state that the DNR’s activities are
exempt as maintenance if the “draw-down and discharge of
sediment was necessary to perform those maintenance
functions.” Amicus Br. at 7. For the following reasons, we
No. 02-1863 29
believe that the amici’s position—that the maintenance
exemption carries with it a requirement that discharge of
dredged material be reasonably necessary to the mainte-
nance—is persuasive.
We note initially that a requirement of reasonable neces-
sity or proportionality comports with the legislative history
of the statute. Throughout the legislative history, Congress
repeatedly stressed that the § 1344(f)(1) exemptions were
intended to cover only a very narrow class of exemptions
for activities “that cause little or no adverse effects either
19
individually or cumulatively.” 3 Legislative History 420.
19
See also 3 Legislative History 283 (“These specified activities
should have no serious adverse impact on water quality if per-
formed in a manner which will not impair the flow and circula-
tion patterns and the chemical and biological characteristics of
the affected waterbody and which will not reduce the reach of the
affected waterbody.” (H.R. Rep. No. 95-830, at 99 (1977)); id. at
421 (“A case-by-case permit review would not be required for
narrowly defined activities that cause little or no adverse effects
either individually or cumulatively, including those activities
narrowly defined in 404(f)(1)(A-F).”); id. at 474 (“Federal permits
will not be required for those narrowly defined activities that
cause little or no adverse effects either individually or cumula-
tively” even though “it is understood that some of these activities
may necessarily result in incidental filling and minor harm to
aquatic resources . . . .” (emphasis added)); id. at 529 (noting that
the § 1344(f)(1) exemptions “exclude[] from permit requirements,
discharges of dredged or fill material in conjunction with the
following activities that will cause little or no adverse effects
either individually or cumulatively”); 4 Legislative History 870
(recognizing that the § 1344(f)(1) exemptions were intended “to
free from the threat of regulation those kinds of manmade activities
which are sufficiently de minimus as to merit general attention at
State and local level and little or no attention at the national
(continued...)
30 No. 02-1863
Certainly there would be no guarantee against more than de
minimus adverse effects on the environment if the discharge
of dredged material was not required to be reasonably
necessary or otherwise proportional to the maintenance
performed.
Additionally, several courts have spoken of § 1344(f)(1)
exemptions as containing a reasonableness requirement. In
Sargent County II, 876 F. Supp. at 1098, the district court
determined that the defendants’ activities of removing silt
from a ditch fell within the § 1344(f)(1) exemption for
“maintenance of drainage ditches,” particularly where “the
individuals involved in the clean-out of Drain 11 were
competent and acted responsibly in carrying out their as-
signed tasks.” Id. (emphasis added). Additionally, in United
States v. Zanger, 767 F. Supp. 1030, 1035 (N.D. Cal. 1991), the
court found that defendants who graded, filled and changed
the bottom elevation of a stream could not be exempt under
the maintenance exemption because the exemption “is
limited to ‘maintenance’ of certain ‘structures,’ ” and there
were no structures involved. The court further explained
that “even if there had been [structures], defendants’ filling
goes far beyond any reasonable definition of maintenance or
20
repair.” Id. (emphasis added).
(...continued)
level” (emphasis added)); id. at 912 (stating that the § 1344(f)(1)
exemptions “should have only a minor impact on water quality
if performed in a manner that will not impair the flow and
circulation patterns and the chemical and biological characteris-
tics of the affected waterbody, and that will not reduce the reach
of the affected waterbody”).
20
The regulations also imply a requirement of reasonableness for
the maintenance provision at least in the circumstance of
(continued...)
No. 02-1863 31
Accordingly, we agree with the plaintiffs and amici that,
in light of the legislative history, existing case law and the
rule that the § 1344(f)(1) exemptions must be narrowly con-
strued, see Huebner, 752 F.2d at 1240-41, the maintenance
exemption should be construed so that only dredging that
is reasonably necessary to the proposed maintenance is
exempt from the permit requirement.
Applying this standard to the case at hand, we believe
that the plaintiffs have brought forth sufficient evidence to
permit the trier of fact to conclude that the dredging of the
pond was not reasonably necessary to either the mainte-
nance of the pump or the alleged inspection of the gates.
DNR engineers explained that the repairs could have been
performed without a rapid draw-down, and in fact, both of
the alleged repairs were later performed without any draw-
down of the pond. Moreover, even if the repairs warranted
a rapid draw-down and dredging of the pond, the pond was
drained sufficiently to expose the plumbing by 11:00 a.m.,
and the bottom gate was fully open for inspection by the
same time. However, the defendants kept the gates open,
allowed the pond to continue “dredging” until 3:00 p.m.
and never commenced the necessary repairs. Looking at the
evidence in the light most favorable to the plaintiffs, we
cannot say that the dredging of the pond—particularly from
11:00 a.m. to 3:00 p.m.—was, as a matter of law, reasonably
necessary to the proposed maintenance.
