TEAM #76

C.A. No. 13-01234

UNITED STATES COURT OF APPEALS

FOR THE TWELFTH CIRCUIT -------------------------- ♦ ---------------------------

JACQUES BONHOMME,

Plaintiff-Appellant, Cross-Appellee

v.

SHIFTY MALEAU, Defendant-Appellant, Cross-Appellee.

-------------------------- ♦ --------------------------

STATE OF PROGRESS,

Plaintiff-Appellant, Cross-Appellee and

SHIFTY MALEAU, Intervenor-Plaintiff-Appellant, Cross-Appellee

v.

JACQUES BONHOMME, Defendant-Appellant, Cross-Appellee.

-------------------------- ♦ --------------------------

APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PROGRESS

-------------------------- ♦ --------------------------

BRIEF OF JACQUES BONHOMME PLAINTIFF-APPELLANT, CROSS-APPELLEE

DEFENDANT-APPELLANT, CROSS-APPELLEE -------------------------- ♦ --------------------------

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... V  

STATEMENT OF JURISDICTION............................................................................................... 1  

STATEMENT OF THE ISSUES ................................................................................................... 1  

STATEMENT OF THE CASE ....................................................................................................... 1  

STATEMENT OF FACTS ............................................................................................................. 3  

STANDARD OF REVIEW ............................................................................................................ 5  

SUMMARY OF THE ARGUMENT ............................................................................................. 5  

ARGUMENT .................................................................................................................................. 7  

I.   THIS DISTRICT COURT ERRED IN HOLDING THAT BONHOMME CANNOT BRING A CWA CITIZEN SUIT SINCE BONHOMME, A FOREIGN NATIONAL, IS A “PERSON” ENTITLED TO BRING SUIT UNDER 33 U.S.C. §§ 1362(5), 1365(G) ......... 7  

A.   The text of 33 U.S.C. § 1365 allows Bonhomme to bring suit based on standard canons of statutory interpretation .................................................................................. 7  

B.   Enabling Bonhomme to proceed with his citizen suit accords with Article III’s letter and spirit in establishing standing ................................................................................. 8  

II.   THE DISTRICT COURT ERRED IN FINDING THAT BONHOMME IS NOT THE REAL PARTY IN INTEREST, SINCE HE, NOT HIS COMPANY, IS THE PROPER PARTY TO BRING A CWA CITIZEN SUIT ...................................................................... 9  

A.   Enabling Bonhomme to proceed as the real party in interest accords with the purpose of Fed. R. Civ. P. Rule 17 ........................................................................................... 10  

B.   Enabling Bonhomme to proceed as the real party in interest accords with congressional intent to make persons broadly partners in protecting the quality of this nation’s waters ............................................................................................................ 11  

III.   THE DISTRICT COURT ERRED IN FINDING THAT MALEAU’S MINING WASTE PILES ARE NOT “POINT SOURCES” SINCE THEY ARE “DISCERNIBLE, CONFINED AND DISCRETE” SOURCES OF POLLUTION WITHIN THE BROAD AMBIT OF 33 U.S.C. § 1362(14) ....................................................................................... 12  

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A.   This court, like many federal courts, should construe “point sources” broadly to serve the purposes of the CWA ............................................................................................ 13  

B.   Unlike non-point source pollution, Maleau’s mining waste piles are an identifiable source of pollution and should be regarded as point sources ...................................... 15  

C.   Maleau’s point sources collect and/or channel stormwater runoff ............................. 16  

IV.   THE DISTRICT COURT CORRECTLY FOUND THAT REEDY CREEK IS SUBJECT TO CWA JURISDICTION BECAUSE IT IS A TRIBUTARY OF A “WATER OF THE UNITED STATES,” IS AN INTERSTATE WATER, AND IS USED IN INTERSTATE COMMERCE ....................................................................................................................... 19  

A.   Reedy Creek is subject to CWA jurisdiction because tributaries of “waters of the United States” are jurisdictional and Reedy Creek is a tributary of Wildman Marsh, an undisputed “water of the United States” ................................................................ 19  

i.   Tributaries of jurisdictional waters are subject to CWA jurisdiction ................ 19  

ii.   Reedy Creek is a tributary of Wildman Marsh, an undisputed “water of the United States,” and thus Reedy Creek is jurisdictional .................................... 21  

B.   The Creek is a “water of the United States” because it is an interstate water ............ 21  

C.   Reedy Creek is a “water of the United States” because it is an instrumentality of interstate commerce .................................................................................................... 22  

i.   “Waters of the United States” includes waters used in interstate commerce .... 22  

ii.   Reedy Creek is a “waters of the United States” because it is an instrumentality of interstate commerce ..................................................................................... 23  

V.   THE DISTRICT COURT ERRED IN HOLDING THAT DITCH C-1 IS NOT A “WATER OF THE UNITED STATES” BECAUSE DITCHES ARE NOT EXCLUDED FROM THIS DEFINITION, PARTICULARLY IF THEY MAINTAIN A RELATIVELY PERMANENT FLOW AND HAVE A SIGNIFICANT NEXUS TO A NAVIGABLE WATER, AS DITCH C-1 DOES ......................................................................................... 25  

A.   Ditches like Ditch C-1 are not exclusively point sources and thus can be “waters of the United States” ....................................................................................................... 25  

B.   Ditch C-1 is jurisdictional under both Rapanos standards .......................................... 27  

i.   Ditch C-1 maintains a relatively permanent flow and has a continuous surface connection to Reedy Creek, which itself has a continuous surface connection to Wildman Marsh, thus is thus jurisdictional ...................................................... 29  

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ii.   Ditch C-1 has a significant nexus to Wildman Marsh, which is indisputably a water of the United States, and is thus jurisdictional ....................................... 29  

C.   Ditch C-1 is jurisdictional because it is a tributary of Reedy Creek, a “water of the United States” ............................................................................................................. 31  

VI.   THE DISTRICT COURT ERRED IN FINDING BONHOMME LIABLE FOR POLLUTING A NAVIGABLE WATER BECAUSE THE OWNER AND SOURCE OF THE POLLUTANT DISCHARGE ARE IDENTIFIABLE AND CONTROLLABLE ...... 31  

A.   The text, structure, and purpose of the CWA support liability against known, discrete pollutant dischargers such as Maleau ......................................................................... 32  

B.   Congress’s 1972 CWA Amendments focused federal policy on regulating parties that discharge pollutants .................................................................................................... 33  

C.   Maleau, an upstream landowner who controls and discharges pollutants, is liable under the CWA ........................................................................................................... 34  

CONCLUSION ............................................................................................................................. 35  

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TABLE OF AUTHORITIES

Cases

Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 940 F. Supp. 2d 1005 (D. Alaska 2013)............................................................................19

Appalachian Power Co. v. Train,

545 F.2d 1351 (4th Cir. 1976).......................................................................................... 19 Ashcroft v. Iqbal,

556 U.S. 662 (2009)........................................................................................................... 5 Ass’n Concerned Over Res. & Nature, Inc. v. Tenn. Aluminum Processors,

No. 1:10-00084, 2011 WL1357690 (M.D. Tenn. Apr. 11, 2011) ................................... 35 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)............................................................................................................ 5 Brod v. Omya, Inc.,

653 F.3d 156 (2d Cir. 2011)................................................................................................ 5 Consol. Coal Co. v. Costle,

604 F.2d 239 (4th Cir. 1979)............................................................................................ 19 Ctr. for Biological Diversity v. Marina Point Dev. Assocs.,

434 F. Supp. 2d 789 (C.D. Cal. 2006) ..............................................................................18

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013)................................................................................................ 15, 18

Delor v. Intercosmos Media Grp., Inc.,

232 F.R.D. 562 (E.D. La. 2005).................................................................................... 9, 10 DMJ Assocs., LLC v. Capasso,

288 F. Supp. 2d 262 (E.D.N.Y. 2003)................................................................................ 8 Ecological Rights Found. v. Pac. Gas & Elec. Co.,

713 F.3d 502 (9th Cir. 2013)............................................................................................14 Energy Transp., Ltd. v. M.V. San Sebastian,

348 F. Supp. 2d 186 (S.D.N.Y. 2004)................................................................................ 9 Friends of Santa Fe Cnty. v. LAC Minerals, Inc.,

892 F. Supp. 1333 (D.N.M. 1995).................................................................................... 12

vi

Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000)......................................................................................................... 12

Froebel v. Meyer,

217 F.3d 928 (7th Cir. 2000)............................................................................................ 34 Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824)............................................................................................. 22 Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,

559 U.S. 280 (2010)............................................................................................................ 8 Greater Yellowstone Coal. v. Lewis,

628 F.3d 1143 (9th Cir. 2010).......................................................................................... 16 Handy-Clay v. City of Memphis,

695 F.3d 531 (6th Cir. 2012).............................................................................................. 5 Laguna Gatuna, Inc. v. United States,

50 Fed. Cl. 336 (Fed. Cl. 2001)....................................................................................... 24 Marx v. Gen. Revenue Corp.,

133 S. Ct. 1166 (2013)...................................................................................................... 8 N. Cal. River Watch v. City of Healdsburg,

No. 01-04686, 2004 WL 201502 (N.D. Cal. Jan. 23, 2004) ............................................ 14 N. Cal. River Watch v. City of Healdsburg,

496 F.3d 993 (9th Cir. 2007)........................................................................................... 28 N. Cal. River Watch v. Honeywell Aerospace,

830 F. Supp. 2d 760 (N.D. Cal. 2011).............................................................................. 14 Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,

699 F. Supp. 2d 209 (D.D.C. 2010) ............................................................................26, 27 Natural Res. Def. Council v. Train,

510 F.2d 692 (D.C. Cir. 1974).......................................................................................... 11 Nw. Envtl. Advocates v. EPA,

855 F. Supp. 2d 1199 (D. Or. 2012)................................................................................. 15 Nw. Envtl. Def. Ctr. v. Brown,

617 F.3d 1176 (9th Cir. 2010).......................................................................................... 17

vii

ONRC Action v. U.S. Bureau of Reclamation, No. 97-3090, 2012 WL 3526833 (D. Or. Jan. 17, 2012) .......................................... 29, 31

Parker v. Scrap Metal Processors, Inc.,

386 F.3d 993 (11th Cir. 2004)........................................................................ 14, 16, 17, 18 Peconic Baykeeper, Inc. v. Suffolk Cnty.,

