PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ DAVID BENHAM, Plaintiff-Appellee,

v. OZARK MATERIALS RIVER ROCK, LLC, Defendant-Appellant. No. 17-5069

_________________________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:11-C V-00339-JED-FHM)

_________________________________ Wilfred Wright, Claremore, Okla homa, for Defendant-Appellant. Krystina Phillips (Jason B. Aa modt and Dallas L.D. Strimple of Indian and Environmental Law Group, PLLC , with her on the brief), Tuls a, Oklahoma, for PlaintiffAppellee.

_________________________________ Before BRISCOE , KELLY , and BACHARACH , Circuit Judges.

_________________________________ KELLY , Circuit Judge.

_________________________________ Defendant-Appellant Ozark Materials River Rock, LLC, appeals from the district court’s order approving Pl aintiff-Appellee David Benham’s proposed restoration plan of unlawfully filled wetlands in Saline Creek, Benham v. Ozark FILED United States Court of Appeals Tenth Circuit 

### March 22, 2018 Elisabeth A. Shumaker Clerk of Court2 Materials River Rock, LLC (Benham II ), No. 11-CV-339-JED-FHM (N.D. Okla. June 1, 2017), ECF No. 184. Ozark raises several issu es on appeal challenging the district court’s order and u nderlying findings of fact and conclusions of law, Benham v. Ozark Materials River Rock, LLC (B enham I), No. 11-CV-339-JED-FHM, 2015 WL 235759 (N.D. Okla. Jan. 16, 2015), EC F No. 160. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background This appeal arises from a private enforcement action under Section 505 of the Clean Water Act (CWA), 33 U.S.C. § 1365. Ozark is a sand and gravel mining company that operates on property adjacen t to Saline Creek in Oklahoma. Mr. Benham recreates in Saline Creek and claims that Ozark’s operations have degraded his ability to do so. In March 2011, Mr. Benham served Ozark with a notice letter pursuant to Section 505, inform ing the company that it wa s violating Section 404 of the CWA, 33 U.S.C. § 1344. Section 404 requires a permit from the Army Corps of Engineers to discharge dredge or fill material into navi gable waters if the activity disturbs more than one-ha lf acre of wetland, and Ozar k does not have a Section 404 permit. The Army Corps of Engineers had insp ected Ozark’s operations in 2010 (and would do so again in 2012 and 2013) by driv ing through the property, but it found no CWA violations. Neverthele ss, after receiving Mr. Benha m’s notice, Ozark hired an environmental consulting firm to perform a Section 404 impact analysis of Ozark’s3 Saline Creek operations. By June 1, 2011, Ozark had not addressed the CWA violations that Mr. Benham alle ged in his notice, so he fi led the instant citizen suit, as authorized by Section 505. The district court held a bench trial and issued findings of fact and conclusions of law determining that Ozark violated S ection 404 by disturbing more than one-half acre of wetland through the discharge of dredge and fill mate rial. Benham I, 2015 WL 235759, at *9. Specifi cally, the court found that Ozark’s construction of a roadway in Saline Creek and the filling of its surrounding wetlands without a permit constitute a continuing violati on of the CWA. Id. The district court imposed a civil penalty of $35,000 and ordere d briefing on a restoration pl an for the unlaw fully filled wetlands. Id. at *10. On J une 1, 2017, the district cour t issued an order adopting (substantially all of) Mr. Benham’s proposed re storation plan. Benham II, slip op. at 1. One element of the plan created a conservation easemen t for the restoration site. Id. at 9–10.