(...continued)
emergency reconstruction of recently damaged parts. The reg-
ulations only exempt emergency reconstruction that “occur[s]
within a reasonable period of time after damage occurs.” 33
C.F.R. § 323.4(a)(2).
32 No. 02-1863
c. character, scope, size of the original fill design
The regulations provide that “[m]aintenance does not in-
clude any modification that changes the character, scope, or
size of the original fill design.” 33 C.F.R. § 323.4(a)(2). The
district court determined that the defendants’ activities did
not change the original fill design of the supply pond, and,
therefore, the regulation was not implicated.
The district court, the parties and amici propose three
alternative definitions of “original fill design.” The plaintiffs
argue that “original fill design” refers to the area where the
dredged material is deposited, here the Fawn River. The
defendants argue, and the district court held, that original
fill design is comprised of the dam and the supply pond
behind the dam. Amici argue that original fill design “refers
to the manmade structures that are the subject of the
exemption (e.g. dikes, dams, levees) rather than a natural
watercourse such as the Fawn River.” Amicus Br. at 8 n.7.
We are persuaded that the definition of “original fill
design” suggested by the amici best comports with the
language of the statutory exemption itself, which speaks to
the maintenance of “structures.” 33 U.S.C. § 1344(f)(1). The
only “structure” involved in the proposed maintenance is
the dam; neither the supply pond nor the Fawn River is a
man-made “structure” similar to those listed in the statute.
Our decision to adopt the amici’s position is consistent
with United States v. Sargent County, 876 F. Supp. 1081, 1087
(D.N.D. 1992) (“Sargent County I”), one of the only decisions
to address the issue. Sargent County I concerned the applica-
tion of an analogous maintenance exemption for drainage
ditches, § 1344(f)(1)(C). In that case, the court defined
original fill design as “1) the depth and width of the ditch as
it was originally constructed, plus 2) any improvements
made to any segments of the ditch prior to the CWA’s
No. 02-1863 33
jurisdiction over wetlands in 1975.” Id. (emphasis added).
The drainage ditch in Sargent County was man-made,
constructed in 1917, and cut through three sloughs before
draining into a river. See Sargent County II, 876 F. Supp. at
1092. In holding that maintenance could not include
deepening or widening the ditch, the court in Sargent County
I looked only for changes in the man-made ditch; the court
did not examine whether the activities deepened or wid-
ened the sloughs or river or other natural watercourses
affected by the drainage ditch. Therefore, because it follows
the statutory language and comports with existing case law,
we find persuasive the position of the amici with respect to
21
the definition of “fill design.”
Applying this definition to the facts before us, we must
conclude that, in drawing down the supply pond, the DNR
employees did not “change[] the character, scope, or size of
the original fill design” in violation of 33 C.F.R. § 323.4(2).
There is no evidence to suggest that the draw-down affected
the character, scope or size of the dam—the only man-made
“structure” at issue.
We note that this holding does not compel the conclu-
sion that the DNR activities constituted maintenance. As we
have discussed previously, the plaintiffs have brought forth
sufficient evidence to create a genuine issue of material fact
as to pretext and as to the reasonable necessity of the
dredging to the alleged maintenance.
3. The Recapture Provision
21
We also note that “an agency’s considered interpretation of its
own regulation is entitled to deference ‘when the language of the
regulation is ambiguous.’ ” Old Ben Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 292 F.3d 533, 542 n.8 (7th Cir. 2002).
34 No. 02-1863
As we noted earlier, in order to escape the permit re-
quirements of § 1344, in addition to establishing that their
actions fall within one of the exemptions of § 1344(f)(1), the
defendants also must establish that their actions are not
“recaptured” by § 1344(f)(2). The recapture provision pro-
vides that, regardless of § 1344(f)(1),
[a]ny discharge of dredged or fill material into the
navigable waters 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, where the
flow or circulation of navigable waters may be impaired
or the reach of such waters be reduced, shall be required
to have a permit under this section.
33 U.S.C. § 1344(f)(2).
a. statutory construction
Our interpretation of § 1344(f)(2) must be guided by well-
established principles of statutory interpretation:
When we interpret a statute, we look first to its lan-
guage. If that language is plain, our only function is “ ‘to
enforce it according to its terms.’ ” United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting
Caminetti v. United States, 242 U.S. 470, 485 (1917)).
The plain meaning of a statute is conclusive unless
“ ‘literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.’ ”
Ron Pair, 489 U.S. at 242 (quoting Griffin v. Oceanic
Contractors, 458 U.S. 564, 571 (1982)). Therefore, our
interpretation is guided not just by a single sentence or
sentence fragment, but by the language of the whole
law, and its object and policy. Further, we may adopt a
restricted rather than a literal meaning of a word where
No. 02-1863 35
acceptance of the literal meaning would lead to absurd
results.
