United States v. Sweeney

483 F.Supp.3d 871

UNITED STATES of America, Plaintiff,

v.John Donnelly SWEENEY and Point Buckler Club, LLC, Defendants.

2:17-cv-00112-KJM-KJN

United States District Court, E.D. California.

Signed September 1, 2020

Andrew J. Doyle, Hubert Lee, United States Department of Justice, Washington, DC, Brett Philip Moffatt, US Environmental Protection Agency, San Francisco, CA, for Plaintiff.

Lawrence Bazel, Briscoe Ivester & Bazel LLP, San Francisco, CA, for Defendants.

ORDER

Kimberly Mueller, CHIEF UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. BACKGROUND...878

A. Nature of the Case...878

B. Witnesses...879

C. Exhibits...881

D. Objections Generally...881

E. Briefing and Arguments...882

II. JURISDICTION...883

A. Standing...883

B. Ripeness...883

III. FACTUAL FINDINGS...884

A. Point Buckler Island and Suisun Marsh Generally...884

B. Point Buckler Island Supported a Tidal Marsh Ecosystem Before Defendants’ Actions on the Island...890

C. Sweeney Bought Island in 2011; Conducted Various Activities...894

D. Starting in 2014, Sweeney Constructed a Nearly Mile-long Earthen Levee...896

E. Since Sweeney's Activities, Point Buckler Island has Ceased Functioning as a Tidal Marsh Ecosystem...901

IV. CONCLUSIONS OF LAW RE: DEFENDANTS’ LIABILITY...908

A. Elements and Standard of Proof...908

B. Defendants are Responsible "Persons"...909

C. Defendants "Added Pollutants"...911

D. Structures Placed on Island Not "Pollutants"...916

E. Defendants Discharged Pollutants from "Point Sources"...917

F. Defendants Discharged Pollutants into "Waters of the United States"...918

G. Defendants’ Discharges Were Not Authorized by Permit...928

H. Defendants’ Discharges are not Exempt...931

V. DEFENDANTS’ REMAINING DEFENSES...933

A. Defendants’ Affirmative Defenses Based on the Takings Clause...933

B. Defendants’ Vindictive Prosecution and First Amendment Defense...937

C. Defendants’ Void-for-Vagueness Defense...938

VI. Restoration and Other Remedies...940

VII. JUDGMENT...941

I. BACKGROUND ¹

The parties tried this action to this court as a bench trial from May 20 to June 5, 2019. Andrew Doyle and Hubert Lee of the United States Department of Justice's Environment and Natural Resources Division and Brett Moffatt of Region 9 of the United States Environmental Protection Agency ("EPA") represented plaintiff United States of America. Lawrence Bazel of Briscoe Ivester & Bazel LLP represented defendants John Donnelly Sweeney and Point Buckler Club, LLC.

Having carefully considered the evidence and the arguments of counsel, the court renders the following findings of fact and conclusions of law, as provided by Federal Rule of Civil Procedure 52.² See Fed. R. Civ. P. 52(a)(1) ("In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately."). The court distinguishes findings of fact from conclusions of law by numbering its findings of fact only, beginning in the section below.

The court enters judgment in favor of the United States on the issue of liability, as clarified below.

A. Nature of the Case

Plaintiff United States of America commenced this action in January 2017, alleging that defendants John Donnelly Sweeney and Point Buckler Club, LLC have violated and remain in violation of sections 301 and 404 of the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. §§ 1311, 1344, based on defendants’ unauthorized construction of a levee, placement of structures, and other activities that added pollutants, consisting of dredged or fill material, from point sources, namely mechanized equipment, to waters of the United States, defined as areas at or below the high tide line consisting of tidal channels and abutting wetlands, on Point Buckler Island. Point Buckler Island is located in the Suisun Marsh, which is part of the greater San Francisco Bay, and is also within Solano County, California.

The United States asserts that defendants’ CWA violations have resulted in the loss of nearly 30 acres of tidal waters and wetlands and the loss of those features’ important chemical, physical and biological functions. The United States seeks, among other things, declaratory and injunctive relief.

Defendants contest liability and assert several defenses.

B. Witnesses

The court heard testimony from nine witnesses, in the following order: Stuart Siegel, Ph.D.; Daniel Martel; Peter Baye, Ph.D.; James Kulpa; Bruce Herbold, Ph.D.; David Mayer, Ph.D.; Terry Huffman, Ph.D.; defendant Sweeney; and Daniel Leistra-Jones.

The United States in its case in chief called the first five witnesses; defendants called Drs. Mayer and Huffman as well as Mr. Sweeney. In rebuttal, the United States called Mr. Leistra-Jones. With the exception of Sweeney, all of the witnesses are experts retained by a party.

