Sep 012015

Reprehensible. Oppressive. Dishonest.

Those were just three of the adjectives used by a federal judge who ruled for Texas real estate developer Thomas Lipar and against the United States, which had brought an enforcement action for filling wetlands in north Houston. U.S. District Judge Lynn N. Hughes ordered the government to pay Lipar's attorney fees (U.S.A v. Lipar, H-10-1904, S.D. Tex.).  (Opinion)

"The government has not shown that the wetlands it says that Lipar and the other defendants filled were jurisdictional waters of the United States. It will take nothing," Hughes said in his eight-page ruling.

"Because its conduct has been oppressive and dishonest, [the government] must pay the reasonable attorney's fees incurred defending this suit," he said.

Hughes packed a lot into his brief opinion, issued Aug. 30.

"The government has not followed court orders or has done so only after months of recalcitrance," he said. "When ordered to produce data, it either did not comply or did so only halfheartedly."

He continued: "It has never followed the spirit of the court's orders, and, at best, it only sometimes complied with the letter. It has withheld papers under claims of privilege either maliciously or because it is grossly incompetent. It has abused its power in an attempt to brow-beat the defendants and discourage their colleagues and competitors from developing similar areas. Its behavior is reprehensible."

Hughes' opinion could be vulnerable on appeal. Earlier this year, the Fifth Circuit took a False Claims Act case away from him after concluding he had not complied with the appeals court's mandate (U.S.A. v. Shell Exploration, 14-20156). Said the court:

"In the prior appeal, we declined to have this case reassigned to a different judge on remand. The circumstances are now different because the district judge disregarded our clear mandate and failed to apply the legal standards we established in our opinion for public disclosure and to address the specific questions we set out in that opinion. Facing a lengthy and detailed summary judgment record, the district judge issued a five-page opinion with few citations to either record evidence or relevant legal authority—not surprising given that neither the summary judgment evidence nor the law support the conclusions he reached. The opinion consists almost entirely of conclusory statements. The district judge reached the same conclusion he reached in his previous opinion by employing the same overly broad reasoning that we rejected before."

More excerpts from Hughes' Lipar opinion:

For ten years the government has investigated whether the two sites contained jurisdictional wetlands. It gathered data for five years before it sued. In ten years, the government has discovered no fact to show that the developed areas were jurisdictional wetlands.

Despite this, it has been intractable, uncooperative, and defiant.

The government's own papers suggest that it sued Lipar and the other defendants in part to discourage other companies from developing similar tracts in Houston. It disagreed with Lipar's interpretation of the United States Supreme Court's construction of the [Clean Water] Act, and it was worried that other developers were aligning with Lipar's interpretation.

The court is not convinced that Spring Creek is navigable. During all but a flood, a craft of more than six-inches draft would likely not be able to navigate it. Though, perhaps, a canoe or kayak may be able to ply its waters, these recreational uses are not customary modes of trade and travel. A river boat, cargo ship, tanker, or other burdened vessel could not traverse it.

Assuming that Spring Creek is navigable, the wetlands about which the government complains are not sufficiently connected to it to be jurisdictional waters. Following the government's reasoning, Mill Creek is adjacent to Spring Creek, a navigable water. Dry Creek is adjacent to Mill Creek. Windcrest Lake is adjacent to Dry Creek. Three tributaries are adjacent to the lake. The wetlands about which it complains are adjacent to the three tributaries.

The government has nothing to show that the wetlands it complains about affect the chemical, physical, and biological integrity of Spring Creek or other waters farther downstream. It has nothing to show that fill discharged in the wetlands eroded and silted jurisdictional waters farther downstream, or something similar.

* * *

Each area of wetland, the government says, has a continuous surface connection to the tributaries. These are conclusory legal generalizations. They are supported only by broad reference to the aerial photographs and topographical maps. What is more, they are belied by the naturalists themselves who attest that a continuous surface connection is, at best, a guess for some locations.

Assuming the government had proof, it does not matter. The seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the Act. Wetlands with only an intermittent, physically remote hydrologic connection lack the necessary connection to jurisdictional waters.

The government fares no better under the significant-nexus test. It has no particular data about the impact that these wetlands have on the west fork or Spring Creek. Like before, general allegations that the area is part of the watershed are unavailing.