dirt and sell material into wetlands and streams without first obtaining a permit from the army corps of engineers but shortly after the government filed its case the district court conducted a series of highly unusual pretrial culminating several years later and several years after the case lay dormant and an eight page summary judgment order of lacking careful analysis that sanction the government by awarding the defendants reason which czerny's fees and dumping or whatever you want to call it or putting felt wherever it was to do continue i mean didn't the government try to press the issue or you just let it sit there we tried to press the issue in two thousand and twelve by requesting permission to  have experts going to the site to investigate among other things evidence of additional discharges that could have potentially formed new counts in our complaint but of the district court denied us permission to do that we had already briefed the summary judgment motion  t was defended summary judgment motion that united states did not believe this case was was properly resolved in summary judgment in the government's favor at that point so we really had no recourse to continue to investigate the where you were investigating property for three years before you filed a civil enforcement action right absolutely that's correct so you should have had plenty of time to amass evidence we did and we had the evidence to support a decision to bring suit and to support the e p a is administrative orders which are premised on a finding of clean water act sure stiction and now the second case makes clear defendants can challenge so if they wanted to challenge and test the government's evidence supporting those determinations at the outset of the suit there was an avenue for them to do it is to bring a p a class in the style of sacking but they didn't bring that here even for the several years the s second i mean we point out in our brief that that really shouldn't matter because that in the pfizer case from the second circuit makes clear that for running to the statue of limitations and you cause of action doesn't accrue in the supreme court issues a new precedent so i think the same principle should be a book about here but i would like to focus this morning on three of the district court's missteps here first the district court applied an incorrect standard of substantive law by  misinterpreting the supreme court's latest decision on what constitutes waters of the united states in reponse second in addition to misapply misapplying the substantive law the district court disregarded from the your fundamental principles of summary judgment practice as well and finally of its just district court abused its discretion in terminating the government's case before suit without allowing a meaningful opportunity for the government's discovery in particular the site inspections that in the requirement that waters be relatively permanent that's the first of two main requirements that the plurality would impose i should note just kind of as a placeholder that there's a debate about whether reponse opinions the government needs to meet and satisfied to no order to satisfy the act but we don't believe that this court and i'm happy to answer questions about that but we don't believe that the court needs to resolve that question that agrees with us that we've demonstrated genuine issues of a disputed fact as to both the plurality standard and justice kennedy's can try would we not have to resolve that if we do what you ask and remand for trial then the judge has no no guidance for trial so how would he correct any errors that you say he's made well the circuit the court circuit certainly could reach that issue i mean the government's difficult to figure out at the outset what is the near as common ground on which the result in that case was reached and so the three courts of appeals i i mentioned have determined that in such a situation and this is consistent with this court's case law and interpret it marks you can look to the dissenting justices and determine that they they would have upheld clean water act action it's either the plurality standard or justice kennedy still i don't understand using dissenting justices to understand for for purposes of a definitive legal interpretation at all it's unusual it's not the norm under marks three courts of appeals have added and this is not i mean repond is isn't i think a difficult opinion because it's so fragmented so the courts of appeals have struggled with this question when this court had a different burden in a civil case obviously but even without resolving the question i think the district court has to have some extra well why don't because at some point you know that's a legal issue and i guess we can read your upon us as well as any of the other courts can would you please get to the facts here because you know you have you have been nexus test and then you have the what connected waterways test and i have a big problem with your connection argument because it seems to me at least as to one of these embarrassed let's see at least as to one of these sites the the water allegedly went into three to four quote seasonal tributaries that are barely marked on the map which in turn went into the so called dry creek which i think judge hughes meant what it said which is also seasonal which then went into spring creek which is quote navigable but the wetlands so stepping through the pluralities analysis the first have to look at whether the tributaries that are chase into the wetlands are relatively permanent waters and the evidence in the record here demonstrates that in the best professional judgment of the government's experts they believe that the waters flow for a seasonal amount of time at least three months out of the year what do you mean they believe i mean again you had three years to examine this why couldn't i mean belief isn't very strong so if that i'm using that to paraphrase everything they relied on they relied on their pre computed faith field visits they rely also on a suite of that what they call desktop data which includes ordinary  topographic maps that they analyze in a computer geographic information system they look at everything from aerial photos to other remotely sense data they actually have laser data from lasers that bounce off the landscaping can show  various forms of elevation and they the photo interpreter here has decades of an experience interpret in this type of data can estimate from the top of the top congressi of the land and see whether there are actual stream channels