Published by the Environmental Law Section of the … by the Environmental Law Section of the...

Published by the Environmental Law Section of the Virginia State Bar for its members

EnvirCnmental Law News CVolume XI, No. 2 Spring 2001

Rails-to-TrailsAfter Preseault: A VirginiaPerspective

T he conversion of retired rail-road beds into recreationaltrails has become a wide-

spread practice in our country.Currently, the United States has over1,000 “rail-trails” totaling over10,000 miles.1 However, rails-to-trails programs have not been unop-posed or without controversy.2 Arecent proposal to add a rail-trail inBotetourt County, Virginia was noexception.3 Most of the opposition tothese projects comes from the own-ers of property adjacent to the pro-posed trails. In Preseault v.Interstate Commerce Commission(hereafter, Preseault II), theSupreme Court upheld the preserva-tion of rail rights-of-way for trail useas a valid exercise of CommerceClause authority and ruled that it didnot amount to an unconstitutionaltaking under the Fifth Amendment.4

This article focuses primarily onrails-to-trails challenges in the wakeof Preseault II, the development ofthe rails-to-trails takings claim, andthe viability of such a claim inVirginia. Other sources have dealtwith the background of rails-to-trailsand the findings of Preseault II atlength, and this article addressesthese issues only briefly.

Introductory and Background Information

Most rails-to-trails programs owetheir origin to the Trails Act Amend-ments of 1983,5 which allow transfer

of rights-of-way for abandoned rail-ways to state and local governmentsand private organizations interestedin sponsoring trails.6 Transferredrights-of-way for “interim” trail useare subject to reactivation of railservice in the future.7 The purposesof the rails-to-trails program includethe preservation of railroad rights-of-way and the promotion of recre-ational trails.8 The Trails ActAmendments were not the firstattempts at converting abandonedrights-of-way to trails; both theNational Trails Act of 19688 and theRailroad Revitalization and Regula-tory Reform Act of 1976 (the “4-RAct”)10 attempted to create addition-al public trails and to protect rail-road corridors that were retired fromservice. However, the Trails ActAmendments are unique in their

stipulation that “interim” trail use inrail corridors “shall not be treated,for purposes of law or any rule of law,as an abandonment of the use ofsuch rights-of-way for railroad pur-poses.”11 It was Congress’ intentionto prevent the abandonment of rail-road corridors considered for theprogram and for the ICC (railwaysare now managed by the SurfaceTransportation Board or STB) toretain jurisdiction over those corri-dors.12

A rails-to-trails conversion beginswhen a railroad applies to the STBfor abandonment or discontinuanceof rail service.13 Parties interested insponsoring a trail on the right-of-waynotify the STB of their plans withinlimited time periods.14 If the STB

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Chair’s Corner

By the time you get this issue of the newsletter, you may havealready read it on the Environmental Law Section’s website(http://www.vsb.org/sections/en/). We are seeking to make

greater use of our portion of the Virginia State Bar website so that wemay better communicate with, and serve, the members of our Section.This effort began with our posting of the registration information forthe Section’s biennial seminar, “Environmental Science for Lawyersand Judges,” which was held in April. Shortly afterward, the April issueof Virginia Lawyer, dedicated to our Section, made a beautiful and sub-stantive contribution to the State Bar’s website. We would like to hearfrom you whether you consider having, or converting to, a web-basednewsletter a valuable use of Section funds; what other internet-basedservices you would like the Section to provide; and whether you wouldlike to receive updates on Section activities via e-mail. Please directany comments to our Virginia State Bar liaison, Dolly Shaffner, atshaffner@vsb.org, and note whether you would like your e-mailaddress to be added to a list that the Section may use for purposesauthorized by the Section’s Board of Governors.

Edward A. Boling

EnvirCnmental Law News

EnvirCnmental Law NewsVolume XI, No. 2

Prepared by the staff ofEnvironmental Law Digest

Washington & Lee UniversitySchool of Law

Lewis Hall, Room 220ALexington, Virginia 24450-0303

Editor-in-ChiefAmy L. Pierce

Managing EditorGrant D. Waterkotte

Associate EditorsAlice D. DeckerSpencer J. Cox

Articles EditorRobert M. Jefferson

Articles StaffIsaris BonillaBrian BrooksDuane Gibson

Jason HarringtonDavid JensenAngela JonesJeanne Liu

Anna LivingstonChris Luttrell

Casey RatchfordLeslie Skiba

Eric Whitaker

Case Review EditorsTodd M. Gaynor

Case Review StaffMeitra FarhadiAutumn Hwang

Geoffrey PerusseOriana Repic

David Andrew Smith

Legislative EditorDavid R. DuBose

Legislative StaffRyan BeckerSteve BrinkerJohn Piazza

Maynard SipeRobert Test

Faculty AdvisorProfessor Denis J. Brion

allows abandonment of rail serviceand the railroad expresses interest innegotiating with the potential spon-sor, the STB issues a Certificate ofInterim Trail Use (CITU) or a Noticeof Interim Trail Use (NITU).15 TheCITU/NITU permits the railroad todiscontinue service and allows 180days for negotiations between therailroad and the interested party.16

This 180-day negotiation period canbe extended.17 If an agreement isreached, the sponsor assumes allresponsibility for the right-of-way,subject to future rail reactivation.18

Preseault II, In BriefPreseault II began in 1981, when

landowners claiming a fee simpleinterest in land burdened by a rail-way easement brought a quiet titleaction in Vermont, alleging abandon-ment of the railway and “reversion”of their fee interests.19 As the ICChad not authorized abandonment,the Vermont trial court dismissedthe landowners’ claim for want ofstate jurisdiction.20 The landownersnext sought a certificate of abandon-ment from the ICC.21 The State ofVermont intervened in the landown-ers’ action and, later, obtained ICCapproval of a transfer of the ease-ment from the railroad company tothe city of Burlington pursuant tothe Trails Act Amendments.22 Thelandowners sought review of theICC’s order in the Second CircuitCourt of Appeals, claiming that theTrails Act Amendments violated theCommerce Clause and the FifthAmendment.23 The Second Circuitrejected both arguments24 and theSupreme Court granted certiorari.

The Supreme Court rejected thelandowners’ contention that rails-to-trails was outside the scope of theCommerce Clause, noting that thepreservation of rail corridors and thecreation of a national system of trailswere both legitimate interstate com-merce interests.25 Further, the Court

The articles in this section areintended to provide analysis anddiscussion of topics that may inter-est environmental law attorneys.The Environmental Law Digestwelcomes submissions and sugges-tions of articles and topics for futureissues. Please send your articles orsuggestions to the following address:

Environmental Law DigestRoom 520, Lewis HallWashington & Lee Law SchoolLexington, Virginia 24450540/462-4750

Articles of General Interest

Table of Contents

Rails-to-Trails AfterPresault: A VirginiaPerspective. . . . . . . . . . . 1

Bragg v. Robertson —Section 404 of the CleanWater Act, andMountaintop Removal:Where Do We Go FromHere?. . . . . . . . . . . . . . . 7

2001 Select Environmental Bills Passed by the VirginiaGeneral Assembly and Approved by theGovernor . . . . . . . . . . . 13

Case Digest . . . . . . . . . 17

continued on page 3

continued from page 1

noted that even if rails-to-trails didnot serve the purpose of preservingrailroad corridors, the program didserve the purpose of encouragingdevelopment of additional trails and“[t]here is no requirement that a lawserve more than one legitimate pur-pose.”26

The Preseault II Court did notaddress the issue of whether or notrails-to-trails amounted to a FifthAmendment taking,27 but did rulethat Tucker Act28 remedies wereavailable for any party alleging a tak-ing to have occurred.29 Relying onYearsley v. W.A. Ross ConstructionCo.,30 the Court ruled that “the Tuck-er Act is an ‘implie[d] promis[e]’ topay just compensation which indi-vidual laws need not reiterate.”31

Since Tucker Act remedies wereavailable, a claim that rails-to-trailsamounted to an unconstitutionaltaking was premature.32 However,Preseault II did not rule on the lowercourt’s assertions that: (1) federallaw determines the property rights oflandowners; and, (2) so long as theICC determines that land serves arailroad purpose it retains jurisdic-tion; the land does not “revert” tothe owner of the underlying fee.33

The Preseault II court did infer thatno takings claim existed unless theright-of-way would have reverted tothe owner of the fee but for the rails-to-trails program.34 The applicationof this inference will be addressedlater.

Post-Preseault II ChallengesMost challenges lodged since

Preseault II have been unsuccessfulin blocking rails-to-trails projects.Two types of post-Preseault II chal-lenges are noteworthy and will bediscussed in this section: loss of STBjurisdiction and collateral attemptsto block implementation.

Loss of STB Jurisdiction

The STB loses jurisdiction over arailway upon its abandonment.35

Thus, if a railway is abandoned theSTB has no authority to issue aCITU/NITU and implement a rails-to-trails program.36 A “discontinu-ance” of service (subject toreactivation in the future) does notconstitute abandonment and allowsthe STB to retain jurisdiction overthe right-of-way.37 Since a findingthat a railway is abandoned effec-tively precludes a rails-to-trails con-version, many challenges havealleged that railways were aban-doned prior to rails-to-trails imple-mentation. Thus, the determinationof whether or not a railway has beenabandoned or discontinued becomescritically important.

As a general proposition, aban-donment is consummated when arail carrier expresses intent to aban-don a line at a time when such aban-donment is authorized by the STB.38

An indication of intent to abandon,made at a time when a carrier doesnot have authority to do so, does notconstitute abandonment and allowsthe STB to retain jurisdiction.39

Thus, when a CITU/NITU has beenissued, the rail carrier’s subsequentintention to not negotiate an interimtrail use agreement does not consti-tute abandonment until the expira-tion of the CITU/NITU.40 However,this result is not the same when aCITU/NITU has not been issued.

When a railway is abandoned ordiscontinued, the STB can imposerestrictive conditions if it determinesthat those railways are appropriatefor public use.41 Conditions are effec-tive for a maximum of 180 days.42

However, imposition of public useconditions will not stay STB jurisdic-tion if the rail carrier has otherwiseabandoned the right-of-way.43 Thus,when a rail carrier refuses to negoti-ate an interim trail use agreementand abandons a right-of-way withSTB authority, the STB loses theability to implement a rails-to-trailsprogram, even if the railroad laterdecides to negotiate a trail use agree-ment.44

The determination of whether acarrier intends to abandon or dis-

continue service does not follow a“bright-line” rule. Generally, inten-tion is based on a “searching andfunctional inquiry about the actualintent of the parties.”45 Numerousfactors can be examined, includingwhether or not the carrier hasceased service, removed rails, can-celled tariffs, and sought exemptionfrom the STB.46 In spite of suchactions, however, a carrier’sexpressed intention to not abandonits right-of-way can prevent a deter-mination that the railway has beenabandoned.47 Additionally, negotia-tions with a potential trail sponsorare generally indicative of the rail-way’s intent to not abandon theright-of-way.48

In summary, STB jurisdiction(and the ability to implement rails-to-trails) is susceptible to challengewhen a railway has taken actionsindicative of abandonment undercircumstances permitting abandon-ment to occur. The railway’sexpressed intention to maintain theright-of-way can outweigh the rail-way’s actions and preserve STB juris-diction.

Collateral Attempts to Block Implementation

Perhaps the most interestingpost-Preseault II challenge was madeby landowners in a Washington Statecase, Redmond-Issaquah R.R. Pres.Ass’n v. STB.49 In that case, theBurlington Northern & Santa Fe Rail-way Company (BNSF) transferred asuspended railway to The Land Con-servancy (TLC).50 TLC sought andobtained STB approval to acquirethe line under acquisition exemptionprocedures.51 After obtaining STBapproval of the transfer, TLC filed forabandonment and notified the STBof its intention to implement a rails-to-trails program.52 The STB orderedthat the railway be reconveyed toBNSF, noting that abandonmentexemption procedures are intended“to support the continued operationof rail lines in lieu of abandoningthem…. It appears…that TLC has

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put into effect a plan to convert theline to trail use as soon as possiblefollowing its acquisition of the line.”53

After reconveyance, the STB rein-stated and granted the abandonmentexemption proceeding.54

Now armed with advance noticeof the proposed trail project, Red-mond-Issaquah Railroad Preserva-tion Association (RIRPA), anassociation of homeowners, inter-vened and filed an offer of financialassistance (OFA) pursuant to 49U.S.C. § 10904.55 An OFA is an offerto subsidize or purchase a railroadproposed for abandonment.56 BothBNSF and TLC argued that RIRPAdid not intend to continue rail serv-ice, but rather intended to blockimplementation of a rails-to-trailsconversion.57 The STB rejectedRIRPA’s OFA and granted a NITU toBNSF to negotiate an interim trailuse agreement.58

RIRPA brought action against theSTB, alleging that continuation ofrail service was not a factor the STBwas authorized to consider in evalu-ating an OFA.59 RIRPA’s contentionwas rejected:

The STB was persuaded by theevidence suggesting that RIRPAsubmitted the OFA in order tofrustrate the development of arecreational trail on the right ofway, taking into account news-paper articles in which RIRPA’sleadership made statementsindicating the organization’s pri-mary interest in purchasing theline was to preserve its members’privacy…. The critical factor,and the basis for the OFA’s rejec-tion, was the STB’s determina-tion that future traffic on the linewas highly, if not totally, unlike-ly.60

A finding that the STB wasrequired to consider RIRPA’s OFAwould have effectively authorizedobjecting landowners to attempt to“outbid” potential trail sponsorsthrough their own OFA’s. Redmond-Issaquah is significant in that it indi-cates the courts’ willingness to rejectclaims that are intended purely tofrustrate rails-to-trails conversions,

even though those claims may bejustified by a narrow reading of thelaw.

Takings Claims & Preseault IVAfter Preseault II, parties affected

by rails-to-trails conversions havesought takings compensation underthe Tucker Act. In evaluating rails-to-trails takings claims, federalcourts have applied an analysis thatis primarily based upon the scope ofthe original easements and the fore-seeability of trail conversions. Con-trary to the inference of the majorityopinion in Preseault II,61 reversion ofthe right-of-way upon abandonmentis not necessarily the primary factorin determining whether or not a tak-ing has occurred. However, regard-less of the scope of the easement, ataking has clearly occurred if theeasement would have reverted to itsgrantor but for the imposition of therails-to-trails program.62

Under Preseault IV, 63 the analysisof a rails-to-trails taking claim beginswith an examination of the actualproperty rights at issue. ThePreseault IV Court ruled that adja-cent property owners have sufferedno taking if the railroad right-of-wayis owned in fee simple, regardless ofthe contemplation of trail use at thetime the conveyance was made.64

However, if the right-of-way is aneasement a taking may exist if trailuse is outside the easement’s scope.65

As a general premise, impositionof trail use which is outside thescope of an easement is equivalent tothe taking of a new easement andentitles the owner of the underlyingfee to takings compensation.66 Deter-mination of the scope of an ease-ment is based on the language of theconveying instrument read in light ofthe common law and state laws ineffect at the time of the con-veyance.67 Thus, whether trail use iswithin the scope of an easement isultimately a question of state proper-ty law.

One defense advanced to rever-sionary takings claims is the princi-

ple of “preexisting limitations,”which are established state law prin-ciples restricting the use of propertythat render the new action alleged tobe a taking moot. That is, since theparties to a railroad easement couldhave contemplated or reasonablyforeseen a delay in abandonmentand reversion due to rails-to-trails,no takings claim exists.68 An inquiryinto preexisting limitations thusbecomes an inquiry into whether ornot new regulations are within thescope of established state law princi-ples.69

Preseault IV flatly rejected gov-ernment arguments that no takingsclaim existed because preexistinglimitations encompassed “the sweepof a century of railroad regulation.”70

It appears that such an argument willcontinue to be unsuccessful in thefuture, barring the unlikely circum-stance that a state’s law encompass-es restrictions on rail easementscomparable to trail use. Additionally,Preseault IV refused to considerunderlying fee owners’ claims interms of a regulatory taking under a“reasonable expectations” analysis:“[t]he expectations of the individ-ual…do not define for the law whatare that individual’s compensableproperty rights.”71

A final argument used in supportof the position that rails-to-trailsconversions do not amount to com-pensable takings claims is based onthe “shifting public use” model ofproperty rights. As expressed inPreseault III, it provides:

[B]oth federal regulation changesand property interests shift.The property owner is buyingand selling or transferring hisinterest as the federal law evermore circumscribes that inter-est. Property rights have beencreated under state law in thismodel, but the state courts foryears have not applied state lawas a source independent of fed-eral law in interpreting theserights…. Plaintiffs bought bur-dened properties and did sowith expectations historicallyrooted in the evolving federallaw regulating abandonments of

railroads and the state lawwhich operated companionablywith federal law.72

The implication of the shiftingpublic use doctrine is that broaden-ing the scope of an easement, ordelaying reversion of a fee interest, isforeseeable in light of the history offederal regulation. Thus, the imposi-tion of rails-to-trails does notamount to a taking. This doctrinehas no authority when state law doesnot indicate its adoption and itsapplication was rejected by Pre-seault IV.73

The Takings Claim in VirginiaWhat, then, is the viability of

rails-to-trails takings claims inVirginia? Analysis begins with a dis-cussion of property law in Virginia,and then moves to an inquiry intothe scope of railroad conveyances.Last, expectations of the reversion-ary owner are considered.

Rail Corridors in Virginia

Most commonly, a rails-to-trailsconversion occurs on lands whichwere granted by way of easement.Under Virginia law, an easement isextinguished when the purpose ofthe easement ceases.74 Thus, whenrails-to-trails use falls outside thescope of a railroad easement, anddelays the reversion of propertyrights to the fee owner, it is clear thata takings claim would be upheldunder Preseault IV.

There is also some indication thatVirginia law would support a takingsclaim in the case of conversion of afee simple corridor, but only undervery limited circumstances. Whenland is conveyed in fee simple with-out any words of limitation it is clearthat the grantee acquires full powerto dispose of the land.75 No takingsclaim would exist upon conversion ofa fee simple right-of-way, grantedwithout restriction, to a recreationaltrail.76 However, when conveyance ismade with a certain use as a condi-tion subsequent and a proviso thatthe land will revert if the condition is

not met, there is a plausible argu-ment that a rails-to-trails impositionin violation of that condition is a tak-ing.

Virginia upholds reverter clausesin fee simple conveyances. InSanford v. Sims, a parcel of land wasconveyed to a railroad to “be usedsolely and exclusively…for the pur-pose of running [the railroad’s] loco-motives, trains or cars, [and] forshops, sidings and depots.”77 Theconveyance stipulated that if therailroad were to “cease or fail toenjoy the said lot or parcel of land forthe purpose herein set forth, thenthe said lot of land [would] revert toand become the property of” thegrantor.78 Some years later, after theparcel had been conveyed severaltimes, its then-owner sought adecree removing the reverter cloudfrom its title.79 The Virginia SupremeCourt upheld the reverter clause,ruling that the fee simple con-veyance was subject to reversionupon occurrence of the conditionsubsequent, use of the land outsidethe scope of the conveyance.80

Though Preseault IV statesexplicitly that there is no takingsclaim when a fee simple rail corridoris converted to trail use,81 under theactual analysis of Preseault IV thereis a strong argument in Virginia thatsuch reversionary owners would beentitled to takings compensation:“[I]f [the landowners] have interestsunder state property law that havetraditionally been recognized andprotected from governmental expro-priation, and if, over their objection,the Government chooses to occupyor otherwise acquire those interests,the Fifth Amendment compels com-pensation.”82 Consider the reasoningof Glosemeyer v. United States:83

Having established that the ease-ments would have been extin-guished, and thus that, but forthe application of the Rails-to-Trails act, the plaintiffs wouldhave been seised in their landswithout any restrictions, we havelittle difficulty concluding that ataking has occurred. In this case,the plaintiffs came into posses-

sion of their lands realizing thatMoPac and MKT, or an appropri-ate railroad successor, had theright to operate a rail line acrossparts of their lands. Plaintiffswould have been secure in theknowledge that Missouri lawguaranteed that only railroadshad that right and that the onlyuses that could be made of theirlands were those reasonablyrelated to the operation of a rail-road…. Those expectations havebeen thwarted.84

Though Glosemeyer dealt witheasements, it is difficult to ascertaina substantive difference betweeneasements which revert when extin-guished and fee simple estates whichrevert by the terms of their con-veyances. In both cases, ownershipof the land would have reverted tothe grantor but for the application ofthe rails-to-trails program. In bothcases, the grantor possesses theexpectation that only certain useswill be made of the granted land, anexpectation that is dashed by theimplementation of rails-to-trails.Certainly, there is a strong argumentthat the grantor of the fee simpleestate with use conditions has alsosuffered a taking and is entitled tocompensation.

