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Idaho Ranch Seeks CWA Case Dismissal

21 Nov 2024

LINCOLN, Neb. (DTN) -- A Bruneau, Idaho, ranch asked a federal court to dismiss a Clean Water Act case filed against it by the U.S. Environmental Protection Agency, claiming in a motion the agency cannot prove the ranch violated the law.

The motion filed in the U.S. District Court for the District of Idaho is in response to EPA's filing of an amended complaint on Sept. 27, 2024. The court previously dismissed the lawsuit against Ace Black Ranches, ruling the agency did not comply with the Supreme Court's ruling in the Sackett v. EPA case, https://www.dtnpf.com/….

The amended complaint includes before-and-after satellite photos showing eight connection points between the Bruneau River and wetlands. The photos are purported to show roads constructed on the ranch where EPA alleges at least four continuous surface connections were disrupted, including one that directly crosses the river.

In the motion to dismiss, attorneys for Ace Black allege the EPA does not have statutory authority to make the ranch reconnect any "allegedly severed -- by a human-caused barrier -- 'indistinguishable' wetlands with the Bruneau River. The plaintiff can only enforce supposed violations that fall within its authority."

Under the Clean Water Act, the federal government has the authority to issue permits for pollutant discharges through the National Pollutant Discharge Elimination System, or NPDES, program. According to EPA's complaint, the ranch did not have a Section 402 permit to discharge pollutants into waters of the U.S.

Ace Black said EPA's claims the ranch disrupted adjacent wetlands by filling in an area that "cut off a surface connection that otherwise would have connected vast swaths of supposed wetlands" to the river.

"In the prior round of briefing, the plaintiff argued that Sackett stands for the proposition 'that an unlawfully constructed barrier separating a wetland from a water of the United States does not defeat Clean Water Act coverage of the wetland,'" the motion to dismiss said.

"But the plaintiff left out a crucial condition that limits its mistaken legal conclusion: The plaintiff's reading of Sackett is only correct in those situations where the plaintiff has authority to enforce the Clean Water Act."

Attorneys for Ace Black said the EPA's new complaint does not say when the ranch or anyone else "allegedly cut off" the river from adjacent wetlands.

EPA said in the amended complaint, however, that "historical aerial imagery since October 2017 reveals sand and gravel mining operations and equipment on the site."

Ace Black said EPA does not have "unconditional authority" to order landowners to reconnect severed wetlands. In addition, the ranch's attorneys argue the statute of limitations ran out as it pertains to the ranch's actions.

Under federal law, the EPA can only file a lawsuit or proceeding to enforce civil fines, penalties or forfeitures within five years from the date when a claim is first made.

"As the Supreme Court expected, that puts the plaintiff here in a bind," Ace Black said in its motion.

"Even assuming that all of the plaintiff's fact allegations are true: The plaintiff is asking the court to let a case go forward regarding supposed 'adjacent wetlands,' even though those lands are completely distinguishable from the Bruneau River. But as to each such wetland, the plaintiff must plausibly allege that it has authority to make ABR 'reconnect' the lands to the river, which includes the requirement that any alleged 'disconnection' had to incur within the period that the plaintiff could make such requirement in the first place."

In the complaint, the EPA stated it conducted an inspection of the site in April 2023.

The ranch faces civil penalties of up to $66,712 per day per violation.

The EPA said the ranch owners initially agreed to join the EPA and the U.S. Army Corps of Engineers on a visit to inspect the ranch on May 18, 2021.

On May 17, 2021, however, the ranch instead filed a complaint and a motion for preliminary injunction in federal court to prevent the agencies from entering the ranch.

That court action was dismissed in February 2022, according to the lawsuit. EPA obtained an administrative warrant in May 2021 and inspected the ranch for the first time from June 14 to June 16, 2021. The agency conducted another inspection from April 24 to April 28, 2023.