600 F.3d 180 (2d Cir. 2010)............................................................................................. 14 Quivira Min. Co. v. EPA,

765 F.2d 126 (10th Cir. 1985).......................................................................................... 22 Rapanos v. United States,

547 U.S. 715 (2006).................................................................................................. passim S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004).................................................................................................13, 26, 35 Seckler v. Star Enter.,

124 F.3d 1399 (11th Cir. 1997)........................................................................................ 12 Shreveport Rate Cases,

234 U.S. 342 (1914)......................................................................................................... 23 Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980).................................................................................. 13, 18, 19 Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2005).................................................................................. 32, 33 Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs,

531 U.S. 159 (2001).............................................................................................. 22, 23, 28 The Daniel Ball,

77 U.S. 557 (1870)............................................................................................................ 23 Turker v. Ohio Dep’t of Rehab. & Corr.,

157 F.3d 453 (6th Cir. 1998).............................................................................................. 5 U-Haul Int’l, Inc. v. Jartran, Inc.,

793 F.2d 1034 (9th Cir. 1986)............................................................................................ 9 United HealthCare Corp. v. Am. Trade Ins. Co.,

88 F.3d 563 (8th Cir. 1996).............................................................................................. 11

viii

United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940)......................................................................................................... 20

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009)...................................................................................... 28, 30 United States v. Deaton,

332 F.3d 698 (4th Cir. 2003)................................................................................ 20, 21, 31 United States v. Earth Scis., Inc.,

599 F.2d 368 (10th Cir. 1979).......................................................................................... 13 United States v. Hubenka,

438 F.3d 1026 (10th Cir. 2006)........................................................................................ 21 United States v. Johnson,

467 F.3d 56 (1st Cir. 2006).............................................................................................. 28 United States v. Lopez,

514 U.S. 549 (1995)......................................................................................................... 23 United States v. Phillips,

367 F.3d 846 (9th Cir. 2004)............................................................................................ 21 United States v. Plaza Health Labs., Inc.,

3 F.3d 643 (2d Cir. 1993).................................................................................................. 13 United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985).................................................................................................... 20, 21 United States v. Robinson,

505 F.3d 1208 (11th Cir. 2007)........................................................................................ 30 United States v. Velsicol Chem. Corp.,

438 F. Supp. 945 (W.D. Tenn. 1976).......................................................................... 32, 34 United States v. Vierstra,

803 F. Supp. 2d 1166 (D. Idaho 2011)............................................................................. 27 Warth v. Seldin,

422 U.S. 490 (1975)........................................................................................................... 8 Wash. Wilderness Coal. v. Hecla Mining Co.,

870 F. Supp. 983 (E.D. Wash. 1994)……………………………………………….. 16, 17

ix

White v. JPMorgan Chase Bank, 521 F. App’x 425 (6th Cir. 2013)……………………………………………………..... 11

Statutes 33 U.S.C. § 1251......................................................................................................................... 15 33 U.S.C. § 1291........................................................................................................................... 1 33 U.S.C. § 1311.............................................................................................................. 1, 2, 9, 32 33 U.S.C. § 1331............................................................................................................................ 1 33 U.S.C. § 1362.................................................................................................................... passim 33 U.S.C. § 1365.................................................................................................................... passim Other Authorities Act of Oct. 2, 1965, Pub. L. 89-234, 79 Stat. 903 (1965)............................................................. 21 Black’s Law Dictionary (9th ed. 2009)......................................................................................... 12 Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, U.S. Envt’l Protection Agency and Army Corps of Eng’rs 10 (Dec. 2, 2008)......................................................................................................... 27, 29 David Drelich, Restoring the Cornerstone of the Clean Water Act, 34 Colum. J. Envtl. L. 267 (2009) ………………………………………………………… 33, 34 House Consideration of the Report of the Conference Committee, 92nd Cong. (1972)........................................................................................................................ 34 S. Rep. No. 92-414 (1971)...................................................................................................... 12, 34 S. Rep. No. 92-1236 (1972) (Conf. Rep.)…………………........................................................ 20 Webster’s Third New International Dictionary (3d ed. 1993)...................................................... 13 Rules Fed. R. Civ. P. 17...................................................................................................................... 9, 10 Treatises 6A A. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 1543 (2d ed. 1990).............................9 6A A. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 1542 (3d ed. 2013)...........................12 Cal. Prac. Guide. Fed. Civ. Pro. Before Trial ch. 7 (2007)..............................................................9 W. H. Rodgers, Jr., Environmental Law: Air and Water § 4.10 (1986)........................................16 2 Motions in Fed. Court § 6:5 (3d ed. 2013)…………………………………………………….11

x

Regulations 40 C.F.R. 122.2 (2013)...........................................................................................................passim Constitutional Provisions U.S. Const. art. III.......................................................................................................................... 8 U.S. Const. art. I, § 8.................................................................................................................... 22

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STATEMENT OF JURISDICTION

Appellant Jacques Bonhomme (“Bonhomme”) filed a citizen suit under the Clean Water

Act (“CWA” or “Act”), 33 U.S.C. § 1365 (2012), in the United States District Court for the

District of Progress to enforce Shifty Maleau’s (“Maleau”) compliance with the Act, alleging

violations under 33 U.S.C. § 1311 (2012). On July 23, 2012, the district court granted Maleau’s

motion to dismiss without prejudice, R. at 10, and denied Bonhomme’s cross motion to dismiss.

The district court’s order is a final decision, and the United States Court of Appeals for the

Twelfth Circuit has subject matter jurisdiction over any appeal from a final decision of the

district court. 33 U.S.C. § 1291 (2012). Jurisdiction is thus proper in this court.

STATEMENT OF THE ISSUES

I. Whether Bonhomme, who owns property abutting Reedy Creek and Wildman Marsh, is the real party in interest under Fed. R. Civ. P. Rule 17 to bring suit against Maleau for violating 33 U.S.C. § 1331(a).

II. Whether Bonhomme, a foreign national, is a “person” entitled to bring a citizen suit

under section 33 U.S.C. § 1362(5) and 1365(g). III. Whether Maleau’s mining waste piles, which discharge arsenic runoff into Ditch C-1, are

“point sources” under 33 U.S.C. § 1362(12) and (14). IV. Whether Reedy Creek, which maintains a continuous flow and is a tributary of the

navigable Wildman Marsh, is jurisdictional under 33 U.S.C. § 1362(7) and (12).

V. Whether Ditch C-1, which maintains a relatively permanent flow into Reedy Creek, is jurisdictional under 33 U.S.C. § 1362(7) and (12).

VI. Whether Bonhomme violates the Clean Water Act even though Maleau is the but-for

cause of Ditch C-1’s addition of arsenic to Reedy Creek through a culvert on Bonhomme’s property.

STATEMENT OF THE CASE

Following proper notice, Bonhomme, a landowner in the State of Progress, brought a

CWA citizen suit pursuant to 33 U.S.C. § 1365 (2012) against Maleau for violations of

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33 U.S.C. § 1311 (2012). R. at 4. Prior to filing his citizen suit, Bonhomme tested the water in

Ditch C-1 (“Ditch”), which runs through multiples properties (including his and Maleau’s).

Bonhomme also tested the water in Reedy Creek (“Creek”) and Wildman Marsh (“Marsh”), both

adjacent to his property. The results—which suggest that arsenic originating from gold mining

waste piles on Maleau’s property is leaching into Ditch C-1, Reedy Creek, and Wildman

Marsh—led Bonhomme to file suit, as he is no longer able to use and enjoy Wildman Marsh for

hunting parties.

Subsequently, the State of Progress filed its own suit against Bonhomme, alleging that he

violated the CWA because he owns the culvert (a point source) that ultimately discharges arsenic

into Reedy Creek. Id. at 5. Maleau intervened in that action as a matter of right pursuant to the

CWA, 33 U.S.C. § 1365 (b)(1)(B). Without objection from Bonhomme, Progress and Maleau

moved to consolidate State of Progress v. Bonhomme with Bonhomme’s suit, Bonhomme v.

Maleau. Id. After the district court granted the motion to consolidate, Maleau and Bonhomme, as

respective defendants in the now-consolidated cases, moved to dismiss on various points.

On July 23, 2012, the district court issued its opinion and order on cross-motions to

dismiss filed by Bonhomme and Maleau. The district court granted Maleau’s motion to dismiss

Bonhomme’s suit on the grounds that (1) Bonhomme, as a non-citizen, does not qualify as a

“citizen” under the CWA’s citizen suit provision; (2) Bonhomme is not the real party in interest

as required by Federal Rule of Civil Procedure 17; (3) Maleau’s mining waste piles are not

“point sources.” 33 U.S.C. §§ 1362(12), (14); and (4) Ditch C-1 is not a “water of the United

States.” Id. at 7-10. The court also rejected Bonhomme’s argument that he is not liable for the

CWA violations because Maleau is but-for cause of the presence of arsenic in Ditch C-1. Id. at 9.

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However, it granted Bonhomme’s motion to dismiss in part, finding that Reedy Creek is a “water

of the United States” under 33 U.S.C. § 1362(7), (12). Id. at 9-10.

Each party—Bonhomme, Maleau, and the State of Progress—filed a Notice of Appeal

from the July 2012 decision with the United States Court of Appeals for the Twelfth Circuit. The

Twelfth Circuit ordered briefing on each of the contested issues.

STATEMENT OF FACTS

Maleau operates an open pit gold mining and extraction facility adjacent to the

traditionally navigable Buena Vista River in Lincoln County, State of Progress. R. at 5. He

trucks the mining overburden and slag from that operation to a parcel of land adjacent to Ditch

C-1 (“Ditch”) in Jefferson County, State of Progress. Id.

Maleau has previously and continues to pile mining overburden, waste rock, and dirt

adjacent to Ditch C-1. Id. at 4. The configuration of these piles is such that stormwater runoff

from them has eroded channels between the intersections of the piles and the piles’ intersections

with Ditch C-1. Id. These channels, in turn, add arsenic to Ditch C-1 through rainwater runoff.

Id. When it rains, rainwater runoff flows down the piles and percolates through them, eventually

discharging into Ditch C-1 through the channels eroded by gravity from the piles’ configuration.

This ultimately leaches and carries arsenic from the piles into the water in the Ditch. Id. at 5.