Less clear is the situation inwhich a grantor has conveyed a feesimple estate with the covenant thatit will be used for railroad purposesonly. Virginia courts have upheldsuch restrictive covenants on rail-road deeds, affirming injunctions85

and awards of nominal damages.86

However, violation of a covenant isnot itself grounds for ejectment orreversion.87 Conversion of landscovenanted for railroad purposes totrail purposes is, thus, not actually aphysical taking. Nonetheless, such aconversion does deprive a grantor ofthe expectation that the granted landwould be used for railroad purposesonly. Possibly a grantor has suffereda taking of this expectation and isentitled to nominal compensationfor the loss of that right.

Scope of Easements

Although Virginia has not ruledspecifically on the issue of whethertrail use is within the scope of a rail-road easement, other rulings point toa finding that it is not. Virginia HotSprings Co. v. Lowman establishesa two-tiered standard of review fordetermining the scope of an ease-ment.88 Use is outside the scope of aneasement when: (1) the use is a newuse, not in aid of the original use; or(2) the use imposes a new or greaterburden on the fee owner.89 Based onthis review, a bridlepath was withinthe scope of a turnpike easement90

and a roadway easement encom-passed the right to change the gradeof the road.91 However, a railroadeasement granted to a coal companyfor the purpose of shipping coal didnot allow the coal company to leasethe railway to a lumber company forthe purpose of shipping lumber: “Wedo not think that the deed can natu-rally or fairly be constructed as pass-ing anything but a right of way for arailroad for use in connection withthe primary purpose of the coal com-pany. To extend it…to the whollydifferent and foreign purpose forwhich it is now being used, would beto make a new contract between theparties.”92

Under the Virginia Hot Springsanalysis, the inquiry is simplywhether the trail use is in aid of theoriginal use, or whether the trail useimposes a new or greater burdenupon the fee holder. A negativeanswer to either question indicatesthat trail use is outside the scope of arail easement. A majority of jurisdic-tions have, in fact, ruled that trailuse falls outside the scope of railroadeasements.93 The majority reasoningis well-expressed in Preseault IV:

Although a public recreationaltrail could be described as aroadway for the transportation ofpersons, the nature of the usage[compared with rail use] is clear-ly different. In the one case, thegrantee is a commercial enter-prise using the easement in itsbusiness, the transport of goodsand people for compensation. In

the other, the easement belongsto the public, and is open for usefor recreational purposes….[T]here are differences in thedegree and nature of the burdenimposed on the servient estate. Itis one thing to have occasionalrailroad trains crossing one’sland. Noisy as they may be, theyare limited in location, in num-ber, and in frequency of occur-rence. Particularly is this so on arelatively remote spur. Whenused for public recreational pur-poses, however, in a region thatis environmentally attractive, theburden imposed by the use of theeasement is at the whim of manyindividuals, and, as the recordattests, has been impossible tocontain in numbers or to keepstrictly within the parameters ofthe easement.94

It seems clear that trail use isboth a different use than operation ofa railway, and that it imposes a newor greater burden upon the feeowner.

Even where an easement does notexplicitly limit itself to rail purposes,trail use may be outside the scope ofthe easement if it was originally usedfor rail purposes. Virginia stipulatesthat where “the instrument creatingthe easement does not limit the useto be made thereof, it may be usedfor any purpose to which the [holderof the easement] may then, or in thefuture, reasonably be devoted. Thisrule is subject to the qualificationthat no use may be made of the rightof way, different from that estab-lished at the time of its creation,which imposes an additional burdenupon the servient estate.”95 Itappears that the preservation of railcorridors and the creation of a sce-nic trail are purposes to which theright-of-way can reasonably bedevoted. However, there is a strongargument that use of the right-of-wayfor trail purposes imposes greaterburdens on the owner of the fee, andthis is precisely the finding ofPreseault IV’s comparison of trail useand rail use.96

Expectations of the Reversionary Owner

The “shifting public use” doctrinecited by the government in PreseaultIV—the idea that the scope of aneasement changes based on the feeowner’s expectation of changing reg-ulation—does not appear to haveany support in Virginia law. On thecontrary, the Virginia cases cited inthis article all analyze conveyancesin light of the meanings attached tothem at the time of their creation.97

No reviewed case has relied upon aline of reasoning that indicates that afee owner’s expectation of changingfederal regulation modifies the scopeof a conveyance. “Shifting publicuse” and related arguments are like-ly to fail on a Virginia takings claimjust as they failed in Preseault IV.

1 See Garvey Winger, Rails-to-Trails ProgramCan Connect Best of Both Worlds forOutdoorsmen, RICHMOND TIMES-DISPATCH,May 14, 1999, at D4.

2 See generally Emily Drumm, Note,Addressing the Flaws of the Rails-to-TrailsAct, 8 KAN. J.L. & PUB. POL’Y, 158 (Spring1999).

3 See Mark Taylor, Dispute Brews Over CraigCreek Valley Rail-to-Trail Project, ROANOKE

TIMES & WORLD NEWS, October 8, 2000, atC10; Joanne Poindexter, Residents RailAgainst Proposed 26-Mile Trail in Botetourt,Craig; Trash, Property Rights, Safety AreIssues, ROANOKE TIMES & WORLD NEWS,October 6, 2000, at B1; Joanne Poindexter,Proposed Trail Creates Enthusiasm, Anger;Trail Safety, Maintenance and Rights of WayTop Critics’ List of Concerns, ROANOKE TIMES

& WORLD NEWS, October 4, 2000, at B1.4 494 U.S. 1 (1990).5 16 U.S.C. § 1247 (1985).6 Id. § 1247(d).7 Id. § 1247(d).8 Preseault v. ICC, 494 U.S. at 17.9 National Trails System Act of 1968, Pub. L.No. 90-543, 82 Stat. 919 (codified asamended in 16 U.S.C. § 1241-1251 (1985)).

10 Railroad Revitalization and Reform Act (4-R)Act of 1976, Pub. L. No. 94-210, 90 Stat.144 (codified as amended in scattered sec-tions of 5, 11, 15, 31, 45, 49 U.S.C.).

11 16 U.S.C. § 1247(d).

12 H.R. REP. No. 98-28, at 8-9 (1983).13 49 C.F.R. § 1152.29(b) (1999).14 Id. § 1152.29(a).15 Id. § 1152.29(c)-(d).16 Id. § 1152.29(c)(1), (d)(1).17 Birt v. Surface Transportation Board, 90 F.3d

580, 588 (D.C. Cir. 1996).18 16 U.S.C. § 1247(d).19 Preseault v. ICC, 494 U.S. 1, 9 (1990).20 Trustees of Diocese of Vermont v. State, 496

A.2d 151 (Vt. 1985) (aff’g lower court’s dis-missal).

21 Preseault v. ICC, 494 U.S. 1, 9 (1990).22 Id.23 Id. at 10.24 Preseault v. ICC, 853 F.2d 145 (2d Cir. 1988)

(hereafter Preseault I).25 Preseault v. ICC, 494 U.S. 1, 17 (1990).26 Id. at 18.27 Id. at 17.28 28 U.S.C. § 1491 (1994).29 Preseault, 494 U.S. at 12.30 309 U.S. 18, 21 (1940).31 Preseault v. ICC, 494 U.S. 1, 13 (1990)

(quoting Yearsley, 309 U.S. at 21).32 Id. at 17.33 Id. at 10 (quoting Preseault I, 853 F.2d at

151).34 Id. at 16.35 Id. at 5 n.3.36 Birt, 90 F.3d at 585.37 Preseault II, 494 U.S. at 5 n.3.38 Birt, 90 F.3d at 587; Fritsch v. ICC, 59 F.3d

248, 253 (D.C. Cir. 1995).39 Birt, 90 F.3d at 587.40 Birt, 90 F.3d at 587.41 49 U.S.C. § 10905 (1995) (conditions can

only be imposed when the railway has notoffered the right-of-way for sale for publicpurposes “on reasonable terms”).

42 Id.43 Fritsch, 59 F.3d at 253.44 Id.; Becker v. Surface Transportation Board,

132 F.3d 60, 62-63 (D.C. Cir. 1997).45 Black v. ICC, 762 F.2d 106, 112 (D.C. Cir.

1985).

46 Becker v. Surface Transportation Board,132 F.3d 60, 62 (D.C. Cir. 1997).

47 Id.48 Birt, 90 F.3d at 587.49 Redmond-Issaquah R.R. Pres. Ass’n v.

Surface Transportation Board, 223 F.3d1057 (9th Cir. 2000).

50 Id. at 1059.51 Id.; see also 49 U.S.C. § 10901 (1996) (gov-

erning acquisition exemption procedures).52 Redmond-Issaquah, 223 F.3d at 1059.53 Redmond-Issaquah, 223 F.3d at 1059

(quoting The Land Conservancy of Seattleand King County—Acquisition andOperation Exemption—The BurlingtonNorthern and Santa Fe Ry. Co., STBFinance Docket No. 33389 at 3 (servedSept. 26, 1997)).

54 Redmond-Issaquah, 223 F.3d at 1060.55 Redmond-Issaquah, 223 F.3d at 1060.56 49 U.S.C. § 10904 (1995).57 Redmond-Issaquah, 223 F.3d at 1060.58 Redmond-Issaquah, 223 F.3d at 1060. 59 Redmond-Issaquah, 223 F.3d at 1060; see

also 49 U.S.C. § 10904(d) (1995) (requiringabandonment or discontinuance of a railwaybe postponed when a “financially responsi-ble person” makes an OFA).

60 Redmond-Issaquah, 223 F.3d at 1064 (cita-tion omitted).

61 Preseault II, 494 U.S. at 16.62 Preseault v. United States, 100 F.3d 1525,

1550-51 (Fed. Cir. 1996) (hereafter,Preseault IV); Chevy Chase Land Co. ofMontgomery County, Md. v. United States,37 Fed. Cl. 545, 585 (1997).

63 Preseault IV, 100 F.3d 1525 (Fed. Cir. 1996).64 Id. at 1533.65 Id.66 Id. at 1550.67 Id. at 1534.68 Chevy Chase, 37 Fed. Cl. at 584.69 Preseault IV, 100 F.3d 1525, 1538-39 (Fed.

Cir. 1996) (citing Lucas v. S.C. CoastalCouncil, 505 U.S. 1003, 1029-1032 (1992)).

70 Id. at 1539.71 Id. at 1540.72 Preseault v. United States, 27 Fed. Cl. 69,

90 (1992) (hereafter, Preseault III).73 Preseault IV, 100 F.3d at 1541.

74 American Oil Co. v. Leaman, 101 S.E.2d540, 552 (Va. 1958); McCrerry v.Chesapeake Corp., 257 S.E.2d 828, 831(Va. 1979).

75 See Gordon Metal Co. v. Kingan & Co., 111S.E. 99, 100 (Va. 1922) (relying upon 1919Code).

76 Preseault IV, 100 F.3d at 1533.77 Sanford v. Sims, 66 S.E.2d 495, 496 (Va.

1951).78 Id. at 496.79 Id. at 497.80 Id. at 499 (however, the failure of the owners

of the reversionary interest to assert theirclaim within the statute of limitations pre-vented reversion).

81 Preseault IV, 100 F.3d at 1533.82 Id. at 1550.83 45 Fed. Cl. 771 (2000).84 Id. at 781.85 Virginian Ry. Co. v. Avis, 98 S.E. 638, 641

(Va. 1919).86 Martin v. Norfolk Redevelopment & Hous.

Auth., 140 S.E.2d 673, 677-78 (Va. 1965).87 Shreve v. Norfolk & W. Ry. Co., 64 S.E. 972,

975 (Va. 1909).88 Virginia Hot Springs Co. v. Lowman, 101

S.E. 326, 330 (Va. 1919).89 Id.; see also Anderson v. Stuarts Draft Water

Co., 87 S.E.2d 756, 759 (Va. 1955) (apply-ing Virginia Hot Springs analysis).

90 Virginia Hot Springs, 101 S.E. at 330.91 Stuarts Draft Water, 87 S.E.2d at 760.92 Robertson v. Bertha Mineral Co., 104 S.E.

832, 835 (Va. 1920) (emphasis added).93 Preseault IV, 100 F.3d 1525, 1543 (Fed. Cir.

1996).94 Id. at 1542-43.95 Cushman Va. Corp. v. Barnes, 129 S.E.2d

633, 639-40 (Va. 1963) (citations omitted,emphasis added).

96 Preseault IV, 100 F.3d at 1542-43.97 See Virginia Hot Springs, Bertha Mineral

Co.; see also Hermitage Methodist Homesof Va., Inc. v. Dominion Trust Co., 387S.E.2d 740 (Va. 1990) (refusal to alter atrust’s racial limitation).

� �

Bragg v.Robertson —Section 404 of theClean Water Act,and MountaintopRemoval: WhereDo We Go FromHere?by Christopher Luttrell

Introduction

On October 20, 1999, UnitedStates District Court ChiefJudge Charles Haden shocked

the coal mining community of WestVirginia when he handed down hisdecision in Bragg v. Robertson.1 Bygranting the Plaintiffs’ motion forsummary judgement on two criticalissues,2 Chief Judge Haden effectivelydestroyed the present-day practicesof mountaintop removal in the Stateof West Virginia. Specifically, ChiefJudge Haden held that the Director(“Director”) of the West VirginiaDepartment of Environmental Pro-tection (“DEP”) lacks authority toissue valley fill permits under the aus-pices of present valley fill permittingpractices involving perennial andintermittent streams.3 Dependingupon the Fourth Circuit, Chief JudgeHaden’s decision may reverberatethroughout other states, such as Vir-ginia and Kentucky, where mountain-top removal mining and valley fillsendure under similar regulatory prac-tices as those in West Virginia.

Undoubtedly, Chief Judge Haden’sdecision is one that will be debatedfor years. Such will be the life of anydecision that so strongly affects theeconomic, environmental, and socialinterests of an industry as importantas West Virginia coal mining. As themotto goes, coal mining in West Vir-ginia is more than a job – it’s a way oflife.

The interests involved, however,only represent a portion of Bragg’senormity. Of noted importance isChief Judge Haden’s interpretationof the Clean Water Act (“CWA”)4—an interpretation that destroyedwhat for years had been consideredthe appropriate method for issuingvalley fill permits. Specifically, ChiefJudge Haden held that Section 404of the CWA, a section entitled“Permits for dredged or fill material,”does not apply to valley fills.5 Manypeople have speculated as to theeffects Chief Judge Haden’s decisionwill have on more sexy issues—suchas the buffer-zone rule, which will bediscussed later. This paper, however,is going to examine a topic lessattractive, but possibly more impor-tant: how has Bragg affected the reg-ulation of valley fills under the CWA.

In order to conduct a thoroughstudy of this issue, this paper willfirst give a description of the tradi-tional permitting practices—thoseimplemented during the pre-Braggera. Then, this paper will examineChief Judge Haden’s rationale fordeciding that Section 404 does notapply to valley fills. Finally, thispaper will determine if, in fact, ChiefJudge Haden has legislated from thebench or merely revealed the correctapplication of existing law.6

Valley Fill Permitting UnderSection 404 in the Pre-BraggEra

Under the pre-Bragg regulatoryregime, there were three CWA per-mits that a coal operator had toobtain in order to construct a valleyfill: a Section 401 permit,7 a Section402 permit,8 and a Section 404 per-mit.9

The Section 401 permit, com-monly referred to as a water-qualitycertification, assures that the pro-posed valley fill complies with allCWA requirements.10 In addition, theagency issuing the permit must alsoassure that all comparable state pro-visions are satisfied.11 Section 401

permits are more or less a certifica-tion that water quality standards aremet from the state where the “dis-charge originates or will originate.”12

In West Virginia, the Director of theDEP is authorized to issue certifica-tion of water quality standards. Inthe event the state does not have anagency authorized to issue Section401 permits, the Administrator(“Administrator”) of United StatesEnvironmental Protection Agency(“EPA”) issues the permit.

Section 402 governs the dis-charge of pollutants into waters ofthe United States.13 Under Section402, the Administrator is authorizedto establish guidelines and require-ments that ensure compliance underprescribed criteria established inenumerated sections of the CWA14 orto establish “such conditions as theAdministrator determines are neces-sary to carry out the provisionsof…[the CWA.]”15

The Section 402 permit is part ofthe National Pollutant DischargeElimination System (“NPDES”) per-mit program. The NPDES, which isset up to govern the discharge of pol-lutants from a point source into thewaters of the United States, is bestdescribed as a system of cooperativefederalism. A state, under Section402(b), can propose a “full and com-plete description of the program itproposes to establish and adminis-ter” to govern the discharge of pollu-tants into the waters of the UnitedStates.16 If the state program isauthorized, then the state appointsan agency to issue Section 402 per-mits.17 Similar to Section 401 per-mits, when the state does not havean authorized program, the Adminis-trator issues the permits.18 West Vir-ginia has an approved program, andhas subsequently appointed the DEPto issue Section 402 permits.19

The Section 404 permit20 is theodd-duck of the CWA. Unlike Sec-tion 401 or 402 permits which areauthorize by either state agencies orthe EPA, Section 404 permits areissued by the Secretary of the Army(“Secretary”) acting through the

Chief of Engineers, a member of theArmy Corp of Engineers (“Corp”).21

This section of the CWA governs thedischarge of dredged or fill materialsfrom a point source into the watersof the United States.22 Dredged mate-rial is any material that is dredged orexcavated from a body of water.23 Fillis “any material that is used for theprimary purpose of replacing anaquatic area with dry land or ofchanging the bottom elevation of an[sic] waterbody.”24 Traditionally,operators and the bureaucratsauthorized to issue Section 404 per-mits assumed that a valley fill iscomposed of fill, and thereforerequires a Section 404 permit. ChiefJudge Haden rejected this traditionalinterpretation – a rejection that willbe examined at length in the nextsection of this paper.

According to Section 404, theSecretary is bound by certain guide-lines before he or she can legitimate-ly issue a Section 404 permit.25

These guidelines, which are purport-ed “to restore and maintain thechemical, physical, and biologicalintegrity of waters of the UnitedStates through the control ofdredged or fill material,”26 are devel-oped by the Administrator of theEPA27 in conjunction with the Secre-tary.28 These guidelines are com-posed to establish certain criteria tobe followed when assessing proposeddredged and fill permits29 and reflecta basic presumption of the CWA: dis-charge of dredged or fill material intothe waterways, unless causing onlyminimal and acceptable adverseimpacts on the ecosystem, should beprohibited.30 Many times, theseguidelines are referred to as404(b)(1) Guidelines.

