from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:11-CV-00339-JED-FHM)
Wilfred Wright, Claremore, Oklahoma, for Defendant-Appellant.
Krystina Phillips (Jason B. Aamodt and Dallas L.D. Strimple
of Indian and Environmental Law Group, PLLC, with her on the
brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
Ozark Materials River Rock, LLC, appeals from the district
court's order approving Plaintiff-Appellee David
Benham's proposed restoration plan of unlawfully filled
wetlands in Saline Creek, Benham v. Ozark Materials River
Rock, LLC (Benham II), No. 11-CV-339-JED-FHM
(N.D. Okla. June 1, 2017), ECF No. 184. Ozark raises several
issues on appeal challenging the district court's order
and underlying findings of fact and conclusions of law,
Benham v. Ozark Materials River Rock, LLC
(Benham I), No. 11-CV-339-JED-FHM, 2015 WL 235759
(N.D. Okla. Jan. 16, 2015), ECF No. 160. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
appeal arises from a private enforcement action under Section
505 of the Clean Water Act (CWA), 33 U.S.C. § 1365.
Ozark is a sand and gravel mining company that operates on
property adjacent to Saline Creek in Oklahoma. Mr. Benham
recreates in Saline Creek and claims that Ozark's
operations have degraded his ability to do so. In March 2011,
Mr. Benham served Ozark with a notice letter pursuant to
Section 505, informing the company that it was violating
Section 404 of the CWA, 33 U.S.C. § 1344. Section 404
requires a permit from the Army Corps of Engineers to
discharge dredge or fill material into navigable waters if
the activity disturbs more than one-half acre of wetland, and
Ozark does not have a Section 404 permit.
Army Corps of Engineers had inspected Ozark's operations
in 2010 (and would do so again in 2012 and 2013) by driving
through the property, but it found no CWA violations.
Nevertheless, after receiving Mr. Benham's notice, Ozark
hired an environmental consulting firm to perform a Section
404 impact analysis of Ozark's Saline Creek operations.
By June 1, 2011, Ozark had not addressed the CWA violations
that Mr. Benham alleged in his notice, so he filed the
instant citizen suit, as authorized by Section 505.
district court held a bench trial and issued findings of fact
and conclusions of law determining that Ozark violated
Section 404 by disturbing more than one-half acre of wetland
through the discharge of dredge and fill material. Benham
I, 2015 WL 235759, at *9. Specifically, the court found
that Ozark's construction of a roadway in Saline Creek
and the filling of its surrounding wetlands without a permit
constitute a continuing violation of the CWA. Id.
The district court imposed a civil penalty of $35, 000 and
ordered briefing on a restoration plan for the unlawfully
filled wetlands. Id. at *10. On June 1, 2017, the
district court issued an order adopting (substantially all
of) Mr. Benham's proposed restoration plan. Benham
II, slip op. at 1. One element of the plan created a
conservation easement for the restoration site. Id.
raises six issues on appeal, contending that (1) Mr. Benham
lacks Article III standing, (2) Mr. Benham's citizen suit
notice letter was inadequate, (3) the district court
erroneously found that Ozark violated the CWA, (4) the
district court erroneously admitted evidence prepared by
Ozark's withdrawn expert, (5) the district court's
order is unconstitutional, and (6) Mr. Benham's suit
falls within the primary jurisdiction of the Army Corps of
Engineers. For the following reasons, we reject Ozark's
arguments and affirm.
Mr. Benham Has Article III Standing
a plaintiff has Article III standing is a jurisdictional
question that we review de novo. Wilderness Soc'y v.
Kane County, 632 F.3d 1162, 1168 (10th Cir. 2011).
Article III standing requires showing (1) an "injury in
fact" that is (2) "fairly traceable to the
challenged action of the defendant" and is (3) likely to
"be redressed by a favorable decision." Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000). The injury must be
"concrete and particularized" and "actual or
imminent, not conjectural or hypothetical." Id.
at 180. "The party invoking federal jurisdiction bears
the burden of establishing these elements . . . with the
manner and degree of evidence required at the successive
stages of the litigation." Lujan v. Defs. of