United States v. Balint, 201 F.3d 928, 932 (7th Cir. 2000)
(citations and parallel citations omitted).
Here our analysis is straightforward. Looking to the lan-
guage of § 1344(f)(2), the discharge of dredge or fill materi-
als 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. These
two requirements are not set forth in the alternative but in
the conjunctive; consequently, the recapture provision is
applicable only when both of these conditions are present.
The courts that have considered the recapture provision
similarly have concluded that it applies only when both
22
conditions have been fulfilled. The case law’s interpreta
22
See Borden Ranch P’ship v. United States Army Corps of Eng’rs, 261
F.3d 810, 815 (9th Cir. 2001) (reciting language of § 1344(f)(2) and
stating that “[c]onverting ranch land to orchards and vineyards
is clearly bringing the land ‘into a use to which it was not
previously subject,’ and there is a clear basis in this record to
conclude that the destruction of the soil layer at issue here con-
stitutes an impairment of the flow of nearby navigable waters”
(emphasis added)), aff’d, 537 U.S. 99 (2002); United States v. Brace,
41 F.3d 117, 129 (3d Cir. 1994) (holding that district court
incorrectly placed the burden of proof on the Government to
establish “the two elements” of the recapture provision); Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir. 1983)
(finding that the district court was correct in looking at the
(continued...)
36 No. 02-1863
tion of the statutory language is in accord with the interpre-
tation offered by the amici, the agencies charged by Con-
23
gress with the administration of the statute. We note,
moreover, that this interpretation is consistent with past
constructions of the recapture provision proffered by the
24
amici.
(...continued)
“purpose and effect” of the activities); Sargent County II, 876 F.
Supp. at 1102-03 (noting that the recapture provision applies
where an activity “brings an area of navigable waters into a use
to which it was not previously subject and where the flow of the
waters is impaired and their reach reduced” (emphasis added));
In re Carsten, 211 B.R. 719, 732 (D. Mont. 1997) (stating that “[t]he
plain language of 33 U.S.C. 1344(f)(2) entails two clauses” thus
“creat[ing] a two prong test”).
23
See Amicus Br. at 8 (stating that § 1334(f)(2) recaptures an
“otherwise exempt” activity “only if that activity (a) has ‘as its
purpose bringing an area of the navigable waters into a use to
which it was not previously subject,’ and (b) has the consequence
of impairing the flow or circulation of navigable waters or
reducing the reach of such waters”).
24
In a Regulatory Guidance Letter from the EPA and the Army
Corps of Engineers concerning whether “Deep-Ripping” activi-
ties were recaptured under § 1344(f)(2), the recapture provision
was construed as requiring a permit “for those otherwise exempt
discharges which: a. convert an area of the waters of the U.S. to
a new use, and b. impair the flow or circulation of the waters of
the U.S. or reduce the reach of waters of the U.S.” Regulatory
Guidance Ltr. 96-02 (Dec. 12, 1996), available at http://
www.usace.army.mil/inet/functions/cw/cecwo/reg/rgls/rgl
96-02.htm (expired Dec. 31, 2001) (underlining in original).
Similarly, in a published memo from the EPA and Army Corps
of Engineers, the recapture provision was construed as containing
“a two part test” that requires recapture when both of the
(continued...)
No. 02-1863 37
In sum, the plain language of the statute establishes that
the recapture provision requires a two-part showing: 1) that
the dredging activity had as its purpose “bringing an area
of the navigable waters into a use to which it was not
previously subject,” and 2) that the dredging activity caused
the flow or circulation of navigable waters to be impaired or
the reach of such waters to be reduced. This interpretation
is bolstered both by case law and by the considered judg-
ment of the interpreting agencies. Consequently, if the
defendants can establish as a matter of law either that their
purpose was not to “bring[] any areas of navigable waters
into a use to which it was not previously subject” or that the
activity did not impair the flow or reduce the reach of
navigable waters, their actions are not “recaptured” by §
25
1344(f)(2).
(...continued)
following are met: “1) does the activity represent a ‘new use’ of
the wetland, and 2) would the activity result in a ‘reduction in
reach/impairment of flow or circulation’ of waters of the United
States?” United States Environmental Protection Agency &
United States Dep’t of the Army, Memorandum: Clean Water Act
Section 404 Regulatory Program and Agricultural Activities (May 3,
1990), available at http://www.epa.gov/owow/wetlands/
cwaag.html.
