United States Eighth Circuit

In an enforcement action brought under the Clean Water Act, district court judgment is affirmed where: 1) the Army Corps of Engineer has jurisdiction over the wetland in question under Clean Water Act sec. 309(b) if either the plurality's test or Justice Kennedy's substantial nexus test in Rapanos v. US is satisfied; 2) defendant's property met the substantial nexus test as it was situated in a wetland adjacent to navigable-in-fact waters; 3) the court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; 4) the court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious, and did not violate defendant's equal protections rights; and 5) the court did not abuse its discretion in issuing a permanent injunction ordering defendant to restore the wetland to its pre-violation condition.

Appellate Information

• Decided 07/09/2009
• Published 07/09/2009

Judges

• WOLLMAN, Circuit Judge., Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

Court

• United States Eighth Circuit

Counsel

• For Appellant:
  
• Alan Bradley Fish, argued, Roseau, MN, for appellant.


• For Appellees:
  
• Katherine J. Barton, argued, Friedrich A.P. Siekert, AUSA, Minneapolis, MN, Katherine W. Hazard, USDOJ, Ronald J. Tenpas, USDOJ, Daniel R. Dertke, USDOJ, Washington, DC, Molly A. McKegney, U.S. Army Corps of Engineers, St. Paul, MN, on the brief, for appellee, United States., Sonya J. Guggemos, argued, Scott T. Anderson, on the brief, Minneapolis, MN, for appellee, Lake of the Woods County.