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United States v. Bobby Wolford Trucking & Salvage, Inc.

United States District Court, W.D. Washington, Seattle

November 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BOBBY WOLFORD TRUCKING & SALVAGE, INC.; and KARL FREDERICK KLOCK PACIFIC BISON, LLC, Defendants.

          ORDER

          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on a motion for partial summary judgment, docket no. 32, brought by plaintiff United States of America (“United States”). Having reviewed all papers filed in support of, and in opposition to, the motion, the Court enters the following order.

         Background

         The United States initiated this action against defendant Bobby Wolford Trucking & Salvage, Inc. (“Wolford Trucking”) and defendant Karl Frederick Klock Pacific Bison, LLC (“Klock Pacific Bison”) for violating the Clean Water Act by discharging dredged or fill material into navigable waters of the United States without the requisite permit. See Compl. (docket no. 1). The United States seeks both injunctive relief and civil penalties. Id. In its pending motion, the United States asks the Court to rule, as a matter of law, that Wolford Trucking is liable under the Clean Water Act. See Pla's Mot. (docket no. 32). The United States, however, requests no relief concerning Klock Pacific Bison. See id.; see also Klock Pacific Bison's Resp. (docket no. 42).

         A. The Property

         This litigation concerns 365 acres of real property in Snohomish County, bordered on the south by Ben Howard Road and on the north and east by the Skykomish River. See Vallette Decl. at ¶ 2 & Ex. A (docket no. 33). The Skykomish River constitutes traditional navigable water of the United States. Id. at ¶¶ 6-7. During the period when the discharge at issue occurred, the property was owned by Eric and Susan Klock and/or their business, either Klock Pacific Bison or its predecessor, Karl Frederick Klock Pacific Bison, LP. See Compl. at ¶¶ 7 & 9 (docket no. 1); Ex. C to Martin Decl. (docket no. 41-3 at Klock001524); see also Ex. E to Martin Decl. (docket no. 41-6) (indicating that the Klocks purchased the farm in June 1994).[1] Eric Klock has since died. See Wolford Trucking's Resp. at 11-12 (docket no. 39).

         A dominant feature of the property is an “oxbow channel” of the Skykomish River. Vallette Decl. at ¶ 9 (docket no. 33). An “oxbow” is U-shaped meander of a stream or river. See id. In 1938, the oxbow channel was still active, but by 2003, it had become wetland, as evidenced by aerial images, which are reproduced below.

         (Image Omitted.)

         See id. at Ex. B, Figs. 2 & 8 (docket no. 33-2) (cropped and modified).

         B. Flood Damage Repair

         In the fall of 2006, the property was damaged by a flood. See Ex. E to Martin Decl. (docket no. 41-6). The Klocks successfully applied for financial assistance from the Emergency Conservation Program administered by the Farm Service Agency of the United States Department of Agriculture. Ex. C to Martin Decl. (docket no. 41-4 at Klock_003591-92). The funds were to be used to (i) remove debris, (ii) grade, shape, relevel, and fill gullies created by the flood, (iii) replant vegetative cover, and (iv) restore fences. Id. In early January 2008, a permit for installing flood fencing was issued by the Washington Department of Fish and Wildlife. Ex. B to Martin Decl. (docket no. 41-2 at KFKPB00088-90). The purpose of the project, entitled "Klock Farm, Skykomish River, Bioengineered Bank Stabilization," was to install three rows of cottonwood boles along the river bank, which would collect large woody debris and reduce the velocity of flood water. See id. Wolford Trucking's initial work at the property, which commenced around June 2008, related to this flood damage repair. See McKellard Decl. at ¶¶ 2-3 (docket no. 40). In August 2008, the Klocks received checks for the amounts approved by the Farm Service Agency. See Ex. C to Martin Decl. (docket no. 41-4 at Klock_003699-700). The flood fencing appears to have been completed before mid-November 2008, as indicated by the following date-stamped photograph:

         (Image Omitted.)

         Ex. B to Martin Decl. (docket no. 41-2 at 28 (KFKPB00361)).

