Free Supplemental Brief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC.,

No. 98-419 L Hon. Lawrence J. Block

DEFENDANT'S SUPPLEMENTAL BRIEF PURSUANT TO THIS COURT'S ORDER OF MAY 3, 2006, (As Modified by its Order of May 26, 2006) ____________________________________________________

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Pierce County Conditional Land Use Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 State Solid Waste Handling Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Industrial Wastewater Discharge Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Hydraulic Project Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Dam Safety Construction Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 County Wetlands Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Forest Practices Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Access Connection Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Pierce County Building Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Federal Regulatory Approvals Delegated to the States . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. PLAINTIFFS' ATTEMPT TO ATTRIBUTE THE TIME SPENT IN THE STATE AND LOCAL PERMITTING PROCESS TO THE FEDERAL GOVERNMENT SHOULD BE REJECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Defendant Is Not Responsible for Delays Occasioned by the State and Local Permitting Process . . . . . . . . . . . . . . . . . . . . . . . 10 The Issue of Whether Plaintiffs Had All Their State and Local Permits Is Relevant to The Questions Of Both Liability and Valuation . . . . . . . . . . . . . . . . . . . . . . 10 Landfill Permitting is A Time-Consuming and Complex Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B.

C.

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D.

The State and Local Permitting Process Proceeded Separately from the Section 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. The Declaration of Plaintiffs' Former Attorney Polly McNeill Does Properly and Fully Support Their Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Declaration of Plaintiffs' "Director of Regulatory Services" Jody Sndyer Does Not Properly and Fully Support Their Argument . . . . . . . . . . . . . . . 17

2.

E.

Plaintiffs' Argument That They Would Not Have Appealed The February 1993 Order Overturning the Grant of the SEIS Should Be Rejected Because it Lacks Factual Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Plaintiffs' Claim That the Corps' Forced Them to Reconfigure the Project Should be Rejected Given the Evidence to the Contrary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

F.

II.

THE NINTH CIRCUIT'S DECISION THAT THE CORPS INCORRECTLY EXERCISED JURISDICTION OVER THE LANDFILL IS NOT DETERMINATIVE OF THE CHARACTER OF THE GOVERNMENT ACTION . . . . . . . . . . . . . . . . . . . . 23 A. History of the Corps' Exercise of Its Section 404 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The Character of the Government Action Factor of the Penn Central Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Scope of the Ninth Circuit's Decision That the Corps Lacked Jurisdiction Over Fill for the Purpose of Constructing a Landfill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

B.

C.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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TABLE OF AUTHORITIES CASES Applegate v. United States, 35 Fed. Cl. 406 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Appolo Fuels, Inc. United States, 381 F.3d 1338 (Fed. Cir. 2004), cert. denied, 125 S. Ct. 1406 (2005) . . . . . . . . . . . 27, 28 Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Backcountry Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Bass Enters. Prod. Co. v. U.S., 45 Fed. Cl. 120 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 Blue v. United States, 21 Cl. Ct. 359 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Branch v. United States, 69 F.3d 1571 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Celotex Corp. v. Catrett, 477 U.S. 317(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1320 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Ciampitti v. United States, 18 Cl. Ct 548 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 City Nat'l Bank of Miami v. U.S., 33 Fed. Cl. 224 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 City Nat'l Bank of Miami v. United States, iii

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33 Fed. Cl. 759 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Custom Contemporary Homes, Inc., v. United States, 5 Cl. Ct. 88 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Evans v. Technologies Applications and Service, 80 F.3d 954 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Florida Rock Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987) . . . . . . . . . . . . . . . . 28 Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Golden Pacific Bancorp v. United States, 15 F.3d 1066 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Griggs v. Allegheny County, 369 U.S. 84 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 M & J Coal v. United States, 47 F.3d 1148 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Maritrans Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Mesa Ranch Partnership v. United States, 222 Ct. Cl. 623 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Natural Resources Defense Council v. Callaway, 392 F. Supp. 685 (D. D.C. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 iv