Ditch C-1 is a man-made drainage ditch dug into saturated soils to drain them sufficiency

for agricultural use. Id. The water in the Ditch is derived primarily from draining the

groundwater out of this saturated soil. Id. Ditch C-1 contains running water, except during

annual droughts that last between several weeks and three months. Id. Ditch C-1 begins before

Maleau’s property line; from Maleau’s property line, it runs three miles downstream through

numerous agricultural properties before crossing into Bonhomme’s property.

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Ditch C-1 carries arsenic through a culvert under Bonhomme’s farm road and discharges

it into Reedy Creek. Id. Reedy Creek is an interstate water. Id. It begins in the State of New

Union and flows across states lines into the State of Progress. Id. It is roughly fifty miles long

and maintains continuous water flow throughout the year. Id. In New Union, Reedy Creek is

used as the sole water supply for Bounty Plaza, a federally funded service area on Interstate

Highway 250 (“I-250”), which sells food and gasoline. Id. In both New Union and Progress,

farmers whose land adjoins Reedy Creek divert some of its water for agricultural purposes.

These farmers sell their agricultural products in interstate commerce. Id. Reedy Creek’s flow

terminates into Wildman Marsh.

Wildman Marsh is an extensive wetlands, much of which is contained within the

Wildman National Wildlife Refuge. Id. at 5-6. The refuge is owned and maintained by the U.S.

Fish and Wildlife Service (“FWS”). Bonhomme’s property, which includes a hunting lodge,

fronts these wetlands and is situated on the edge of Wildman Marsh near the point where Reedy

Creek flows into the Marsh. Id. at 6.

Before commencing this suit, Bonhomme—with the help of the company he leads,

Precious Metals International (“PMI”)—tested the water in Ditch C-1 both upstream and

downstream of Maleau’s property, as well as the water in Reedy Creek both upstream and

downstream of the outflow of Ditch C-1. Id. at 6-7. Upstream of Maleau’s property, arsenic is

undetectable in the Ditch. But just below Maleau’s property, arsenic is present in high

concentrations in Ditch C-1.1 Id. Similarly, in Reedy Creek, arsenic is undetectable above the

Ditch C-1 discharge point. However, just below the discharge of Ditch C-1 into Reedy Creek,

arsenic is present in significant concentrations in the Creek. Id. Arsenic is also detectable

                                                                                                               1 As Ditch C-1 flows from the Maleau property toward Reedy Creek, the concentration of arsenic decreases in proportion to the increasing flow of the Ditch. R. at 6.

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throughout Wildman Marsh, the terminus of Reedy Creek. Id. These alleged facts, which are

assumed to be true at the motion to dismiss stage, strongly suggest that the arsenic in Ditch C-1,

Reedy Creek, and Wildman Marsh originates from Maleau’s mining waste piles. Id. Arsenic is

commonly associated with gold mining and extraction and is a well-known poison. Id. As of the

filing of this suit in 2012, FWS had detected arsenic in three Blue-winged Teal in Wildman

Marsh. Id.

STANDARD OF REVIEW

Appellate courts review de novo a district court’s grant of a motion to dismiss for failure

to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

On review, the appellate court must “accept as true the facts set out in the complaint,”

Handy-Clay v. City of Memphis, 695 F.3d 531, 535 (6th Cir. 2012), and “must construe the

complaint in [the] light most favorable to the plaintiff,” Turker v. Ohio Dep’t of Rehab. & Corr.,

157 F.3d 453, 456 (6th Cir. 1998). Further, the reviewing court “will affirm the district court’s

dismissal only if it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Handy-Clay, 695 F.3d at 538 (quotation marks and

citations omitted) (emphasis added).

SUMMARY OF THE ARGUMENT

The district court erred in holding that Bonhomme cannot bring a CWA citizen suit since

Bonhomme, a foreign national, is a “person” entitled to bring suit under 33 U.S.C. §§ 1362(5),

6

1365(g). The text of § 1365 allows Bonhomme to bring suit based on standard canons of

statutory interpretation. Moreover, enabling Bonhomme to file a citizen suit accords with Article

III’s letter and spirit in establishing standing.

The district court also erred in finding that Bonhomme is not the real party in interest,

since he, not Precious Metals International (“PMI”), is the proper party to bring a CWA citizen

suit under 33 U.S.C. § 1365. Bonhomme owns the property adjacent to Reedy Creek and uses it

for social hunting purposes. Enabling Bonhomme to proceed with his CWA citizen suit does not

hinder the purpose of Federal Rule of Civil Procedure 17’s real party in interest requirement,

which aims to prevent a subsequent action by the party actually entitled to recover.

Additionally, the district court erred in ruling that Maleau’s mining waste piles, which

collect and channel stormwater that runs into Ditch C-1, are not “point sources” within the scope

of the CWA. The piles transport pollutants and are identifiable as the discrete source of the

arsenic pollution in Reedy Creek and Wildman Marsh.

The district court did, however, correctly find that Reedy Creek is subject to CWA

jurisdiction because it is a tributary of a “water of the United States,” is an interstate water, and is

used in interstate commerce. Reedy Creek is a tributary of the navigable Wildman Marsh, and

tributaries of “waters of the United States” are themselves jurisdictional waters. Additionally, the

Creek flows from the State of New Union into the State of Progress, and interstate waters are

“waters of the United States.” Lastly, the Creek is jurisdictional because it is an instrumentality

of interstate commerce: waters from its flow comprise the water content of agricultural goods

sold into interstate commerce, and it is the sole water source of an interstate highway facility.

Conversely, the district court erred in holding that Ditch C-1 is not a “water of the United

States” because ditches are not excluded from this definition simply by virtue of being listed as a

7

point source in 33 U.S.C. § 1362, as it incorrectly asserts. Ditch C-1 in particular is a

jurisdictional water under both Rapanos v. United States standards, 547 U.S. 715 (2006), because

it maintains a relatively permanent flow and has a significant nexus to a navigable water:

Wildman Marsh. Moreover, Ditch C-1 is a “water of the United States” because it is a tributary

of another jurisdictional water, Reedy Creek. Finally, the district court erred in finding that

Bonhomme is liable for polluting a navigable water when Maleau owns and has the ability to

control the point sources that collect, convey, and discharge the pollutants.

ARGUMENT

I. This district court erred in holding that Bonhomme cannot bring a CWA citizen suit since Bonhomme, a foreign national, is a “person” entitled to bring suit under 33 U.S.C. §§ 1362(5), 1365(g)

A. The text of 33 U.S.C. § 1365 allows Bonhomme to bring suit based on

standard canons of statutory interpretation

Bonhomme, a foreign national, is a “person” as defined in the citizen suit provision of the

CWA, 33 U.S.C. §§ 1362(5), 1365(g) (2012), and is properly able to bring suit. The CWA

authorizes “any citizen” to “commence a civil action on his own behalf,” § 1365(a), and defines

“citizen” to mean “a person or persons having an interest which is or may be adversely affected,”

§ 1365(g). Section 1362(5) defines “person” to mean “an individual, corporation, partnership,

association, State, municipality, commission, or political subdivision of a State, or any interstate

body.” Thus, the term “citizen” in the context of the CWA’s so-called citizen suit provision

encompasses persons, individuals, and various entities without regard to nationality.

Though the district court noted that Sections 1362(5) and 1365(g) do not expressly

authorize foreign nationals to commence citizen suits, R. at 6, they similarly do not prohibit them

from doing so, either. Standard canons of statutory interpretation suggest that Congress did not

intend to exclude foreign nationals from the ambit of persons entitled to enforce the CWA

8

through so-called citizen suits. The maxim expressio unius, exclusion alterius instructs “that

when Congress includes one possibility in a statute, it excludes another by implication.” Marx v.

Gen. Revenue Corp., 133 S. Ct. 1166, 1181 (2013). Here, Congress included a broad notion of

personhood—confirmed by its inclusion of corporations, partnerships, and associations in the

definition of “person,” similarly without regard to nationality—to the exclusion of a more limited

understanding. This implies that Congress intended to authorize a broad class of “persons” to

bring suits to enforce the CWA. Similarly, under the maxim noscitur a sociis, “a word may be

known by the company it keeps.” Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel.

Wilson, 559 U.S. 280, 281 (2010). Within a list of words belonging to one category, ambiguous

words are to be clarified by those around it. The category presented in Section 1362(g) is one of

broad personhood, and thus the term “person” should be interpreted broadly to include foreign

persons in tandem with the words around it.

B. Enabling Bonhomme to proceed with his citizen suit accords with Article III’s letter and spirit in establishing standing

In addition to textual support, Congress intended, through the use of the broad phrase

“persons having an interest,” 33 U.S.C. § 1365(g) (2012), to confer CWA standing to the full

extent permitted by Article III. See DMJ Assocs., LLC v. Capasso, 288 F. Supp. 2d 262, 267

(E.D.N.Y. 2003). Section 1365 does not explicitly limit so-called citizen suits to U.S. citizens. In

the absence of any such limitation, Article III extends standing to foreign citizens who might

have claims against U.S. citizens. U.S. CONST. art. III. Standing, at its core, is designed to ensure

that plaintiffs have a personal stake in the outcome of the controversy. See Warth v. Seldin, 422

U.S. 490, 498 (1975). This is confirmed by the language of Section 1365, which focuses on the

stake plaintiffs have in the outcome of the controversy (“persons having an interest which is or

may be adversely affected”), rather than the nationality of those plaintiffs. Foreign nationals like

9

Bonhomme have a significant interest in seeing that the CWA is enforced because foreign

nationals are entitled to own U.S. lands in the same manner as U.S. citizens. The CWA explicitly

regulates the biological, chemical, and physical functions of U.S. waters, which in turn in affect

the ecological health and integrity of U.S. lands. As a foreign citizen who has been harmed by

Maleau’s arsenic discharges, Bonhomme has standing to bring a CWA citizen suit.

II. The district court erred in finding that Bonhomme is not the real party in interest, since he, not his company, is the proper party to bring a CWA citizen suit

Bonhomme is the real party in interest under Federal Rule of Civil Procedure 17;

therefore, he is the proper party to bring a citizen suit to enforce CWA violations against Maleau.