Discussion Ozark raises six issues on appeal, contending th at (1) Mr. Benham lacks Article III standing, (2) Mr. Benham’s citizen suit notice letter was inadequate, (3) the district court erroneously found that Ozark violated the CWA, (4) the district court erroneously admitted evidence prepared by Oz ark’s withdrawn expert, (5) the district court’s order is unconstitutional, and (6) Mr. Benham’s suit fa lls within the primar y jurisdiction of the4 Army Corps of Engineers. For the followi ng reasons, we reject Ozark’s arguments and affirm. A. Mr. Benham Has Article III Standing Whether a plaintiff has Arti cle III standing is a jurisd ictional question that we review de novo. Wilderness Soc’y v. Ka ne County, 632 F.3d 11 62, 1168 (10th Cir. 2011). Article III standing re quires showing (1) an “injury in fact” that is (2) “fairly traceable to the challenged action of the defe ndant” and is (3) like ly to “be redressed by a favorable decision.” Friends of the Eart h, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). The injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 180. “The party invoking federal jurisdiction b ears the burden of establishing these elements . . . with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At th e final stage of litigation, the evidence produced at tr ial must adequately suppor t the facts establishing standing. Id. “[E]nvironmental plaintiffs ad equately allege injury in fact when they aver that they use the affected area and are persons ‘for whom th e aesthetic and recreational values of the area will be lessened’ by th e challenged activity.” Laidlaw, 528 U.S. at 183 (quoting Sierra Cl ub v. Morton, 405 U.S. 727, 73 5 (1972)). Here, Mr. Benham has shown injury in fact by maintaining that he regularly swims and fishes in Saline Creek and that his ability to do so has been diminished by Ozark’s discharge of material into the creek and its surroundi ng wetlands. Such recreational impairments5 constitute injury in fact for a plaintiff filing a citizen su it under the CWA. See id. at 181–83. To satisfy the traceability requirement, the defenda nt’s conduct must have caused the injury. Lujan, 504 U.S. at 560. Mr. Benham testified that the quality of Saline Creek did not begin to decline until after Ozark began its mining operations, and Mr. Benham’s expert testified that Ozark’s mining operations caused the degradation in quality. This, coupled with the district court’s finding that Ozark unlawfully discharged materials into Sa line Creek’s wetlands, Benham I, 2015 WL 235759, at *7–9, sufficiently demonstrates that Mr. Be nham’s injury is fairly traceable to Ozark’s unlawful actions. Finally, the redressability el ement is handily met: the injunctive relief and civil penalties sought by Mr. Benham and ordered by the district court will restore the unlawfully filled wetlands and deter future violations. See Laidlaw, 528 U.S. at 185– 86. Altogether, Mr. Benham has Article III standing to bri ng his citizen suit. B. Mr. Benham’s Citizen Suit Notice Letter Was Adequate Under Section 505 of the CWA, a plaint iff must provide no tice of a violation before commencing a citizen suit. 33 U. S.C. § 1365(b) (2012). We review the adequacy of a citizen suit no tice letter de novo. Karr v. Hefner, 475 F.3d 1192, 1196 (10th Cir. 2007). An adequa te notice provides “sufficient information to permit the recipient to identify the specific standard, li mitation, or order alleged to have been violated, the activity alleged to constitu te a violation, th e person or persons responsible for the alleged violation, the lo cation of the alleged violation, [and] the6 date or dates of such violation.” Id. at 1200 (alteration in original) (quoting 40 C.F.R. § 135.3(a) (2006)). The purpose of this notice is to give an alleged violator of the CWA “an opportunity to bring itself in to complete complianc e with the Act and thus likewise render unnecessary a citizen su it.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 , 60 (1987). A notice, then, must not merely “generally orient[] the agency or violator as to th e type of violation.” Karr, 475 F.3d at 1200 (quoting Cal. Sportfishing Prot. All. v. City of West Sacramento, 905 F. Supp. 792, 799 (E.D. Cal. 1995)). Rather, “the notice’s identification of the alleged violations mu st be clear.” Id. In relevant part, Mr. Benham’s notice provided: Discharges of dredged or fill ma terial into waters of the United States may only occur if permitted by the Army Corps of Engineers (herein the “ACOE”). 33 U.S.C. § 1311(a); 33 U.S.C. § 1344(a). Waters of the United States, as defined in section 404, includes wetlands, which are areas “inundated or saturated by surface or ground water at a frequency a nd duration sufficient to support, and that under normal circumstances do support, a pr evalence of vegetation typically adapted for life in satu rated soil conditions.” 