25
We do not believe that a two-pronged approach runs contrary
to our holding in United States v. Huebner, 752 F.2d 1235 (7th
Cir. 1985). In that case, the plaintiffs had plowed and removed
wetland vegetation from three reservoirs for “the immediate
planting of barley [and] for the future planting of corn and other
dryland crops,” had “used backhoes to clean and deepen existing
ditches,” had “used a dragline to excavate an approximately 400
foot long new ditch,” had drained wetlands, had “sidecast
materials onto the wetlands,” had “used bulldozers to spread the
(continued...)
38 No. 02-1863
b. application
(...continued)
discharge over several acres,” had built roads, and had expanded
the existing cranberry beds. Id. at 1241-43. It was clear that the
plaintiffs’ overall intention was to convert wetlands into uplands
for the cultivation of dryland crops and to expand their existing
cranberry beds into wetlands that previously had not been used
for cultivating wetland crops. The plaintiffs in Huebner attempted
to use the § 1344(f)(1)(C) exemption for the “construction or
maintenance of . . . irrigation ditches” to exempt their ditching
and draining activities. Although we did not specifically restate
the requirement of § 1344(f)(2) of a “purpose [to] bring[] an area
of the navigable waters into a use to which it was not previously
subject,” it was clear that the purpose of the activities described
in Huebner was to bring wetlands into a new use. Thus the “new
use” requirement was not at issue; all we needed to analyze was
whether or not the second requirement of impairing the flow or
circulation had been met. Thus the fact that in Huebner we only
discussed the second requirement of the recapture provision does
not indicate that the first requirement does not exist. As another
court has noted, in Huebner, we “did not address the previous use
issue with respect to the ditches because the project as a whole
clearly went far beyond any prior use, as the . . . facts [in Huebner]
amply demonstrate.” United States v. Stearns, CIV. No. 3-89-0616,
1990 WL 606673 at *3 (D. Minn. 1990). Even more importantly,
however, “[t]o cite Huebner for the proposition that any discharge
of dredged material onto a wetland requires a permit under the
recapture clause is to read the previous use language out of the
recapture clause.” Id. We agree that to read Huebner as requiring
only a showing of a resulting impairment in the flow or reduction
of the circulation of waters would read the language requiring a
showing of a “purpose [of] bringing an area of the navigable
waters into a use to which it was not previously subject” out of
the recapture provision. 33 U.S.C. § 1344(f)(2).
No. 02-1863 39
We now must examine whether the defendants have es-
tablished that the recapture provision does not apply to
their actions of May 18, 1998.
We look first to whether the facts, construed in the light
most favorable to the plaintiffs, establish that the defen-
dants’ purpose was other than “bringing an area of naviga-
ble waters” into a new use. Nevertheless, as we have just
determined, the recapture provision has two components
and showing merely effects will not serve as a substitute for
a finding of a purpose to bring about a new use.
Although “[c]ommon sense dictates that, under normal
conditions, ordinary maintenance would not subject an area
to ‘a use to which it was not previously subject,’ ” Sargent
County I, 876 F. Supp. at 1088 (quoting 33 U.S.C.
§ 1344(f)(2)), many of the defendants’ actions were inconsis-
tent with their stated purpose of performing maintenance.
After they drew down the water to expose the pipes and the
dam, they did not engage in the proposed repairs immedi-
ately, but took a lunch break, drove to purchase supplies,
and, indeed, never accomplished the proposed repairs on
that day. Furthermore, there was evidence in the record
that, prior to May 18, 1998, the defendants had expressed
interest in dredging the supply pond. Given these facts, we
do not believe that the defendants have established that
their purpose was maintenance. Based on this evidence, a
reasonable finder of fact could conclude that the defendants’
maintenance explanation was merely a pretext. Thus, we
cannot say that, as a matter of law, the defendants have
established that they escape the first prong of the recapture
provision.
With respect to the “effects” prong of the recapture anal-
ysis, viewing the evidence in the light most favorable to the
plaintiffs, the record before us would permit the trier of fact
to conclude that the defendants’ actions of May 18, 1998,
40 No. 02-1863
impaired the flow and circulation of the Fawn River. The
plaintiffs’ evidence, set forth in some detail above, showed
that the river bottom of the Fawn River had been elevated
by 100,000 cubic yards of unconsolidated sediment that had
been deposited in the river, thus altering the flow of the
river. Specifically, one of the plaintiffs’ studies showed that
release of mud and silt into the Fawn River on May 18, 1998,
“elevated the bottom of Fawn River, . . . impair[ed] the flow
and circulation of those waters and . . . reduc[ed] the pre-
event reach of the waters. In addition, certain areas of the
channel that were once flowing are currently stagnant and
other areas of quiet waters have been significantly filled
with mud.” R.84, Ex.8 ¶ 7. As well, the sediment traveled
into Greenfield Millpond and transformed that area from a
shallow lake to a marshland. Dr. Willard observed that
“[w]hat was once a mostly . . . open water shallow lake
environment is now an emergent wetland environment
dominated by marshy conditions as a result of massive
deposits of sedimentation from the events of May 18, 1998.”