Specifically, 404(b)(1) Guide-lines set forth enumerated criteriathat must be followed when the Sec-retary considers a Section 404 per-mit. These considerations are asfollows: (1) is “there is a practicablealternative to the proposed dis-charge which would have lessadverse impact of the aquaticecosystem;”31 (2) will the discharge

cause or contribute to violations ofany preexisting law, either state orfederal, concerning water quality,effluent standards, or protectedspecies;32 (3) will the dischargecause “significant degradation of thewaters of the United States;”33 and(4) have “appropriate and practica-ble steps…been taken which willminimize potential adverse impactsof the discharge on the aquaticecosystem.”34

As one can see, the regime thatexisted prior to Bragg required theoperator to face a myriad of qualifi-cations in order to obtain the permit.For years, this regime existed, asboth state and federal agencies andcoal operators assumed that the 404permit was a necessary section ofvalley fill permitting process. As thenext section of this paper will illus-trate, Chief Judge Haden abrogatedthis approach, leaving many peoplewondering, “What’s next?”

Bragg v. Robertson: Section404 Does Not Apply to ValleyFills

In July 1998, the West VirginiaHighlands Conservancy and a hand-ful of West Virginia citizens (collec-tively, “Plaintiffs”) brought suitagainst a group of Federal and WestVirginia state officials (collectively“Defendants”) for alleged violationsunder the Surface Mining Controland Reclamation Act of 1977(“SMCRA”).35 According to the Plain-tiffs, the Defendants (1) wereengaged in a “pattern and practice”of issuing valley fill permits withoutfirst making necessary findings inaccordance with state and federallaw and (2) that the Director’sauthority did not extend to issuingpermits for valley fills that bury sub-stantial portions of intermittent orperennial streams.36

Through a proposed consentdecree, all but two of the originalclaims were settled. Included withinthis settlement were Counts 11, 12,and 13, which, when settled, dis-missed the Federal Defendants.37 The

Court accepted this decree, butretained jurisdiction to “interpretand enforce the agreement until fullyperformed.”38

When the dust cleared, only twoof the original claims remained. Bothof these claims were based upon the“buffer-zone” rule—a component ofSMCRA promulgated by the Office ofSurface Mining (“OSM”) to protectstreams, stream channels, andstream ecology.39 The buffer-zonerule has specific guidelines that theauthorized agency must followbefore issuing a permit, similar tothe 404(b)(1) Guidelines.40 In WestVirginia, the Director of the DEP isauthorized to issue buffer-zone per-mits and, by law, required to makeenumerated findings under thebuffer-zone guidelines.41

In response to these two claims,the Defendants offered a variety ofdefenses, including one that reliedon a Memorandum of Understandingentered into by the DEP, the EPA,the OSM, and the Corp.42 The Memo-randum allows “…that the findingsfor buffer-zone authorization are tobe met through compliance with theostensibly comparable…[404(b)(1)Guidelines] necessary to carry outdredge and fill activities under CWA§ 404.”43 In other words, the Memo-randum states that the buffer-zonerule findings were not required toissue a buffer-zone permit. Instead,as long as the 404(b)(1) Guidelineswere followed, a buffer-zone permitcould be granted.44

The Defendants’ argumentsunder the Memorandum relied heav-ily on the premise that CWA Section404 permits valley fills.45 This inter-pretation was, as stated before, theaccepted interpretation within thecoal mining community, both amongbureaucrats and coal operators. Sim-ply stated, it was believed that inorder to obtain a valley fill permit,the coal operator had to obtain aSection 404 permit from the Corp.

As stated in a previous section ofthis paper, Section 404 applies todredged or fill material discharged

into the waters of the United States.Dredged material is “material that isdredged from waters of the UnitedStates.”46 Since “the overburdenoriginating from mountaintop min-ing is not excavated or dredged fromthe waters of the United States,”47

Chief Judge Haden’s analysis focusedon fill material and its meaning.

The Corps and the EPA define fillmaterial as “any material used forthe primary purpose of replacing anaquatic area with dry land or ofchanging the bottom elevation of an[sic] waterbody.”48 According to thisdefinition, pollutants49 that are “dis-charged into the water primarily todispose of waste” are not includedunder Section 404. Discharge of pol-lutants for the primary purpose ofwaste is regulated by the EPA underSection 402 of the Clean Water Act.50

The Code of Federal Regulationsprovides a list of activities that areregulated by Section 404. This listincludes:

“Placement of fill that is neces-sary for the construction of anystructure in a water of theUnited States; the building ofany structure or impoundmentrequiring rock, sand, dirt, orother material for its construc-tion; site-development fills forrecreational, industrial, com-mercial, residential, and otheruses; causeways or road fills;dams and dikes; artificial islands,property protection and/or recla-mation devises such as riprap,groins, seawalls, breakwaters,and revetments; beach nourish-ment; levees; fill for structuressuch as sewage treatment facili-ties, intake and outfall pipesassociated with power plants andsubaqueous utility lines; andartificial reefs.”51

According to Chief Judge Haden,a valley fill, in spite of the common-ality of name, does not fit under theSection 404’s definition of fill. Hegives two basic explanations for thisconclusion. First, although a valleyfill does have the effect of replacingan aquatic area with dry land andchanges the bottom elevation of

land, it is not constructed to replacean aquatic area with dry land or tochange the bottom elevation of land.Instead, a valley fill is intended todispose of rock and dirt. The factthat a valley fills in a waterbody isonly incidental. When a coal opera-tor sets out to construct a valley fill,his or her intention is to create adump for the overburden from itsmining operation. This overburdenis industrial waste52 and therefore apollutant as defined by the Code ofFederal Regulations (“C.F.R.”).53

Consequently, a valley fill is regulat-ed under Section 402 of the CWA.54

Secondly, Chief Judge Hadenstates that Section 404 only appliesto activities that are constructive bynature. In each example provided bythe C.F.R., the intention of the listedactivity is to construct or build adevice or structure that has futurevalue. For example, dams may gener-ate electricity; levees, hopefully, willstop the free flow of water; fill for sitedevelopment creates a more attrac-tive or more workable land. A valleyfill, however, provides no advantagesfor future land use.55 It merely fills ahollow or a valley, destroying streamsin the process. Chief Judge Hadenmakes note that none of the activitieslisted in the C.F.R. “include any sortof waste disposal.”56 After completelyhis analysis of the relevant statutorylaw, Chief Judge Haden moved to thelimited case law that attempts to pro-vide a definition of a valley fill. InFriends of Santa Fe County v. LacMinerals, Inc., a local environmentaladvocacy group brought a citizen suitunder a collection of state and feder-al environmental regulations, includ-ing the CWA.57 According to theadvocacy group, the defendants vio-lated Section 404 of the CWA by con-structing an overburden pile from agold mine. This overburden pileresulted in acid mine drainage, thusviolating Section 404 of the CWA.58

The District Court of New Mexicorejected the advocacy group’s argu-ment, holding that the overburdenwas not “dredged material” or “fillmaterial” under CWA Section 404.59

Instead, overburden is a “pollutantdischarged into the waters of the pri-marily to dispose of waste.”60 Conse-quently, overburden is governed bySection 402 of the CWA, and underthe auspices of the EPA.

In West Virginia Coal Associa-tion v. Reilly, a group of coal miningassociations and coal mining compa-nies raised an argument similar tothat in Lac Minerals.61 Here, theplaintiffs argued that permittingauthority over valley fill permitsrests with the Secretary and not theEPA. In other words, the plaintiffsasserted that Section 404 which cov-ers “dredged” or “fill” materialapplies to valley fills. Thus, the Sec-retary, and not the EPA, has power toissue valley fill permits.62 The Courtresponded with the following:

“[B]ecause the [Corps’] defini-tion of fill material included onlymaterial placed for the ‘primarypurpose’ of ‘changing the bottomelevation of a waterbody,’ itwould appear that the [Corp]never intended to regulate thedisposal of waste or spoil in val-ley fills. The primary purpose ofthe fills…is to dispose ofwaste…, not to create dry landsuch as is need for constructionof buildings, or land develop-ment, as contemplated by the[Corps’] definition above.”63

In short, the Court found that thepermitting of valley fill material wasunder the auspices of the Secretaryand not the Administrator. Standingby precedent, Chief Judge Hadenaccepted this definition, and, in con-junction with his interpretation ofrelevant statutes, held that theCorps’ Section 404 authority doesnot apply to valley fills.64

Bragg leaves the coal communi-ty with a thinner, more fit regulato-ry regime under the CWA. Asdiscussed previously, the traditionalpractice under the CWA was toobtain permits under Sections 401,402, and 404. Now, the practice willonly contain Section 401 and 402permits. Valley fills, in spite of pastmisunderstandings, are composed

of pollutants and thus regulatedunder Section 402.

In some ways, it seems as ifBragg may have certain favorableeffects on the mining industry; theresulting regulatory regime underthe CWA is simplified, and simplifi-cation undoubtedly means less pro-cedure. Furthermore, coaloperators obtained Section 402 per-mits under the traditional permit-ting process. Obtaining that samepermit cannot be too hard, right?

This is not the case. Simplicity ofprocedure should not be confusedwith simplicity of substance. It isquite conceivable that the EPAunder its Section 402 authority willcreate regulations that are morestringent than the 404(b)(1) Guide-lines. Due to increased public andpolitical awareness surroundingmountaintop removal, EPA officials,including the Administrator, nowhave an increased interest in pro-tecting themselves from scrutiny.Strengthening Section 402 guide-lines that govern valley fill permitsis an easy and effective way to gainsuch protection.

Such a result occurred in Reilly.The underlying claims brought bythe West Virginia Coal Associationagainst the EPA were based on theEPA’s adoption of a policy that gen-erally prohibited in-stream treat-ment ponds and fills for coal miningwastewater.65 This policy set up avery detailed protocol limiting whenthe EPA would “not object to a pro-posed in-stream pond or fill.”66

From 1987 until the Reilly decisionin 1989, 41 draft permits out of atotal of 700 submitted by the WestVirginia Department of NaturalResources were rejected on thebasis of the EPA’s concerns aboutin-stream treatment.67

As the Reilly claim illustrates,the EPA has been known to promul-gate regulations under its Section402 authority that detrimentallyaffect the coal industry. A similarresult in the future is not inconceiv-able.

When the Bragg opinion wasreleased, the citizens of West Virginiareacted in a variety of ways. Environ-mentalists commended Chief JudgeHaden for taking a stand in an area oflaw that many judges feared. Gover-nor Cecil Underwood, a strong advo-cate of mountaintop removal mining,criticized Chief Judge Haden for“effectively halt[ing]…much of themining of coal mining in [West Vir-ginia.]”68 Governor Underwood alsodescribes the actions of the Plaintiffsas the cause of “extensive human suf-fering.”69

Obviously, much of the fanati-cism surrounding the Bragg decisioncenters on Chief Judge Haden’sbuffer-zone holding and resultinginjunction directed against theDirector of the DEP. As time pro-gresses, however, Chief JudgeHaden’s CWA interpretation maygarner more attention, especially ifthe EPA dictates stringent guidelinessimilar to those addressed in Reilly.Then, it becomes more likely thatChief Judge Haden’s CWA interpreta-tion will gain interest. Inevitably,such interest will breed criticism,criticism similar that heard todaythroughout the coal mining commu-nity.

The criticism, however, may beunwarranted. Chief Judge Haden didnothing more than interpret the lawas it applied to valley fills. The caselaw, which was directly on point,defined the parameters of the Corps’authority under Section 404. Theapplicable CWA Sections—401, 401and 404, are clear and unequivocalin defining their scope.

Depending upon the impendingFourth Circuit review, the predica-ment this paper foresees may or maynot come to fruition. Taking intoconsideration the Fourth Circuit’sreputation, Chief Judge Haden’sopinion is arguably ripe for reversal,or maybe not—who knows? Onlytime will tell what effects, if any,Chief Judge Haden’s decision willhave on the coal mining communityof West Virginia.

On December 7, 2000, the FourthCircuit Court of Appeals entertainedoral arguments in the Bragg v.Robertson case. Individuals, both forand against mountaintop removalmining, anticipate and hope that theFourth Circuit’s opinion in Braggwill provide some guidance in theapplication of the Clean Water Act tovalley fills. Yet, given the intensitythat inspires both advocates for andagainst mountaintop removal min-ing, the Fourth Circuit’s upcomingdecision will likely prove to be noth-ing more than another step in a longline of appeals for the valley fill issue.This paper attempts to analyze themerits behind Chief Judge CharlesHaden’s decision to issue the injunc-tion halting the continued use of val-ley fills.

1 Bragg v. Robertson, No. 2:98-0636, 1999WL 1000181 (S. D. W. Va. 1999).

2 The plaintiffs sought to enjoin the defen-dants from granting further valley fill permitsunder the present-day practices. The court,as stated above, sided with the plaintiffs andenjoined the Director of the West VirginiaDepartment of Environmental Protectionfrom (1) granting further buffer zone permitswithout first making mandatory findings asrequired by both state and federal law and(2) from approving further surface miningpermits under current state and federal lawsthat would authorize the placement ofexcess soil in intermittent and perennialstreams for the primary purpose of disposal.See Id. at 15-17.

3 On October 29, 1999, Chief Judge Hadenstayed his decision amidst what he labeled“misunderstandings” and “egregious mis-representations.” See, MemorandumOpinion and Order Granting Stay, No. 2:98-0636, 1999 WL 1000195 (S. D. W. Va.1999).

4 Federal Water Pollution Control (CleanWater) Act, §§ 101-607, 33 U.S.C. §§1251-1387 (1994).

5 See 33 U.S.C. 1344.6 Details of the underlying claims in Bragg arebeyond the scope of this paper and will notbe discussed unless beneficial for a morethorough understanding of Section 404 ofthe CWA. This paper is not intended to be arecapitulation of the entire Bragg opinion.

7 See 33 U.S.C. § 1341.

8 See § 1342.9 See § 1344.

10 § 1341(a)(1).11 Id. The applicable state statutes, such as

the West Virginia Water Pollution ControlAct, will not be examined in this paper. See,W. VA. CODE § 22-1-6 (1994).

12 33 U.S.C. § 1341(a)(1).13 Id.14 The enumerated sections are §§ 1311,

1312, 1316, 1317, 1318, and 1348. Thecontent of these sections are of little impor-tance to this paper and will not bedescribed.

15 § 1342(a).16 § 1342(b).17 Id.18 § 1342(a)(1).19 See W. VA. CODE § 22-1-6(d)(6) (1994).20 Under Section 404, the Secretary is author-

ized by Congress to issue two types of per-mits, individual or general. See 33 U.S.C. §1344(a) and (e). An individual permit onlyapplies to a specific site. A general permitcan be issued for a category of activitiesinvolving dredged or fill material as long asthe Secretary “determines that the activitiesin such category are similar in nature, willcause only minimal adverse environmentaleffects when performed separately, and willhave only minimal cumulative adverse effecton the environment.” General permits arelimited to a five year life and can be revokedor modified at any time by the Secretary.

21 § 1344(d).22 The definition of “waters of the United

States” has evolved over time. In 1975, theDistrict Court for the District of Columbiaheld that Congress intended to assert feder-al jurisdiction over the nation’s water’s to themaximum extent permitted under the com-merce clause of the Constitution. See,N.R.D.C. v. Callaway, 392 F.Supp. 685 (D.D. C. 1975). Since then, the Corps hasextended the definition of waterways toinclude artificially created wetlands and wet-lands physically separated from otherwaters. See, Lawrence R. Liebesman, TheSection 404 Dredged and Fill MaterialDischarge Permit Program, in THE CLEAN

WATER ACT HANDBOOK 136 (Parthenia B.Evans ed. 1994).

23 Permits for Discharges of Dredged of FillMaterial into Waters of the United States, 33C.F.R. § 323.2(c).

24 33 C.F.R. § 323.2(e).

25 33 U.S.C. § 1341(a).26 40 C.F.R. § 230.1.27 See 40 C.F.R. § 230.28 See 33 C.F.R. § 328.29 40 C.F.R. § 230.1-80.30 40 C.F.R. § 230.1(c).31 40 C.F.R. § 230.10(a).32 40 C.F.R. § 230.10(b).33 40 C.F.R. § 230.10(c).34 40 C.F.R. § 230.10(d).35 Surface Mining Control and Reclamation

Act of 1977, Pub. L. 95-87 (1977), 30U.S.C. §§ 1201-1328 (1994).

36 Bragg, 1999 WL 1000181, at *2.37 The Federal Defendants were all members

of the Army Corp of Engineers, includingColonel Dana Robertson, the namedDefendant. See Id., 1999 WL 1000181, at*2.

38 Id., 1999 WL 1000181, at *2, citing Bragg v.Robertson, 54 F.Supp. 2d 653 (S. D. W. V.1999).

39 Id. citing FED. REG. 15176.40 The West Virginia buffer-zone rule states:

“No land within one hundred feet (100') ofan intermittent or perennial stream shall bedisturbed by surface mining operationsincluding roads unless specifically author-ized by the Director. The Director will author-ize such operations only upon finding thatsurface mining activities will (1) not adverse-ly affect the normal flow or (2) gradient of thestream, (3) adversely affect fish migration or(4) related environmental values, (5) material-ly damage the water quality or (6) quality ofthe stream and (7) will not cause or con-tribute to violations of applicable State andFederal water quality standards.” W. VA.CODE ST. R. title 38 § 2-5.2 (1998). TheFederal buffer-zone rule is found at 30 C.F.R.§ 816.57, and states many of the samerequirements.

41 W. VA. CODE ST. R. title 38 § 2-5.2 (1998).42 This Memorandum was entitled “For the

Purpose of Clarifying the Application ofRegulations Related to Stream Buffer ZonesUnder the Surface Mining Control andReclamation Act for Surface Coal MiningOperations that Result in Valley Fills.”

43 33 U.S.C. § 1344.44 Since Section 404 Guidelines are part of a

separate certification process conducted bythe Corps, substituting the Section 404Guidelines would essentially nullify all

responsibility on the part of the Director tomake required findings. In other words, theDirector, under the Memorandum’s interpre-tation of the law, could find that the Corpshad issued a Section 404 permit, and thusexcuse himself or herself from making anysubstantive findings. In fact, the Directorwould not be required to make any sub-stantive findings under the Memorandum’sinterpretation.

45 Chief Judge Haden, however, states thatthe Memorandum does not rely solely onthe Corps’ Section 404 authority to issuevalley fill permits. The Memorandum wasentered into by three different agencies. TheOSM, which is responsible for issuing valleyfill permits, is authorized to make such asubstitution, in spite of the fact that the Corplacked the authority under Section 404 togrant valley fill permits. Therefore, ChiefJudge Haden’s second step for explainingthe rationale behind his decision was tocompare the Section 404 Guidelines withthe buffer-zone guidelines. After an exhaus-tive study, Chief Judge Haden concludedthat the Section 404 Guidelines were “morelenient, less protective” than the buffer-zoneguidelines. Consequently, the Defendants’Memorandum argument was rejected. See,Bragg, 1999 WL 1000181, at *12.

46 33 C.F.R. § 323.3(c).47 Bragg, 1999 WL 1000181, at *10.48 33 C.F.R. § 323.2(e).49 Pollutants are defined as “dredged spoil,

solid waste, incinerator residue, filter back-wash, sewage, garbage, sewage sludge,munitions, chemical wastes, biologicalmaterials, radioactive materials,…heat,wrecked or discarded equipment, rock,sand, cellar dirt, and industrial, municipal,and agricultural wastes discharged intowater.,”40 C.F.R. § 122.2.