that correspond with their field observations so it would be ideal i agree it would be ideal if we had detailed studies demonstrating flow data for three hundred sixty five days out of the year for a series of years that's the perfect situation to demonstrate but you know the reality is that e p a is investigating lots of these violations and it has to it has to assemble enough evidence to support its case but and of course the justice department there must be weapons found on this property we couldn't move for summary judgment i understand so what we're saying is that a reasonable sack foreigner could conclude that the waters of the tributaries are relatively permanent based on the evidence that we presented are different views reasonable views of the evidence i mean how many how many locations within the houston greater metropolitan houston area is e p a examining at the present time i mean if a jury found that this is a wetland there's cypress there's spring there is the sugar land area all of which there's bel air all of which are prone to seasonal flooding and i've lived there for many you know forty years i know so i you know i think that the no water seeks its own level so everything you know if we have see the theory is if we have seasonal rain and there ditches the rain is going to go into a ditch which goes into another did which either goes into the storm sewer system or it goes into another d h and then eventually it's going to reach a galveston bay so there are mechanisms to address these concerns about the predictability i have there's concerns about the scope of the large scope there's also concerns i heard expressed about predictability and there are mechanisms to address understanding what the coverage is especially after sackett especially after hawks regulated parties can before discharging requests a jurisdictional determination from the corps of engineers and then now oxman is clear challenge doubt that doesn't help these people because they've been under the gun since two thousand and seven yes well they did and there are two thousand and fifteen regulation that was purportedly going to clarify all this is has been stayed pending litigation is it not correct that's correct so well there's really not much certainty correct but their ave is too and they they could have done this they knew sacked it was coming in they knew even after second nobody knew sakit was coming excuse me i'm  very well i've been in this business i didn't expect the supreme court to rule that way and they ruled five to four it was a real very close friend thing they've at least had several years since back it was decided to attempt to amend the the same time i am very concerned that if the bulk of the evidence is maps to park top graphy and expert witness testimony as opposed to flow dat charts that there is no limiting principle in coastal areas i understand your owner's concern i would point out in lucas of the united states in this which was a criminal case the united states relied on one of the same experts also mr that the fourth circuit of the six circuit no particular form of data is required to support the tests certainly at a minimum we ought to have had an opportunity to obtain the quantitative information that the district court saw on lacking  and i think one of the fundamental missteps about this case and please just tell me when i should stop i'm going to try to just go on for a minute or so about the summary judgment point was that the district court did not apply what an ordinary court would sitting in deciding a motion for summary judgment he this would be a jury trial the descendants requested a jury trial he would not be the ultimate finder of fact and so it was his role to determine whether there was when you return i would be interested in knowing how you know what if any limiting principle there is a nexus test very well thank you ok mr allen upon land was to not give the government access to to destroy or to attempt to discover whether they were effected or these were jurisdictional prior to the development that information wouldn't have changed and furthermore the united states failed to attempt to make a technical discovery of an increase in turban a d or a change in the traditionally navigable waters of the west fork or the sandison which they could have done without the relief that they what case says that's the burden of the pre con case of the four circuit noted that there was an analysis comparative analysis so you have point a which is the affected area that would be the alleged weapons in this case and then you have twenty which are the jurisdictional wires the united states the only analysis in the technical presentation and the technical presentation is what i refer to and the summary judgment response which is in the record at right all right so you're saying increased erosion and increased her biddy are are proof of that kind of discharge could be if there was if there was an observation of data or some evidence i mean but that's not the substantial change in the physical chemical or biological makeup of the traditionally navigable waterways they failed to meet that standard because they did not provide any evidence of a changing turbidity actually the technical presentation only a pine's that there is but there is no measurement no data measurement of predevelopment ability and the intermittent streams that were affected and in post development ability in those streams let alone for your post either with respect to the traditionally navigable water say the central you've already i mean there are houses all over this area right yes i mean basically the i don't know if the development is complete but i went on frankly went online to see what houses were for sale and so whatever that originally looked like in two thousand and two it's completely filled in now right almost completely the development is complete so what kind of data could they possibly tain he's has a motion what is it a motion hearing set on some sort of preliminary discovery motion and then he takes up the summary judgment thing unbidden in april of two thousand and eleven and then sits on the case for another three or four years and then rules in your favor that that is an unusual posture your honor and frankly i'm not sure why the case would lie dormant for three years after the denial of the motion like what do you say about filing a summary judgment motion and then he doesn't give either party notice that he's going to hear it and then he takes it up well after the after the hearing which admittedly was not or they could have sought