R.84, Ex.9 ¶ 12. Given the evidence in the record to show
that the deposit of dredged materials into the Fawn River
altered the flow of that navigable waterway, the defendants’
actions also permit the conclusion that the requirements of
the second prong of the recapture provision have been
26
met.
26
Several courts have recognized the importance of examining
the effects of the activity in determining the defendants’ “pur-
pose.” See United States v. County of Stearns, 1990 WL 606673, at *4
(D. Minn. Oct. 2, 1990) (stating that “the effect of the project must
be considered where a[n] [] entity’s ‘purpose’ is analyzed” and
that “the ‘purpose’ question is closely related to the extent of
wetlands likely to be lost”); United States v. Akers, 785 F.2d 814,
822 (9th Cir. 1986) (“It is thus the substantiality of the impact on
(continued...)
No. 02-1863 41
We therefore conclude that, viewing the facts in the light
most favorable to the plaintiffs, a trier of fact could conclude
reasonably that the defendants’ actions in draining the
supply pond on March 18, 1998, fall within the recapture
provision and are subject to the § 404 permit requirement.
C. Takings Claim
The district court noted that, under Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982):
When faced with a constitutional challenge to a perma-
nent physical occupation of real property, this Court has
invariably found a taking. As early as 1872, in Pumpelly
v. Green Bay Co., 13 Wall. (80 U.S.) 166, 20 L. Ed. 557,
this Court held . . . . that “where real estate is actually
invaded by superinduced additions of water, earth,
sand, or other material, or by having any artificial
structure placed on it, so as to effectually destroy or
impair its usefulness, it is a taking, within the meaning
of the Constitution.” Id., 13 Wall. (80 U.S.) at 181.
Id. at 427; see R.131 at 30. Nevertheless, the district court
27
(without discussing the issue of permanence) held that the
(...continued)
the wetland that must be considered in evaluating the reach of §
(f)(2).”); United States v. Cumberland Farms, 647 F. Supp. 1166, 1176
(D. Mass. 1986) (same). Although not essential to our holding
today, we believe that a trier of fact would be entitled to consider
and to give some weight to the effect of the defendants’ actions
in determining the purpose of their activity.
27
The plaintiffs brought forth expert testimony that the deposits
were at least semi-permanent, but no actual finding on this point
(continued...)
42 No. 02-1863
plaintiffs’ taking claim was barred because the plaintiffs had
failed to first bring an inverse condemnation suit in Indiana
state court. See R.131 at 32.
In Williamson County Regional Planning Commission
v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-87 (1985),
the Supreme Court “articulated a special ripeness doc-
trine for constitutional property rights claims.” Forseth v.
Vill. of Sussex, 199 F.3d 363, 368, 372 (7th Cir. 2000). Under
Williamson County, federal courts are barred from adjudicat-
ing takings claims until the plaintiff has satisfied two re-
quirements, namely, “(1) the ‘Final Decision Requirement’:
the plaintiff must demonstrate that he or she received a
‘final decision’ from the relevant government entity”; and
“(2) the ‘Exhaustion Requirement’: the plaintiff must have
sought ‘compensation through the procedures the States has
provided for doing so.’ ” Forseth, 199 F.3d at 372 (quoting
Williamson County, 473 U.S. at 186-87, 194). We have subject
matter jurisdiction over only those takings claims for which
the Williamson County requirements are satisfied or other-
wise excused. See Forseth, 199 F.3d at 368.
Takings involving physical invasions—such as the taking
alleged here—are subject to a more streamlined inquiry. We
have held that a physical invasion constitutes a “final
decision” and thus satisfies Williamson County’s first re-
quirement. Therefore, this type of “takings claim is subject
only to Williamson’s exhaustion requirement.” Forseth, 199
F.3d at 372 n.12; see also Wisconsin Cent. Ltd. v. Pub. Serv.
(...continued)
was made. See R.84, Ex.9 ¶ 14 (noting that clearing of the deposits
by the river itself will take decades if it ever occurs). Because we
agree with the district court that the plaintiffs’ takings claim is
barred by the plaintiffs’ failure to exhaust state remedies, we do
not reach the question of permanence.
No. 02-1863 43
Comm’n of Wisconsin, 95 F.3d 1359, 1368 (7th Cir. 1996)
(“In takings cases involving a physical invasion . . ., the
plaintiff must exhaust available state judicial remedies for
just compensation as a prerequisite to a lawsuit in an article
28
III court.”).