33 C.F.R. § 328.3(b); see also U.S. v. Riverside Bayview Homes, 474 U.S. 121, 131–32 & n.8 (1985). Saline Creek is surrounded by wetlands. A significant portion of your mining operations have both dredged and filled these designated wetlands. See Attachment 2. The ACOE has no record of you being issued a section 404 permit for thes e dredge and fill activities. Any action which results in the f illing of waters of the United States, including wetlands such as the ones you have filled, must be permitted through the ACOE. 33 U.S.C. [§] 1311(a); 33 U.S.C. [§] 1342. You have violated this section by placing large amounts of dirt, sand, and gravel into the center of Saline Creek without a permit in order to form a more convenient acc ess road for [your] trucks. This road stretches underneath the S 44 37 road and connects land owned by the Grand River Dam Authority with land owned by you. The attached photograph shows you filling this we tland on September 14, 2006. See Attachment 3. The location of your ille gal discharges of fill material is7 identified on the attached air photo at approximately the point labeled “l.” See Attachment 2. 1 Aplee. Supp. App. 19. The notice descri bes the specific pollutants (dirt, sand, and gravel), specific locations (a road identified by description and aerial photograph), the specific sections of the CWA that were violated (33 U. S.C. §§ 1311(a), 1342, 1344(a)), and a specific date of a viola tion (September 14, 2006). These details provided Ozark with sufficient information to clearly identify the violation and thus constitute adequate notice. See Karr, 475 F.3d at 1201 (c omparing cases and approving of a notice that list ed “specific pollutants, sp ecific locations, and specific permits the defendant was al leged to have violated”). Ozark also contends that the district court erred by allowing Mr. Benham to prosecute claims that were not identifie d in his notice. But Mr. Benham’s notice specifically mentions the road created within Saline Creek. Accordingly, the district court’s determination that Mr. Benham’s “a llegations regarding the roadway within Saline Creek and the filling of its surroundi ng wetlands are within the scope of the Notice Letter,” Benham I, 2015 WL 23 5759, at *9, is fully supported. C. The District Court Did Not Clearly Err by Finding That Ozark Violated the CWA We review the district court’s lega l conclusions de novo and its factual findings for clear error, giving great de ference to credibility determinations. Raytheon Aircraft Co. v. Unite d States, 590 F.3d 1112, 11 18, 1120 (10th Cir. 2009). We may reverse only if the district court’ s finding “is without f actual support in the record or if, after reviewing all the eviden ce, we are left with a definite and firm8 conviction that a mistake has been made.” Aquila, Inc. v. C. W. Mining, 545 F.3d 1258, 1263 (10th Cir. 2008) (quoting Keys Youth Servs ., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001)). After a bench trial, the district court found that the testimony of Mr. Benham’s expert witness and the records regarding th e existence of filled wetlands “establish that the half-acre threshol d for filled wetlands requiri ng an individual permit has been surpassed” and that “Ozark has discharg ed dredge and fill materials into Saline Creek in excess of one-half of an acre without an indivi dual permit as required under the CWA.” Benham I, 2015 WL 235759, at *6–7. This finding came after the district court heard conflic ting testimony at trial regard ing the construction of the roadway in Saline Creek. Ozark’s CEO te stified that a neighb oring landowner had built the road prior to Ozark’s purchase of the land in 1991. Id. at *6. But one of the landowner’s employees attested that the landowner did no su ch thing and that “he has observed Ozark employees main taining, rebuilding, and driving on the road.” Id. Further, Mr. Benham testified that Oz ark began building the road in 2005 and extended it over time as it mi ned gravel, and the road can be seen in an aerial photograph taken in 2006 but does not app ear in a photograph taken in 1991. Id. Based on this evidence, the di strict court found that “O zark constructed the road by placing dredge and fill material into Saline Creek.” Id. at *7. It found Mr. Benham’s testimony credible because it was deta iled and corroborated by photographs; by contrast, it found that th e CEO’s testimony “was often evasive and suffered from a lack of recollection as to key issues” a nd was contradicted by the testimony of the9 neighboring landowner’s employee. Id. The district court’s findi ngs are not clearly