50 33 C.F.R. § 323.2(e).51 33 C.F.R. §323.3(f).52 Bragg, 1999 WL 1000181, at *10.53 See footnote 49.54 Bragg, 1999 WL 1000181, at *10.55 Some advocates for mountaintop removal

mining will argue that valley fills do in factprovide more manageable land since theland is flatter. Chief Judge Haden, however,relies on the intention of the activity, not theeffect.

56 Bragg, 1999 WL 1000181, at *10.57 Friends of Santa Fe County v. Lac Minerals,

Inc., 892 F.Supp. 1333 (D. N. M. 1995).58 Id., at 1337.

59 Id., at 1342-43.60 Id., at 1342.61 West Virginia Coal Association v. Reilly, 728

F. Supp. 1276 (S. D. W. V. 1989).62 Id., at 1282. 63 Bragg, 1999 WL 1000181, at *11, citing,

Reilly 728 F.Supp. at 1286-87.64 The Fourth Circuit Court of Appeals affirmed

Reilly and made its own statement in anunpublished opinion. This Court stated:“The discharge of fill material at issue here isexpressly for the purpose of disposing ofwaste or spoil from the mining operations.”Bragg, 1999 WL 1000181, *11, citing, WestVirginia Coal Association v. Reilly, 932 F.2d964, 1991 WL 75217 at *4 (4th Cir. 1991).This statement may prove relevant in thenear future when the Bragg decision isappealed.

65 Reilly, 728 F. Supp., at 1277.66 Id., at 1280.67 Id., at 1281.68 Cecil Underwood, Position Paper Patricia

Bragg, et al., v. Col. Dana Robertson, et al. <http://www.state.wv.us/governor/pp102999.htm

69 Id.

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2001 SelectEnvironmentalBills Passed bythe VirginiaGeneral Assemblyand Approved bythe GovernorDavid R. DuBose

The Virginia General Assemblyadjourned February 24, 2001.Although the focus of this

“short” session was the state budget,the legislature passed several envi-ronmental measures:

HB 1687 [Amending Section10.1 -1022.1]Land Conservation Foundation;Funds for Natural Area Protection

Removes a previous restrictionthat a holder or a public body mustbe in existence or operating inVirginia for more than five years inorder to qualify for a state grant forpurchasing an interest in land for theprotection of a natural area. (Thisbill is identical to SB 1012.)

HB 1758 [Amending Section62.1-44.33]Boats and Vessels; WasteDischarge Regulations

Requires the Salt Water ControlBoard regulations controlling thedischarge of waste from boats intothe waterways of Virginia to becomeeffective no later than July 1, 2002.

HB 1873 [Amending Section10.1-1429.1]Voluntary Remediation ofContaminated Properties

Expands voluntary remediationprogram for properties owned bylocal governments by (1) ending therequirement that local governmentsmust pay registration fees when vol-untarily remediating their proper-ties; (2) creating the VirginiaVoluntary Remediation Fund to pro-vide grants to local governments inorder to encourage remediation ofcontaminated properties; and(3) authorizing loans to be madefrom the Virginia Water FacilitiesRevolving Fund to local governmentsfor remediating contaminated prop-erties to reduce ground water con-tamination.

HB 1875 [Amending and reen-acting Section 10.1-1142]Open Burning

Amends the qualified restrictionon open burning between Febru-

ary 15 and April 30 of each year. Itallows open burning if the fire is forprescribed burning and managed bysomeone certified in such an activi-ty. The State Forester must grantapproval of the burn before Febru-ary 1. Open burning is also permit-ted to control either exotic orinvasive plant species, to maintain orestablish wildlife habitats, or formanagement of heritage resources.The State Forester has the power torevoke, if any open burning presentsa hazard.

HB 2177 [Amending Section10.1-418]

Staunton Scenic River

Extends from 10.8 to 40.5 milesthe portion of the Staunton Riverdesignated as part of the VirginiaScenic Rivers System.

HB 2223 [Adding Section 18.2 -145.1]

Agricultural or Forestry Product, Facility or Animal

Provides for a misdemeanoroffense or felony upon any entitythat destroys a farm product grownfor testing or research purposes inproduct development. (This bill isidentical to SB 1187).

HB 2292 [Amending Chapters1032 and 1054 of the Acts ofAssembly of 2000]

Nontidal Wetlands; Effective Date

Moves up, from October 1, 2001to August 1, 2001, the effective datefor the comprehensive nontidal wet-lands regulatory program for the Vir-ginia Department of Transportation’slinear transportation projects. (Thisbill is identical to SB 1243).

HB 2302 (Adding Section 10.1 -2- 200.2 and Amends Section10.1 - 202]Littering in State Parks

Imposes a fine of up to $250 forlittering in a state park. Proceeds areto be used for park maintenance.

HB 2310 [Amending Section62.1-44.15:1.2]Lake Level Contingency Plans

Requires contingency plans forsurface water impoundments used tocool generators that takes intoaccount and minimizes adverseeffects on beneficial uses (protectionof wildlife, recreation, and culturalvalue) of any release reductionrequirements. The reduction in therelease amount would not be imple-mented if it adversely affects (1) theability to meet quality water stan-dards, (2) the ability to provide ade-quate water for consumption, or (3)fish and wildlife.

HB 2330 [Adding Section 10.1 -1186.4]Enforcement in Federal Courts ofMatters within Jurisdiction of theState Environmental Agencies.

Authorizes the Virginia AttorneyGeneral to intervene on behalf ofvarious state environmental boardspursuant to Rule 24 of the FederalRules of Civil Procedure upon anyaction in federal court to resolve alitigation dispute brought by the fed-eral Environmental ProtectionAgency. (This bill is identical to SB1297).

HB 2417 [Amending Section28.2-520]Hydraulic Dredges; Clams

Prohibits a person from (1) usinga hydraulic dredge to harvest clams,or (2) having a hydraulic dredge onboard his boat, unless a permit hasbeen issued by the Marine Resources

Commission. An exemption is pro-vided for anyone traveling betweendocks for maintenance or repair, orwhen off loading catches made infederal waters. A violation of thissection is a Class 1 misdemeanor.

HB 2601 [Amending andReenacting Section 62.1 -44.5]Discharges into State Waters;Notification Required

Amends the former notificationrequirement to include all persons,not just those with a discharge per-mit from the State Water ControlBoard, to notify state authorities ofthe occurrence of an illegal dis-charge into state waters. (This bill isidentical to SB 1285).

HB 2774 [Amending Sections62.1-198 and 62.1-199]Resources Authority

Adds the remediation of brown-fields and contaminated propertiesto the list of projects that may befunded through the Virginia Re-sources Authority. (This bill is iden-tical to SB 1402).

HB 2827 [Amending Section62.1-44.19:3]Sewage Sludge

Authorizes localities to adopt anordinance that provides for the mon-itoring of the land application ofsewage sludge. The Board of Healthshall adopt regulations, by January1, 2003, requiring persons whoseland applies sludge to pay a fee. Thefee cannot exceed the direct costs tolocalities for monitoring the applica-tion of sewage sludge.

SB 837 [Amending Section28.2-1203]Subaqueous Permit Exemption

Exempts from having to obtain apermit from the Virginia Resources

Commission certain landownerswho withdraw water for agricultural,horticultural or silvicultural irriga-tion on riparian lands or for thewatering of animals on riparianlands. Landowners qualify for theexemption if (1) they do not erect apermanent structure on the riverbed, (2) they comply with require-ments administered by the DEQunder Title 62.1, and (3) the activitydoes not adversely impact instreambeneficial uses.

SB 1003 [Adding Section 10.1-1422.6 and repealing Section10.1-1422.5]

Statewide Recycling Program

Requires the state Department ofEnvironmental Quality (DEQ) toestablish a statewide program tomanage (1) used motor oil; (2) oil fil-ters; and (3) antifreeze. The DEQ ischarged with (a) maintaining a list ofsites that accept these used prod-ucts; (b) creating a website withinformation on collection sites; and(c) developing an outreach educa-tion program. Retailers who sell suchproducts but who do not accept thereturn of used products must post asign giving consumers informationon collection sites. Failing to postsuch a sign is subject to a $25 fine.

SB 1112 [Reenacting Section58.1-439.7]

Income Tax Credit for Purchase of Machinery and Equipment forProcessing Recyclable Materials

Extends from January 1, 2001, toJanuary 1, 2004, the sunset date ofboth corporate and income tax cred-its allowed for purchase of machin-ery and equipment for processingrecyclable materials.

SB 1166 [Amending Section10.1-604]Definition of Impounding Structure

Revises the definition of “im-pounding structure” to include:(1) all dams that are twenty-five feetor greater in height and that createan impoundment capacity of fifteenacre-feet or greater, and (2) all damsthat are six feet or greater in heightand that create an impoundmentcapacity of fifty acre-feet or greater.

SB 1247 [Amending Sections10.1-563 and 10.1-566]Regulation of Land-disturbing Activity

Requires, as a prerequisite forthe approval of soil and erosionplan, a certificate of competenceissued by the Board of Soil andWater Conservation to be obtainedby an individual who will be incharge of and responsible for carry-ing out land-disturbing activities.

SB 1251 [Amending Section10.1-2128]Virginia Water QualityImprovement Fund

Provides that local governmentsare eligible for Virginia Water Quali-ty Improvement Fund grants forpoint or non-point source pollutionprevention, reduction and controlprograms or for efforts on land leasedto a local government by the Com-monwealth.

SB 1318 [Amending section46.2-1304.1]Commercial Vehicles Used toTransport Municipal Solid Waste

Allows local governing bodies toregulate commercial vehicles used totransport municipal solid waste by1) prohibiting such vehicles frombeing parked at locations other thanthose specified in the ordinance and2) requiring leak proof construction

of vehicle cargo compartments.Penalties for violations could be nomore stringent than those allowedfor traffic violations (i.e. up to $200).

SB 1348 [Amending Section62.1-44/15:3]New Individual PollutantDischarge Elimination Permit

Requires applications for newindividual Virginia Pollutant Dis-charge Elimination permits authoriz-ing the new discharge of sewage,industrial waste, or other waste intostate waters to be certified by localauthorities that the location andoperation of the discharging facilityare consistent with applicable ordi-nances. Reduces from 45 to 30 thenumber of days within which thelocality must notify the applicantand the State Water Control Board ofthe facility’s compliance or non-compliance.

SB 1386 [Amending Section10.1-1322.3]Air Emissions Banking Program

Requires that the banking andtrading credits or allowances regula-tions of the Air Pollution ControlBoard applicable to the electricpower industry promote competitionin the industry; foster constructionof new, clean generating facilities;and provide set-asides for newsources of emissions of five percentfor the first five years and two per-cent per year thereafter. The initialallocation period is five years.

SB 1404 [Amending Section62.1-44.18:3]Permits for Private Sewerage Facilities; Waiver of Filing Requirements

Provides that the State WaterControl Board may waive therequirement that an operator of aprivate sewerage facility file a plan tocontrol the threat to public health or

the environment from the closure ofsuch facility, if the operator was per-mitted prior to January 1, 2001 anddischarges less than 5,000 gallons ofeffluent per day. The Board mayissue the waiver upon a finding that,for at least five years, the operatorhas not violated any regulation ororder of the Board, of a permit, orany provision of the State WaterControl Law. The locality in whichthe facility is located must approvethe waiver, and the Board mayrevoke the waiver in good faith. If thecessation of an operation with awaiver results in significant harm,the operator is guilty of a Class 4felony and he is liable to theCommonwealth and any applicablesubdivisions.

S.J. 373 [Resolution]The Commission Studying theFuture of Virginia’s Environment

Provides that the CommissionStudying the Future of Virginia’sEnvironment shall continue to mon-itor the implementation of its recom-mendations and create opportunitiesfor Commission members to becomefamiliarized with environmentalissues that may require legislativeaction. The Commission must reportits findings and recommendations tothe Governor and the 2002 Sessionof the General Assembly.

Failed BillsSeveral environmental bills failed

in committee, but bear watchingnext year. For example, SB 821, a billto expand the geographical scope ofthe Chesapeake Bay PreservationAct (CBPA) was put off indefinitelyby a 9 to 4 vote of the Senate Agri-culture, Conservation and NaturalResources Committee on January22nd. On the same day, a bill toestablish new civil penalties for vio-lations of the CBPA, SB 1256, wasdefeated by the same Senate com-mittee.

Originally enacted in 1988, theCBPA requires, in part, that landdevelopers and farming operationsestablish buffer zones to preventagricultural runoff and other pollu-tion sources from contaminatingstreams and rivers that ultimatelyflow into the Chesapeake Bay.

At present, the reach of theCBPA extends to geographic areasthat, generally, are located to theeast of Interstate 95. SB 821, the billput off by committee, would haveextended the coverage of the CBPAto some locations in westernVirginia.

Other environmental legislationwhich failed in committee include:

HB 712Natural Resources Policy Act

Summary as introduced:The bill creates the Virginia Nat-

ural Resources Policy Act. The Actrepeals the existing EnvironmentalImpact Statement review process(which applies to state projects using$100,000 in state funds) andreplaces it with a natural resourceimpact review process. This processapplies to actions utilizing $500,000or more of state-provided funds forthe acquisition of an interest in land;for the construction of any new facil-ity; or for the improvement, expan-sion, support or maintenance of anexisting facility. Policies againstwhich such actions are to be judgedare expressed. The Virginia NaturalResources Council is created toreview the natural resource impactreports and provide comment to theGovernor. State funds are not to bedisbursed for actions reviewable bythe Council without the Governor’sapproval following his review of theCouncil’s comments. Among theCouncil’s other duties are to (i) fos-ter the coordination and implemen-tation of natural resource policies;(ii) biennially produce a report thatincludes a review of the state of theCommonwealth’s natural resources;(iii) assist localities, when requested,in the evaluation of actions with

potential natural resource impacts;and (iv) provide staff support tomeetings that are to be held at leastquarterly by the Secretaries andother members of the Governor’scabinet. The cabinet-level meetingsare to review programs, policies andmajor initiatives to (a) identify con-flicts with natural resource preserva-tion efforts and the purposes andpolicies set forth in the Act; (b) eval-uate the natural resource benefitsand burdens of each Secretariat’sprograms, policies and initiatives,including the expenditure of statefunds; and (c) develop planning,coordination and policy decisions toachieve the purposes and policies ofthe Act, including measures to uti-lize state funding in a manner thatpreserves and protects the Common-wealth’s natural resources. This is arecommendation of the Commissionon the Future of Virginia’s Environ-ment.

HB 2384Wetlands mitigation

Summary as introduced:Prohibits the Commonwealth

from mitigating the loss of naturalwetlands by creating or restoringwetlands in areas outside the hydro-logic unit in which those naturalwetlands are located.

HB 2470Electric utility restructuring; green power

Summary as introduced:Directs the State Corporation

Commission to establish guidelinesfor competitive service providers ofelectricity that desire to markettheir energy in Virginia as “greenpower.” In defining what constitutesGreen Power, the Commission shallconsider the information on fuelmixes of electricity generators thatthe Commission is required to col-lect pursuant to the Electric UtilityRestructuring Act. The designationof certain electricity as Green Powershall provide consumers thereof

with assurance that the Commissionhas confirmed that the provider’smarketing information has beensubstantiated as valid. Non-qualify-ing electricity providers will bebarred from using the “GreenPower” label. This is a recommenda-tion of the Consumer AdvisoryBoard established pursuant to theRestructuring Act.

SB 1030Major stationary air pollution sources

Summary as introduced:Provides that any stationary

source or group of stationary sourceswithin a one-mile radius of eachother that (i) generate, transmit, ordistribute electric services and (ii)emit or have the potential to emit 50tons per year or more of nitrogenoxides shall be considered a “majorstationary air pollution source” forthe purposes of the Board’s Preven-tion of Significant Deterioration(PSD) permit program and theBoard’s operating permit programestablished pursuant to the federalClean Air Act. The bill also requiresthat applicants for a permit to modi-fy or construct a major stationarysource demonstrate that they haveobtained nitrogen oxides emissionreduction credits, allowances or off-sets in a ratio of 1.2:1 from a sourcewithin the Commonwealth prior tothe issuance of a permit.

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did not condition, revise, orsupercede Smithfield’s obligationsunder its 1992 water discharge per-mit; (2) the suit was not (a) pre-cluded by the Supreme Court’sdecision in Gwaltney of Smith-field, Ltd. v. Chesapeake BayFoundation, Inc., 484 U.S. 49(1987) or § 510 of the CWA, 33U.S.C.A. § 1370 (West 1986); or (b)barred by § 309(g)(6)(A)(ii) of theCWA, 33 U.S.C.A. § 1319(g)(6)(A)(ii) (West 1986 & Supp. 1999);and (3) the district court did noterr in calculating the penalty withrespect to its determination of eco-nomic benefit and the denial of“good-faith” credit to Smithfieldfor its compliance efforts. TheFourth Circuit affirmed the districtcourt’s grant of summary judgmenton liability and remanded for cor-rection of a four percent miscalcu-lation of the civil penalty.

Smithfield claimed the districtcourt erred in finding that theorder issued by the VSWCB in Mayof 1991 did not take precedenceover or alter the terms of the 1992permit. However, the Fourth Cir-cuit affirmed the district court’sconclusion that Smithfield did notfollow the procedures required forthe modification of a permit andnone of the Board’s special ordersand letters were issued in accor-dance with the permit modificationrequirements. Thus, Smithfieldcould not support its argument thatthe special orders or letters issuedby the Board modified the terms ofthe permit. Furthermore, the courtfound it illogical that correspon-dence written before the 1992 per-mit was finalized could change theterms of a subsequently-issueddocument.

The Fourth Circuit also af-firmed the district court’s reason-ing with respect to whether the suitwas barred by the CWA. Smithfieldclaimed that the Environmental

Protection Agency (“EPA”) couldnot bring suit because the CWAprovides that “any violation that aState has commenced and is dili-gently prosecuting shall not be thesubject of a federal civil enforce-ment action.” 33 U.S.C.A. §1319(g)(6). However the courtsconcluded that Virginia’s enforce-ment scheme was not sufficientlycomparable to § 309(g) to bar thesuit. The scheme did not give Vir-ginia the authority to assess admin-istrative penalties without theviolator’s consent and did not pro-vide adequate procedures fornotice and public participation.

Smithfield also claimed the dis-trict court’s finding was precludedby the Supreme Court’s decision inGwaltney. In Gwaltney, the Courtrecognized that there would becases where it would be counter-productive to assess penaltiesagainst violators who had agreed totake corrective actions that werenot otherwise required. Gwaltney,484 U.S. at 60-61. Because Smith-field agreed to take non-mandatorycorrective actions, it claimed thatthe district court’s decision toassess administrative penalties vio-lated Gwaltney. The district courtacknowledged the Supreme Court’sholding in Gwaltney, but found thealleged corrective actions did notpreclude the EPA’s enforcementaction because the chosen enforce-ment methods were not achievingcompliance. Furthermore, the dis-trict court found that once thenon-mandatory corrective actionswere incorporated into the 1992permit, the CWA required the EPAto enforce them. Thus, the EPA’senforcement action did not violate§ 510 of the CWA, which allowsstates to adopt more stringenteffluent limits than those requiredunder the CWA. 33 U.S.C.A. §1370. The Fourth Circuit affirmedthe district court’s holding andrationale on this point.