See 33 U.S.C. §§ 1311(a), 1365 (2012). Rule 17 “embodies the concept that every action must be

brought by the party who, under the governing substantive law, is entitled to enforce the right at

issue.” Energy Transp., Ltd. v. M.V. San Sebastian, 348 F. Supp. 2d 186, 196 (S.D.N.Y. 2004)

(citing 6A A. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 1543, at 334 (2d ed. 1990)).

Generally, the real party “is the person holding title to the claim or property involved, as opposed

to others who may be interested in or benefit by the litigation.”2 Cal. Prac. Guide. Fed. Civ. Pro.

Before Trial ch. 7, 7:3 (2007) (citing U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th

Cir. 1986)). Bonhomme, who owns land adjacent to Reedy Creek, and whose use and enjoyment

of Wildman Marsh (an adjacent wetland) has been adversely affected by Maleau’s addition of

arsenic to the water, is the real party in interest in this matter.

Delor v. Intercosmos Media Grp., Inc. held that the “proper party to bring [an] action is

the owner of the domain name . . . . [T]he owner. . . at the time suit was commenced was [the

                                                                                                               2 Because of this, the fact that PMI covered the costs of the arsenic testing for Ditch C-1 and Reedy Creek, and that it is paying for attorney and expert witness fees in these suits, is not relevant to the question of whether Bonhomme, the owner of the affected property and whose interests are adversely affected, is the real party in interest. R. at 7.

10

corporation], not Thomas Delor or [another unincorporated association].” 232 F.R.D. 562, 564

(E.D. La. 2005). Because the corporation, not its president, Delor, owned the domain name, it

was the real party in interest. But when, as here, the president, not the corporation, owns the

property at issue, the president is the real party. Nowhere have Maleau or Progress alleged that

Bonhomme purchased the property on behalf of PMI, that PMI financed the purchase of the

property, or that the property (and Bonhomme’s related enjoyment of Wildman Marsh) is used

solely for PMI business development. As a private landowner, and for purposes of the motion to

dismiss, Bonhomme’s allegations establish that his interest is or may be adversely affected.

Per the CWA’s citizen suit provision, Bonhomme is “a person . . . having an interest

which is or may be adversely affected” by virtue of his ownership of land in the affected area. 33

U.S.C. § 1365(g) (2012). He owns the affected property and uses it for social purposes. R. at 6.

His property fronts Wildman Marsh and he uses the wetlands and adjacent property for social

hunting trips. Id. Although Bonhomme, as President of PMI, organizes hunting trips with

business contacts, the fact that he, not PMI, owns the land and structure on it—combined with

the fact that he also uses the property for personal social use—suffices to make him the real party

in interest. Id. Therefore, he is the proper party to bring this citizen suit.

A. Enabling Bonhomme to proceed as the real party in interest accords with the purpose of Fed. R. Civ. P. Rule 17

Allowing Bonhomme to proceed as the rightful party with an interest in CWA

enforcement to protect Reedy Creek and Wildman Marsh fulfills the “modern” purpose of Rule

17: to prevent multiple suits and preserve the judicial concept of res judicata by requiring the

actual rights-holder to pursue an enforcement action. See 1966 Advisory Committee Notes to

Fed. R. Civ. P. 17 (“[T]he modern function of the rule in its negative aspect is simply to protect

the defendant against a subsequent action by the party actually entitled to recover, and to insure

11

generally that the judgment will have its proper effect as res judicata.”). As defendant, Maleau

bears the burden of demonstrating the risk of a “subsequent action” by PMI, if PMI is indeed the

“party actually entitled to recover.” Id.; see United HealthCare Corp. v. Am. Trade Ins. Co., 88

F.3d 563, 569 (8th Cir. 1996) (where party failed to “convincingly demonstrate[] that he could

face double liability from [parent company’s] subsidiary,” the risk of a judgment not having the

intended res judicata effect under Rule 17 is minimized).

Bonhomme has only alleged adverse effects on his interest as a property owner; though

Maleau suggests that PMI has also suffered, Bonhomme makes no claim that his business has

been affected by Maleau’s arsenic pollution.3 Since Bonhomme, not PMI, owns and benefits

from the affected property and is “the party actually entitled to recover,” there is little risk here

of a “subsequent action” by PMI against Maleau.4

B. Enabling Bonhomme to proceed as the real party in interest accords with congressional intent to make persons broadly partners in protecting the quality of this nation’s waters

Congress created the CWA’s citizen suit provision to enable people who become aware

of CWA violations to bring suits to enforce the Act. See, e.g., Natural Res. Def. Council v. Train,

510 F.2d 692, 700 (D.C. Cir. 1974) (availability of citizen suits reflects “a deliberate choice by

Congress to widen citizen access to the courts, as a supplemental and effective assurance that

                                                                                                               3 In this way, Bonhomme’s suit is distinguished from cases in which presidents or large shareholders “enter[] negotiations on behalf of the corporation” or otherwise act on behalf of the corporation. See White v. JPMorgan Chase Bank, 521 F. App’x 425, 426 (6th Cir. 2013). A business owner may host company events in his home, but that does not make the owner’s home an instrumentality of his business. 4 This risk may be further minimized by the fact that PMI is paying the attorney and expert witness fees in this case. R. at 7. Neither Maleau nor Progress can advance a realistic argument that PMI would seek to “hide” behind Bonhomme—all the while openly paying for one suit—with the nefarious intent to file a second lawsuit of its own should Bonhomme not prevail. Should this court rule that PMI is the real party in interest, PMI would “authorize[] the continuation of [this action by Bonhomme] . . . and agree[] to be bound by its result.” 2 Motions in Federal Court § 6:5 (3d ed. 2013).

12

[environmental laws] would be implemented and enforced”). During deliberations for the 1972

CWA Amendments, a Senate Report observed that Congress intended the citizen suit provision

to give a broad class of persons “the right to seek vigorous enforcement action” and “to act on

their own behalf” when administrative enforcement efforts have failed. S. Rep. No. 92-414, at 64

(1971). Bonhomme seeks CWA enforcement against Maleau, an industrial mine owner, to

protect his own interest as a landowner and hunter near Reedy Creek and Wildman Marsh and

the nation’s interest in clean water and compliance with the law.5 This Court should thus reverse

the district court’s decision to grant Maleau’s motion to dismiss on this issue and allow

Bonhomme to proceed with his citizen suit.

III. The district court erred in finding that Maleau’s mining waste piles are not “point sources” since they are “discernible, confined and discrete” sources of pollution within the broad ambit of 33 U.S.C. § 1362(14)

Maleau’s mining waste piles, as discrete conveyances of the pollutant arsenic to Reedy

Creek, are “point sources” within the scope of the CWA and must be regulated as such. A point

source is “any discernible, confined and discrete conveyance . . . from which pollutants are or

may be discharged.” 33 U.S.C. § 1362(14); see Friends of Santa Fe Cnty. v. LAC Minerals, Inc.,

892 F. Supp. 1333, 1459 (D.N.M. 1995) (classifying mining “overburden pile, as a human-made,

‘discernible, confined, and discrete conveyance’” and, therefore, as a point source). A

“conveyance” is “a means of transport.” Black’s Law Dictionary (9th ed. 2009). Webster’s Third

                                                                                                               5 Neither Maleau nor Progress has challenged Bonhomme’s standing or capacity to sue. Since these issues are distinct from the real-party-in-interest question, Bonhomme will not address them in detail, but notes that the failure to attack Bonhomme’s standing suggests that his interest is sufficient to provide him with access to court. See 6A A. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 1542 (3d ed. 2013). The Eleventh Circuit suggested that a party claiming real-party-in-interest status must demonstrate the injury-focused standing requirements that the Supreme Court subsequently required in Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000), but since the issues are largely intertwined, that type of analysis is unnecessary for this appeal. See Seckler v. Star Enter., 124 F.3d 1399, 1406 (11th Cir. 1997). This is particularly true since no party raised standing issues at the motion to dismiss stage.

13

further defines the term as “the act of taking or carrying . . . something from one place to

another.” Webster’s Third New International Dictionary (3d ed. 1993).

Through stormwater runoff, the piles “carry” and “transport” arsenic into Ditch C-1 and,

ultimately, into Reedy Creek and Wildman Marsh. See S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 105 (2004) (describing how point sources transport pollutants).

The unchallenged results of Bonhomme’s arsenic testing demonstrate that Maleau’s mining

waste piles are the “discernible, confined and discrete” source of arsenic in Ditch C-1, Reedy

Creek, Wildman Marsh. 33 U.S.C. § 1362(14); see R. at 6. Maleau’s piles of “dirt and stone,” R.

at 9, are “physical structures and instrumentalities that systematically act as a means of

conveying pollutants from an industrial source to navigable waterways.” United States v. Plaza

Health Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993). The piles are, therefore, “the means by which

pollutants are ultimately deposited into a body of navigable water,” and thus fall within the CWA

definition of a point source and federal courts’ construction of the term. Sierra Club v. Abston

Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980).

A. This court, like many federal courts, should construe “point sources” broadly to serve the purposes of the CWA

Since “[c]ourts have determined that the term ‘point source’ should be construed broadly

to effectuate the remedial purposes of the CWA,” United States v. Earth Scis., Inc., 599 F.2d

368, 373 (10th Cir. 1979) (cited with approval in Trustees for Alaska v. EPA, 749 F.2d 549, 558

(9th Cir. 1984)), the district court should have recognized Maleau’s mining waste piles as point

sources. See 33 U.S.C. § 1362(14) (purpose). In opposing Bonhomme’s motion to dismiss,

Maleau contended—and the district court agreed—that the Clean Water Act’s definition of point

sources included “a dozen examples of point sources and none of them remotely resemble a pile

of dirt and stone.” R. at 9. This conclusion, however, contravenes a number of federal court

14

decisions identifying physical structures as point sources, despite their lack of similarity to the

sources listed in the statute. See, e.g., N. Cal. River Watch v. Honeywell Aerospace, 830 F. Supp.

2d 760, 768 (N.D. Cal. 2011) (denying motion to dismiss because plaintiff’s notice adequately

identified point sources, including “above and below ground storage tanks; chemical storage;

recycling equipment; waste ponds and solvent transfer equipment. . . . The solid and hazardous

waste which was discharged from these tanks is also a point source”) (emphasis added); Peconic

Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180, 188 (2d Cir. 2010) (trucks and helicopters used to

spray pesticides to control mosquitos were “point sources”); Parker v. Scrap Metal Processors,

Inc., 386 F.3d 993, 1009 (11th Cir. 2004) (concluding that, because “[t]he piles of debris in this

case collected water, which then flowed into the stream . . . [t]hey are, therefore, point sources

within the meaning of the CWA”). The statute provides a non-exhaustive list of examples, but

the list is not conclusive as to whether mining waste piles are point sources.

