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Benham v. Ozark Materials River Rock, LLC

United States Court of Appeals, Tenth Circuit

March 22, 2018

DAVID BENHAM, Plaintiff-Appellee,
v.
OZARK MATERIALS RIVER ROCK, LLC, Defendant-Appellant.

          Appeal 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.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

          KELLY, Circuit Judge.

         Defendant-Appellant 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.

         Background

         This 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.

         The 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.

         The 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. at 9-10.

         Discussion

         Ozark 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.

         A. Mr. Benham Has Article III Standing

         Whether 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 ...


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