1. Dr. Siegel

The United States tendered, and the court accepted, Dr. Siegel as an expert in six related fields: (1) the functional assessment of natural and restored tidal channel and marsh systems, with functions meaning those relating to the chemical, physical and biological integrity of waters and wetlands; (2) impact assessment or harm resulting from human or natural events to the functions of tidal channel and marsh systems; (3) restoration design, planning and construction of tidal channel and marsh systems; (4) analysis of the reach of the tides; (5) interpretation of the many varieties of aerial photographs in support of the foregoing work; and (6) also in support of the foregoing work, oversight of the technical work of others, including channel and marsh surveying, hydrodynamic modeling and soil and water chemical analysis. Trial Tr., May 20, 2019 at 36:4–37:17.

Defendants made a concerted effort to discredit Dr. Siegel, both at trial and in their post-trial briefing. Through the trial testimony, the court became aware of an interpersonal conflict between Dr. Siegel and Sweeney, and finds that, on various occasions, both witnesses acted in poor judgment in their dealings with one another. Their behaviors created or amplified the animosity between them, as also came to light through the testimony elicited and exhibits introduced at trial, and the defendants in particular focus on the animosity in their post-trial briefing. See Defs.’ Resp. Br. at 23. In particular, Sweeney described an incident in which Dr. Siegel offered to do work for him; later in an email inadvertently copying Sweeney, Siegel warned one of Siegel's colleagues that he should "be careful dealing with Sweeney." See Trial Tr., May 21, 2019 (Dr. Siegel's testimony) at 151:6–152:21 (explaining Sweeney was copied on the email unintentionally); id. 146:5–11 (Dr. Siegel's testimony) (testifying he had at one point submitted written proposal to do work for Sweeney). It appears this email exchange ignited their feud. Soon thereafter, Sweeney launched a crude, personal attack against Dr. Siegel on social media. See USA Ex. 204 (Facebook post of cartoon showing rats copulating with caption: "Stuart Siegel assisting Steve Chappell in this weeks [sic] depositions to try and save their grant money or stay out of jail like Lee Lehman #FBI"). The testimony of both Dr. Siegel and Mr. Sweeney was marred at times by their dislike of and disrespect for each other, with resulting damage to their credibility in some respects. The court nevertheless finds each person's testimony credible to the extent the court relies on it below.

2. Mr. Martel

The United States also tendered, and the court accepted, Mr. Martel as an expert in identifying the presence of wetlands and their extent, including in tidal environments and where human activities have impacted a site's vegetation, soils or hydrology. Trial Tr., May 23, 2019 at 346:18–25.

3. Dr. Baye

The United States tendered, and the court accepted, Dr. Baye as an expert in the following fields: (1) identification of wetlands vegetation, including in tidal environments where human activities have impacted the vegetation; (2) wetlands impact assessment, including harm resulting from human disturbances of wetlands, including tidal marsh wetlands; and (3) restoration and management of coastal wetlands, including tidal channel and marsh ecosystems in the Suisun Marsh. Trial Tr., May 23, 2019 at 404:24–406:7.

4. Mr. Kulpa

The United States tendered, and the court accepted, Mr. Kulpa as an expert in the following fields: (1) conducting and managing topographic surveys, including in tidal channels and marsh environments; (2) conducting and managing bathymetric³ surveys, including in tidal channels; (3) interpreting topographical and bathymetric survey data; and (4) hydrography. Trial Tr., May 28, 2019 at 514:5–17.

5. Dr. Herbold

The United States tendered, and the court accepted, Dr. Herbold as an expert in: (1) fish species and their biology, ecology, habitats and movements in tidal water bodies and tidal marshes, including those surrounding and in proximity to Point Buckler Island; (2) protected fish species and their designated critical habitat in the San Francisco Estuary and encompassing Point Buckler Island; and (3) water sampling and assessment of the water sampling results as they relate to ability of tidal marsh and disturbed marsh to support fish. Trial Tr., May 28, 2019 at 548:17–549:17.

6. Dr. Mayer

Defendants tendered, and the court accepted, Dr. Mayer as an expert on fisheries issues. Trial Tr., May 29, 2019 at 676:4–9.

7. Dr. Huffman

Defendants tendered, and the court accepted, Dr. Huffman as an expert in "three limited areas of opinions only" regarding land use, tidal debris and restoration. Trial Tr., May 29, 2019 at 704:1–705:16.

8. Mr. Leistra-Jones

The United States tendered, and the court accepted, Mr. Leistra-Jones as an expert in financial analysis and assessing an individual's and a company's ability to meet the financial requirements of a judgment. Trial Tr., June 4, 2019 at 1106:15–1110:8.

9. Certain Direct Testimony Presented By Declaration

The court provided each side "the option to present the direct testimony of retained...