Rather, this court should consider the broad, non-exclusive meaning of “point source” as

intended by Congress and interpreted by federal courts, understanding that “[t]he term . . . has

been taken beyond pipes and ditches and now includes less discrete conveyances, such as

cesspools and ponds.” N. Cal. River Watch v. City of Healdsburg, No. 01-04686, 2004 WL

201502, at *11 (N.D. Cal. Jan. 23, 3004), aff’d, 496 F.3d 993 (9th Cir. 2007), cert. denied, 128 S.

Ct. 1225 (2008); see Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 509-10

(9th Cir. 2013) (identifying as point sources conveyances that “were constructed for the express

purpose of storing pollutants or moving them from one place to another,” including the piles in

Parker and Abston). The mining waste piles at issue here are at least as discrete as cesspools or

ponds.

15

Concluding that Maleau’s mining piles are point sources accords with the term’s broad

meaning and best serves the CWA’s stated goal: to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2012). Therefore, the

district court should not have denied Bonhomme’s motion to dismiss on this ground.

B. Unlike non-point source pollution, Maleau’s mining waste piles are an identifiable source of pollution and should be regarded as point sources

If, as Maleau suggests, his mining waste piles are not point sources, then they are

necessarily nonpoint sources; the factual situation in this case makes it unlikely that the piles can

be considered nonpoint sources. Although “[n]onpoint source pollution is undefined in the

statute,” it is “considered ‘the type of pollution that arises from many dispersed activities over

large areas, and is not traceable to any single discrete source.’” Nw. Envtl. Advocates v. EPA, 855

F. Supp. 2d 1199, 1208 (D. Or. 2012) (quoting Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063,

1070 (9th Cir. 2011), rev’d on other grounds, Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326

(2013)). At the motion-to-dismiss stage, the court should have taken as true Bonhomme’s

allegation (supported by pollutant testing) that the arsenic in Reedy Creek and Wildman Marsh

originates from Maleau’s mining waste piles. Unlike nonpoint source pollution, the arsenic

contamination in these bodies of water is not a result of “many dispersed activities.” It is not a

result of pollution from “large areas.” It is, however, “traceable to [a] single discrete source”—

Maleau’s mining piles. Nw. Envtl. Advocates, 855 F. Supp. 2d at 1208.

Evaluating the piles’ status “by whether the pollution reaches the water through a

confined, discrete conveyance” confirms that they are more similar to pipes and tunnels than to

commonly known nonpoint sources, including “forestry, grazing, and farming activities.” Id.

(quoting Brown, 640 F.3d at 1071). Maleau’s argument flouts Congressional policy, which

sought to identify, regulate, and control “the preventable causes of pollution,” particularly

16

through “the use of technological controls.” Id. (citing Or. Natural Desert Assoc. v. Dombeck,

172 F.3d 1092, 1096 (9th Cir. 1998)).

For that reason, at least one court has concluded that “[t]he touchstone for finding a point

source is the ability to identify a discrete facility from which pollutants have escaped.” Wash.

Wilderness Coal. v. Hecla Mining Co., 870 F. Supp. 983, 988 (E.D. Wash. 1994). Bonhomme

has identified that “discrete facility,” and it is Maleau’s set of piles. Id. “[P]ollutants have

escaped” from the piles, which are point sources. Id. At its core, the Congressional definition of

point source “singl[es] out those candidates suitable for control-at-the-source.” W. H. Rodgers,

Jr., Environmental Law: Air and Water § 4.10 (1986) (adopting a functional approach to CWA

interpretation). Maleau’s mining waste piles are suitable candidates for preventing pollution of

the nation’s waters at their source, which he should do by applying for a CWA permit and

implementing “technological controls” the EPA deems necessary to fulfill the goals of the Act.

C. Maleau’s point sources collect and/or channel stormwater runoff

“The text of [the CWA] and the case law are clear that some type of collection or

channeling is required to classify an activity as a point source,” and since Maleau’s mining waste

piles collect and channel stormwater, they are point sources. Greater Yellowstone Coal. v. Lewis,

628 F.3d 1143, 1152 (9th Cir. 2010); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1009

(11th Cir. 2004) (discussed below). In Greater Yellowstone Coalition, which bears some

similarity to the current case, a mining operator placed covers on waste rock pits (not piles).

There, the Ninth Circuit found that “when some water seeps through the cover and into the pits

containing waste rock[,] [t]his is nonpoint source pollution because there is no confinement or

containment of the water.” Id. at 1153. Rather, the court observed, “the cover is designed to

divert water away from the pits.” Id.

17

Unlike the mining pits in Greater Yellowstone Coalition, the mining waste piles here are

point sources. Not only do they “collect” or “channel” and then “discharge” stormwater, but they

also facilitate contaminated runoff due to a manmade design. See Nw. Envtl. Def. Ctr. v. Brown,

617 F.3d 1176, 1181-82 (9th Cir. 2010) (contrasting deliberate collecting or challenging

followed by pollutant discharge, which constitutes a point source, with a runoff process that

occurs “ in a natural and unimpeded manner, [and] is not a discharge from a point source.”). The

record demonstrates that “rainwater runoff flows down the piles and percolates through them,

eventually discharging through channels eroded by gravity from the configuration of the waste

piles into Ditch C-1, leaching and carrying arsenic from the piles into the water in the Ditch.” R.

at 5 (emphasis added). The district court’s use of the word “eventually” satisfies the “collection”

aspect of point source status, because it indicates a lapse of time after runoff enters the piles,

before the piles discharge runoff into the water. Parker, 386 F.3d at 1009 (emphasis added)

(“Storm-water runoff does not, in all circumstances, originate from a point source, but several

courts have concluded that it does when storm water collects in piles of industrial debris and

eventually enters navigable waters.”).

Even if this court reaches the opposite conclusion about whether the piles “collect”

stormwater, it should find that the piles “channel” stormwater. Id. Since the presence of either

activity demonstrates that a structure is a point source, this court should reverse the district

court’s decision. Further, Bonhomme’s allegations that the piles collect and channel stormwater

are sufficient to establish that they are point sources. See Wash. Wilderness Coal., 870 F. Supp.

at 989 (ruling that dismissal was “premature” because factual allegations were “sufficient to

establish that [defendant’s] tailing ponds are point sources within the meaning of the CWA”).

18

Although the record suggests that gravity creates the channels in the mining piles that

convey stormwater runoff to Ditch C-1, R. at 5, manmade structures—such as mining piles,

pipes, and other physical conveyances—often are designed to exploit natural processes such as

gravity. In Decker, Justice Scalia explained that when runoff “flowed out of artificial

[conveyances,]” it was not “natural.” 133 S. Ct. at 1342-43 (Scalia, J., concurring in part and

dissenting in part) (internal quotation marks omitted) (emphasis in original). A district court

reached the same conclusion: “[E]rosion-generated discharges violate the CWA.” Ctr. for

Biological Diversity v. Marina Point Dev. Assocs., 434 F. Supp. 2d 789, 797 (C.D. Cal. 2006).

As the Eleventh Circuit in Parker noted, scrap metal debris piles were point sources

subject to CWA regulation and “[w]hether the erosion gullies [between and on debris piles] from

which the water flowed into the stream were constructed by the defendants is irrelevant.” 386

F.3d at 1009 & n.17. Here, the record reflects that the gravity eroded channels through the

manmade mining piles, R. at 5, so the Eleventh Circuit’s conclusion is instructive. As with the

scrap metal piles in Parker, stormwater collects in Maleau’s point-source mining waste piles,

eventually entering Reedy Creek. Id. As in Parker, therefore, the stormwater runoff

contaminated with arsenic originates from a point source—Maleau’s piles. Notably, the Fifth

Circuit two decades earlier reached the same conclusion, focusing on design and control, both

within Maleau’s power since he created the mining waste piles.6

                                                                                                               6 “Gravity flow, resulting in a discharge into a navigable body of water, may be part of a point source discharge if the miner at least initially collected or channeled the water and other materials. A point source of pollution may also be present where miners design spoil piles from discarded overburden such that, during periods of precipitation, erosion of spoil pile walls results in discharges into a navigable body of water by means of ditches, gullies and similar conveyances, even if the miners have done nothing beyond the mere collection of rock and other materials.” Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980).

19

Abston and the more recent cases cited in this section, not the two pre-Abston cases

cited by Maleau, should guide this court’s review. See Alaska Cmty. Action on Toxics v.

Aurora Energy Servs., LLC, 940 F. Supp. 2d 1005, 1024 (D. Alaska 2013) (acknowledging

continued vitality of point-source determinations in Abston—“runoff from highly erodible

piles of strip mining waste was carried through naturally occurring ditches to nearby waters”

and Parker—“runoff from piles of scrap metal debris was carried to the water through

erosion gullies”). In both cases the district court cited, Consolidated Coal and Appalachian

Power, the Fourth Circuit merely noted that the definition of point source “does not included

unchanneled and uncollected surface waters.” Appalachian Power Co. v. Train, 545 F.2d

1351, 1372 (4th Cir. 1976); Consol. Coal Co. v. Costle, 604 F.2d 239, 249 (4th Cir. 1979)

(CWA regulations will not “apply to surface runoff that does not fit within the statutory

definition of a point source”). Since Bonhomme has adequately alleged that Maleau’s

mining waste piles collect and channel stormwater and fit within the broad statutory

definition of a point source, those cases are inapposite to the resolution of this issue.

IV. The district court correctly found that Reedy Creek is subject to CWA jurisdiction because it is a tributary of a “water of the United States,” is an interstate water, and is used in interstate commerce

This district court correctly found that Reedy Creek is a “water of the United States”

under the definitions set forth in the CWA, 33 U.S.C. §§ 1362(7), (12); R. at 9-10. The Creek is a

jurisdictional water in three regards: (a) as a tributary of a “water of the United States,” (b) as an

“interstate water,” and (c) as a water used in and as an instrumentality of interstate commerce.