entry upon land at any course during the war at any point in time during the lawsuit there is an order that the united states characterizes as restricting their ability to conduct discovery which is the automatically generated order that judges enters in these cases and it does require a leave of court before seeking depositions or for seeking any kind of discovery other than a request for production but that is the framework through which the discovery operates in all these cases and we sought to leave to take depositions in this case they never s have entry on land for the inspection that they say they needed and furthermore the technical presentation that's attached to their summer judge or the sponsor that sets forth the basis of their jurisdictional allegations well and that's a that's a problem that i have let me just ask a quick found there was no evidence of jurisdictional why no i mean he might have found no evidence because he didn't even look at it i mean that's one of the peculiar things about the way in which he rules that's true your honor but if he did look at the evidence he would have the technical presentation he would have found that it wasn't sufficient to meet the opinion on the merits dealt with scalia plurality tast which is the continuous surface connection and then i believe the quote is that the united states fair is no better under the other test and that and then he moves on to the significant he analyzes the evidence under both tests in his opinion well we don't really analyze it but he cites both of them as a relates to the evidence in the technical presentation peter stokely and jim harrington have identical declaration testimony that they relied on maps and aerial photographs and the fact that maps have a lot of blue line to show that those blue lines indicate a seasonal stream there was no observation no boots on the ground to say that that those streams had a continuous surface connection to a truly navigable body of water and that was what was president lucas the government's expert had actually walked the property or seen the property and can say their testimony that it that it was a continuous surface connection of the new do that by topography you could your honor but but they did not they admit that that the streams are intermittent what about these pictures of standing water we got a few pictures that are out of the record there pictures of standing water there are pictures of standing water out of it all that indicates is that some of those areas drain water after it rains which is which is on the wrong side of consistency to be is that opinion right it is used to describe a geological formation that normally contains water as opposed to the molecule h two o so the types of bodies of water that would qualify as waters would be lakes rivers oceans and then on the side of  femoral that would not be considered was the united states you have a family streams goalie's drainage ditches that kind of thing and that's what these intermittent streams are they're identifies intermittent in the technical presentation the s specifically says intermittent bodies of water are not seasonal they do not run consistently enough to be considered jurisdictional waters of the united states puts a lot of weight on the word relatively he does your  own importantly the deposition testimony of i believe it was mr harrington acknowledges that the dotted line could also mean intermittent but it doesn't necessarily mean season look at also say that scully is a pain arapahoes says that the opposite that a seasonal regularly flowing body of water can be considered for making a continuous surface connection but that an intermittent stream is to a femoral and does not m do you agree that they can't the government can me either the scalia opinion test or the kennedy nexus test and you know in order to find water is in the united states  the school year plurality clarified the adjacency standard from riverside bayview to mean that in order to prove adjacency you've got to prove a continuous service connection to a traditionally navigable body of water and that's all that that's all that opinion  that opinion the court observed that the rule when it's not clear which is broader and which is narrower is to adopt an opinion that gives full effect to all the five judges necessary to carry the day to form the judgment federal body of water but that has millions of gallons so that has a significant impact on the traditionally navl the body of water but it does not flow seasonally it's intermittent and so it would not be the  the courts persuaded by that analysis then you have a situation where neither test is strictly broader narrower than the other and the court would then need to find the rule that gives effect to all five justices which would be of course  and if the land peters out if the if the water peters out or is intermittent then it cannot be the bridge that forms that continuous surface to a traditionally navigable body of water and that's where his where you go he saw a duck counting there don't you think the saturated so much that it has hydrophilic vegetation or vegetation that can only be sustained they said they found evidence of that they did say they found evidence that the technical presentation classifies it as a wooded area they don't identify an either or a mushy wooded area or a well planned right you could draw but that's all you got enough water that goes to the point of there was no measurement of the saturation to show that it was never made a jurisdiction determination in this case prior to the technical presentation which was produced on judge whose orders the investigation this case that occurred from two thousand and seven to two thousand and ten involves a lot of cooperation from the labor defendants we gave them access to the land and we asked in exchange that they would do well in delineation in a jurisdictional determination they never did and in fact there's a memo an e p a notes that's attached to the summary judg record there to their m s j response that says don't give the information that we get from these inspections to the legal defense and don't give it to the cork what's that supposed to mean that means that they weren't sharing but at the same time it's always too easy to take one little memo out of context so you don't know what the full context could have been a work product at that point in time that's true it could have been but the fact is that we the sake of argument address the nexus opinion also and the second one is the government pointed out you did not address at all their