United StatesSupreme CourtCWA – DamagesAssessed for DischargingPollutantsUnited States v. SmithfieldFoods, Inc., 191 F.3d 516 (4thCir.), cert. denied, 121 S. Ct.46 (2000).

by Jonathan Azano

Smithfield Foods, Inc. (“Smith-field”) appealed a grant of summa-ry judgment in favor of the UnitedStates finding Smithfield liable forviolations under the Clean WaterAct (“CWA”). Finding that Smith-field submitted false DischargeMonitoring Reports (“DMRs”) andviolated the CWA by dischargingpollutants into the Pagan River atlevels above the allowable limits ofits 1992 permit, the United StatesDistrict Court for the Eastern Dis-trict of Virginia imposed a $12.6million civil penalty. The FourthCircuit held that: (1) the districtcourt did not err when it found thatorders issued by the Virginia StateWater Control Board (“VSWCB”)

CaseDigest

Smithfield also contested thedistrict court’s $12.6 million civilpenalty. Smithfield claimed thepenalty improperly trebled the$4.2 million economic benefit thatSmithfield received from dispos-ing of the wastewater. Smithfieldalso contended that the districtcourt “double counted” its viola-tions by counting separately itsexceedances of daily maximumlimits when it had alreadyimposed thirty days of violationsfor exceedances of the monthlyaverage limit for the same sub-stance. Violations for each count-ed day allowed for a penalty of upto $25,000.

The Fourth Circuit noted thatthe discretionary calculations nec-essary to award civil penalties arereviewed for abuse of discretionand concluded that the penalty wasnot an abuse of discretion. Thecourt found that the district courtconsidered a number of factors,including economic benefit, todetermine the appropriate penalty.The Fourth Circuit held the districtcourt did not “double count” theviolations because the CWA antici-pated such a penalty structure.This type of penalty structureallowed the courts more flexibilityin fashioning appropriate penaltiesbecause it allowed the courts todistinguish between permitteeswho violate a monthly averagelimit but do not violate daily maxi-mum limits and those who violatethe monthly average limit and alsoviolate daily maximum limits.Despite the fact that the penaltywas exactly three times the eco-nomic benefit, the court held thatthe civil penalty did not indicatethat the district court simply tre-bled the economic benefit.

Lastly, the Fourth Circuit con-cluded that the district court didnot err when it denied Smithfieldgood-faith credit for its efforts to

connect to a sanitation system.The district court denied the good-faith credit because it found littleevidence that Smithfield made anygood-faith efforts to comply with itspermits. The court’s conclusionwas based on evidence that Smith-field did not facilitate its connec-tion to the sanitation system ormitigate its discharges by treatingits wastewater or decreasing itsreleases of pollutants in the inter-im.

Court ReservesJudgment RegardingInterpretation ofPennsylvania HazardousWaste StatuteFiore v. White, 120 S. Ct. 469(1999), cert. questionanswered, 757 A.2d 842, laterproceeding, 121 S. Ct. 38(2000).

Petitioner William Fiore, whohad been convicted in a Pennsylva-nia state court of operating a haz-ardous waste facility without apermit, filed a petition for a writ ofhabeas corpus. The United StatesDistrict Court for the Western Dis-trict of Pennsylvania granted thewrit, but the United States Court ofAppeals for the Third Circuitreversed. The United StatesSupreme Court granted certiorariand reserved judgment. The Courtcertified to the PennsylvaniaSupreme Court the question ofwhether that court’s interpretationof the relevant statute, asexpressed in the Commonwealthv. Scarpone decision, stated thecorrect interpretation of thatstatute as of the date that Fiore’sconviction became final.

William Fiore and David Scar-pone were convicted under Pa.Stat. Ann., Tit. 35, § 6018.401(a)for operating a hazardous wastefacility without a permit. Althoughthe state conceded that the defen-dants did in fact possess a permit,it argued that their alteration of amonitoring pipe to conceal a leak-age problem exceeded the terms ofthe permit to such a degree thattheir continued operation of thefacility was “un-permitted.” Eachdefendant appealed his conviction.The Pennsylvania Superior Courtaffirmed Fiore’s conviction, and thePennsylvania Supreme Courtdenied Fiore leave to appeal;Fiore’s conviction thus becamefinal. The Pennsylvania Common-wealth Court, however, rejectedthe trial court’s interpretation ofthe statute and set aside Scarpone’sconviction. The PennsylvaniaSupreme Court then affirmed theCommonwealth Court, ruling thatPennsylvania had not establishedthe key element of lack of a permitand that mere alteration of the haz-ardous waste facility was notenough to render the operation ofthat facility “un-permitted.”

After the Scarpone decision,Fiore twice asked the PennsylvaniaSupreme Court to review his con-viction, but that court denied bothrequests. Fiore then sought collat-eral relief in the state courts, butthe Court of Common Pleas ofAllegheny County and the SuperiorCourt both denied his request forcollateral relief. These courts heldthat at the time of Fiore’s convic-tion, the prevailing interpretationof § 6018.401(a) was different fromthe Pennsylvania Supreme Court’ssubsequent interpretation in theScarpone case, and that Fiore wasnot entitled to a retroactive appli-cation of the law.

Fiore then petitioned for a writof habeas corpus in the federal

courts. Fiore argued that he hadbeen imprisoned for conduct thatwas not criminal under the rele-vant state statute. The districtcourt granted the petition, but theCourt of Appeals for the ThirdCircuit reversed. The United StatesSupreme Court granted certiorari.

In delivering the SupremeCourt’s opinion, Justice Breyerstated that Fiore’s claim dependedon whether the PennsylvaniaSupreme Court’s interpretation ofthe statute in the Scarpone caserepresented the true meaning ofthe statute at the time of Fiore’sconviction. In other words, if thePennsylvania high court’s ruling –that a conviction under §6018.401(a) could not stand if thedefendant merely altered his oper-ation of a hazardous waste facility,but still possessed the requiredpermit – was the prevailing inter-pretation of the statute at the timethat Fiore’s conviction becamefinal, then Fiore was wrongfullyconvicted. But if the PennsylvaniaSupreme Court had changed theinterpretation of § 6018.401(a)from the interpretation applicableat the time of Fiore’s conviction,then that conviction would stand.

Therefore, the Supreme Courtcertified the following question toPennsylvania Supreme Court:“Does the interpretation of Pa.Stat. Ann., Tit. 35, § 6018.401(a)(Purdon 1993), set forth in Com-monwealth v. Scarpone, 535 Pa.273, 279, 634 A.2d 1109, 1112(1993), state the correct interpre-tation of the law of Pennsylvania atthe date Fiore’s conviction becamefinal?” Fiore v. White, 120 S. Ct.469, 473 (1999). The SupremeCourt held that only after itreceived the answer to this ques-tion would it be able to rule on thefederal constitutional questionsraised in the case. Therefore, theSupreme Court reserved judgment

and further proceedings in the caseuntil it received a response fromthe Pennsylvania Supreme Court.

CWA – Mootness andStanding in Citizen SuitsFriends of the Earth, Inc. v.Laidlaw EnvironmentalServices (TOC), Inc., 120 S.Ct. 693 (2000).

Friends of the Earth brought anaction pursuant to the citizen suitprovision of the Clean Water Act(“CWA”) against the holder of aNational Pollutant Discharge Elimi-nation System (“NPDES”) permit,alleging violation of mercury dis-charge limits. Plaintiffs soughtdeclaratory and injunctive relief,civil penalties, costs, and attorney’sfees. The United States DistrictCourt for the District of South Car-olina found numerous permit viola-tions, imposed a penalty of$405,800, but denied a request fordeclaratory and injunctive relief.The United States Court of Appealsfor the Fourth Circuit vacated andremanded with instructions to dis-miss on the grounds of lack ofstanding and mootness. TheSupreme Court granted certiorari.The United States Supreme Courtheld that plaintiffs had standing tobring a citizen suit seeking bothinjunctive relief and civil penaltiesand that the action was not ren-dered moot by the permit holder’scompliance with permit limits orshut-down of its facility.

Defendant Laidlaw Environ-mental Services (TOC), Inc.,(“Laidlaw”) bought a facility inRoebuck, South Carolina, andapplied to the South CarolinaDepartment of Health and Environ-mental Control (“DHEC”) for aNPDES permit under the CWA, 33

U.S.C. § 1342(a)(1). The permitauthorized discharges and set lim-its on the amounts of the dis-charges. Laidlaw repeatedlyexceeded the limits set by the per-mit.

On April 10, 1992, Friends ofthe Earth and Citizens Local Envi-ronmental Action Network(“FOE”) notified Laidlaw of theirintention to file a citizen suit underthe CWA, 33 U.S.C. § 1365(a), afterthe expiration of the requisite 60-day notice period. Laidlaw thenrequested that DHEC file a lawsuitagainst the company. The daybefore the 60-day notice periodended, DHEC and Laidlaw reacheda settlement requiring Laidlaw topay $100,000 in civil penalties andto make “every effort” to complywith its permit obligations. In part,Laidlaw was hoping this settlementwould be dispositive of the impend-ing suit by FOE.

On June 12, 1992, FOE filed acitizen suit seeking declaratoryand injunctive relief and an awardof civil penalties. Laidlaw movedfor summary judgment on theground that FOE lacked standingto bring the lawsuit. The districtcourt denied summary judgmentand found that plaintiffs had stand-ing. The court concluded that acivil penalty of $405,800 wasappropriate. In particular, the dis-trict court found that the judg-ment’s “total deterrent effect”would be adequate to forestallfuture violations, given that Laid-law would have to reimburse theplaintiffs for a significant amount oflegal fees. The court declined toorder injunctive relief becauseLaidlaw, after the lawsuit began,had achieved substantial compli-ance with the terms of the permit.

The Fourth Circuit vacated thedistrict court’s order and remandedwith instructions to dismiss for

lack of standing and mootness. Thecourt held that the case becamemoot once Laidlaw complied withthe terms of its permit and theplaintiffs failed to appeal the denialof equitable relief. The court rea-soned that the only remedy cur-rently available to FOE would notredress any injury FOE had suf-fered

The United States SupremeCourt held that an association hasstanding to bring suit on behalf ofits members when (1) its memberswould have standing to sue in theirown right, (2) the interests are ger-mane to the organization’s pur-pose, and (3) neither the claimasserted nor the relief requestedrequires individual members’ par-ticipation in the lawsuit. The rele-vant showing to establish standingis not injury to the environment,but injury to the plaintiff.

The Supreme Court also heldthat the Fourth Circuit erred inconcluding that a citizen suit claimfor civil penalties must be dis-missed as moot when the defen-dant, after commencement of thelitigation, has achieved compliancewith its NPDES permit. The defen-dant argued that its facility hadbeen shut down and had discontin-ued discharges completely. Thestandard for determining whethera case has been mooted by thedefendant’s voluntary conduct isstringent. A case might becomemoot if subsequent events make itabsolutely clear that the allegedlywrongful behavior could not rea-sonably be expected to recur. Thecourt must be assured those opera-tions and discharges could neverrecommence. This heavy burden ofpersuading the court that the chal-lenged conduct cannot reasonablybe expected to recur lies with theparty asserting mootness.

The Fourth Circuit erred in con-cluding that a citizen suitor’s claimfor civil penalties must be dis-missed as moot when, after com-mencement of litigation, thedefendant has come into compli-ance. Standing doctrine ensuresthat the resources of the federalcourts are devoted to disputes inwhich the parties have a concretestake. Yet by the time mootness isan issue, abandonment of the casemay prove more wasteful than fru-gal. The Supreme Court reversedthe holding of the Fourth Circuitand remanded.

CWA – Cert. Denied onIssue of Criminal Liabilityfor NegligenceHanousek v. United States,120 S. Ct. 860 (2000)(Thomas, J., dissenting).

Petitioner Edward Hanousek, Jr.appealed his conviction under theClean Water Act (“CWA”) for negli-gently discharging oil into a naviga-ble water of the United States. TheSupreme Court of the UnitedStates denied petitioner’s writ ofcertiorari. Justice Thomas dissent-ed from the denial of certiorari inan opinion joined by JusticeO’Connor.

In 1994, Hanousek was employedas the roadmaster of the White Pass& Yukon Railroad. His duties includ-ed supervision of a rock quarryingproject. During rock removal opera-tions, Hanousek was off duty and athome when an independent contrac-tor’s mistake caused a petroleumpipeline to rupture and spill between1,000 and 1,500 gallons of oil into ariver. Hanousek was indicted andconvicted under criminal provisionsof the CWA, 33 U.S.C. §§1319(c)(1)(A), 1321(b)(3), for negli-

gently discharging oil into a naviga-ble water of the United States. Hewas fined $5,000 and sentenced tosequential terms of six monthsimprisonment, six months in ahalfway house, and six months ofsupervised release. On appeal,Hanousek argued that the imposi-tion of criminal liability for ordinarynegligence in discharging oil into theriver violated his Due Process rights.

The Ninth Circuit Court ofAppeals rejected his Due Processclaim, reasoning, in part, that thecriminal provisions of the CWAare “public welfare legislation”because the CWA “is designed toprotect the public from potential-ly harmful or injurious items” andcriminalizes “a type of conductthat a reasonable person shouldknow is subject to stringent publicregulation and may seriouslythreaten the community’s healthor safety.” Hanousek v. UnitedStates, 176 F.3d 1116, 1121 (9thCir. 1999) (quoting Liparota v.United States, 471 U.S. 419, 433(1985).

In dissent from the denial ofcertiorari, Justice Thomas notedthat the issue of whether the CWAis appropriately characterized as apublic welfare statute is an issue onwhich the circuit courts are divid-ed. Justice Thomas argued that itwas erroneous to rely on the notionthat the CWA is a public welfarestatute. Instead, he claimed that inorder “to determine as a thresholdmatter whether a particular statutedefined a public welfare offense, acourt must have in view some cat-egory of dangerous and deleteriousdevices that will be assumed toalert an individual that he stands inresponsible relation to a publicdanger.” Hanousek v. UnitedStates, 120 S. Ct. 860, 861 (2000)(Thomas, J., dissenting) (quotingStaples v. United States, 511 U.S.600, 613 n.6 (1994)).

Justice Thomas noted that thepresent case illustrates that theCWA imposes criminal liability forpersons using standard equipmentto engage in broad ranges of ordi-nary industrial and commercialactivities. Thomas argued that thisstrongly militates against conclud-ing that the public welfare doctrineshould apply because “even dan-gerous items can, in some cases, beso ‘commonplace and generallyavailable’ that we would not con-sider regulation of them to fallwithin the public welfare doc-trine.” Hanousek, 120 S. Ct. at 861(quoting Staples, 511 U.S. at 611).By adopting the public welfare doc-trine in such cases, Thomas arguedthat the Court would be exposingconstruction workers and contrac-tors to heightened criminal liabili-ty.

Thomas also criticized theNinth Circuit’s ruling because theSupreme Court has upheld crimi-nal statutes within the doctrine of“public welfare offenses” only withrespect to public offenses wherethe penalties are relatively smalland the conviction does not severe-ly damage the offender’s reputa-tion. Justice Thomas noted thatthe CWA’s criminal provisionsallowed for punishment of up to 6years in prison.

Attacking the Ninth Circuit’sholding, Justice Thomas’ dissentremarked that the Court has“never held that any statute can bedescribed as creating a public wel-fare offense so long as the statuteregulates conduct that is known tobe subject to extensive regulationand that may involve a risk to thecommunity.” Hanousek, 120 S. Ct.at 861. Such an interpretation,according to Justice Thomas,would extend the public welfaredoctrine to any criminal statuteapplicable to industrial activities.

United StatesCourt of Appeals

CERCLA – PotentiallyResponsible Persons MayNot Assert Cost RecoveryClaimsAxel Johnson, Inc. v. CarrollCarolina Oil Co., 191 F.3d 409(4th Cir. 1999).

by Oriana Repic

Appellant Axel Johnson broughta cost recovery and contributionaction, seeking relief from expens-es incurred as a former owner andoperator of the Old ATC RefinerySite in connection with thecleanup of lead and other haz-ardous substances at the Refinerypursuant to the ComprehensiveEnvironmental Response, Com-pensation and Liability Act (“CER-CLA”), 42 U.S.C.A. §§ 9601-9675(West 1995). The action wasbrought against the current owner,Carroll Carolina Oil Company, Inc.(“CCO”) and Linda A. Carroll, whosold the property to CCO. After theparties filed cross motions for sum-mary judgment, the United StatesDistrict Court for the Eastern Dis-trict of North Carolina grantedsummary judgment for CCO onAxel’s cost recovery claim. Thecourt found that Axel was a poten-tially responsible person underCERCLA §107 and based its deci-sion upon the rule that potentiallyresponsible persons cannot bring§107 CERCLA actions. On appeal,the Fourth Circuit affirmed the dis-missal of Axel’s §107 action. Theonly remaining question (CCO’sentitlement to a third partydefense) pertained to Axel’s claimfor contribution and that claim wasmoot by entry of a consent decree

resolving the liability of Carroll andCCO to the United States.

From 1972 through 1984, Axelor its predecessors in interest oper-ated the Refinery property. Duringmost of this period, Axel leased theproperty from Pace Oil Co. under acontract providing that Axel boreresponsibility for maintenance ofthe property, including disposal ofany hazardous waste generated onthe property. From 1972 to 1975,Axel produced leaded gasoline.Lead is a hazardous substance sub-ject to cleanup under CERCLA. 42U.S.C.A. § 9601(14)(D); 33U.S.C.A. § 1317(a)(1) (West 1986).Axel buried wastes from its opera-tions at various locations through-out the property, including at leastthree places where EPA subse-quently found elevated levels oflead. There was no evidence in therecord of any subsequent partyusing or processing lead on theproperty. Neither Carroll nor CCOhad performed any operations onthe property.

In 1996, Axel entered into anadministrative order with EPA inwhich it agreed to pay for removalwork. Axel maintained that it wasentitled to recover its cleanup costsfrom Carroll and CCO pursuant toCERCLA § 107, 42 U.S.C.A §9607(a)(1), and that it had a rightto contribution from both Carrolland CCO pursuant to CERCLA §113, 42 U.S.C.A. § 9613. The dis-trict court granted summary judg-ment to CCO and Carroll on the§107 and §113 claims.

The Fourth Circuit affirmed thejudgment of the district court. Thecourt considered and then rejectedboth of Axel’s attempts to establishits entitlement to bring a § 107action. First, the court rejected thecontention that Axel could only beheld liable for cleanup costsincurred due to substancesdeposited at the property during itstenure. The court explained that

there is no statutory requirementthat in order for an owner or oper-ator to be held liable for cleanupcosts, the hazardous substancesthat caused the incurrence of thosecosts must be the same hazardoussubstances that were deposited atthe facility when the party ownedor operated it. The court found thatAxel’s suggested interpretationconflicted not only with thestatute’s plain meaning but alsowith the firmly established view of§ 107(a) as a strict liability section.

The court then rejected Axel’sargument that even if it was apotentially responsible person, itshould be allowed to bring a § 107action because it is an “innocent”party with respect to a portion ofthe site. Because of CERCLA’sremedial statutory scheme, courtsmust construe its provisions liber-ally. If an “innocent party” excep-tion were even possible (and only afew circuits have recognized anexception of this kind, all but onehaving done so in dicta), it wouldbe prudent to limit the applicabili-ty of such an exemption to thosewho can make out a defense to lia-bility that § 107 itself provides.Axel did not attempt to prove itsentitlement to any statutorydefense.