In Williamson County, the Supreme Court also “adopted a
limited exception to its exhaustion requirement based on the
futility of seeking state court relief.” Daniels v. Area Plan
Comm’n of Allen County, 306 F.3d 445, 456 (7th Cir. 2002). We
explained: “Specifically, the Court held that a plaintiff may
be excused from the exhaustion requirement if he demon-
strates that ‘the inverse condemnation procedure is unavail-
able or inadequate.’ If inverse condemnation is inadequate,
i.e., where compensation for diminished value is not an
issue, resorting to that remedy would be futile.” Id. (quoting
Williamson County, 473 U.S. at 197).
28
See also Pascoag Reservoir & Dam, LLC v. Rhode Island, 337
F.3d 87, 91 (1st Cir.) (stating that “a modified version” of the
Williamson County analysis “applies to physical taking cases,”
under which “the final decision requirement is relieved or
assumed,” yet “the state action requirement remains in physical
taking cases: Compensation must first be sought from the state if
adequate procedures are available” (internal quotation marks,
brackets and citations omitted)), cert. denied, 124 S. Ct. 962 (2003);
Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th Cir.) (“The
ripeness analysis of Williamson County applies to physical takings,
but in a modified form. The first Williamson County requirement
is automatically satisfied at the time of the physical taking . . . .
The second Williamson County requirement remains the same. In
a physical takings case, as in a regulatory takings case, the
property owner must have sought compensation for the alleged
taking through available state procedures.”), cert. denied, 537 U.S.
973 (2002).
44 No. 02-1863
The plaintiffs argue that they do not have a remedy in
state court and should be excused from the exhaustion
requirement. Specifically, the plaintiffs point to recent
Indiana case law which states that “an action for inverse
condemnation is premature until such time as the land-
owner can establish that there are not available avenues by
which the landowner can put his property to an economi-
cally beneficial or productive use.” Galbraith v. Planning
Dep’t of Anderson, 627 N.E.2d 850, 854 (Ind. Ct. App. 1994);
see also Mendenhall v. City of Indianapolis, 717 N.E.2d 1218,
1227-28 (Ind. Ct. App. 1999). Because the plaintiffs still have
some “economically beneficial or productive use” of their
property, they maintain that they have no remedy under
state law and that their position is akin to the plaintiffs in
Daniels, for whom we excused the exhaustion requirement.
We cannot accept this submission.
In Daniels, 306 F.3d at 456, the plaintiffs were seeking only
injunctive relief. However, Indiana law was clear that
“equitable relief is generally unavailable as a matter of law
where an action for compensation can be brought subse-
quent to the taking.” Indiana Dep’t of Transp. v. S. Bells, Inc.,
723 N.E.2d 432, 434 (Ind. Ct. App. 2000). Furthermore, the
Indiana courts explicitly had held that the State did not rec-
ognize equitable relief for the alleged taking that occurred
in Daniels, and the plaintiffs in Daniels had not suffered any
29
compensable injury. Thus, in Daniels, we held that “with
29
Here, it appears from the plaintiffs’ complaint that they seek
primarily damages, but also a “permanent injunction” against the
defendants that would “prohibit[] any future lowering of the
reservoir/freshwater lake waters without prior notice and
adequate process to protect the Plaintiffs and the river from
harm.” R.1 at 25-26. Whether or not this injunction would be
(continued...)
No. 02-1863 45
no monetary loss and injunctive relief not an available
option under [Indiana law], the inverse condemnation
procedure is inadequate to address the [plaintiffs’] injury,”
and, consequently, “this futility exempts them from the
exhaustion requirement.” Daniels, 306 F.3d at 457.
However, Indiana courts have not constructed an absolute
bar to state actions for physical-invasion takings such as
that alleged in the present case. In spite of the all-encom-
passing statements made in Mendenhall and Galbraith, other
Indiana cases indicate that Indiana in fact does recognize an
inverse condemnation claim for a physical invasion of
property, no matter how small that invasion. A brief over-
view of Indiana inverse condemnation law is instructive.
Under Indiana state law, there are two stages in any ac-
tion for inverse condemnation. First, “the landowner must
show that he has an interest in land which has been taken
(...continued)
warranted as a matter of law, the plaintiffs’ complaint does not
tie specifically the prayer for injunctive relief to the takings claim.
See id. The plaintiffs pray primarily for damages. See id. Thus this
case is not like Daniels v. Area Plan Commission of Allen County, 306
F.3d 445 (7th Cir. 2002), where the plaintiffs sought exclusively
equitable relief and had suffered no compensable damages.
Moreover, in their submissions to this court, the plaintiffs have
argued only that they were not required to exhaust state remedies
because Indiana allegedly does not recognize physical invasion
takings. They did not argue that they were seeking injunctive
relief and thus had no remedy under Indiana law. Thus we
analyze the plaintiffs’ takings claim as one for damages, and
conclude that Indiana provides monetary relief for takings in the
form of a suit for inverse condemnation. See Daniels, 306 F.3d at
456 (noting that Indiana provides an inverse condemnation action
“to recover the value of the property which has been taken in
fact” (internal quotation marks and citations omitted)).