A. Reedy Creek is subject to CWA jurisdiction because tributaries of “waters of the United States” are jurisdictional and Reedy Creek is a tributary of Wildman Marsh, an undisputed “water of the United States”

i. Tributaries of jurisdictional waters are subject to CWA jurisdiction

20

While no one alleges that Reedy Creek (“creek”) is or has ever been used for waterborne

transportation or could be so used with reasonable improvements, R. at 9—as the traditional

definition of navigable water suggests, United States v. Appalachian Electric Power Co., 311

U.S. 377 (1940)—such is not necessary for Reedy Creek to be considered a “navigable water”

under the CWA. For decades courts have understood this term in a broader context. In Rapanos

v. United States, although there was no single majority opinion, all of the Justices agreed that the

statutory phrase “navigable waters”7 maintains a broad berth. 547 U.S. 715 (2006). The Court

affirmed its previous findings that “Congress intended to regulate at least some waters that are

not navigable in the traditional sense.” Id. at 767 (Kennedy, J., concurring); see also United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). Indeed, the CWA

congressional conference committee noted that the terms “navigable waters” and “waters of the

United States” should “be given the broadest possible constitutional interpretation.” S. Rep. No.

92-1236 (1972) (Conf. Rep.).

EPA, which has primary authority for implementing the CWA, defines “waters of the

United States” to include “tributaries” of waters of the United States. 40 C.F.R. § 122.2 (2013).

Courts have consistently held this interpretation to be reasonable because it would “be difficult

or impossible to prevent pollution of a navigable stream without preventing pollution of its

tributaries, which are the origins of most of the water in the stream.” R. at 10; see also United

States v. Deaton, 332 F.3d 698, 707 (4th Cir. 2003).

Any pollutant or fill material that degrades water quality in a tributary of navigable waters has the potential to move downstream and degrade the quality of the navigable waters themselves. Indeed, the principle that Congress has the authority to regulate discharges into nonnavigable tributaries in order to protect navigable waters has long been applied to the Clean Water Act.

                                                                                                               7 The CWA defines navigable waters as “waters of the United States” and uses the terms interchangeably. See 33 U.S.C. § 1362(7).

21

Deaton, 332 F.3d at 707.8 The phrase “navigable waters” within the meaning of the CWA “has

encompassed tributaries for almost thirty years.” United States v. Phillips, 367 F.3d 846, 855

(9th Cir. 2004).

ii. Reedy Creek is a tributary of Wildman Marsh, an undisputed “water of the United States,” and thus Reedy Creek is jurisdictional

The waters and wetlands in Wildman Marsh National Wildlife Refuge are undisputed

navigable waters. This is because the refuge is federal property and the water on it is therefore

included in “waters of the United States.” As the district court correctly noted “[t]he argument

that water on the federal wildlife preserve is water of the United States is true to the plain

meaning of ‘waters of the United States’ in the statute.” R. at 10. Reedy Creek is a tributary of

Wildman Marsh and maintains water flow throughout the year. Reedy Creek is thus subject to

CWA jurisdiction as a tributary of a “water of the United States.” See 40 C.F.R. § 122.2 (2013).

B. The Creek is a “water of the United States” because it is an interstate water

EPA’s regulations include “[a]ll interstate waters” in their definition of “waters of the

United States.” 40 C.F.R. § 122.2 (2013). Reedy Creek is, by definition, an interstate water

because it begins in the State of New Union and flows into the State of Progress. R. at 5. Reedy

Creek thus falls under the CWA’s jurisdiction because it is an interstate water. As the district

court correctly observed, “[t]he interstate nature of water pollution is the reason why Congress

enacted water pollution control legislation in the first place.” See, e.g., Act of Oct. 2, 1965, Pub.

                                                                                                               8 See also United States v. Hubenka, 438 F.3d 1026, 1034 (10th Cir. 2006) (“Given the ‘breadth of congressional concern for protection of water quality’ evidenced in the text of the Clean Water Act and in its legislative history, Riverside Bayview, 474 U.S. at 133, this court concludes the potential for pollutants to migrate from a tributary to navigable waters downstream constitutes a ‘significant nexus’ between those waters [to render such tributaries jurisdictional waters].”).

22

L. 89-234, 79 Stat. 903 (1965).

C. Reedy Creek is a “water of the United States” because it is an instrumentality of interstate commerce

i. “Waters of the United States” includes waters used in interstate

commerce

EPA’s definition of “waters of the United States” includes waters used in interstate

commerce. 40 C.F.R. § 122.2. It comprises “[a]ll waters which are currently used, were used in

the past, or may be susceptible to use in interstate and foreign commerce,” as well as all waters,

the “use, degradation, or destruction of which would affect or could affect interstate or foreign

commerce.” Id. The United States Constitution authorizes the federal government to “regulate

Commerce . . . among the several states,” U.S. CONST. art. I, § 8, and Congress has plenary

authority to regulate commerce falling within the grant. See Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 196 (1824). With the CWA’s broad reach, “Congress intended to regulate discharges

made into every creek, stream, river or body of water that in any way may affect interstate

commerce. Every court to discuss the issue has used a commerce power approach and agreed

upon that interpretation.” Quivira Min. Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985).

However, the reach of the CWA under a commerce power approach is rangebound. In

Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs (“SWANCC”), the Supreme Court

recognized that “the grant of authority to Congress under the Commerce Clause, though broad, is

not unlimited.” 531 U.S. 159, 173 (2001) (citing United States v. Lopez, 514 U.S. 549 (1995)). In

Lopez, the Court identified three finite categories of activity that Congress can regulate under the

Commerce Clause: (1) channels of interstate commerce, (2) instrumentalities of interstate

commerce, and (3) activities that have a substantial relation to interstate commerce, i.e., those

activities that substantially affect interstate commerce. 514 U.S. at 558-59.

23

The district court erroneously characterized Rapanos as holding that rivers must solely be

highways of interstate commerce to fall within the definition of “navigable waters” under the

CWA. R. at 9-10. The court below stated that Rapanos “[i]n essence [] ruled that to fall within

Commerce Clause jurisdiction, a waterway must be within the first prong of U.S. v. Lopez, rather

than within the second or third prongs of Lopez jurisdiction.” Id. (internal citation to Lopez

omitted). But Rapanos does not even cite Lopez—neither in main text nor footnote form. 547

U.S. 715 (2006). The district court’s interpretation is unfounded.

The Court has elsewhere, however, given form and function to the three Lopez prongs as

they relate to the CWA. As to the first Lopez prong, “channels” of commerce are clearly

recognized as traditionally navigable waters. See The Daniel Ball, 77 U.S. 557, 563 (1870)

(setting forth the test for navigable in fact). The second Lopez prong confirms Congress’s power

to regulate and protect instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat to which may only come from intrastate activities. See

Shreveport Rate Cases, 234 U.S. 342 (1914). Regarding the Lopez prong, the SWANCC Court

held that commerce dollars—however vast—spent to hunt and observe migratory birds do not

qualify their habitats as having a significant effect on commerce. See 531 U.S. 159, 193 (2001).

ii. Reedy Creek is a “waters of the United States” because it is an instrumentality of interstate commerce

This Court can and should find that Reedy Creek is a “water of the United States”

because the Creek is used in interstate commerce as envisioned by the second prong of Lopez.

While district court was correct in finding that the first and third prongs of Lopez do not make

Reedy Creek eligible for CWA jurisdiction, it was incorrect in holding that the second Lopez

prong does not, as well. Previous courts have recognized non-traditionally navigable waters as

jurisdictional instrumentalities of interstate commerce in this vein.

24

In Laguna Gatuna, Inc. v. United States, the Court of Federal Claims affirmed EPA’s

finding that a non-traditionally navigable lake with similar interstate uses as Reedy Creek was a

“water of the United States” per 40 C.F.R. § 122.2 (2013). See 50 Fed. Cl. 336, 340 (Fed. Cl.

2001). In Laguna Gatuna, the court held that EPA was authorized in determining that the lake

met the definition of “waters of the United States” because it was “capable of receiving

discharges of pollutants by multiple industries engaged in interstate commerce.” Id. EPA also

noted that the lake in Laguna Gatuna would be “capable of use by agricultural industries

engaged in interstate or foreign commerce,” but for its currently polluted state. The Federal

Claims Court upheld EPA’s determination that “[d]ue to those uses and potential uses, [the lake]

is a ‘water of the United States’ as defined at 40 C.F.R. Part 122.2.” 50 Fed. Cl. at 340.

Similarly, Reedy Creek is a “water of the United States” due to its uses and potential

uses, as envisioned by the second Lopez prong. Though one can neither buy nor sell portions of

Reedy Creek as a discrete instrumentality of interstate commerce, the Creek is nonetheless an

instrumentality of commerce because it is an inextricable component of such instrumentalities.

First, farmers in both the State of Progress and the State of New Union divert water from the

Creek to support their agriculture. These farmers then sell their agricultural products—whose

water content is comprised of water from Reedy Creek—into interstate commerce. R. at 5.

Second, Reedy Creek is the sole water supply for Bounty Plaza, a service area on I-250. Bounty

Plaza sells gasoline and food, and though water from the Creek is not a component of these

specific goods, the larger instrumentality of interstate commerce—Bounty Plaza itself—would

not be possible without the Creek’s water supply. Moreover, like Laguna Gatuna, Reedy Creek

is “capable of receiving discharges of pollutants by multiple industries engaged in interstate

commerce,” including arsenic pollution from Maleau’s mining output, which is sold in interstate

25

commerce. Though the threat to Reedy Creek at issue here solely derives from an intrastate

activity—Maleau’s arsenic discharges in the State of Progress—Congress still maintains the

power to regulate and protect the Creek as an instrumentality of interstate commerce per the

Supreme Court’s articulated contours of the second Lopez prong.

V. The district court erred in holding that Ditch C-1 is not a “water of the United States” because ditches are not excluded from this definition, particularly if they maintain a relatively permanent flow and have a significant nexus to a navigable water, as Ditch C-1 does

Ditch C-1 is jurisdictional under 33 U.S.C. §§ 1362(7), (14) because (a) ditches are not

exclusively point sources and thus can be jurisdictional waters, (b) both Justice Scalia’s plurality

opinion and Justice Kennedy’s Rapanos concurrence support a finding that the Ditch is

jurisdictional, and (c) it is a tributary of Reedy Creek, a jurisdictional water, discussed above.9

A. Ditches like Ditch C-1 are not exclusively point sources and thus can be “waters of the United States”

The district court incorrectly concluded that because “ditches are listed as point sources”

in 33 U.S.C. § 1362, Ditch C-1 is necessarily a point source and thus “cannot be a navigable

water.” R. at 9. Though it is most often true that “ditches cannot simultaneously be two elements

in the water pollution offense,” id., Ditch C-1 at issue here is squarely a jurisdictional “water of

the United States,” which Maleau is polluting.

