United States District Court, W.D. Washington, Seattle
S. Zilly United States District Judge.
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.
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).
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). Eric Klock has since died. See
Wolford Trucking's Resp. at 11-12 (docket no. 39).
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
id. at Ex. B, Figs. 2 & 8 (docket no. 33-2) (cropped
Flood Damage Repair
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:
to Martin Decl. (docket no. 41-2 at 28 (KFKPB00361)).
Discharge of Dredged or Fill Material
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.
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.
First Search Warrant
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
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,
” 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.
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.
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