United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on plaintiff's motion for reimbursement of expenses pursuant to Fed.R.Civ.P. 37(c)(2) (Doc. 117) and the defendant's response in opposition (Doc. 136). Upon consideration of the foregoing pleadings (with attachments), and all other relevant documents in this file, the Magistrate Judge recommends that the Court GRANT IN PART the plaintiff's motion for reimbursement of expenses (Doc. 117).
The United States instituted its Clean Water Act case against Hamilton Smith in this Court on August 6, 2012, alleging that the defendant discharged pollutants, "including dredged or fill material, into waters of the United States in Baldwin County, Alabama, without authorization by a permit issued by the United States Army Corps of Engineers, in violation of CWA section 301(a), 33 U.S.C. § 1311(a)." (Doc. 1, at 1.) The complaint otherwise reads, in relevant part, as follows:
13. CWA section 502(7), 33 U.S.C. § 1362(7), defines "navigable waters" as "the waters of the United States, including the territorial seas."
14. 33 C.F.R. § 328.3(a)(1), (2), (5), and (7), and 40 C.F.R. § 232.2, define "waters of the United States" to include: all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce; tributaries to such waters; and wetlands adjacent to such waters or their tributaries.
15. 33 C.F.R. § 328.3(b) and 40 C.F.R. §§ 122.2 and 232.2 define "wetlands" as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(c) defines "adjacent" as "bordering, contiguous, or neighboring." Wetlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands." Id.
21. Beginning in 1998, continuing at least through 2004, at times and locations best known to Defendant, Defendant and/or persons acting on his behalf, discharged dredged or fill material into waters of the United States without a permit under CWA section 404. The discharges were made into Dennis Creek, a perennial stream, and into four unnamed tributaries of Dennis Creek, and wetlands adjacent to and abutting Dennis Creek and its unnamed tributaries, near 30E55'13" north latitude and 87E51'03" west longitude, In Baldwin County, Alabama (the "Site").
22. Dennis Creek is a direct tributary of the Tensaw River, a traditional navigable water. Dennis Creek's confluence with the Tensaw River is approximately 3 miles from the Site. The Tensaw River empties into Mobile Bay approximately fifteen (15) miles from its confluence with Dennis Creek. The Tensaw River and Mobile Bay are waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. A significant nexus exists between the affected tributaries, Dennis Creek, and their adjacent wetlands and the Tensaw River.
30. Defendant has violated and continues to violate CWA section 301(a), 33 U.S.C. § 1311(a), by his unauthorized discharges of dredged or fill material into waters of the United States, including Dennis Creek and unnamed tributaries of Dennis Creek, and wetlands adjacent to and abutting Dennis Creek and its tributaries, at the Site.
( Id. at ¶¶13-15, 21-22 & 30.) In answer to the complaint, filed August 28, 2012, Smith stated he was without sufficient information or knowledge to either admit or deny paragraphs 13-15, denied the allegations in paragraph 21, denied that Dennis Creek is a "traditional navigable water" but stated he was without sufficient information or knowledge to admit or deny the remaining portion of paragraph 22, and denied the allegations contained in paragraph 30. (Doc. 4, at 2-3, 3 & 4.)
The parties filed their Rule 26(f) report on October 15, 2012, at 5:36 p.m. ( See Doc. 7.) Earlier that day, plaintiff's counsel emailed counsel for the defendant and supplied counsel with numerous case citations and "holdings" that "manmade and man-altered structures/waters are covered by the Clean Water Act." (Doc. 117, Exhibit 1, at 1.) Plaintiff's counsel concluded the email in the following manner: "If you are agreeable based on the case law, we would like to be [able to] say in the report that Mr. Smith is not contesting the prima facie elements of the CWA claim-including waters of the United States-but the focus of discovery should be on the affirmative defenses and other remedy issues." ( Id. at 2.) Such agreement was not forthcoming inasmuch as the parties, in their Rule 26(f) report, identified a total of twelve (12) subjects upon which discovery need be had, including the following subjects relating to liability: "(1) Smith's knowledge of CWA requirements;... (5) the role that Dennis Creek plays with respect to the chemical, physical, and biological integrity of waters of the United States, including the Tensaw River and Mobile Bay; [and] (6) the hydrological conditions at the Site and along relevant segments[.]" (Doc. 7, at 6.) The Court entered its Rule 16(b) scheduling order on October 17, 2012. (Doc. 8.)
On October 19, 2012, counsel for plaintiff emailed counsel for Smith a proposed stipulation and order in an effort to streamline discovery. ( Compare Doc. 117, Exhibit 1, at 1 with id., [Proposed] Joint Stipulation Regarding Claims and Defenses and [Proposed] Order Regarding Joint Stipulation on Claims and Defenses.) The proposed joint stipulation and order both read, in relevant part, as follows:
1. Smith no longer denies and does not dispute the following allegations in Count 1 of the United States' Complaint, and Smith's Answer shall be amended accordingly in this case: the allegations in paragraphs 21-22; the allegation in paragraph 23 that Smith's activities at the Site resulted in discharges of dredged or fill material into waters of the United States (but not the allegation in said paragraph that such activities were "unauthorized, " which remains disputed); paragraphs 24-26; the allegation in paragraph 27 that Smith either owned, leased or otherwise controlled the property on which each alleged discharge of dredged or fill material into waters of the United States occurred (but not the allegation in said paragraph that such activities were "unauthorized, " which remains disputed); the allegation in paragraph 28 that Smith conducted, directed[, ] contracted for, supervised and/or otherwise controlled and/or participated in the activities at issue in paragraph 21 (but not the allegation in paragraph 28 that such activities were "unauthorized, " which remains disputed); and paragraph 29. Specifically, Smith does not and shall not dispute in this case that: (1) Smith is a "person" covered by the CWA; (2) Smith discharged "pollutants" from "point sources" into Dennis Creek and its tributaries at the Site; (3) Dennis Creek and its tributaries at the Site are "waters of the United States" for purposes of the CWA and related regulations[;] and (4) Smith did not have and has not obtained a permit for the alleged activities pursuant to CWA Section 404(a), 33 U.S.C. § 1344(a).
2. As stated above, Smith continues to dispute and deny that his alleged activities were unauthorized and denies that his activities required a permit issued by the Corps pursuant to CWA Section 404(a), 33 U.S.C. § 1344(a), for the reasons set forth in the first affirmative defense in the Answer. Smith also continues to assert that the applicable statute of limitations may bar some or all of the United States' claims. In addition to those affirmative defenses, Smith reserves the right to dispute the following issues regarding the alleged CWA violations: (1) the ...