contention that leaper filled for i think it's fo two point five miles of quote streams if i could address the second point first i believe that's areas i have and g in the in the bettors landing development those are classified by the government as streams the evidence shows that they are contours of the land where rain sometimes drains whether they're classified as well loons or as intermittent streams that don't satisfy the waters of the united states standard either way they do concurrence tests to satisfy that test the government has to show a significant impact on the physical biological and chemical makeup of a traditionally navigable body of water second speculative quote speculative  them to show any property that could be affected by the developments in this case and they make no doubt of measurements whatsoever to show that that's what would bring the case for them pre con that might raise a fact issue last point they could have gone out and looked at the traditionally your honour's highlighted a problem with judge chooses order of the really is persistent throughout this appeal and that's the it is so cursory unlike in any careful analysis that we don't really know his reasoning for rejecting a lot of the government's arguments where he didn't find enough evidence he ought to have said that and then he didn't even address our role fifty sixty motion which we did make in the body of our summary judgment motion of response so we did request a continu for discovery within the body of our opposition and so that was properly preserved and the judge should have at least addressed it to say why he was going to grant summary judgment notwithstanding the requests as far as the two and a half miles of streams it is important that they were neither addressed by my friends opposing briefs or by judge choose in the district court because those need only be relatively permanent waters to jurisdiction and they formed other accounts in the government's complaint other judge hughes did not results before he entered judgment against the government so they were left hanging out there they were not addressed and that alone is grounds for for legitimate scientific debate about how frequently a water must flow in order for it to be qualifying as seasonal but neither ripoffs nor the district court hearing gauged in that debate at all the government's evidence demonstrates that in this case based on the experience of these two expert to clarence that when they go and do a field site visit of streams that are marked on a map created some years ago as interim as saying intermittent they in fact slow at least three months out of the year and i would point out that one of the streams in our evidence the tantric and it's not one where you realized it was filled directly but we did allege that there were wetlands adjacent to that that were  that flows not just seasonally but by our evidence throughout the whole year and so that again is another piece of low hanging fruit on which the district court's order ought to be reversed could the district court have you've said that they're in violation with regard to something ten or fifteen different areas this is this was area b in our why couldn't the fact finder find a potential violation is the one area in the government's complaint ok so it would have included the selling of of the wetlands and another tributary other than the intro go so it's possible it could have gone either way on that count because it doesn't suit other fills i mean it is possible that we could take discovery before the motion is properly brief how much discovery are we talking of targeted discovery basically what we asked for in our fifty sixty request request we're looking to you we've retained independent experts to corroborate the findings of the agency scientists as we normally do when we're going to trial and those experts need to visit the property they haven't been out to the property itself at the not to neighboring properties they have been down to various downstream areas and have installed string gauges at other places not on the property but it's if you look in the government's request for site inspection and it outlines a of  we're going to go back and reconstruct what was there before which is why reliance on a lot of this aerial photograph helps us ask you stupid question if if they filled in all of this we still know houston is low lying they you know that's a separate i mean doesn't that ameliorate i'm just asking you a practical question doesn't that ameliorate anything so if the if the senate runs off into the larger body of water and gets diluted  right i mean the idea though i don't think it does because the idea is that the contributions to the upstream water is eventually slow and have a significant effect on the downstream water so putting it in the downstream water directly doesn't really alleviate that's fairly remarkable i can't i can't say standing up here that we can do that to that fine grain level of detail i mean they obviously are bunny rabbits in the brush no we're looking for topographic features you know in indentations in the land that are more than just a rail or a ditch that would actually and would indicate you know we're looking at a series of years or decades of photos is there i mean i don't under i really don't understand what the limit is that he finds here because the entire coastal area of the united states is essentially low lying land with intermittent ditches and at some point you know water rents into the ditches so how is it possible that any of that stuff is excluded from jurisdictional wetlands according to e p a the e p a has taken the step as you mentioned before promulgated a new clean water rule is currently state and so what we have is ripoffs but this is this case and the finest antique panos rule as best i can tell well it provides more clear limitations at least the idea of providing some predictability whether regulated parties may disagree with the level of predictability of the plot of supplies or not or how far it reaches that remains to be seen and they'll have their day in the sixth circuit but he has made an effort to institute some of th predictability and to cabin the scope of the statute in a reasonable manner congress drafted it enact it and well i don't think anybody of the in among the founders thought the waters of the united states included even wetlands they were thinking of the you know the potomac river and the st lawrence seaway in the hudson and so on so we've come a long way from the us and i don't think this case will be the last word on clean water