Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States of America v. David S. Righter

December 2, 2010

UNITED STATES OF AMERICA,
PLAINTIFF
v.
DAVID S. RIGHTER, DEFENDANT



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

I. Introduction

The United States of America brought this action against David S. Righter ("Righter") pursuant to the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. By memorandum dated June 30, 2010, (Doc. 21), the court granted the government's motion for summary judgment and held that Righter is liable for violating the CWA. See United States v. Righter, Civ. A. No. 1-08-CV-0670, 2010 WL 2640189 (M.D. Pa. June 30, 2010). The court also ordered supplemental briefing on the nature and scope of appropriate remedies. Id. at *4; see also 33 U.S.C. § 1319(d) (setting forth factors that the court must consider before assessing a monetary penalty); Natural Resources Defense Council v. Texaco Ref. & Mktg., 906 F.2d 934, 941 (3d Cir. 1990) (setting forth factors that the court must consider before granting injunctive relief). The parties have fully briefed the issues. (See Docs. 23, 26). For the reasons that follow, the court will impose a civil penalty of $37,500 and order Righter to implement an appropriate wetland restoration plan to be developed by the United States Army Corps of Engineers.

II. Discussion

The factual background of this matter is set forth in detail in the court's Memorandum and Order of June 30, 2010, familiarity with which is presumed. Under 33 U.S.C. §1391(b), the court has jurisdiction to "require compliance" with the CWA, and compliance may be compelled through civil penaltiesand injunctive relief. The court will discuss these available remedies seriatim.

A. Civil Penalty

The assessment of a civil penalty is mandatory when the court determines, as it did here, that a violation of the CWA has occurred. See 33 U.S.C §1391(d); Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 503 (3d Cir. 1993) (noting the "mandatory language of section 1319(d)"). Under § 1319(d), a violator "shall be subject to a civil penalty not to exceed $25,000 per day for each violation."*fn1 Such mandatory penalties are designed to deter both the specific violator and the public at large from violating the CWA. See United States v. Mun. Auth. of Union Twp., 929 F. Supp. 800, 806 (M.D. Pa. 1996), aff'd, 150 F.3d 259');">150 F. 3d 259 (3d Cir. 1998). Section 1319(d) also provides six factors that the court must consider when assessing a civil penalty: "[1] the seriousness of the violation or violations, [2] the economic benefit (if any) resulting from the violation, [3] any history of such violations, [4] any good-faith efforts to comply with the applicable requirements, [5] the economic impact of the penalty on the violator, and [6] such other matters as justice may require." 33 U.S.C §1391(d).

Despite the mandatory nature of § 1319(d), district courts are afforded wide discretion in setting the amount of the penalty within the statutorily prescribed maximum. United States v. Mun. Auth. of Union Twp., 150 F.3d 259, 264 (3d Cir. 1998) (citing Tull v. United States, 481 U.S. 412, 426-27 (1987)); see also United States v. Allegheny Ludlum Corp., 366 F.3d 164, 177 (3d Cir. 2004) ("The imposition of a penalty under § 1319(d) is subject to exercise of a district court's discretion."). In calculating an appropriate penalty, a district court is free to choose between the "top-down" or "bottom-up" approach. Mun. Auth. of Union Twp., 150 F.3d at 265; see also Allegheny Ludlum Corp., 366 F.3d at 178 n. 6 (stating that "the method used in assessing the civil penalty is best left to the trial court's discretion"). The "top-down" approach requires the court to calculate the maximum possible penalty, and then consider appropriate reductions based upon an examination of the six § 1319(d) factors. Mun. Auth. of Union Twp., 150 F.3d at 265 (citations omitted). On the other hand, the "bottom-up" approach requires the court to calculate the economic benefit a violator gained through noncompliance with the CWA and adjust the penalty upward or downward after considering the remaining five factors. Id. (citations omitted). In the instant matter, the court will utilize the "bottom-up" approach and discuss the § 1319(d) factors accordingly.*fn2

1. Economic Benefit

The CWA does not define the term "economic benefit." The Third Circuit, however, has explained that "[i]t is apparent . . .that the goal of the economic benefit analysis is to prevent a violator from profiting from its wrongdoing." Mun. Auth. of Union Twp., 150 F.3d at 263. In the instant matter, the government concedes that because Righter "is an individual whose violations were not actions undertaken in the furtherance of a business, the economic benefit he received is not large." (Doc. 26 at 10). While acknowledging that the economic benefit received "would not amount to thousands of dollars[,]" the government urges the court to consider the following: (1) that a neighboring farmer has annually cleared Righter's hayfield as a result of Righter constructing earthen crossings through the wetland area; and (2) that the neighbor has also provided Righter with plowing and towing services in exchange for farming the hay. (See id.). Righter contends that he "received no economic benefit what so ever [sic]" from his violation of the CWA, but acknowledges that his hayfield has been cleared and he has received plowing and towing services free of charge. (See Doc. 23 at 3).

The court has examined the record and concurs with the government's position. While the economic benefit Righter received from violating the CWA is not large, it is certainly not negligible or nonexistent as Righter contends. But for his violation of the CWA, Righter would have had to pay for the services he received from the neighboring farmer. Thus, the fair market value of the services he received is Righter's economic benefit, the amount he "profited from [his] wrongdoing." Mun. Auth. of Union Twp., 150 F.3d at 263. While it is difficult to determine the precise fair market value of the services Righter received, the court will adopt a conservative estimate of $1,000. See Allegheny Ludlum Corp., 366 F.3d at 180 (noting that economic benefit "may not be capable of ready determination" and "need not be precise"). Thus, the court will begin its "bottom up" analysis of the remaining § 1319(d) factors starting from this low figure.

2. Seriousness of the Violation

The court must next examine the seriousness of harm engendered by Righter's violation of the CWA. Righter contends that the violation is not serious because: (1) "the impact on [his] property has been minimal"; (2) he used indigenous soil and stone in constructing the earthen crossings; (3) he only filled in approximately 0.1 acre of wetlands; and (4) his "installation of steel culverts beneath the mounds has allowed water to continue to flow throughout his property." (See Doc. 23 at 2-3). The government, in turn, notes that: (1) wetlands are a dwindling natural resource that have long been recognized for their ecological value; (2) Righter, by his own admission, discharged twenty to twenty-five dump truck loads of pollutants into the wetland area; and (3) Righter's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.