A federal judge didn’t agree that a 2023 U.S. Supreme Court decision shielded the owner from liability under the Clean Water Act.
By Edvard Pettersson, Courthouse News Service
A federal judge denied a request by the owner of Point Buckler Island in the greater San Francisco Bay for a new trial in an almost eight-year dispute with the U.S. Justice Department over his illegal “repair” of the levee surrounding the island.
John Sweeney argued that the 2020 ruling that, after a bench trial, had found him liable for violating the Clean Water Act was no longer sustainable in the wake of the U.S. Supreme Court decision last year in Sackett v. Environmental Protection Agency, which had curtailed the federal government’s authority to regulate wetlands.
In that decision, the nation’s top court found that the reach of the Clean Water Act extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.”
In his bid for a new trial, Sweeney claimed that the wetlands on Point Buckler Island weren’t regulated because they weren’t indistinguishable from the surrounding waters.
“Although dry land can be classified as wetlands, and this court concluded that Point Buckler Island consisted mostly of wetlands, those wetlands are not wetlands subject to regulation under the Clean Water Act because they are not indistinguishable from the surrounding waters,” he said. “Mr. Sweeney therefore did not violate the act when he excavated dirt from a borrow ditch and placed it on the dry wetlands.”
Senior U.S. District Judge Kimberly Mueller in Sacramento wasn’t persuaded, though, and on Friday agreed with the government that notwithstanding the Supreme Court’s Sackett ruling, Sweeney still had violated the Clean Water Act by directly discharging pollutants into tidal waters, which she said previously were, and continue to be “navigable waters” under the act.
“The court’s opinion in Sackett also does not lead to any doubts that wetlands directly abutting the tidal waters on Point Buckler Island fall under the CWA’s protections,” the judge said. “To the extent defendants dispute this conclusion, the court is unpersuaded now as it was before.”
An attorney for Sweeney had no immediate comment on the decision.
When Sweeney bought Point Buckler Island in 2011, nearly 40 acres of it supported and functioned as a tidal channel and tidal marsh wetlands system, according to prosecutors with the U.S. attorney’s office in Sacramento who took him to court in 2017.
But whereas Sweeney, who operates a duck hunting club and kite-surfing business on his tidal island, maintains that he repaired the eroded levee in 2014, the Justice Department claims that, without a permit, he excavated and dumped thousands of cubic yards of soil directly into the island’s tidal channels and marsh.
The island’s tidal channels and marsh are part of the Suisun Marsh, the largest contiguous brackish water marsh remaining on the west coast of North America, according to the government. The island, they say, is located in a heavily utilized fish corridor and is critical habitat for several species of federally protected fish.
Two years ago, the judge ordered Sweeney to restore the tidal channels.
The business owner had gotten a bit of a reprieve in 2017 when a California judge overturned a $3.6 million fine against him, ruling the state didn’t give him a fair trial and built the massive fine on shaky evidence.