The district court erroneously interpreted Rapanos v. United States as providing

conclusive support for its holding. Rapanos clearly qualified its statement that ditches are

generally—but not exclusively—point sources. See 547 U.S. 715, 735-36 (2006). The Rapanos

plurality opinion noted that the statutory definitions at play “conceive[ed] of ‘point sources’ and

                                                                                                               9 Though Maleau argues that Ditch C-1 is not jurisdictional because it is not navigable in the traditional sense (“Ditch C-1 is not navigable water because it has never floated a boat and is too small to do so in the future,” R. at 9), this argument was addressed in Section IV(A)(i), above.

26

‘navigable waters’ as separate and distinct categories,” but importantly recognized that the

statute “would make little sense if the two categories were significantly overlapping.” Id. at 735,

(emphasis added); see S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95,

107 (2004) (holding that the “discharge of a pollutant,” for which a National Pollutant Discharge

Elimination System (NPDES) permit is required under the CWA, includes point sources that do

not themselves generate pollutants; thus, irrigation ditches that discharge to navigable waters

require NPDES permits even if they themselves qualify as navigable waters). The Rapanos

plurality explained that “[t]he separate classification of ‘ditch[es]’ . . . shows that these are, by

and large, not [navigable waters].” 547 U.S. at 735-36 (emphasis added). “Thus, the plurality

opinion did not establish that the terms ‘point source’ and ‘navigable waters’ are always

mutually exclusive; it merely recognized that most of the time they do not overlap.” Nat’l Ass’n

of Home Builders v. U.S. Army Corps of Eng’rs, 699 F. Supp. 2d 209, 216 (D.D.C. 2010)

vacated on other grounds, 663 F.3d 470 (D.C. Cir. 2011). Notably, the plurality opinion in

Rapanos admitted that ditches can in fact be navigable waters, but under the particular

circumstances at issue in Rapanos, are typically referred to by a different name (e.g., rivers,

creeks, or streams).10 547 U.S. at 736 n.7. Thus, the Rapanos plurality stopped short of declaring

that point sources as listed in the statute can never be navigable under the CWA. Id. at 735-36.

Additionally, EPA and U.S. Army Corps of Engineers (ACOE) guidance issued after

Rapanos makes a clear distinction between various kinds of ditches. These agencies do not assert

jurisdiction over “ditches (including roadside ditches) excavated wholly in and draining only

uplands and that do not carry a relatively permanent flow of water” because “they are not

tributaries or they do not have a significant nexus to downstream traditional navigable waters.”

                                                                                                               10 The concurrence recognized the possibility that “certain water-bodies could conceivably constitute both a point source and a water.” 547 U.S. at 772 (Kennedy, J., concurring).

27

Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v.

United States & Carabell v. United States, U.S. ENVT’L PROTECTION AGENCY and ARMY CORPS

OF ENG’RS 10 (Dec. 2, 2008), http://www.epa.gov/owow/wetlands/pdf/

CWA_Jurisdiction_Following_Rapanos120208.pdf [hereinafter “EPA Guidance”].

In the context of this case, Ditch C-1 is a “water of the United States” over which the

EPA and ACOE would assert jurisdiction. The ditch is not wholly in and does not drain uplands

R. at 5, as clearly evinced by the presence of arsenic in Reedy Creek and Wildman Marsh—both

of which are downstream of Ditch C-1. Further, Ditch C-1 does carry a relatively permanent

flow. R. at 5 (“The Ditch contains running water except during annual periods of drought lasting

from several weeks to three months.”). Moreover, it has a significant nexus to downstream

traditional waters, as shown by the flow of arsenic from Ditch C-1 into Reedy Creek into

Wildman Marsh (discussed infra, subsection V(B)). Thus, as found in National Assn. of Home

Builders, a ditch like Ditch C-1, though included in the statutory definition of point sources,

may, under circumstances like those present here, otherwise qualify as a “water of the United

States.” See 699 F. Supp. 2d at 216; see also United States v. Vierstra, 803 F. Supp. 2d 1166,

1173-74 (D. Idaho 2011) aff’d, 492 F. App’x 738 (9th Cir. 2012) (reaching the same conclusion).

B. Ditch C-1 is jurisdictional under both Rapanos standards

In Rapanos, the Supreme Court addressed where the Federal government can apply the

CWA for wetlands near tributaries of navigable waters. The justices issued five separate opinions

with no single opinion commanding a majority of the Court. Four justices, in a plurality opinion

by Justice Scalia, asserted that agencies’ regulatory authority should extend only to “relatively

permanent, standing, or continuously flowing bodies of water” connected to traditional navigable

waters, and to “wetlands with a continuous surface connection to” such relatively permanent

28

waters. 547 U.S. 715, 739 (2006). Justice Kennedy did not join the plurality’s opinion and

instead authored a concurring opinion. He concluded that wetlands are “waters of the United

States” “if wetlands, either alone or in combination with similarly situated lands in the region,

significantly affect the chemical, physical, and biological integrity of other covered waters more

readily understood as ‘navigable,’” Id. at 780 (Kennedy, J., concurring), per the “significant

nexus” test articulated in SWANCC, 531 U.S. 159, 167 (2001).

Various circuit courts have differed in their interpretations and decisions as to which

Rapanos opinion controls. See, e.g., United States v. Cundiff, 555 F.3d 200, 210-13 (6th Cir.

2009) (has looked to both tests); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-

1000 (9th Cir. 2007) (Kennedy opinion controlling); United States v. Johnson, 467 F.3d 56, 66

(1st Cir. 2006) (either test). Though the Twelfth Circuit has yet to decide this issue, Ditch C-1

meets the jurisdictional requirements under either Rapanos test.

To note, although Rapanos addressed “twice removed”11 wetlands, its reasoning is

applicable to other waters twice removed from navigable waters, like Ditch C-1 (which is twice

removed from Wildman Marsh). See Rapanos, 547 U.S. at 757 (remanding the case to determine

“whether the ditches and drains near each wetland are ‘waters,’” among other issues). The Sixth

Circuit has employed the Rapanos holding in this manner, finding that man-made ditches twice

removed from a navigable-in-fact waterway were jurisdictional.12 See Cundiff, 555 F.3d at 213.

                                                                                                               11 This brief conceives of “twice removed” waters as those, like Ditch C-1, which have two connection points to an undisputed water of the United States, like Wildman Marsh. Ditch C-1 flows into Reedy Creek (first connection), and Reedy Creek flows into Wildman Marsh (second connection). The Rapanos wetlands were similarly twice removed from a navigable water. 12 The fact that Ditch C-1 is man-made is irrelevant here, as the matter of how the Ditch was formed has no bearing on the fact that it now contributes flow—and in turn, arsenic pollution—to Reedy Creek and subsequently Wildman Marsh. See Cundiff, 555 F.3d at 213 (“[I]n determining whether the Act confers jurisdiction, it does not make a difference whether the channel by which water flows from a wetland to a navigable-in-fact waterway or its tributary

29

Moreover, the EPA and ACOE have interpreted—and, since 2008, employed—Rapanos to

extend CWA jurisdiction to “geographical features (e.g., ditches) that transport relatively

permanent (or at least seasonally) flow directly or indirectly into traditional navigable waters or

between two (or more) waters of the U.S., including wetlands.” EPA Guidance, at 10.

i. Ditch C-1 maintains a relatively permanent flow and has a continuous surface connection to Reedy Creek, which itself has a continuous surface connection to Wildman Marsh, thus is thus jurisdictional

Ditch C-1 is jurisdictional under the Rapanos plurality standard because it has a surface

hydrologic connection to Reedy Creek—which itself maintains a continuous surface connection

to Wildman Marsh—and because the Ditch maintains a relatively permanent flow via Reedy

Creek to Wildman Marsh, a water of the United States. R. at 5. Ditch C-1 has a “relatively

permanent” flow because it “contains running water except during annual periods of drought

lasting from several weeks to three months.” R. at 5. Thus, Ditch C-1 is jurisdictional because it

maintains a continuous surface connection with relatively permanent flow indirectly (through

Reedy Creek) to Wildman Marsh.

ii. Ditch C-1 has a significant nexus to Wildman Marsh, which is indisputably a water of the United States, and is thus jurisdictional

A significant nexus evaluation includes an assessment of the flow characteristics and

functions of a tributary to determine if they have a more than insubstantial or speculative effect

on the chemical, physical, and biological integrity of a traditional navigable water. See Rapanos

v. United States, 547 U.S. 715, 780 (2006) (Kennedy J., concurring). Hydrologic factors include

                                                                                                                                                                                                                                                                                                                                                                     was man-made or formed naturally.”); see also ONRC Action v. U.S. Bureau of Reclamation, No. 97-3090, 2012 WL 3526833, at *23 (D. Or. Jan. 17, 2012) (“Rapanos does not alter the validity of this analysis . . . From the plurality’s perspective, the relevant question is not whether a given body of water is man-made or naturally occurring, but whether the water body is characterized by the ordinary presence of water.”) (citing Rapanos, 547 U.S. at 735-36).

30

volume, duration, and frequency of flow. Ecological factors at issue include the ability of the

tributary to carry pollutants and flood waters to a traditional navigable water. Id.

Ditch C-1 has a significant nexus with Wildman Marsh given the presence of arsenic in

Reedy Creek and Wildman Marsh and in the Blue-winged Teal species. See R. at 6. These facts,

assumed true at the motion to dismiss stage, are evidence of a concrete hydrological and

ecological connection between the Ditch, Creek, and Marsh. They thus confirm a direct effect on

the chemical, physical, and biological integrity of the Marsh that is neither insubstantial nor

speculative. See R. at 6. Indeed, the facts alleged here are both substantial and scientifically

supported.