Even if the court had recognizedthe possibility of an “innocentparty” exception, the few casesthat have done so have uniformlymade the exception applicableonly when the plaintiff is trulyinnocent of any pollution. Therecord evidence indisputably indi-cated that Axel bore responsibilityfor at least some of the hazardousmaterial spilled at the property.The major contaminant at theproperty was lead and the onlyowner or operator to use lead in itsoperations was Axel.

Axel attempted to avoid its fail-ure to fit within the “innocentparty” exception by arguing that

each of the tanks and spill areasshould be regarded as a separate“facility.” But to accept this argu-ment would mean that “each barrelin a landfill is a separate facility,”and the court explained that themere possibility of a division doesnot in itself require considerationof the site’s different parts as sepa-rate facilities or make considera-tion of the property as a singlefacility impermissible. There wasuncontroverted evidence of con-tamination throughout the proper-ty. The court continued to explainthat Nurad, Inc. v. William E.Hooper & Sons Co., 966 F.2d 837(4th Cir. 1992) is entirely consis-tent with the conclusion that theentire property here is appropri-ately considered a single CERCLAfacility.

The district court therefore didnot err in ruling that Axel was apotentially responsible person whocould not bring a § 107 action.Axel’s claim for contributionagainst Carroll and COO under §113 was rendered moot by theentry of a consent decree signed byCarroll, CCO, and the EPA.

NEPA & NFMA – U.S.Forest Service TimberHarvesting DecisionsApprovedShenandoah EcosystemsDefense Group v. UnitedStates Forest Service, 1999U.S. App. LEXIS 23225 (4thCir. 1999).

by Robert Jefferson

Shenandoah Ecosystems DefenseGroup (“SEDG”) filed suit challeng-ing the procedural adequacy of thetimber harvesting decisions of theUnited States Forest Service (“For-

est Service”) in three areas withinthe Jefferson National Forest. Thedistrict court granted summaryjudgment in favor of the Forest Ser-vice. On appeal, SEDG argued thatthe Forest Service’s failure to (1)consider the cumulative impacts ofthe three projects, (2) addressimpacts to rare species in the area,(3) discuss an adequate range ofalternatives, and (4) prepare anEnvironmental Impact Statement(“EIS”) in addition to an Environ-mental Assessment (“EA”) violatedthe National Environmental Protec-tion Act (“NEPA”), 42 U.S.C.A. §§4321-4347 (West 1994 & Supp.1999), and the National Forest Man-agement Act (“NFMA”), 16 U.S.C.A.§§ 1600-1614 (West 1985 & Supp.1999). Finding no evidence that theForest Service’s decision to approvethe timber sales was arbitrary orcapricious, the Fourth Circuitaffirmed the district court’s deci-sion.

SEDG first argued that the For-est Service failed to considerwhether the combined cumulativeimpact of the proposed projectswas a violation of NEPA. NEPArequires the Forest Service to con-sider the cumulative impact ofrelated federal actions on the envi-ronment. See 40 C.F.R. §1508.25(c) (1998); See alsoKleppe v. Sierra Club, 427 U.S.390, 410 (1976). The determina-tion of when cumulative impactsshould be considered in a separatedocument depends on several fac-tors, including the degree of inter-relationship between the proposedactions and practical feasibility.Kleppe, 427 U.S. at 412. TheSupreme Court has indicated that“resolving these issues requires ahigh level of technical expertiseand is properly left to the informeddiscretion of the responsible feder-al agencies.” Id. Without proof ofarbitrary action, the court mustassume that the agency properlyexercised its discretion. Id.

The administrative recordreveals that the Forest Serviceaddressed several potential impactsin the EA of each project, includingthe impact to surrounding visualand recreational resources. Afterfinding that none of the projectsimpacted identical visual or recre-ational resources, the Forest Ser-vice concluded that a separatecumulative impact study wasunnecessary. There was no evi-dence in the record that this analy-sis was arbitrary or capricious.Additionally, NEPA does not explic-itly require a separate analysis ofcumulative impact, and the courtfound that the Forest Service prop-erly considered the effects on visu-al and recreational resources ineach individual EA.

SEDG argued that the ForestService acted arbitrarily and capri-ciously in approving one of theprojects because the proposed log-ging could impact the Peaks ofOtter Salamander (“POS”) and theForest Service lacked sufficientpopulation data to confirm theactual range of the POS habitat andassess the impact. SEDG furtherargued that the Forest Serviceshould have conducted additionalpopulation surveys specific tothese projects. Under NFMA, theForest Service is required toinclude site-specific BiologicalEvaluations regarding the effectson sensitive species as part of eachproject EA. The relevant NFMAregulations require only that theForest Service make its determina-tions based on all available data.Only if adequate data is unavail-able, and there is a high likelihoodthat the sensitive species occupiesthe proposed project area, is theForest Service required to obtainnew, site-specific population data.

The Forest Service prepared aBiological Evaluation as part ofeach EA, and relied on populationdata from a general POS popula-

tion study conducted by the Vir-ginia Division of Natural Heritageas well as its own field studies. Therecord supported the Forest Ser-vice’s contention that its BiologicalEvaluation was based on reliable,adequate, and detailed populationdata from all available POS fieldsurveys.

SEDG also argued that the For-est Service violated NEPA by failingto consider a sufficiently broadrange of alternatives to the pro-posed projects in the EAs. SEDGcontended that the Forest Serviceacted arbitrarily by not considering(1) alternatives including “realforms” of uneven-aged manage-ment, (2) alternatives involvingnatural regeneration, and (3)SEDG’s proposed alternative pro-tecting “de facto” roadless areas.However, the court found that theForest Service gave adequate andappropriate consideration to theuse of uneven-aged managementtechniques. Additionally, SEDGfailed to suggest what type of alter-natives would have satisfied natu-ral regeneration or how theseoptions would differ from the no-action alternative discussed explic-itly in each EA. Finally, the recordrevealed that the areas referred toby SEDG as “de facto” roadlesswere actually inventoried by theForest Service and found not toqualify as roadless areas.

Finally, SEDG claimed that theForest Service acted arbitrarily andcapriciously by preparing only anEA and not an EIS. To successfullychallenge an agency determinationnot to prepare an EIS, a plaintiffmust raise substantial questions asto whether the project may causesignificant degradation of the envi-ronment. See Idaho Sporting Con-gress v. Thomas, 137 F.3d 1146,1149-50 (9th Cir. 1997). As long asthe record shows that the regulat-ing agency took a hard look at thepotential environmental conse-

quences of the proposed action,the agency cannot be said to haveacted arbitrarily or capriciously.See Baltimore Gas & Elec. Co. v.National Resource Defense Coun-sel, Inc., 462 U.S. 87, 97-98 (1983).An agency’s determination that aproject will not significantly impactthe environment is entitled to sub-stantial deference. See SabineRiver Auth. v United StatesDepartment of the Interior, 951F.2d 669, 678 (5th Cir. 1992). Thecourt found that the Forest Serviceaddressed the environmentalimpact of the proposed actions inthe EAs and reasonably found thatthey were not sufficiently signifi-cant to warrant an EIS.

NEPA – Federal HighwayAdministration EISApprovedCity of Alexandria v. Slater,198 F.3d 862 (D.C. Cir. 1999).

The City of Alexandria andother parties (“Plaintiffs”) broughtsuit against Rodney E. Slater, theSecretary of the U.S. Departmentof Transportation and others(“Defendants”) challenging thedecision of the Federal HighwayAdministration (“FHWA”) approv-ing a proposed twelve-lane bridge.The United States District Courtfor the District of Columbia agreedwith Plaintiffs and remanded thecase to FHWA. Defendantsappealed. The court of appeals heldthat: (1) FHWA’s failure to considera ten-lane bridge as a reasonablealternative did not violate theNational Environmental Policy Act(“NEPA”), and (2) FHWA adequate-ly addressed the constructionimpacts of project.

The controversy stemmed fromthe FHWA’s decision to look at var-ious alternative bridge designs to

replace the Woodrow WilsonMemorial Bridge (“Bridge”). TheBridge was built in 1961 and hasonly six lanes. The bridge is thecause of many traffic problems inthe area and is expected to becomestructurally unsound by 2004. Indetermining the best possiblereplacement design for the bridge,the FHWA began to examine theenvironmental impacts of variousdesigns as required by NEPA, 42U.S.C. § 4321 et seq. (1994). In1991, the FHWA issued an initialdraft Environmental Impact State-ment (“EIS”) that compared theenvironmental consequences offive different designs. All the pro-posed designs increased the size ofthe bridge to twelve lanes. Reac-tion to the draft was unfavorable,with many groups criticizing it fornot fully evaluating the environ-mental and cultural impacts of theproject. The FHWA recognized itsfailure to coordinate all of theinterests involved and began theprocess again.

In 1997, FHWA issued its FinalEIS. This document comparedseven bridge designs and a “nobuild” alternative, considering sev-eral different factors including cost,vehicle capacity, and environmen-tal impact. All seven proposedbridge designs in the Final EIS hadtwelve lanes. The agency felt that abridge with less than twelve laneswould be insufficient for long-termtraffic capacities. Accordingly,there was not a formal comparisonof a bridge design with less thantwelve lanes.

Following a brief comment peri-od, FHWA approved one of thedesigns. Plaintiffs filed an action indistrict court alleging that FHWAhad violated NEPA by failing toconsider all of the reasonable alter-natives in evaluating the environ-mental consequences of thedifferent designs. The district courtruled for the plaintiffs, reasoning

that FHWA failed to meet NEPAguidelines in not considering a ten-lane bridge as a reasonable alterna-tive in the Final EIS. The court alsofound that the Final EIS’s treat-ment of temporary constructioneffects was too cursory to complywith NEPA. FHWA appealed.

NEPA mandates that an agencymust “rigorously explore andobjectively evaluate” the projectedenvironmental impact of all “rea-sonable alternatives” to a proposedproject. 40 C.F.R. § 15002.14. Ananalysis under this sectionrequires the court to evaluate “anagency’s choice of ‘reasonablealternatives’ in light of the objec-tives of the federal action.” Slater,198 F.3d at 867. The D.C. Circuitheld that there should be twoinquiries: “whether an agency’sobjectives are reasonable, andwhether a particular alternative isreasonable in light of these objec-tives – with considerable deferenceto the agency’s expertise and poli-cy-making role.” Id. at 867.

The court also held thatalthough the agency’s descriptionof its objectives focused primarilyon transportation and safetyissues, this approach was notunreasonable. The court held thatNEPA does not “substantively con-strain an agency’s choice of objec-tives; to the contrary, it is thosevery objectives that provide thepoint of reference for a determina-tion whether an alternative is ‘rea-sonable’ in the first place.” Id. at867. The court reasoned that hold-ing otherwise transforms NEPA“from a procedural statute into asubstantive one.” Id. The courtheld that in light of the objectivesof providing adequate traffic flowand safety until the year 2020, theten-lane bridge was not a “reason-able alternative” requiring specificmention in the Final EIS.

The court found that the “Con-struction Impacts” section of the

Final EIS was sufficient eventhough it was brief. The courtfound that it addressed a range ofpossible issues and the lack ofspecificity was not a problem. Itbased this decision on the fact thateach of the seven alternativeswould have similar constructionimpacts, and the ramifications ofthe construction phase were “rela-tively modest in both scope andduration when compared to theenvironmental impact of the proj-ect as a whole.” Id. at 871.

The court emphasized thatNEPA’s mandates are primarilyprocedural. The court based itsdecision in large part on theSupreme Court’s decision in Ver-mont Yankee Nuclear Power Corp.v. Natural Resources DefenseCouncil, Inc., 435 U.S. 519 (1978).The court concluded that its objec-tive is not to “further our beauideal of a bridge design, but merelyto ensure that the procedures man-dated by the statutes have beencomplied with.” Slater, 198 F.3d. at874.

Federal District CourtLWCFA – National ParkService Approval NotRequired forConstruction of PublicGolf Course FacilityFriends of Ironbridge Park v.Babbit, No. 98-2373, 1999 WL519173 (4th Cir. July 22,1999)

by Grant Waterkotte

The United States District Courtfor the Eastern District of Virginia

recently sustained a decision of theNational Park Service (“NPS”) thatNPS approval is not required forthe construction of a public golfcourse in a park developed withfunds awarded under § 6 of theLand and Water ConservationFund Act (“LWCFA”). The Friendsof Ironbridge Park (“FIP”) initiatedthis action, seeking a declarationthat approval of the NPS wasrequired before the golf facilitycould be built. FIP contended thatthe NPS acted arbitrarily andcapriciously in determining thatthe construction would not bringabout a change in use that would“significantly contravene the origi-nal plans for the area,” by turningland from a passive use to an activeuse. 36 C.F.R. § 59.3(d) (1998). Onappeal, the Fourth Circuit affirmedthe lower court’s ruling, concludingthat the NPS acted rationally indeciding that its approval was notrequired for the construction of thegolf course facility.

The LWCFA was designed toprovide funds to assist in develop-ing and preserving outdoor recre-ation. The Act limits the ability ofgrant recipients from using theirfunds for any purpose other thanoutdoor recreation. The applicableregulations state that any proposedchanges “that significantly contra-vene the original plans for thearea” must receive NPS approval.36 C.F.R. § 59.3(d). In 1984, theUnited States awarded $270,000 tothe Commonwealth of Virginia forthe development of IronbridgePark. The development plan for thepark included the construction of alarge number of recreational facili-ties, including an amphitheater,nature center, swim and wave pool,skating rink, and others. Most ofthese projects are currently notconstructed, and the majority ofthis 400-acre park sits undevel-oped. This undeveloped land is pri-

marily utilized for hiking andmountain biking.

In 1998, the County decided tolease 150 acres of the undevelopedland for the construction of a pub-lic golf course. The County notifiedthe Commonwealth and, accordingto the appropriate regulations, theCommonwealth notified the NPS.36 C.F.R. § 59.3. The NPS conclud-ed that the proposed golf coursewas not inconsistent with the pro-ject’s original intent and therefore,federal agency approval of the golfcourse was not required. FIP theninitiated this action, claiming thatapproval of the NPS was requiredbefore the golf facility could beconstructed.

The Fourth Circuit stated that itcan only set aside an agency actionif it is “arbitrary, capricious, anabuse of discretion, or otherwisenot in accordance with law.” 5U.S.C.A. § 706(2)(A) (West 1996).This highly deferential standardallows for a reversal only if therecord reveals no rational basis forthe agency’s decision. See TrinityAm. Corp. v. United States EPA,150 F.3d 389, 395 (4th Cir. 1998).FIP argued that the construction ofa golf course would “significantlycontravene the original plans forthe area,” and so violate 36 C.F.R. §59.3(d). FIP contended that “area”refers only to the 150 acres thatthe golf course would encompass.Thus, the construction of thecourse would contravene the origi-nal intent for these 150 acres byconverting an area from a passiveto an active use.

The Secretary contended that“area” referred to the entire 400acres of the project area, not mere-ly the 150 acres the golf coursewould cover. The Fourth Circuitstated that it must defer to theagency’s construction of its ownregulations unless such construc-tion is “plainly erroneous or incon-

sistent with the regulation.” Auerv. Robbins, 519 U.S. 452, 461(1997). In this case, the boundarymap marked the entire 400 acresof the park. While the golf coursemight change the nature of thatparticular part of the marked area,it did not convert the entire areafrom passive to active use. Thecourt held that the Secretary’sinterpretation was neither erro-neous nor inconsistent with theregulation, and was therefore con-trolling in this case. Consequently,the court affirmed the ruling of thedistrict court and held that the NPSdid not act arbitrarily and capri-ciously in determining that con-struction of the golf course did notconstitute a change such that theapproval of the NPS was required.

Statutes Limiting theFlow of Out-of-StateMunicipal Solid Wasteinto Virginia Disputed –Motion to Dismiss DeniedWaste Management Holdings,Inc. v. Gilmore, 64 F. Supp. 2d537, summary judgmentgranted, partial summaryjudgment denied, 87 F. Supp.2d 536 (E.D. Va. 2000).

by Autumn Hwang

Waste Management Holdings,Inc. and several Virginia counties(“Plaintiffs”) brought suit fordeclaratory judgment and to enjointhe enforcement of several Virginiastatutes enacted to limit the flow ofout-of-state municipal solid wasteinto Virginia. Plaintiffs alleged thatthe new laws violated the Com-merce, Contracts, Supremacy, andEqual Protection Clauses of theUnited States Constitution. TheCommonwealth moved to dismiss

on two grounds: (1) that Plaintiffslacked standing to challenge thedisputed laws, and (2) suit wasbarred by the Eleventh Amend-ment and the doctrine of sovereignimmunity. In addition, the Com-monwealth submitted separatemotions to dismiss each of Plain-tiffs’ individual constitutionalclaims and urged that Charles CityCounty be dismissed as a plaintiff.

The disputed statutes were like-ly to affect seven large regionallandfills privately operated bywaste disposal companies undervoluntary agreements with “host”counties of Virginia. Under theseagreements, the waste disposalcompanies constructed the region-al landfills, paid the host counties afee based on the volume of wastedisposed, and performed servicesfor the host communities. Eachlandfill was built with the expecta-tion that it would accept substan-tial quantities of out-of-statemunicipal solid waste in order tomeet its revenue needs and providea reasonable return on investment.

In its motion to dismiss, theCommonwealth argued that Plain-tiffs lacked standing to challengethe disputed laws because the Vir-ginia counties did not have theauthority to make agreements withmunicipal waste companies inregard to acceptance of interstatewaste for profit. Since Plaintiffsbased their suit on these unlawfulhost agreements, the Common-wealth insisted that the complaintsmust be dismissed. The Courtrejected the Commonwealth’sargument, stating that theSupreme Court of Virginia stronglyindicated in dicta that the countiesdo have the authority to make suchagreements. The Court also reject-ed the Commonwealth’s secondargument that the EleventhAmendment and the doctrine ofsovereign immunity barred the

suit. The Court stated that theSupreme Court and the Fourth Cir-cuit had consistently relied uponthe Ex Parte Young doctrine toensure federal jurisdiction overcases challenging the enforcementof allegedly invalid state laws.According to the Ex Parte Youngdoctrine, the Eleventh Amendmentdoes not apply to a suit to enjoin astate officer from enforcing anunconstitutional statute in the fed-eral court, such as the case athand.

In addition, the Court deniedthe Commonwealth’s motions todismiss three of Plaintiffs’ individ-ual constitutional claims. TheCourt refused to dismiss Plaintiffs’allegation that each of the statutesat issue violated the CommerceClause of the Constitution. Con-trary to the Commonwealth’s argu-ments, the Court found thatCongress had not expressivelyauthorized states to interfere withinterstate commerce in municipalsolid waste through Subtitle D ofthe Resource Conservation andRecovery Act (“RCRA”) and thatthe statutes in dispute did not fallwithin the “market participant”exception to the Commerce Clausebecause the Commonwealth, byenacting the disputed statutes, wasattempting to regulate the conductof others as a state and not as a pri-vate participant in the waste dis-posal market.

The Court also rejected theCommonwealth’s motion to dis-miss Plaintiffs’ claim for reliefunder 42 U.S.C. § 1983. Plaintiffsalleged that the barging restrictionswere void under the SupremacyClause of the Constitution becausefederal law preempted the restric-tions. The Commonwealth arguedthat the violations alleged by Plain-tiffs did not give rise to the § 1983remedy. The Court disagreed.

The Commonwealth furthermoved to dismiss Plaintiffs’ claimthat the barging restrictions on thetransportation of municipal solidwaste violated the Equal ProtectionClause of the Fourteenth Amend-ment, arguing that Plaintiffs did notallege sufficient facts to show thatthe disputed statutes lacked a“rational basis.” The Court declinedto grant the Commonwealth’smotion to dismiss because it waspossible for Plaintiffs to gather addi-tional evidence during the course ofdiscovery to support their equalprotection claims.

