Opinion
Case No. 2:00CV 0995 DS.
June 3, 2004
Michael N. Zundel, James A. Boevers, PRINCE, YEATES GELDZAHLER, Salt Lake City, Utah, Attorneys for Defendants Richard W. Davis and R.W. Davis Construction, Inc.
David A. Carson, Andrew J. Doyle, United States Department of Justice, Environmental Natural Resources Division, Attorneys for Plaintiff.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANTS' MOTION IN LIMINE AND RELATED MATTERS
Pursuant to the Stipulated Order Regarding Evidentiary Hearing on Defendants' Motion in Limine and Related Matters dated March 2, 2004 ("Stipulated Order"), the Court held an evidentiary hearing on March 24, 2004. Plaintiff United States of America ("U.S.") was represented by its counsel of record, David A. Carson and Andrew J. Doyle with the U.S. Department of Justice. Defendants Richard W. Davis and his company, R.W. Davis Construction, Inc. (collectively "Davis"), were represented by their counsel of record, Michael N. Zundel and James A. Boevers with the law firm of Prince, Yeates Geldzahler.
After considering the evidence presented by the parties and the arguments of counsel at the hearing, and considering the parties' prior filings with respect to Davis' Motion in Limine and the parties' cross-motions for summary judgment and related pending motions, the Court hereby enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The parties acknowledge that expert testimony is required to prove the ordinary high water mark ("OHWM") of Utah Lake. The U.S.' sole expert witness on the issue of the OHWM of Utah Lake is T. Mark Oliver ("Mr. Oliver").
2. Mr. Oliver is not qualified as an expert with respect to determining the OHWM of a standing body of water such as Utah Lake.
3. While Mr. Oliver's credentials and experience are generally impressive, his expertise is clearly in the area of determining bank full elevations in rivers.
4. The methodology with which Mr. Oliver is most familiar in determining bank full elevations in rivers varies greatly from that best employed to determine the OHWM of a lake.
5. Mr. Oliver is unfamiliar with and untrained in critical aspects of analyzing physical characteristics required by the U.S. Army Corps of Engineers' ("Corps") definition of OHWM in 33 C.F.R. § 328.3(e).
6. There is no evidence that Mr. Oliver attempted to consider any physical characteristics such as soils or vegetation, in determining the OHWM of Utah Lake.
7. Instead, Mr. Oliver attempted to determine the OHWM of Utah Lake by using statistical averaging of peak lake elevations over a 30-year period.
8. Any consideration by Mr. Oliver of physical characteristics of the surrounding area was secondary and used to corroborate his conclusions derived solely from his analysis of the statistical data.
9. Mr. Oliver's testimony established that he has not been trained to analyze terrestrial vegetation or the process of its destruction by inundation of water.
10. Mr. Oliver testified that duration of inundation and its effect on physical characteristics, including vegetation, are a whole different level of analysis, as to which he has no training.
11. While a variety of methods may be employed to determine OHWM, Mr. Oliver did not use a variety of methods. He essentially used one, statistical averaging. That approach is inadequate, making his methodology scientifically unreliable as applied to the facts of this case.
12. Furthermore, Mr. Oliver's use of a 30-year time period is unsupported by reliable scientific data in the context of an OHWM determination.
13. While the Court is unsure of precisely where the OHWM of Utah Lake is located, the Court is convinced that it does change over time, and certainly more frequently than Mr. Oliver opined.
14. Accordingly, the Court finds that Mr. Oliver's testimony was not based on sufficient facts or data, was not the product of reliable principles and methods for determining the OHWM of Utah Lake, and that he did not apply sound scientific principles to the facts of this case.
15. There is insufficient evidence before the Court for the Court to determine whether the Davis dike was below the OHWM of Utah Lake as of the date of any alleged discharge of pollutants by Davis.
CONCLUSIONS OF LAW
1. In order to prevail on its claims against Davis under the Clean Water Act, 33 U.S.C. § 1251-1387, as a threshold jurisdictional matter the U.S. must prove, by a preponderance of the evidence, that one or more areas into which Davis allegedly discharged a pollutant or pollutants in and around the Davis dike from February 1991 through February 1998 were, at the time of the alleged discharges, "waters of the United States," within the meaning of 33 U.S.C. § 1362(7).
2. As applied to the facts of this case, the term "waters of the United States" means either:
a. Areas at or below the OHWM of Utah Lake as that term is defined in the Corps' regulations at 33 C.F.R. § 328.3(e); or
b. Wetlands (adjacent to Utah Lake), within the meaning of 33 C.F.R. § 328.3(a)(7) and (b).
3. As set forth in the Stipulated Order, the U.S. does not base Clean Water Act jurisdiction in this case upon an allegation that Davis discharged pollutants into regulated wetlands in his work on and around the dike.
4. 33 C.F.R. § 328.3(e) defines OHWM as follows:
(e) The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
5. With respect to Davis' Motion in Limine, under Fed.R. Ev. 702 the U.S. must prove, by a preponderance of evidence under Fed.R. Ev. 104(a), that:
a. Mr. Oliver is "qualified by knowledge, skill, experience, training or education" to give the expert testimony and opinions he has given;
b. "[T]he testimony is based upon sufficient facts or data";
c. [T]he testimony is the product of reliable principles and methods"; and
d. Mr. Oliver ". . . has applied the principles and methods reliably to the facts of the case."
( Fed R. Ev. 702)
6. As set forth in the Stipulated Order, the U.S. agrees that if Davis' Motion in Limine is granted as to the OHWM, Davis' Motion for Summary Judgment should also be granted, except to the extent the latter motion encompasses the U.S.' claim under 33 U.S.C. § 1318. The U.S. contends that it does not need to prove Clean Water Act jurisdiction in order to prevail on its claim that Davis violated 33 U.S.C. § 1318 by allegedly failing to timely comply with EPA's June 17, 1999 request for information. Davis disputes that contention and also contends he also has other defenses to this claim.
7. The Court will deny the Davis motions to strike various declarations of Mr. Oliver that the U.S. has filed in connection with the other pending motions. The Court has given those declarations what weight it deems appropriate.
8. Under 33 C.F.R. § 328.3(e) the OHWM is determined primarily based upon the physical characteristics of the surrounding areas. Statistical data may be used only secondarily, or to corroborate those physical characteristics.
9. The "other appropriate means" for determining the OHWM under 33 C.F.R. § 328.3(e) require consideration of the physical characteristics of the surrounding areas. Neither this regulation nor applicable case law allows physical characteristics to be ignored, in favor of statistical averaging.
10. Under 33 C.F.R. § 328.3(e) and U.S. v. Cameron, 466 F. Supp. 1099 (M.D. Fla. 1978), a variety of methods may be employed to determine OHWM. However, these methods must primarily consider the physical characteristics of the surrounding areas as of the time of the determination.
11. Based upon the Findings of Fact and Conclusions of Law set forth above, the Court further concludes that the U.S. has not met its burden of proof under Fed.R. Ev. 104(a) and 702, with respect to the admissibility of Mr. Oliver's testimony, and that Mr. Oliver's testimony will be excluded from evidence.
12. Based upon the granting of Davis' Motion in Limine, Davis' Motion for Summary Judgment will also be granted and the U.S.' Motion for Summary Judgment will be denied, except as those cross-motions for summary judgment apply to the U.S.' claim under 33 U.S.C. § 1318. The Court reserves ruling on the cross-motions for summary judgment as applied to that claim.