46 No. 02-1863
for a public use without having been appropriated under
30
eminent domain laws.” If the state “court finds that a
taking has occurred, then the matter proceeds to the second
stage where the court appoints appraisers and damages are
assessed.” Jenkins v. Bd. of County Comm’rs of Madison
County, 698 N.E.2d 1268, 1270 (Ind. Ct. App. 1998).
In determining the first step, the Supreme Court of
Indiana and Indiana appellate courts have recognized
that there are “two discrete categories of regulations
that violate the Takings Clause regardless of the legit-
imate state interest advanced.” The first category en-
compasses regulations that require the property owner
to suffer a physical “invasion” of his or her property.
The second category encompasses regulations that deny
all economically beneficial or productive use of land.
30
The defendants appear to argue in their brief that the plaintiffs
do not have any property rights in the Fawn River or its banks
except a right to unimpeded river access and constructions of
wharves, etc. See Appellees’ Br. at 19. As noted by the plaintiffs,
the district court ruled when denying a prior motion to dismiss
that the plaintiffs had a property interest in the riverbed and use
of the river under state law. The district court held that for state-
law purposes, the Fawn River was non-navigable, and thus under
Indiana law, the plaintiffs had the right to “ ‘free and unmolested
use and control of [their] portion of the [river] bed and water
thereon for boating and fishing.’ ” R.51 at 19 (quoting Carnahan v.
Moriah Property Owners Ass’n Inc., 716 N.E.2d 437, 441 (Ind.
1999)).
Because we determine that plaintiffs were required to exhaust
their remedies in state court, we do not have jurisdiction to
determine whether or not a taking took place and thus we will
not delve into the issue of what property rights were or were not
held by the plaintiffs under Indiana state law.
No. 02-1863 47
Georgetown v. Sewell, 786 N.E.2d 1132, 1139 (Ind. Ct. App.
2003) (quoting Bd. of Zoning Appeals, Bloomington v. Leisz, 702
N.E.2d 1026, 1028-29 (Ind. 1998)); see also Metro. Dev.
Comm’n of Marion County v. Schroeder, 727 N.E.2d 742, 753
(Ind. Ct. App. 2000) (noting the existence of “two discrete
categories” of takings regardless of legitimate state interests,
namely takings by physical invasion and takings by denial
of all economic use of the property); Natural Res. Comm’n of
Indiana v. Amax Coal Co., 638 N.E.2d 418, 430 (Ind. 1994)
(noting that a “taking is recognized not only for physical
seizure or invasion of property by the government,” but also
when a property owner is deprived of the “economically
viable use of his property” (emphasis added)). This recogni-
tion of two categories of takings for purposes of inverse
condemnation proceedings, see Georgetown, 786 N.E.2d at
1139, comports with the takings doctrine espoused by the
31
Supreme Court of the United States.
Furthermore, Indiana law also mirrors federal constitu-
tional law in that a physical invasion need not deprive an
owner of all economically beneficial use of the land in order
to be compensable; rather, the Supreme Court of Indiana
has stated that a taking occurs whenever the state
“compel[s] a property owner to suffer a physical invasion,
31
In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the Supreme
Court recognized that “even a minimal permanent physical
occupation of real property requires compensation under the
Clause” and that “with certain qualifications . . . a regulation
which denies all economically beneficial or productive use of
land will require compensation under the Takings Clause.” Id. at
617 (internal quotation marks and citations omitted). The
Supreme Court of Indiana has noted generally that the property
takings protections provided by the Indiana Constitution are
coextensive with those provided by the Federal Constitution. See
Cheatham v. Pohle, 789 N.E.2d 467, 472-73 (Ind. 2003).
48 No. 02-1863
no matter how minute, of his property.” Leisz, 702 N.E.2d at
1028-29 (emphasis added); see Loretto, 458 U.S. at 427. Thus,
Indiana recognizes a physical invasion taking claim, even
for a minute physical invasion of a plaintiff’s property.
In light of the distinction that Indiana law recognizes
between takings characterized by a physical invasion and
those that are not, we do not believe that the plaintiffs’ ar-
guments based on Mendenhall and Galbraith are compelling.
As noted above, plaintiffs cite those cases for the proposi-
tion that a plaintiff may not pursue a state inverse condem-
nation action absent a showing that he has been deprived of
all economically beneficial use of his property; however,
neither case concerned a valid claim of a physical invasion
32
taking. As just reviewed, recent Indiana cases, including
32
In Mendenhall v. City of Indianapolis, 717 N.E.2d 1218 (Ind. Ct.