erroneous. The district court then c oncluded that “Ozark’s depos ition of dredge and fill material in excess of . . . one-half acre . . . constitute s a continuing violation of Section 404 of the CWA that renders Ozark subject to liability.” Id. at *9. It determined that Ozark’s violation was “con tinuing” based on the premise that “[u]ntil a pollutant, such as fill mate rial, that has been placed in a wetland is removed, its presence constitutes a c ontinuing violation.” 1 Id. at *8 (citing Sasser v. Adm’r, U.S. EPA, 990 F.2d 127, 12 9 (4th Cir. 1993)). Ozark does not contest this definition of a “continuing” violation; instea d, it challenges the adequacy of factual support for such a finding. Having reviewed th e underlying support, we af firm the district court’s conclusion that the roadwa y and filling of wetlands in Saline Creek constitute a continuing violation of the CWA. D. The District Court Did Not Abuse Its Di scretion by Admitting Evidence Prepared by Ozark’s Withdrawn Expert We review a district cour t’s admission of evidence fo r abuse of discretion. Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046, 1054 (10th Cir. 2013). The district court’s finding that Ozark violated the CWA was based, in part, on evidence created by Enercon, an environmental c onsulting firm that Ozark hired after

1 Language from Justice Scalia’s concurre nce in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49 (1987), supports such a ruling: “When a company has violated an effluent st andard or limitation, it remains . . . ‘in violation’ of that standard or limitation so long as it has not put in place remedial measures that clearly eliminat e the cause of the violation. ” 484 U.S. at 69 (Scalia, J., concurring).10 receiving Mr. Benham’s citizen suit notice letter. See Benham I, 2015 WL 235759, at *7 (“[T]he records regarding the existe nce of filled wetlands created by Enercon establish that the half-acre threshold fo r filled wetlands re quiring an individual permit has been surpassed.”) . Ozark initially intended to call Enercon as an expert witness at trial but later ch anged its mind. On February 12, 2014, Ozark notified the court that it was withdrawing its expert. It also objected to several of Mr. Benham’s trial exhibits that contained material pr eviously obtained from Enercon on the basis that Federal Rule of Civil Procedure 26( b)(4)(C)–(D) protected the documents from disclosure. Ozark renewed its Rule 26 objecti ons at trial and adde d that the exhibits were inadmissible hearsay; the dist rict court overruled its objections. Ozark’s reliance on Rule 26 as a mean s of excluding expe rt material is misplaced. Rule 26(b)(4)(C) and (D) protect against the disclo sure of attorney communications with testifying experts and facts known and opinions held by nontestifying experts, respectively. But wh ile they protect agai nst the discovery of this expert material, they have nothing to do with th e admissibility of alreadydisclosed material. Mr. Be nham states that he acqui red the Enercon documents through an unopposed subp oena on August 19, 2012. If the documents contained attorney-expert communications, a Rule 26(b)(4)(C) objection would have been appropriate at that time. And had Ozark w ithdrawn its expert be fore the subpoena, a Rule 26(b)(4)(D) objection would also have been well founded. Nearly two years after disclosure, though, Ru le 26(b)(4) provides no protection against admitting the documents as evidence at trial — even if Ozark no longer pl anned to call its expert as11 a witness. Cf. SEC v. Koen ig, 557 F.3d 736, 744 (7th Ci r. 2009) (“Disclosure of the report ends the opportunity to invoke confidentiality.”). Additionally, Ozark has waived its hear say argument by inadequately briefing the issue. Federal Rule of Appellate Procedure 28(a)(8 )(A) requires an argument to contain “appellant’s contentio ns and the reasons for them , with citations to the authorities and parts of the record on whic h the appellant relies.” Ozark’s brief mentions that the district court adm itted the documents over Ozark’s hearsay objection but offers no explanation for why this was erroneous. As a result, Ozark has waived its argument that the documen ts were inadmissible hearsay, see SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009) (“An issue or argument insufficiently raised in a party’s op ening brief is deemed waived.”), and we are unable to say that the di strict court abused its disc retion by admitting them into evidence. E. Ozark Forfeited Its Constitutional Arguments For the first time on appeal, Ozark argues that the district court’s order of a conservation easement violates the Due Pr ocess and Takings Clauses of the Fifth Amendment. As Ozark did not raise th is theory before the district court, 2 the theory was forfeited and our review of the district court’s orde r is for plain error. See