The Eleventh Circuit has held that if direct evidence of possible effects on the chemical,

physical, and biological integrity of a water can be shown, jurisdiction is established under the

“significant nexus” test. See United States v. Robinson, 505 F.3d 1208, 1223 (11th Cir. 2007). At

issue in Robinson was Avondale Creek, a continuously flowing, non-navigable stream that

flowed into another tributary, which flowed 28 miles into Bayview Lake, which then emptied

into another tributary that flowed 20 miles to the navigable Black Warrior River. Such direct

evidence has been shown here, with an even stronger nexus between waters than that at issue in

Robinson, as Ditch C-1 is only twice removed from Wildman Marsh.

In United States v. Cundiff, the Sixth Circuit discussed evidence of a similar nexus

between waters. The Cundiff court found that a twice-removed water had a significant nexus

with a navigable water because “if one dropped poison into the Cundiffs’ wetlands, the record

indicates that it would find its way to the two creeks and the Green River, therefore indicating a

significant chemical, physical, or biological connection between the wetlands and the nearby

navigable-in-fact waters.” 555 F.3d 200, 211 n.4 (6th Cir, 2009). Similarly here, the record

31

indicates that arsenic has already found its way from Ditch C-1 into Reedy Creek, and

subsequently into Wildman Marsh. R. at 6.

C. Ditch C-1 is jurisdictional because it is a tributary of Reedy Creek, a “water of the United States”

As discussed in Section IV(1), supra, EPA’s regulations define “waters of the United

States” to include tributaries of jurisdictional waters. See 40 C.F.R. 122.2 (2013). Because Ditch

C-1 is a tributary of Reedy Creek, which is itself jurisdictional, see supra Section IV, Ditch C-1

is also a “water of the United States” per 40 C.F.R. 122.2 (2013). Courts have affirmed agency

regulations that interpret the CWA to extend jurisdiction to “any branch of a tributary system

that eventually flows into a navigable body of water.” United States v. Deaton, 332 F.3d 698,

711 (4th Cir. 2003). As discussed in note 12, supra, “[t]he fact that [a] Drain is man-made does

not preclude the finding that it is also a ‘tributary’ and therefore a ‘water of the United States.’”

ONRC Action v. U.S. Bureau of Reclamation, No. 97-3090, 2012 WL 3526833, at *23 (D. Or.

Jan. 17, 2012). Strictly speaking, Ditch C-1 is a tributary of a tributary (Reedy Creek) of

Wildman Marsh. Because Reedy Creek is itself a jurisdictional tributary, supra Section IV, Ditch

C-1 is a jurisdictional tributary, as well.

VI. The district court erred in finding Bonhomme liable for polluting a navigable water because the owner and source of the pollutant discharge are identifiable and controllable

The trial court erred in denying Bonhomme’s motion to dismiss on the issue of liability

for the arsenic discharges that reach Reedy Creek. Put simply, Maleau, the but-for cause of the

presence of arsenic in Ditch C-1, cannot evade liability—and in doing so, place it on

Bonhomme—by discharging the arsenic upstream of Bonhomme’s property. Despite the

presence of several point sources between the initial source of the arsenic—Maleau’s mining

waste piles—and Reedy Creek, the initial source remains liable as the cause of the discharges.

32

Gold mining sites often involve the presence of arsenic. R. at 6. As a sophisticated gold

mine operator who has obtained CWA permits for his mining operation in the past, Maleau knew

that he would be subject to additional regulation should he dump his mining waste in piles next

to the Buena Vista (a navigable water), because runoff would carry pollutants such as arsenic

from the piles into the river. R. at 5, 7. To avoid another regulatory burden at the mining site,

Maleau trucked the contaminated waste 50 miles to another property. Id. Piling the waste next to

“Ditch C-1, a lesser water,” Maleau transparently hoped to “avoid[] the water pollution

abatement requirements” of 33 U.S.C. § 1311. Id. The district court’s ruling, if affirmed,

produces results contrary to the text, Congressional intent, and overall purpose of the CWA.

A. The text, structure, and purpose of the CWA support liability against known, discrete pollutant dischargers such as Maleau

The Clean Water Act prohibits more than the “direct” addition of a pollutant “to

navigable waters from any point source”; broadly, it prohibits “any addition of any pollutant to

navigable waters.” Rapanos, 547 U.S. 715, 743 (2006) (plurality opinion) (emphasis added); 33

U.S.C. §§ 1362(12) (definition of “discharge of a pollutant”), 1311(a) (prohibiting discharge of a

pollutant). Thus, the presence of multiple point sources or conveyances between the polluting

source and navigable waters cannot absolve the polluter of liability. “[L]ower courts have held

that the discharge into intermittent channels of any pollutant that naturally washes downstream

likely violates § 1311(a), even if the pollutants discharged from a point source do not emit

‘directly into’ covered waters, but pass ‘through conveyances’ in between.” Rapanos, 547 U.S. at

743; see Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137 (10th Cir. 2005); United

States v. Velsicol Chem. Corp., 438 F. Supp. 945, 946-47 (W.D. Tenn. 1976).

Although the Rapanos plurality noted that the Court previously held that “a point source

need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable

33

waters,’” that holding does not eliminate the possibility that where, as here, the original source of

the pollutant is a “discernible, confined and discrete” point source, a federal court can hold the

original polluter responsible rather than the owners of pass-through conveyances. Rapanos, 547

U.S. at 743. Reading the relevant CWA provisions to hold Maleau, the actual polluter,

responsible for his pollutant discharges, best serves the overall structure and policy of the CWA.

The “any point source” clause cannot be interpreted to impose liability on landowners who have

the misfortunate of being downstream from an industrial polluter. 33 U.S.C. § 1362(12)(A)

(2012). For example, the CWA “consistently refers to the obligations of ‘owners and operators’

of a point source.” El Paso Gold Mines, 421 F.3d at 1143-44; see, e.g., 33 U.S.C. §§ 1311(g)(2),

1318(a) (2012) (both referring to the “owner or operator” of a point source). Maleau owns and

operates the point sources responsible for the discharges here; he cannot fairly argue that

Bonhomme “operates” the culvert on his property as contemplated by the CWA.

Rather, the Act focuses on parties with control over pollutant sources. The Act regulates

“the preventable causes of pollution” through permitting and through “the use of technological

controls. 855 F. Supp. 2d at 1208 (citing Or. Natural Desert Assoc. v. Dombeck, 172 F.3d 1092,

1096 (9th Cir. 1998)). Maleau, a mining operator—not Bonhomme, a private landowner—has

control over a preventable cause of pollution and should be required to comply with the CWA.

B. Congress’s 1972 CWA Amendments focused federal policy on regulating parties that discharge pollutants

Congress intended the 1972 CWA Amendments, preceded by an unsuccessful,

“inadequate” enforcement scheme in the Water Quality Act of 1965 (and earlier measures), to

focus the nation’s water pollution control policy on the sources of pollutant discharges, rather

than the “receiving water stream.” David Drelich, Restoring the Cornerstone of the Clean Water

Act, 34 Colum. J. Envtl. L. 267, 304 (2009). “By tying ‘discharge’ to a discrete ‘point source’ as

34

a ‘control requirement,’ Congress took environmental regulation upstream, looking away from

the polluted receiving water and towards the discharger.” Id. at 304-05.

In the House, Representative Dingell argued that: “[t]he term ‘discharge of a pollutant’

does not in any way contemplate that the discharge be directly from the point source to the

waterway.” House Consideration of the Report of the Conference Committee, 92nd Cong.

(1972). Rep. Dingell’s statement suggests that the discharging point source need not be directly

connected to the protected water. The Senate Report made clear that “it is essential that discharge

of pollutants be controlled at the source.” S. Rep. No. 92-414, at 64 (1971). Here, the piles are

the pollutant source. Congress intended to control pollutant sources like Maleau’s piles, which

are the product of a gold mining operation subject to CWA regulation.

C. Maleau, an upstream landowner who controls and discharges pollutants, is liable under the CWA

Maleau, the upstream owner of land and mining waste piles, has “exclusive control over

the pollutant flow in separately owned or operated downstream conveyances,” and therefore

“only [Maleau] is liable for the discharge” of arsenic into Reedy Creek. See Drelich, Restoring

the Cornerstone, at 319. In Velsicol, the district court, in holding a defendant liable for

discharging pollutants into a city sewer system, which emptied into the Mississippi River,

concluded: “The fact that defendant may discharge through conveyances owned by another party

does not remove defendant’s actions from the scope of this Act.” 438 F. Supp. at 946-47.

Otherwise, “unsuspecting owners” of in-between conveyances—such as Bonhomme—will be

held liable for the intentional, calculated discharges of pollutant generators—such as Maleau. See

Froebel v. Meyer, 217 F.3d 928, 938 (7th Cir. 2000).

Where, as here, the source of pollution is identifiable, the court should allow

Bonhomme’s CWA citizen suit to proceed. See Ass’n Concerned Over Res. & Nature, Inc. v.

35

Tenn. Aluminum Processors, No. 1:10-00084, 2011 WL 1357690, at *11 (M.D. Tenn. Apr. 11,

2011) (concluding that “Plaintiff’s notice provides sufficient information to permit Defendant to

identify the alleged violations and bring itself into compliance by remediating the alleged

violations, namely the slag waste stockpile at Defendant’s business”).

This case is unlike Miccosukee, a case that, at first glance, appears to condone the

liability scheme the district court imposed on Bonhomme. In Miccosukee, the Court rejected a

municipality’s argument that it was not liable for the discharge of pollutants “added to water by

others.” 541 U.S. 95, 105 (2004). But Miccosukee involved a municipal plant, designed to treat

water to contain pollutants, and is therefore distinguishable. Significantly, “one of the [CWA’s]

primary goals was to impose NPDES permitting requirements on municipal wastewater

treatment plants.” Id. The CWA’s goals do not include holding private, downstream landowners

liable for discharges made by industrial actors subject to CWA regulation and able to control

pollutants. Both Miccosukee and El Paso involved industrial or municipal polluters, not

individual landowners. The Miccosukee Court’s conclusion that the definition of “discharge of a

pollutant . . . . includes within its reach point sources that do not themselves generate pollutants”

does not necessarily extend to make Bonhomme, a property owner, liable for Maleau’s industrial

discharges. Id. Therefore, this court should allow Bonhomme’s citizen suit to proceed.

CONCLUSION

For the foregoing reasons, the judgment of the District Court should be reversed except

with respect to its conclusion that Reedy Creek is a navigable water.

Respectfully submitted,

__________________________ Counsel for Jacques Bonhomme