US v. Bailey, No. 08-1908
In an enforcement action brought under the Clean Water Act, district court judgment is affirmed where: 1) the Army Corps of Engineer has jurisdiction over the wetland in question under Clean Water Act sec. 309(b) if either the plurality's test or Justice Kennedy's substantial nexus test in Rapanos v. US is satisfied; 2) defendant's property met the substantial nexus test as it was situated in a wetland adjacent to navigable-in-fact waters; 3) the court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; 4) the court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious, and did not violate defendant's equal protections rights; and 5) the court did not abuse its discretion in issuing a permanent injunction ordering defendant to restore the wetland to its pre-violation condition.
Appeal from the United States District Court for the District of Minnesota.
Argued February 12, 2009
Decided July 9, 2009
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
Opinion by WOLLMAN, Circuit Judge.