2 Ozark had the opportunity to raise th is argument in its objection to Mr. Benham’s proposed mitigati on plan, Benham v. Ozark Materials River Rock, LLC, No. 11-CV-339-JED-FHM (N.D. Okla. Dec. 29, 2016), ECF No. 180, and its objection to Mr. Benham’s supplement to his proposed mitigation plan, Benham v. Ozark Materials River Rock, LLC, No. 11- CV-339-JED-FHM (N.D. Okla. Jan. 26, 2017), ECF No. 183 — but did not.12 Richison v. Ernest Grp., Inc., 634 F.3d 11 23, 1128 (10th Cir. 2011). But Ozark did not argue for plain error review in its brief, and “the failure to argue for plain error and its application on appeal . . . marks the end of th e road for an argument for reversal not first presented to the district court.” Id. at 1131. Consequently, we decline to consider Ozark’ s constitutional arguments. 3
F. The District Court Did Not Abuse Its Discretion by Not In voking the Primary Jurisdiction Doctrine We review a district c ourt’s decision to invoke the primary jurisdiction doctrine for abuse of discre tion. TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1239 (10th Cir. 2007). The primary jurisd iction doctrine allows courts to stay proceedings or dismiss an action wit hout prejudice when “a decision by a court would threaten the uniformity of a regulatory scheme or require th e court to confront issues of fact outside of its conventional experience” so that th e parties can “seek a decision before the appropriate administrative agency.” S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 751 (10th Cir. 2005). Here, there are no threats to the uniformity of a regulatory scheme or issu es outside the conventional experience of the courts. In fact, Sect ion 505 of the CWA explicitly contemplates that district courts have jurisdiction to h ear citizen suits. S ee 33 U.S.C. § 1365. Accordingly, the district court did not abuse its discretion by refusing to stay proceedings or dismiss the action without prejudice under the pr imary jurisdiction

3 At oral argument, the parties were uncertain of the conservation easement’s duration. Our disposition doe s not prevent the parties fro m seeking clarification from the district court on this issue.13 doctrine. See Raritan Baykeeper v. NL I ndus., Inc., 660 F.3d 686, 695 (3d Cir. 2011) (noting that the primary jurisdiction doctr ine would apply to CWA citizen suits only in exceptional cases, such as where a suit would disr upt a formal administrative proceeding). Though framed as a primary jurisdicti on issue, the essence of Ozark’s argument is that Mr. Benham should be prohibited from bringing his citizen suit because the Army Corps of E ngineers is primarily responsi ble for the enforcement of the CWA. While it is true that Secti on 505 would prohibit Mr. Benham’s suit if the Corps were “diligently prosecuting” an enforcement action, see 33 U.S.C. § 1365(b)(1)(B), the facts pres ented at trial show that th e Corps was not diligently pursuing an enforcement action against Ozar k. The district court found that the Corps had conducted several inspections of Ozark’s ope rations by driving through the property and had concl uded each time that there were no CWA violations. Benham I, 2015 WL 235759, at *4. Consequently, th e Corps was not diligently prosecuting an enforcement action, and Mr. Benham was entitled to bring his citizen suit. For the first time on appeal, Ozark argues that the CWA violation in the instant case covers the same set of facts as a 2005 violation. As an action for a “wholly past” violation would deprive the court of subject matter jurisdiction, see Gwaltney, 484 U.S. at 64, this argument can be made at any stage of the litigation, see Champlin Petroleum Co. v. Ingram, 560 F.2d 994, 996 (10th Cir. 1977). However, even assuming that Mr. Benham’s suit overlap s with the 2005 violation (which Mr.14 Benham contests), this is not an action for a “wholly past” violation. Rather, the district court found that Ozar k’s deposits of dredge and fill material constitute a “continuing” violation of the CWA, Benham I, 2015 WL 235759, at *9, over which a federal court has subject matter jurisd iction, see Gwaltney, 484 U.S. at 59. Consequently, the district court properl y exercised jurisdiction over Mr. Benham’s citizen suit. Ozark also attempts to frame its prim ary jurisdiction argument as a ripeness issue, contending that the Army Corps of Engineers has not made a final agency determination regarding the delineation of wetlands in Saline Creek. But Mr. Benham is not an “affected party” subject to the Corps’s exhaustion of administrative remedies provision. See 33 C.F.R. §§ 33 1.2, 331.12 (2017). Moreover, Section 505 contains the “diligently prosecuting” requi rement, not an admini strative exhaustion requirement. And the evidence shows that the Corps was not diligently prosecuting an enforcement action ag ainst Ozark. The Co rps’s CWA enforcement responsibilities therefore have no bearing on whether Mr. Benham was able to bring suit in this case. In sum, the district cour t had jurisdiction over Mr. Benham’s citizen suit, and invoking the primary jurisdiction doctrin e would not have been appropriate. AFFIRMED.