The Court did grant the Com-monwealth’s motion to dismissPlaintiffs’ claim that the statutes atissue violated the Contract Clauseof the Constitution insofar as theyimpaired various contracts, such asthe host agreements betweenWaste Management and the coun-ties in which its regional landfillswere located. The Commonwealthargued that this claim must be dis-missed because (1) § 1983 does notprovide a remedy for violations ofthe Contract Clause, (2) Plaintiffsfailed to allege a violation of theContract Clause, (3) the chal-lenged legislation constitutes alegitimate exercise of Virginia’spolice power, and (4) the ContractClause does not protect against theimpairment of future contracts.The Court agreed that, under thealleged facts, the Contract Clausedid not apply to the present caseand therefore dismissed Plaintiffsclaims.

The Commonwealth also arguedthat the Court should dismissCharles City County as a plaintiffbecause it lacked standing to sue.Since each of the other Plaintiffshad standing to raise the allegedclaims, the Court declined toaddress this issue.

Statutes Limiting theFlow of Out-of-StateMunicipal Solid Wasteinto Virginia Disputed –Preliminary InjunctionGrantedWaste Management Holdings,Inc. v. Gilmore, 64 F. Supp. 2d537, summary judgmentgranted, partial summaryjudgment denied, 87 F. Supp.2d 536 (E.D. Va. 2000).

by Matt Walden

Plaintiffs Waste ManagementHoldings, Inc., (“Waste Manage-ment”) brought an action in theUnited States District Court for theEastern District of Virginia againstthe Commonwealth, seeking a pre-liminary injunction against theenforcement of Virginia statutesregarding the transportation anddisposal of municipal solid waste.The District Court granted theinjunction. The court held that: (1)Plaintiffs would suffer irreparableharm if the injunctive relief werenot granted; (2) the Common-wealth would not suffer apprecia-ble harm if the injunction weregranted; (3) Plaintiffs would likelyprevail on the merits of the casebecause the statutes are invalidunder the Commerce Clause; and(4) granting the injunction wouldbe in the public interest.

Waste Management operatesseveral large landfills in Virginia.These landfills accept large quanti-ties of out-of-state waste. Recently,Waste Management contractedwith the New York City Depart-ment of Sanitation to dispose ofNew York’s municipal waste in Vir-ginia landfills. It is also a primarycontender for a 20-year contractfor the disposal of 12,000 tons ofresidential waste per day from New

York City. Waste Managementplanned to transport this waste bybarge on the James River to itslandfills. However, Waste Manage-ment’s plans to increase its impor-tation of out-of-state wasteattracted the attention of publicofficials. As a result, the Governorsigned into law legislation torestrict further waste importation.The legislation capped the amountof waste that a landfill may acceptat either 2,000 tons per day or theaverage amount accepted by thelandfill in 1998, whichever isgreater. The legislation also con-tained two restrictions on the useof barges to transport solid waste.The first restriction provided thatcontainers of waste could not bestacked more than two high. Thesecond restriction prohibited thetransport of solid waste on the Rap-pahanock, James and York Rivers.The capping provision and thebarging restrictions of the statutesare at issue in this case.

In determining whether to granta preliminary injunction, the Courtfirst addressed the question ofwhether Plaintiffs would sufferirreparable harm if the relief werenot granted. The court stated that,if the cap provision and bargingrestrictions were enforced, Plain-tiffs would have to curtail their useof certain landfills and divert wasteto other landfills. This would resultin greater cost and the loss of otherbusiness opportunities. Since theEleventh Amendment protectsDefendants against a claim formoney damages, Plaintiffs wouldbe unable to recover these losses.Therefore, Plaintiffs would beirreparably harmed if the courtfailed to grant the injunction.

Next, the court examined theharm that the Commonwealthwould suffer if an injunction weregranted against the cap provisionand the barging restrictions. It

determined that Waste Manage-ment’s landfills have enormousexcess capacity, and therefore aninjunction against the cap provi-sion would not cause appreciableharm to the Commonwealth. Also,the court stated that the use ofcontainer barges is an environmen-tally safe means of transportingwaste, so a preliminary injunctionagainst the barging restrictionswould not result in harm to theCommonwealth. Therefore, theharm that Plaintiffs would suffer ifinjunctive relief were not grantedclearly outweighed the harm thatthe Commonwealth would suffer ifrelief were granted.

The court then addressed thequestion of whether Plaintiffswould likely prevail on the meritsof the case. Specifically, the courtexamined the validity of the capprovision and the barging restric-tions under the Commerce Clause.The court first determined thatthese statutes were subject tostrict scrutiny because they wereplainly discriminatory to out-of-state interests in both their pur-pose and their practical effect. Thepurpose of the statutes, as evi-denced by the statements andactions of the General Assemblyand the Governor, was clearly toimpede the importation of wastefrom New York. Likewise, the prac-tical effect of the statutes would beto burden the flow of solid wasteinto the state, but to leave in-statewaste unaffected.

Since these statutes plainly dis-criminate against out-of-stateinterests in both their purpose andpractical effect, they could survivejudicial scrutiny only if they can bejustified by a factor unrelated toeconomic protectionism and ifthere are no nondiscriminatoryalternatives available to protectlocal interests. The Common-wealth argued that they could be

justified by Virginia’s need to pre-serve landfill capacity and by itsdesire to protect the health of itscitizens and environment. Howev-er, the court stated that theSupreme Court had previouslyrejected justifications such asthese as invalid. Also, the courtdetermined that there are nondis-criminatory alternatives availablethat the Commonwealth could useto further these policy objectives.The court concluded that thesestatutes failed to survive judicialscrutiny and were therefore invalidunder the Commerce Clause.Thus, Plaintiffs would likely prevailon the merits.

Finally, the court addressedwhether the public interest favoredgranting injunctive relief. Thecourt determined that protectingthe free flow of interstate com-merce from interference was with-in the public interest. Therefore,the preliminary injunction wasgranted.

CWA – TMDL ConsentDecree AffirmedAmerican Canoe Association,Inc. v. United States EPA, 54F. Supp. 2d 621 (E.D. Va.1999).

by John Buford

The American Canoe Associa-tion and American Littoral Society(“Plaintiffs”) sued the Environ-mental Protection Agency (“EPA”),arguing that Virginia’s rivers,streams, and coastlines were notrecreationally or aesthetically use-able due to EPA’s failure to performcertain discretionary and nondis-cretionary duties under the CleanWater Act (“CWA”), 33 U.S.C. §1294. The Virginia Association of

Municipal Wastewater Agencies(“VAMWA”) intervened, and theparties engaged in lengthy settle-ment negotiations. Plaintiffs andEPA reached a settlement and sub-mitted a proposed consent decree.VAMWA objected to the decree asillegal, and the United States Dis-trict Court for the Eastern Districtof Virginia overruled the objection,ruling the decree to be fair, legal,and in the public interest.

Plaintiffs claim that EPA failedto perform its duties under theCWA to identify and restore Vir-ginia’s most heavily pollutedwaters. Plaintiffs allege that EPAshould have established total max-imum daily loads (“TMDLs”) ofpollutants for Virginia waters. ATMDL represents the highest levelat which a pollutant may bedeposited into a water body with-out violating water quality stan-dards. The State bears the initialburden of creating and submittingTMDLs for EPA approval for anywaters that do not or will not meetwater quality standards even aftervarious enumerated controls areimplemented. Virginia’s deadlinefor TMDL submissions was initiallyJune 26, 1979, and subsequentlyfrom “time to time.” 33 U.S.C. §1313(d)(2). Since the 1979 dead-line, Virginia has submitted nomore than one TMDL, and the EPAhas never established a TMDL forany body of water in Virginia. In aprevious opinion in this same case,30 F. Supp. 2d 908 (E.D. Va. 1998)(denying defendants’ motion to dis-miss), the court held that Virginia’sfailure to submit TMDLs for twentyyears could be construed as a con-structive submission that noTMDLs were necessary, therebycreating a duty for EPA to approveor disapprove that constructivesubmission of no TMDLs.

The consent decree drafted byplaintiffs and EPA proposed an

eleven year schedule for the estab-lishment of TMDLs for several hun-dred Virginia waterways. VAMWAobjected to entry of the consentdecree on two grounds. First,VAMWA contended that EPA can-not unilaterally establish a TMDLschedule without state consulta-tion absent an EPA or judicial find-ing that Virginia’s failure to submitTMDLs constituted a constructivesubmission that no TMDLs werenecessary. Second, VAMWA arguedthat, if Virginia fails to adhere tothe TMDL schedule set by the con-sent decree, EPA will again lack theauthority to establish TMDLs sincethere has been no constructivesubmission found in this case.

The court held that, while therehad been no finding of a construc-tive submission of no TMDLs byVirginia, the proposed consentdecree was in the public interest. IfEPA had to declare a constructivesubmission of no TMDLs by Vir-ginia, EPA would have to approveor disapprove that submission inthirty days, with EPA TMDLs duethirty days later in the likely eventof disapproval. This “tight andunforgiving schedule…would im-pose immediate and significantburdens on EPA and leave little orno room for Virginia’s further par-ticipation in the process.” Ameri-can Canoe, 54 F. Supp. 2d at 626.

The court further held thatVAMWA’s argument was withoutmerit because Virginia did actuallyparticipate in the creation of theTMDL schedule. A November 1998Memorandum of Understanding(“MOU”) was executed betweenEPA and the Virginia Departmentof Environmental Quality. Theschedule proposed in the consentdecree was nearly identical to themajor deadlines set out in theMOU. Certain interim deadlines inthe consent decree were not speci-fied in the MOU, but the court

ruled the discrepancy “merely for-malizes what is necessarily impliedby any rational interpretation ofthe MOU.” Id. at 627. Further-more, Virginia never availed itselfof the opportunity to intervene inthe instant lawsuit, which it couldhave easily done had it objected tothe consent decree.

VAMWA also argued that, even ifVirginia failed to meet any or all ofthe deadlines, as long as Virginiamade some attempt to comply withthe schedule, EPA could not find aconstructive submission of noTMDLs. The court held that such a“miserly” construction of the CWAwould allow the law to be “ren-dered a dead letter by state sub-terfuge and recalcitrance.” Id. at628.

The court ultimately ruled thatthe consent decree was fair, ade-quate, and reasonable. The decreewas “wholly consistent” with therequirements and purpose of theCWA and did not impose undueburdens on Virginia. It was also fairto third parties, who will have theopportunity to participate in theprocess, since a period of publiccomment is required by regulation.Overall, the court held the decree a“welcome resolution” of twodecades of inaction. Id. at 629.

CERCLA – RetroactiveApplication HeldConstitutionalCombinedProperties/Greenbriar LimitedPartnership v. Morrow, F.Supp. 2d 675 (E.D. Va. 1999)

by David A. Smith

Combined Properties/Greenbri-ar Limited Partnership (“Greenbri-

ar”) brought a CERCLA actionagainst Dean E. Morrow, Marilyn R.Morrow, and the Morrow Corpora-tion (collectively, “Morrow”). Mor-row then brought a third partycomplaint against J. Edward Gloverand Puritan Systems, Inc. (collec-tively, “Puritan”). Puritan respond-ed by filing a motion for summaryjudgment, arguing that theSupreme Court’s decision in East-ern Enterprises v. Apfel, 524 U.S.498 (1998), required the court tofind that CERCLA liability couldnot be applied retroactively toPuritan. In denying Puritan’smotion, the district court held thatthe “decision in Eastern Enterpris-es does not undercut the constitu-tionality of retroactive liabilityunder CERCLA.” Morrow, 58 F.Supp. 2d at 681.

Greenbriar owned the Green-briar Town Center, a shopping cen-ter in Fairfax, Virginia. Between1969 and 1992, three differententities, including the Morrowdefendants and Puritan, operateddry cleaning businesses at StoreNo. 8 in the shopping center.Greenbriar alleged that the variousowners, in conducting their drycleaning businesses, used the toxicand hazardous chemical per-chloroethylene (“PCE”) andallowed PCE to contaminate thesoil and groundwater. Greenbriarfurther argued that it has borne,and will continue to bear, the costsof investigating and characterizingthe type and extent of the environ-mental contamination and remedi-ation. Greenbriar brought thisaction under § 7002 of theResource and Recovery Act(“RCRA”), under §§ 107 and 113 ofthe Comprehensive EnvironmentalResponse Compensation, and Lia-bility Act (“CERCLA”), and undercommon law causes of action. Puri-

tan’s motion involved only theCERCLA action.

The issue raised by Puritan’smotion for summary judgementwas whether the Supreme Court’sdecision in Eastern Enterprisesrequired a finding that CERCLAliability could not be appliedretroactively to Puritan. The courtnoted that, prior to Eastern Enter-prises, it was clear that theretroactive application of CERCLAwas constitutional. The court alsonoted that in United States v. Mon-santo, 858 F.2d 160 (4th Cir.1988), “the Fourth Circuit deter-mined that CERCLA is a retroac-tive liability statute, in that itcreates joint and several liabilityfor all parties ‘that played a role increating the hazardous conditions,’even if they played that role beforeCERCLA became effective.” Mor-row, 58 F. Supp. 2d at 677 (quotingMonsanto). In Monsanto, theFourth Circuit found that therewas no violation of due process inimposing liability on a businesseven though its waste-handlingmethods were legal at the timethey were performed. The courtfound that the system of legislationcreated in CERCLA was logicalgiven the indivisible nature of con-ditions that create an environmen-tal hazard. Furthermore, in Nurad,Inc. v. William E. Hooper & SonsCo., 966 F.2d 837, 846 (4th Cir.1992), the Fourth Circuit held that“[t]he trigger to liability under [42U.S.C.] § 9607 (a)(2) is ownershipor operation of a facility at the timeof disposal, not culpability orresponsibility for the contamina-tion.” Prior to Eastern Enterprises,waste-handling parties could befound retroactively liable underCERCLA. In Eastern Enterprises,the United States Supreme Courtfound that the Coal IndustryRetiree Health Benefit Act of 1992

violated the Takings Clause of theFifth Amendment. The Courtbased its opinion on three factors:(1) economic impact on EasternEnterprises, (2) interference withEastern’s reasonable investment-backed expectation, and (3) thenature of the governmental action.

In the case at hand, however,the court concluded that, becausea majority of the Supreme Court inEastern Enterprises did not adopta single theory of law, EasternEnterprises carries no precedentialweight and Monsanto remains con-trolling law. Morrow, 58 F. Supp.2d. at 681. Furthermore, the courtdecided that the position of East-ern Enterprises was distinguish-able from that of Puritan. UnlikeEastern Enterprises, if Puritanwere to be found liable under CER-CLA its liability would arise fromits own conduct in disposing of thePCE, whereas Eastern Enterprises’sliability was in no way based on itsown conduct. The court furtherfound that the $1 million in poten-tial liability did not meet the East-ern Enterprises criteria of a“severe and disproportionate” eco-nomic impact. Id. The court point-ed out that potential liability mustbe measured against the as yet tobe calculated environmental harmcaused by Puritan’s actions, not bythe economic benefit received inits business dealings. Id. Finally,the court found that there was nointerference with Puritan’s reason-able investment-backed expecta-tions because Puritan should haveexpected that some liability couldarise from its actions. Id. at 682.Ultimately, the court denied Puri-tan’s motion for summary judge-ment and held that EasternEnterprises did not impact theapplicability of CERCLA to thepresent case.

Coal Act SettlementsBinding Despite Recent“Super-Reachback”DecisionHolland v. Virginia Lee Co.,188 F.R.D. (W.D. Va. 1999)

by David Church

Plaintiffs, the Trustees of theUnited Mine Workers of America(“Trustees”) filed a complaint in1995 seeking judgment againstdefendant, Virginia Lee Company(“Virginia Lee”) for past-due pre-miums owed under the Coal Indus-try Retiree Health Benefit Act of1992, 26 U.S.C.A. §§ 9701-22(West Supp. 1999) (“Coal Act”).

After filing its answer, VirginiaLee, without further formal pro-ceedings in this case, entered intoa written “Settlement Agreementand Release,” pursuant to whichVirginia Lee paid the Trustees thesum of $868,604, representing theestimated present value of VirginiaLee’s past and future obligationsunder the Coal Act. A final orderwas tendered by the court in June1997, dismissing the case againstVirginia Lee with prejudice.

Virginia Lee brought this actionpursuant to Federal Rule of CivilProcedure 60(b)(6) to vacate thefinal order and compel a refund ofthe amount paid under the termsof the settlement agreement. Vir-ginia Lee argued that, in light of arecent Supreme Court decisionreversing the constitutionality ofCoal Act “super-reachback” premi-ums, the previous settlementagreement should be overturned.The court found that the require-ments to obtain relief from the finalorder of settlement had not beenmet and denied Virginia Lee’smotion to vacate the order.

Between 1933 and 1962, Vir-ginia Lee conducted coal miningoperations in Lee County, Virginia,under a series of United MineWorkers of America (“UMWA”)coal wage agreements. At no timeafter 1962 did Virginia Lee operateas a signatory to a coal wage agree-ment. Virginia Lee has since main-tained its corporate form, thoughits activities have been limited topassively investing the proceeds ofits former coal operations.

In October 1993, the SocialSecurity Administration made ben-eficiary assignments to VirginiaLee pursuant to the statutoryscheme, naming certain of its for-mer employees and their depend-ents. Consequently, Virginia Leewas assessed premium liabilityunder 26 U.S.C.A. § 9706(a)(3),with such payments due and owingto the UMWA Combined BenefitFund. The Combined Benefit Fundwas established to ensure healthbenefits for retired UMWA coalminers and their dependents.

After the Trustees filed suit tocompel payment in May 1997, Vir-ginia Lee elected to settle. On July7, 1997, less than one month afterthe entry of the final order in thiscase, Eastern Enterprises v. Apfel,524 U.S. 498 (1998), was grantedcertiorari before the SupremeCourt. The Court voted five to fourin favor of Eastern Enterprises, theoperator, holding that assessmentof Coal Act premiums to a pre-1978 signatory operator wasunconstitutional. Virginia Lee sub-sequently received a notice fromthe Social Security Administrationstating that, pursuant to the East-ern Enterprises decision, theassignments made to them werevoid.

Virginia Lee then sought dis-gorgement of the sum paid pur-suant to its settlement agreement

with the Trustees. This wouldeffectuate a refund of premiumspreviously assigned under the CoalAct by moving for relief from thefinal order pursuant to Fed. R. Civ.P. 60(b).

Pursuant to Rule 60(b), thecourt found that the filing delaywas reasonable and that there wasno unfair prejudice to the Trustees.However, to succeed Virginia Leehad to show a meritorious claim ordefense. A binding settlement inVirginia is judged by the presenceof the essential elements of a validcontract. A binding settlement thusrequires a “meeting of the minds.”In Virginia, a compromise and set-tlement of a suit is binding unless itis shown that it was the result offraud, mistake, or undue advan-tage.

The Trustees argued that theparties’ settlement agreement wasa valid and enforceable contractthat would bar any claim ordefense that Virginia Lee otherwisemight have had in this case. Vir-ginia Lee, on the other hand,argued that it only needed to pres-ent a meritorious defense to theoriginal action for premiums underthe Coal Act. Finding that VirginiaLee had presented nothing to dis-avow its decision to settle, thecourt dismissed Virginia Lee’s argu-ment. Virginia Lee failed to allegethe existence of fraud, mistake, orundue advantage, as would be nec-essary to undercut the bindingeffect of settlement.