         C. Discharge of Dredged or Fill Material

         In June 2010, Colonel Anthony O. Wright of the Army Corps of Engineers wrote to Eric Klock concerning complaints that had been received about work being performed at the property. Ex. C to Martin Decl. (docket no. 41-3 at Klock_001524-25). Colonel Wright informed Klock that, to the extent he had placed "fill in wetlands and a side channel of the Skykomish River," without a permit, he had violated federal law, and he was directed “to do no further work in the wetlands or waterward of ordinary high water” on the property. Id.

         In November 2010, Klock met with two members of the Army Corps of Engineers for roughly two hours. Id. at Klock_001539. Klock expressed his view that the entire property fell within a “farming or silviculture” exception to the permit requirements of the Clean Water Act. Id. Klock grew organic beans on plowed fields west of the oxbow channel and Christmas trees on the eastern side of the property. Id. During the meeting, Klock refused to allow Corps personnel onto the property to investigate, accusing the United States Army Corps of Engineers of retaliating against him for his Snohomish County Farm Bureau activities. Id. Klock did, however, confirm that Wolford Trucking and another contractor performed grading and soil amendment work at the property, although he was uncertain as to whether Wolford Trucking brought in fill material. Id. at Klock_001540.

         1. First Search Warrant

         In March 2011, an agent with the Criminal Investigations Division (“CID”) of the United States Environmental Protection Agency (“EPA”) applied for and obtained a search warrant. Id. at Klock_003318-39, 003357-62. The search warrant affidavit explained that, in April 2010, during a routine flyover of the Skykomish River, an agent with the National Oceanic and Atmospheric Agency (“NOAA”) and a biologist with the Washington Department of Fish and Wildlife observed filling and grading activities at the property, near the oxbow transecting it. Id. at Klock_003325-26. The search warrant affidavit further indicated that, in June 2010, while conducting surveillance, EPA-CID agents observed several large dump trucks entering and leaving the property. Id. at Klock_003327-28. According to the search warrant affidavit, the trucks, labeled “Mikelo, ” would arrive with dirt, unload, and then exit, and a sign on a gate at the entrance to the property advertised that Wolford Trucking was working at the site. Id. at Klock_003327-29. During their reconnaissance, the EPA-CID agents saw that fill material had been spread into what appeared to be standing water and wetlands. Id. at Klock_003328.

         In August 2010, the EPA-CID agents interviewed the operators of Mikelo Trucking, Mike and Wade Edelbrock. Id. at Klock_003329. The Edelbrocks indicated that they had a contract to haul fill material from a construction project to a location known as “Bobby Wolford's dump site, ”[2] which had, at that time, been in operation and used by various companies for the past five years. Id. The Edelbrocks explained that they had never asked to see a permit because they had contracted with Bobby Wolford, the owner of Wolford Trucking, who told them that dumping at the property was “okay.” Id. at Klock_003329-30. According to the Edelbrocks, Mikelo Trucking paid a fee to Bobby Wolford for dumping on the property. Id. at Klock_003330.

         In September 2010, agents with EPA-CID and NOAA interviewed Bobby Wolford and one of his employees, Robert McKellard. Id. Wolford and McKellard acknowledged delivering fill material to the property for the previous five years. Id. They asserted that permits had been obtained by Klock. Id. They further explained that Klock had requested the fill material, and that Wolford Trucking did not pay to dump at the property. Id. McKellard stated that the property was “wet” because “they were attempting to create berms along the side channel [i.e., the oxbow] in an effort to capture the water for irrigation purposes.” Id.

         In November 2010, EPA-CID agents interviewed Eric Klock at the front, locked gate of the property, after he declined to allow them through. Id. at Klock_003331. Klock indicated that the side channel or oxbow was an “irrigation pond” that he used to supply water to his fields. Id. He admitted to using 60- to 70-year-old trees from the area adjacent to the oxbow to form the flood fencing that had been installed in 2008. Id. Klock also stated that Wolford Trucking was dumping fill material on the property every day, and that he did not pay for the fill material because Wolford Trucking ...


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