United States v. Ronald Ritz ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3320
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONALD R ITZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-01167—William T. Lawrence, Judge.
A RGUED A PRIL 15, 2013—D ECIDED JULY 3, 2013
Before R IPPLE, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Almost fifteen years ago, the
Environmental Protection Agency warned the owners
of Cottonwood Campground to start testing its water
supply for contaminates or face the consequences. The
owners did not comply, and so the United States filed a
complaint for violations of the Safe Drinking Water Act,
42 U.S.C. §§ 300g-3(b), (g) (“SDWA”). After concluding
that the campground operated as a “public water system”
2 No. 11-3320
subject to the SDWA and its implementing regulations,
the district court granted summary judgment in favor of
the government. Defendant Ronald Ritz, the owner
of the campground, has appealed, asserting that the
property does not constitute a public water system so
the SDWA does not apply. The problem for Ritz is that
he waived all of the new arguments he now raises for
the first time on appeal by failing to present them to
the district court, so we must dismiss his appeal in
its entirety.
I. BACKGROUND
In the 1980s, the Ritz family purchased a campground
site in Cedar Grove, Indiana, called Cottonwood (or
alternatively known as, Whitewater River Cottonwood
Campground). Thomas Ritz ran the campground for
some time before selling it to his brother, Ronald. The
campground area—which operates on a seasonal basis
from May to October—is made up of approximately fifty
to eighty individual lots or “campsites.” Each campsite
has a water spigot and sewer hookup for recreational
vehicles. The property also contains two restrooms
with working toilets, sinks, and showers.
In December 1998, the Environmental Protection
Agency (“EPA”) issued an Administrative Order to
Cottonwood Campground pursuant to the Safe Drinking
No. 11-3320 3
Water Act, 42 U.S.C. §§ 300g-3(b), (g) (“SDWA”).1 The
SDWA and corresponding EPA regulations specifically
focus on public water systems and require owners of
public water systems to comply with sampling, monitor-
ing, and reporting requirements for various substances.
In this case, the EPA’s order found that Cottonwood
operated as a public water system, and so it required
the campground to sample its water system for nitrate,
nitrite, and coliform (e. coli) bacteria, and to notify any
individuals who use the property of its past failure to
monitor the water system. It is undisputed that the
Ritz family essentially failed to comply with the require-
ments of the order by testing the water system, at best,
only sporadically over the next several years. As a
result, the United States filed a complaint on behalf of
the EPA against the Ritz brothers and Cottonwood for
violations of the SDWA. The Ritz brothers consistently
denied that the water system in question constituted a
public water system as contemplated by the SDWA
because the water spigots in the campground are
marked as “Non-Potable,” so users would know the
water is not provided for human consumption.
After the parties filed cross-motions for summary
judgment, the district court held a settlement conference
in May 2009. The parties tentatively agreed to a “Prelimi-
nary Agreement,” yet were ultimately unable to agree
to the terms of a proposed consent decree requiring
1
The order was initially served on Thomas Ritz because he
was still listed as the owner of record of the campground.
4 No. 11-3320
water testing for three years, and the district court even-
tually granted summary judgment for the United States
after briefing was completed. The court concluded that
the campground qualified as a public water system
under the SDWA and the campground had failed to
conduct the requisite water sampling, monitoring, and
reporting to consumers.
But in the fall of 2010, the district court discovered
that Thomas Ritz had not been receiving communica-
tions related to the case, so the court set aside the sum-
mary judgment ruling as against Thomas and he was
granted an opportunity to file a response to the govern-
ment’s motion for summary judgment. Thomas filed a
response, along with a motion to enforce the parties’
defunct Preliminary Agreement, but Ronald did not
join Thomas’ response or motion. The district court
denied Thomas’ motion to enforce the Preliminary Agree-
ment (since it was contingent on the entry of a consent
decree that never happened), and again granted sum-
mary judgment for the United States on the SDWA viola-
tions. Thomas was later dismissed from the case, but
the district court issued an order enjoining Ronald from
any current and future violations of the SDWA, and
awarded a $29,754 civil penalty against Ronald. This
appeal followed.