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Orange Environment, Inc. v. County of Orange, 811 F. Supp. 926 (S.D. N.Y. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Resource Investments, Inc. v. U. S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 31, 35 Scosche Indus., Inc. v. Visor Gear Inc., 121 F.3d 675 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211 (S.D.N.Y. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Tabb Lakes v. United States, 10 F.3d 796 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 United Nuclear Corp v. United States, 912 F.2d 1432 (Fed. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Ashland Oil & Transp. Co., 364 F. Supp. 349 (W.D. Ky. 1973), aff'd, 504 F.2d 1317 (6th Cir. 1974) . . . . . . . . . . . . 26 United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 30

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STATUTES Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401-403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 33 U.S.C. § 1251(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 33 U.S.C. § 1362(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 33 U.S.C. § 1362(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 33 U.S.C. § 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 33 U.S.C. § 1344(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Resource Conseravtion and Recovery Act of 1976 (RCRA) 42 U.S.C. § 6941-6949a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 35 42 U.S.C. § 6905(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

RULES Fed. R. Civ. P. 56(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 18

REGULATIONS 40 Fed. Reg. 31320 (July 25, 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 59 Fed. Reg. 15203 (March 31, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 67 Fed. Reg. 31129 (May 9, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32 67 Fed. Reg. 31136 (May 9, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 67 Fed. Reg. 31137 (May 9, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 33 C.F.R. Part 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 33 C.F.R. § 323 (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 33 C.F.R. § 323.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 33 C.F.R. § 323.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 33 C.F.R. § 323.2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 33 C.F.R. § 232.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 40 C.F.R. Part 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

LEGISLATIVE MATERIALS S. Rep. No. 1236, at 99 (1972), reprinted in 1972 U.S. Code Cong. & Ad. News 3822 . . . . . . 25

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OTHER AUTHORITIES Gary Abraham, Concepts of Community in Environmental Disputes: Farmersville and Western New York's Garbage Wars, 7 Buff. Envtl. L.J. 51 (2000) . . . . . . . . . . . . 12 Dean Jerrehian, Special Places, Special Rules: The Places of NEPA, SEPAs, and Environmentally Sensitive Features in Regulation of Municipal Solid Waste, C355 ALI-ABA 79 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Bruce Parker and John Turner, Overcoming Obstacles to the Sitting of Solid Waste Management Facilities, 21 N.M. L. Rev. 91 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Index to Defendant's Exhibits for Defendant's Motion for Summary Judgment and Memorandum in Support Thereof (dated November 29, 2005) VOLUME I ­ Exhibit Nos. 1 - 25 Pages DSJ0001 - DSJ000388 VOLUME II ­ Exhibit Nos. 26 - 65 Pages - DSJ000389 - DSJ000712

DSJ Exhibit No. 1

Description Department of Army Record of Decision for Resource Investments, Inc. (OYB 4-013996), dated September 30, 1996 Appendix A to Department of Army Record of Decision for Resource Investments, Inc. (OYB 4-013996), dated September 30, 1996 Appendix B to Department of Army Record of Decision for Resource Investments, Inc. (OYB 4-013996), dated September 30, 1996 Transcript of Proceedings before The Honorable Robert J. Bryan, United States District Judge, Resource Investments, Inc. V. U.S. Corps of Engineers, C96-5920RJB, dated September 16, 1997

Beginning Page Number in Appendix DSJ0001

GE No.1/ 14

1A

DSJ00090

N/A

1B

DSJ000127

24 & 67

2

DSJ000240

17

1/

The "GE" -- or "Government Exhibit" -- numbers represent exhibits that were filed in support of Defendant's first summary judgment motion. These exhibits have been renumbered under the "DSJ" prefix for Defendant's latest summary judgment motion.