App. 1999), the state twice had seized the plaintiff’s property and
later had allowed him use of it if he signed a covenant that the
property would not be used for “any adult use in the future.” Id.
at 1228. However, the court did not consider whether the physical
seizures constituted takings because the plaintiff had failed to
challenge the seizures in a timely manner in state court. Id.
(“Mendenhall passed up his opportunity to argue the validity of
the order and the subsequent seizure of his property.”). The
plaintiff also had argued that the restrictive covenant was a
taking; with respect to this argument, the court stated that
“Mendenhall has not shown that the covenant deprived his
property of ‘all economically beneficial or productive use.’
Mendenhall has failed to show that a ‘taking’ of his property for
public use without compensation to him has occurred.” Id.
(quoting Galbraith v. Planning Dep’t of Anderson, 627 N.E.2d 850,
854 (Ind. Ct. App. 1994)).
At issue in Galbraith v. Planning Department of the City of
Anderson, 627 N.E.2d 850 (Ind. Ct. App. 1994), was a zoning
(continued...)
No. 02-1863 49
inverse condemnation cases such as Georgetown, 786 N.E.2d
at 1139, state that there are two categories of takings: phy-
sical invasion takings and takings that deprive the owners
of all economically beneficial use of their property. There is
no indication in Indiana law that owners who suffer a
physical invasion also must lose all economically beneficial
use of their property in order to bring an inverse condemna-
tion action. Consequently, we believe that the statements in
Mendenhall and Galbraith, when placed in the correct factual
and legal context, do not apply to physical-invasion takings.
Therefore, in contrast to the situation in Daniels, we have
failed to find any cases indicating that Indiana would not
recognize a state action for a physical-invasion taking.
Indeed, all indications are that plaintiffs have a state rem-
edy—a state inverse condemnation action—which they have
not pursued. We must conclude, therefore, that the plaintiffs
have not exhausted their state remedies as required by
Williamson County, and their takings claim is not properly
before this court.
(...continued)
ordinance that restricted the plaintiff’s use of his property. In
determining whether the zoning ordinance constituted a taking,
the court stated that “a zoning regulation ‘goes too far,’ that is, is
confiscatory, when it denies the property owner ‘all economically
beneficial or productive use of the land.’ ” Id. at 853 (quoting
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)).
Thus, the statements that an owner must show that all eco-
nomically beneficial use of property has been lost before insti-
tuting a state inverse condemnation action arose in the context of
regulations on the use of property, not in the context of a physical
invasion of property.
50 No. 02-1863
D. Procedural Due Process
The plaintiffs argue that the DNR deprived them of
their property without due process of law when it caused
the dredged material from the supply pond to invade and
destroy their property. Although not discussed by the
parties, our case law explains that the Williamson County
exhaustion requirement applies with full force to due pro-
cess claims (both procedural and substantive) when based
on the same facts as a takings claim. See Hager v. City of
West Peoria, 84 F.3d 865, 869 (7th Cir. 1996) (stating that
“[t]he exhaustion requirement of Williamson County ap-
plies whether plaintiffs claim an uncompensated taking,
inverse condemnation, or due process violation” and thus
the plaintiffs were required to “first pursue their claims,
whether in the form of a takings challenge or a due process
33
claim, in . . . state court”). We have explained that, al--
though we recognize that a governmental taking of property
may encompass due process concerns, nevertheless, “due
process challenges are premature if the plaintiff has not
exhausted possible state remedies by which to attack the
zoning regulation or other state action” creating the taking.
Covington Ct. Ltd. v. Vill. of Oak Brook, 77 F.3d 177, 179 (7th
Cir. 1996). Thus, the plaintiffs’ procedural due process claim
33
See also River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167
(7th Cir. 1994) (noting that “[l]abels do not matter” and holding
that a plaintiff could not avoid Williamson County’s exhaustion
requirement simply by adopting the label of “procedural due
process”); Forseth, 199 F.3d at 370 (explaining that a “substantive
due process claim [that] falls within the framework for takings
claims” is “subject to Williamson’s requirement that [the plaintiffs]
seek a final decision and pursue state court remedies before
federal courts have jurisdiction to hear their case”).
No. 02-1863 51
based on a deprivation of a property interest also is barred
34
from federal review.
Conclusion
For the foregoing reasons, the judgment of the district
court with respect to the CWA claim is reversed, and that
claim is remanded for further proceedings consistent with
this opinion. The judgment of the district court with respect
to the plaintiffs’ takings and procedural due process claims
is affirmed. The plaintiffs may recover their costs in this
court.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
34
Additionally, because we find that plaintiffs have failed to
exhaust their administrative remedies, we need not and do not
address the issue of whether the draw-down of the pond was a
random, unauthorized act or whether the DNR employees
possessed the requisite intent to establish a due process violation.
USCA-02-C-0072—3-19-04