II. ANALYSIS
The SDWA defines “public water system” as “a system
for the provision to the public of water for human con-
sumption through pipes or other constructed con-
No. 11-3320 5
veyances, if such system has at least fifteen service con-
nections or regularly serves at least twenty-five individu-
als.” 42 U.S.C. § 300f(4)(A). The relevant EPA regulation
largely tracks the statutory definition of public water
system, meaning a “system [that] has at least fifteen
service connections or regularly serves an average of
at least twenty-five individuals daily at least 60 days out
of the year.” 40 C.F.R. § 141.2. In the initial stages of
this litigation, the Ritz family maintained that they did
not need to comply with such regulatory requirements
because their campground does not serve the minimum
number of persons. More specifically, Ronald’s primary
argument for summary judgment below was that the
campground did not serve at least twenty-five individuals
daily for at least sixty days of the year.
Now for the first time on appeal he advances a new
theory: the campground does not have fifteen service
connections. According to Ronald, each of the fifty or
more campsites on the property has its own spigot, but
these spigots are not service connections. Ronald argues
by analogy that the campground is like a single-family
home that may have many faucets, but is still not consid-
ered a public water system for purposes of the SDWA.
The merits of Ritz’s new argument raise an interesting
question, but we need not consider it because this line
of argument was never developed below. As we have
cautioned time and again, “it is a well-settled rule that
a party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If it does
not do so, and loses the motion, it cannot raise such
6 No. 11-3320
reasons on appeal.” Domka v. Portage County, 523 F.3d
776, 783 (7th Cir. 2008) (internal quotations and citations
omitted); see also Fednav Int’l Ltd. v. Continental Ins. Co.,
624 F.3d 834, 841 (7th Cir. 2010); Pole v. Randolph, 570
F.3d 922, 937 (7th Cir. 2009). Because the specific theory
Ronald now urges was never actually presented to the
district court, we find it waived for purposes of this appeal.
Ronald contends that his argument on appeal is not
waived because he argued in his motion for sum-
mary judgment that the campground did not contain the
requisite number of service connections to trigger the
SDWA. But a review of the record reveals otherwise. We
can find only a passing, one sentence line asserting
that “the area in question does not currently and has
never had at least fifteen service connections in use at least
sixty days out of the year.” Def.’s Joint Mot. for Summ. J. at
4 (emphasis added). This argument may seem related,
but is a different argument than the one he asserts on
appeal. That earlier argument focuses on the usage of the
service connections whereas in the briefing before this
court, Ronald specifically argues that the campground
does not have fifteen service connections, period. And
the fact that the court was faced with the overarching
issue of the SDWA’s applicability to the campground is
not helpful to Ronald. See Domka, 523 F.3d at 783; Fednav
Int’l Ltd., 624 F.3d at 841 (“[A] party has waived the
ability to make a specific argument for the first time on
appeal when the party failed to present that specific
argument to the district court, even though the issue
may have been before the district court in more general
terms.”) (citation omitted); Libertyville Datsun Sales, Inc. v.
No. 11-3320 7
Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985) (col-
lecting cases). Ronald has changed his theory after
losing below and that prevents us from considering it.
Ritz also advances several additional arguments that
he never raised below. He suggests that the govern-
ment’s enforcement action was barred for statute of
limitations reasons, he never had an opportunity for
notice and hearing for the alleged SDWA violations,
and the district court should have enforced the parties’
Preliminary Agreement. Each of these arguments was
raised by Ronald’s brother, Thomas, in his separate
response to the government’s motion for summary judg-
ment (and rejected by the district court), but Ronald
never once sought to join that response or assert any
such arguments on his own. Therefore, we must con-
clude that these arguments are waived for purposes of
this appeal.
III. CONCLUSION
For these reasons, Ritz’s appeal is D ISMISSED.
7-3-13