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DSJ Exhibit No. 3

Description Resource Investments, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) Weyerhaeuser v. Pierce County, 873 P.2d 498 (Wash. 1994) Weyerhaeuser v. Pierce County, 976 P.2d 1279 (Wash. Ct. App. 1999) Weyerhaeuser v. Pierce County, 96 P.3d 460 (Wash. Ct. App. 2004) Site Access Agreement between Land Recovery, Inc. and Resource Investments, Inc., dated January 1, 1987 Letter from Polly A. Lord of Heller, Ehrman, White & McAuliffe to Patrick T. Cagney and James R. Hartley, Army Corps of Engineers, dated August 15, 1990 Application for Department of Army Permit from Resource Recovery, Inc., dated August 15, 1990 Letter from Don Nauer, Habitat Biologist, to Janine Redmond, Senior Planner for Pierce County Planning and Natural Resource Management, dated October 1, 1990 Letter from Polly A. Lord of Heller, Ehrman, White & McAuliffe to All Interested Agencies, dated November 15, 1990 Letter from Ann R. Uhrich, Chief, Environmental and Processing Section, to Harold LeMay, Resource Recovery, Inc., dated October 1, 1991 ix

Beginning Page Number in Appendix DSJ000280

GE No. N/A

4 5 6 7

DSJ000288 DSJ000305 DSJ000313 DSJ000321

N/A N/A N/A 33

8

DSJ000322

65

9

DSJ000324

39

10

DSJ000326

46

11

DSJ000327

63

12

DSJ000328

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DSJ Exhibit No. 13

Description Public Notice of Application for Permit for Resource Investments, Inc., dated March 13, 1992 Letters from Community to the Corps in Protest of Resource Investments, Inc.'s Landfill Proposal, dated April 9, 1992 Letter from Stephen M. Keller, Regional Supervisor, Freshwater Permits Habitat Management Division, to Rick Vining, Department of Ecology, State of Washington, dated April 22, 1992 Letter from M.F. Palko, Supervisor, Environmental Review, Department of Ecology for the State of Washington, to District Engineer, Department of the Army, Seattle District, dated July 8, 1992 Letter from Polly Lord McNeill of Heller, Ehrman, White & McAuliffe to Jim Green, Project Manager, Army Corps of Engineers, dated August 20, 1992 Letter to Polly Lord McNeill of Heller, Ehrman, White & McAuliffe, from Walter J. Cunningham, Corps of Engineers, dated December 18, 1992 Memorandum for Record from Jim Green, Project Manager, dated February 11, 1993 Memorandum for Record from Jim Green, Project Manager, dated March 9, 1993

Beginning Page Number in Appendix DSJ000330

GE No. N/A

14

DSJ000347

N/A

15

DSJ000357

48

16

DSJ000359

49

17

DSJ000363

64

18

DSJ000364

11

19

DSJ000369

69

20

DSJ000370

70

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DSJ Exhibit No. 21

Description Memorandum for Record from Jim Green, Project Manager, dated October 20, 1993 Letter from Thomas F. Mueller, Chief, Regulatory Branch, to Polly L. McNeill of Heller, Ehrman, White & McAuliffe, dated January 28, 1994 Letter to Thomas Mueller, Corps of Engineers, from Polly L. McNeill of Heller, Ehrman, White & McAuliffe, dated February 25, 1994 Memorandum from Brian R. Applebury, P.E., Acting Chief, Operations Division, Corps of Engineers, to Walter J. Cunningham, Colonel, Corps of Engineers, Inc., dated March 4, 1994 Letter (with attachment) to Jody Snyder, Director of Regulatory Services for Land Recovery, Inc., from Andy Comstock, R.S., TacomaPierce County Health Department, dated June 15, 1994 Letter to Debora Hyde, Director, Pierce County Permits and Land Services, from Polly L. McNeill of Heller, Ehrman, White & McAuliffe, dated January 10, 1995 Letter (with attachments) to Polly L. McNeill of Heller, Ehrman, White & McAuliffe from Candace Ledford, Tacoma-Pierce County Health Department, dated April 10, 1995