The court held that in light of itsfailure to sufficiently plead a meri-torious claim or defense, VirginiaLee did not meet the thresholdrequirements for relief from judg-ment under Rule 60(b). The courtfurther stated that, even withoutconsideration of the thresholdrequirements, neither the extraor-dinary circumstances nor the

undue hardship required undersubsection (6) of Rule 60(b) weredemonstrated. To hold otherwisewould “not only undermine thefinality of judgments doctrine butalso compromise the integrity ofthe settlement process among liti-gants.” Holland, 188 F.R.D. at 257.The motion to vacate the finalorder was thus denied.

Search of Trailer onPrivate Parking Lot WasReasonable in CriminalProsecution of AsbestosRemoval ContractorUnited States v. Potter, 71 F.Supp. 2d 543 (E.D. Va. 1999).

This case involves the prosecu-tion of an asbestos removal con-tractor on charges of improperdisposal of regulated asbestos-con-taining material, in violation of 42U.S.C. § 7413(c)(1), and failure tonotify the United States Environ-mental Protection Agency (“EPA”)of an asbestos removal project, inviolation of 42 U.S.C. § 7413(c)(2).The defendant, Paul T. Potter, isVice-President of Chelsea Environ-mental Corporation (“CEC”), anasbestos removal company. InApril 1996, on behalf of CEC, thedefendant contracted with theFairfax County Public Schools(“FCPS”) to remove asbestos-con-taining floor tiles from three ele-mentary schools. In June 1996, thedefendant rented a trailer fromSummit Transportation Groups,Inc. (“Summit”) for use in theasbestos removal. Asbestos-con-taining floor tiles removed from theschools were loaded onto the trail-er, but did not fill the trailer. OnAugust 22, 1996, the defendantcontacted American Trailer SalesCompany (“ATS”) and rented a

parking space to store the traileron a month-to-month basis. Thetrailer was moved to ATS’s locationon August 27, 1996, and was pad-locked and left for storage.

ATS began billing the defendanton a monthly basis, sendingmonthly invoices to CEC’s busi-ness address, but the defendantfailed to make rental paymentsfrom September 1996 to December1996. ATS’s operations managercontacted the defendant andinformed him that if he did not payhis account, ATS would remove thetrailer from its lot and place it onthe side of the road. In January1997, the defendant paid hisaccount in full. For the next year,ATS continued to send monthlyinvoices to the defendant, but thedefendant failed to make furtherrental payments.

In October 1997, WilliamBrown, ATS’s division manager atthe site, observed the defendantsupervising several other individu-als dressed in protective gear andloading trash bags into the trailer.Brown approached the group andthe defendant informed Brown thathe was supervising the placementof asbestos-containing materialsinto the trailer. Brown contactedATS owner Buzz Hurley andreported the substance of his con-versation with the defendant. Hur-ley contacted Waste Management,a disposal company, who visitedthe lot on two occasions. On thefirst occasion, Brown escorted theWaste Management representativeto the trailer and removed thedefendant’s padlock with bolt cut-ters to allow the representative toenter. On the second occasion, therepresentative entered theunlocked trailer and observed itscontents.

In December 1997, Hurley wasconcerned about the defendant’s

trailer because ATS’s lease on thelocation was due to expire at theend of the year. Hurley contactedthe Fairfax Fire and Rescue Depart-ment (“FFRD”) and informed themthat there was an abandoned trailerat the location that he believedcontained hazardous materials.Captain David McKernan fromFFRD contacted the FederalBureau of Investigation (“FBI”), theEPA, the Virginia Department ofEnvironmental Quality (“DEQ”),and the Virginia Department ofLabor and Industry (“DOLI”). OnDecember 23, 1997, Captain McK-ernan arrived at the location withrepresentatives of all of these agen-cies. They were met by Brown whoescorted the agents to the trailer.The agents conducted a visualinspection of the trailer’s contents.On January 20, 1998, FBI agentMarvin Strickland contacted Sum-mit’s owner and was given permis-sion to search the trailer.Photographs were taken of the con-tents of the trailer and sampleswere taken.

The defendant moved to sup-press this evidence as an unlawfulsearch in violation of the FourthAmendment. According to the dis-trict court, a defendant claiming tohave been subjected to an unlawfulsearch in violation of the FourthAmendment must establish, as athreshold matter, that he had alegitimate expectation of privacy inthe particular area searched. Alegitimate expectation of privacydepends on two factors: (1)whether the defendant manifesteda subjective expectation of privacyin the area searched; and (2)whether the defendant’s subjectiveexpectation of privacy was objec-tively reasonable. The burden ofproof rests on the defendant.

To satisfy the subjective inquiry,a defendant, through his own con-duct, must have demonstrated an

intention to keep his or her activi-ties and items private, and mustnot have knowingly exposed themto the open view of the public. Thistest was satisfied in this casebecause the defendant did not giveanyone permission to enter thetrailer, the trailer was padlocked,and the contents were not open topublic view.

To satisfy the requirement thatthe subjective expectation of priva-cy be objectively reasonable, thedefendant’s expectation must havebeen of a type that a reasonableperson would recognize as legiti-mate. Applied here, the defendant’ssubjective expectation of privacyin the trailer was not objectivelyreasonable. First, the defendantfailed to make rental payments toATS and was on notice that failureto pay these rental obligationscould result in severe conse-quences. Second, the defendantrarely visited the location, allowingothers to exercise dominion andcontrol. In light of these circum-stances, the district court foundthat the defendant created a situa-tion where a reasonable personwould expect or predict preciselywhat occurred here.

Even assuming that the defen-dant had a legitimate expectationof privacy in the trailer at the timeit was searched, the searcheswould still be valid if the govern-ment agents had apparent authori-ty to conduct the searches. Thestandard for assessing apparentauthority is whether the facts avail-able to a government agent at themoment of a search would warranta man of reasonable caution in thebelief that the consenting partyhad authority over the premises.The court decided that the govern-ment agents acted reasonably inbelieving that they had consent tosearch the trailer on all three occa-sions. On the first occasion, the

agents found the trailer unlockedon the date of the first search andprior to conducting the search theyquestioned Brown, who verifiedthat the defendant had not maderental payments to ATS in 12months. On the second and thirdoccasions, the government agentsacted on the express consent of theactual owner of the trailer.

Thus, the district court con-cluded that defendant’s motion tosuppress must fail and the searchof the trailer was reasonable.

Virginia Supreme CourtAugusta CountySubdivision OrdinanceNot Authorized by LandSubdivision andDevelopment ActBoard of Supervisors ofAugusta County v.Countryside Investment Co.,522 S.E.2d 610 (Va. 1999).

Countryside Investment Com-pany, L.C. (“Countryside Invest-ment”) was the contract purchaserof a parcel of land consisting ofapproximately 140 acres located inAugusta County. In 1997, theBoard of Supervisors for the Augus-ta County Department of Commu-nity Development (“Board”)tentatively denied approval ofCountryside Investment’s masterplan for a proposed subdivision.Countryside Investment soughtjudicial review of the Board’s disap-proval of the preliminary masterplan in the circuit court pursuantto § 15.2-2260 of the Virginia Code.The circuit court ruled that §§ 21-

6 and 21-7 of the County Subdivi-sion Ordinance violated the DillonRule because those sections werenot authorized by the enabling leg-islation in Code §§ 15.2-2241 and15.2-2242. The court orderedapproval of the master plan andenjoined the Board from taking anyaction inconsistent with thedecree. The Board appealed.

The parcel of land was original-ly given an R-10 residential zoningclassification under the AugustaCounty Zoning Ordinance whichestablished minimum lot size andminimum floor space require-ments. This ordinance provided fora minimum lot area of 9,000square feet for property having anR-10 zoning classification. In 1997,Countryside Investment submitteda master plan for a proposed subdi-vision, and the Augusta CountyDepartment of Community Devel-opment recommended approval bythe Board of Supervisors. However,the Board denied approval forthree reasons: (1) such a large sub-division in a rural location shouldaccommodate some of the needsfor non-residential community-type facilities; (2) the overall densi-ty of the subdivision should notexceed a figure of about two resi-dences per acre; and (3) some ofthe property may not be suitablefor residential development andwould result in an unacceptableincrease in population. The Boardlooked to Ordinance §§ 21-6 and21-7 which contain provisions forlot size and shape and give theBoard power to decide suitabilityfor subdivisions. On appeal, theBoard argued that the circuit courterred in holding that these sectionsviolated the Dillon Rule becausethe locality is not required to havespecific authority for every provi-sion in its ordinance. CountrysideInvestment argued that delegationof the State’s police power to a local

governing body is subject to statu-torily prescribed limitations.

The Supreme Court of Virginiaagreed with Countryside Invest-ment. While the Court recognizedthat the General Assembly maydelegate some police power tolocalities, the power of a munici-pality, unlike that of the State leg-islature, must be exercisedpursuant to an express grant. TheDillon Rule of strict constructionprovides that municipal corpora-tions have only those powers thatare expressly granted, those neces-sarily or fairly implied fromexpressly granted powers, andthose that are essential and indis-pensable.

The Court held that §§ 21-6 and21-7 of the County’s SubdivisionOrdinance are void because theGeneral Assembly did not authorizethe Board to enact the challengedrequirements in a subdivision ordi-nance. Neither Code section thatthe Board relied upon authorizes agoverning body to enact provisionsin a subdivision ordinance whichspecify the size and shape of lots orto prohibit a proposed subdivision ifit is not conducive to the preserva-tion of a rural environment. TheCourt explained that the Board isnot permitted to ignore the requi-sites contained in Virginia Code §§15.2-2241 and 15.2-2242 and enactstandards which “would effectivelypermit it to rezone property in amanner inconsistent with the usespermitted by the property’s zoningclassification.” 522 S.E.2d at 614.Furthermore, the General Assem-bly’s declaration of intent concern-ing subdivision of land, VirginiaCode § 15.2-2200, does not give theBoard power to enact an ordinancewhich is more expansive than therequisites contained in §§ 15.2-2241 and 15.2–2242 of the VirginiaCode.

Arlington County Boardof Zoning Appeals LotMeasurement MethodAffirmedHiggs v. Kirkbride, 522 S.E.2d861 (Va. 1999).

Plaintiffs Higgs, et al. (“Neigh-bors”) and the Arlington CountyBoard of Zoning Appeals (“BZA”)brought this appeal to challengethe trial court’s reversal of a BZAdecision. The Lot in question (“Lot11-A”) was a quadrilateral lot,owned by the defendants, with noparallel sides and no congruentangles. The zoning administratorapproved the subdivision plat,which effectively created Lot 11-A,after calculating the average lotwidth using the south lot line as therear lot line. The Neighborsappealed to BZA arguing that thelot was irregularly shaped and thatthe administrator erred by usingthe south lot line as the rear lotline. The Neighbors contended thatthe administrator should have cal-culated the average lot width in themanner prescribed for irregularlots by using “a line at least ten(10) feet in length entirely withinthe lot and parallel to and at a max-imum distance from the front lotline” to calculate the average lotwidth. 522 S.E.2d at 862. BZAagreed with the Neighbors anddetermined that Lot 11-A was anirregularly shaped lot which failedto meet to the minimum averagelot width requirements.

The defendants argued that Lot11-A was a quadrilateral lot andnot a triangle or otherwise irregu-larly shaped lot because the southlot line, which ran at a forty-fivedegree angle to the southeast, was“‘the most distant from, and themost nearly parallel with, the frontlot line’ and, thus, [was] the ‘rear

lot line’ as defined by the ordi-nance for purposes of determiningthe average width of the lot.” 522S.E.2d at 862. Additionally, thedefendants pointed out before thetrial court that there were similarlysubdivided lots within ArlingtonCounty and that the administratorhad consistently treated quadrilat-eral lots as having identifiable rearlot lines even when the rear lot linewas not parallel with the front lotline.

The Neighbors and BZA arguedbefore the trial court that BZA wasnot bound by the prior actions ofthe administrator. They also arguedthat the defendant’s lot was differ-ent from other quadrilateral lotsthat had not been classified asirregularly shaped because theother quadrilateral lots had hadside lot lines that were parallel toeach other and perpendicular tothe front lot lines.

The trial court reversed thedecision of the of BZA as “plainlywrong” and stated that BZA had“applied erroneous principles oflaw.” The court further found thatLot 11-A conformed to the zoningrequirements and that the subdivi-sion plat was valid. Higgs, 522S.E.2d at 862.

In its discussion of the case, theSupreme Court of Virginia firstpointed out that the decisions ofBZA should only be overturned onreview “if the trial court deter-mines that BZA applied erroneousprinciples of law or was plainlywrong and in violation of the pur-poses and intent of the zoning ordi-nance.” Id. at 863. The court thenconcluded that BZA’s determina-tion that Lot 11-A was irregularlyshaped was “based on a soundreading of the ordinance” andtherefore was not “plainly wrong orin violation of the purpose andintent of the ordinance.” Id. at 864.

The court reasoned that the legisla-tive intent behind the ordinancewas to assure a minimum averagelot width. Lot 11-A had a width of60 feet nowhere except the frontlot line and could only satisfy theordinance’s minimum averagewidth requirement by way of theelongated south lot line. Therefore,a finding that the lot should bemeasured as an irregular lot coin-cided with the intent of the ordi-nance. The Supreme Court ofVirginia found in favor of BZA andthe Neighbors and reversed thejudgment of the trial court.

County Maintains ZoningAuthority Over WirelessTower ConstructionBoard of Supervisors ofFairfax County v. Washington,D.C. SMSA L.P., 522 S.E.2d876 (Va. 1999).

The Supreme Court of Virginiareversed a lower court decisiongranting summary judgment towireless telecommunications com-panies Washington D.C. SMSA L.P.and Wireless PCS, Inc. (“Respon-dents”). The County of Fairfaxbrought an injunctive complaintagainst these two companies toprohibit them from erectingtelecommunications facilities oncounty property until they hadreceived approval under the coun-ty zoning ordinance. The circuitcourt held that, because the towerswere constructed in accordancewith an agreement with the Vir-ginia Department of Transporta-tion (“VDOT”), the towers werestate property and could not beregulated by Fairfax County. TheSupreme Court of Virginiareversed, holding that the telecom-munications companies must sub-

mit their proposed use of this landto the County’s planning commis-sion.

In October of 1996, VDOT andRespondents entered into leaseagreements that permitted Respon-dents to construct and operate cer-tain telecommunications facilitiesalong the state highway systemrunning through Fairfax County.The lease agreements requiredRespondents to construct andmaintain the towers, but allowedthat the towers would remainRespondents’ property. Inexchange, VDOT would be allowedlimited use of the towers. Thetower sites were located on VDOT’sright-of-way within the boundariesof Fairfax County. Neither ofRespondents sought approval fromthe county zoning board beforebeginning construction.

In September of 1997, theCounty sought a declaratory judg-ment requiring a cease of opera-tions until the zoning boardapproved construction of the tow-ers. The County contended thatthe towers were public utility facil-ities of commercial entities locatedon unincorporated land within thecounty, and were thus subject toapproval. Respondents contendedthat the towers were to be sharedcommunications facilities betweenVDOT and Respondents and,because the County’s own ordi-nances prohibit it from regulatingVDOT property, the County had noauthority to regulate the towerconstruction. The circuit courtgranted summary judgment toRespondents.

The Supreme Court of Virginialimited their decision to whether aprivate telecommunications com-pany may construct a public utilityfacility on a leasehold propertywhich is part of a VDOT right-of-

way without first seeking countypermission. The court noted thatsuch construction would normallyrequire approval of the county zon-ing board. The distinguishing fac-tor in this case was the fact thatthese towers were located on landcontrolled by and leased from adepartment of the state govern-ment. The court first rejected acontention that the zoning author-ity exercised by Fairfax Countyviolated the Dillon Rule. The Dillonrule provides that the powers of alocal government are fixed bystatute and limited to those thatare essential and indispensable.The court noted that the countydid have statutory power to regu-late public utility facilities under §15.2-2232(A) of the Virginia Code.Thus, the county’s regulation inthis case was not inconsistent withany authority granted by statute.

The court also found that thetowers were not exempt fromcounty regulation because theywere located on VDOT’s right-of-way. The court noted that the tow-ers were to be owned exclusivelyby respondents. Further, VDOT didnot have a primary right of use tothe land during the lease periods.Thus, respondents’ contention thatthese towers were the property ofthe state and could not be regulat-ed by the County necessarilyfailed. The fact that the towerswere conveniently located onstate-owned rights-of-way wasfound to be irrelevant in determin-ing the County’s regulatory rights.The court held that the telecom-munications companies must sub-mit their proposed use of theleased land to the County’s plan-ning commission.

Virginia Court of AppealsSovereign Immunity ofState Water ControlBoardRiverview Farm Assocs. v.Commonwealth, No. 2337-98-2, 1999 WL 1134722 (Va. Ct.App. Dec. 7, 1999).

Riverview Farm Associates Vir-ginia General Partnership, JearaldD. Cable and Robert L. Waldrop(“Appellants”) appealed a circuitcourt’s ruling that the doctrine ofsovereign immunity prevented thecircuit court from hearing Appel-lants’ appeal of a decision by theWater Control Board (“Board”)issuing a modification of a VirginiaWater Protection Permit (“VWPP”).The decision involved certificatesfor the alteration of state waters.The Virginia Court of Appealsreversed, holding that § 62.1-44.29of the Virginia Code waived theBoard’s sovereign immunity fromsuit in this case.

The federal Clean Water Act(“CWA”) requires applicants for afederal license or those proposingactivities that may result in a dis-charge to navigable waters to pro-vide the federal permitting agencywith a certificate from the state thatthe discharge will comply with theCWA. Pursuant to the CWA, Vir-ginia issues such a certification inthe form of a VWPP. Weanack LandLimited Partnership (“Weanack”)requested and was granted a VWPPin October of 1995 and sought amodification of the VWPP pursuantto § 62.1-44.15:5 of the VirginiaCode in order to expand andenlarge a port facility. The Boardissued the modification in March of1998 after refusing a public hearingon the issue requested by AppellantJearald D. Cable.

Appellants appealed the Board’sdecision to issue the modificationand the denial of Cable’s requestfor a public hearing to the circuitcourt. The circuit court held thatthe doctrine of sovereign immunityprecluded judicial review of thedecision to modify the VWPP.While the court recognized that §62.1-44.29 authorized judicialreview of final decisions of theBoard, the court noted that thesection does not specifically list §62.1-44.15:5 as a section for whichjudicial review is authorized.Therefore, the circuit court rea-soned that the exclusion of thatsection could not effectively waivethe state’s sovereign immunity.

The Virginia Court of Appealsnoted that § 62.1-44.14(5) wasspecifically included in § 62.1-44.29, thus waiving sovereignimmunity for this section. Under §62.1-44.15(5) the Board hasauthority to issue certificates forthe alteration of state waters. Thecourt noted that in Alliance toSave the Mattaponi v. Common-wealth, 519 S.E.2d 413 (Va. Ct.App. 1999), the court of appealsheld that a VWPP is “a certificatefor the alteration of state waters”pursuant to § 62.1-44.29. Id. at416. Thus, pursuant to § 62.1-44.29, the Commonwealth waivedits sovereign immunity by theBoard’s grant or denial of theVWPP. Id.

The court of appeals held thatthe decision in Alliance controlledAppellants’ case. The doctrine ofsovereign immunity did not barAppellants’ appeal of the Board’smodification of the VWPP. Thecourt of appeals reversed the cir-cuit court’s decision and remandedthe case for further proceedings inaccordance with the Alliance deci-sion.

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