Beginning Page Number in Appendix DSJ000374

GE No. 71

22

DSJ000376

72

23

DSJ000377

30

24

DSJ000381

23

25

DSJ000385

5

26

DSJ000389

34

27

DSJ000392

6

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DSJ Exhibit No. 28

Description Notes of Jim Green from meeting with Pierce County Solid Waste personnel, dated June 30, 1995 Letter from Donald T. Wynn, Colonel, Corps of Engineers, to The Honorable Doug Sutherland, Pierce County Executive, dated July 13, 1995 Consent in Lieu of Special Meeting of Board of Directors of Land Recovery, Inc., dated August 1, 1995 Public Notice of Application for Permit for Resource Investments, Inc., dated December 8, 1995 Letters from Community to the Corps in Protest of Resource Investments, Inc.'s Landfill Proposal, dated January 16, 1996 Letter from Donald T. Wynn, Colonel, Corps of Engineers, to Jody Snyder, Resource Investments, Inc., dated January 26, 1996 Letter (with attachment) to Harvey Doman, General Manager, Land Recovery, Inc. from Federico CruzUribe, MD, MPH, Tacoma-Pierce County Health Department, regarding Issuance of the 304th Street Landfill Solid Waste Handling Permit, dated February 7, 1996

Beginning Page Number in Appendix DSJ000401

GE No. 83

29

DSJ000402

84

30

DSJ000404

32

31

DSJ000423

15 & 74

32

DSJ000441

N/A

33

DSJ000458

61

34

DSJ000466

7

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DSJ Exhibit No. 35

Description Letter from Chuck Clarke, Regional Administrator, United States Environmental Protection Agency, Region 10, to Colonel Donald T. Wynn, District Engineer, Seattle District, Corps of Engineers, dated February 8, 1996 Memorandum for Record from Jim Green, Project Manager, regarding Resource Recovery, Inc., dated May 15, 1996 Letter to Pierce County Planning and Land Services from Polly L. McNeill of Heller, Ehrman, White & McAuliffe, dated May 23, 1996 Letter (with attachments) from Daniel D. Syrdal of Heller, Ehrman, White & McAuliffe to Colonel Donald T. Wynn, District Engineer, Seattle District, Army Corps of Engineers, dated June 7, 1996 Certified Letter to Jody Snyder, Resource Investments, Inc. from David Bradley, Department of Ecology, State of Washington, dated June 18, 1996 Staff Report to Pierce County Hearing Examiner regarding General Wetland Reasonable Use Exception for Land Recovery, Inc., 304th Street Landfill Project, Case No. WRU5-96, dated July 8, 1996

Beginning Page Number in Appendix DSJ000492

GE No. 77

36

DSJ000509

75

37

DSJ000510

8

38

DSJ000512

76

39

DSJ000528

10

40

DSJ000539

9

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DSJ Exhibit No. 41

Description Letter from Bartholomew B. Bohn II, Colonel, Corps of Engineers, to Daniel D. Syrdal of Heller, Ehrman, White & McAuliffe, dated August 28, 1996 Report and Decision of the Pierce County Hearing Examiner (along with accompanying letter) regarding the General Wetland Reasonable Use Exception: Land Recovery, Inc., 304th Street Landfill Project, Case No. WRU5-96, dated November 27, 1996 Resource Investments, Inc.'s Invoice for Access Fee, dated July 1, 1998 Letter to Stephen K. Causseaux, Jr., Pierce County Hearing Examiner, from Thomas R. Bjorgen, Meeks Morgan Bauer, P.L.L.C., dated August 11, 1998 Excerpts from Plaintiffs' Response to Defendant's First Set of Interrogatories and Requests for Production of Documents, dated December 10, 1998 Hydraulic Project Approval for Resource Investments, Inc., dated February 25, 1999

Beginning Page Number in Appendix DSJ000541

GE No. 78

42

DSJ000543

1

43 44

DSJ000548 DSJ000549

31 2

45

DSJ000550

13

46

DSJ000561

N/A

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DSJ Exhibit No. 47

Description Permit for Dam Construction for Land Recovery, Inc. (Permit No. PI 111771), dated March 31, 1999, and Letter from Martin D. Walther, P.E., Dam Safety Engineer, Water Resources Program, Department of Ecology, State of Washington, to Jody Snyder, Land Recovery, Inc., dated March 31, 1999 Forest Practice Permit, Resource Investments, Inc., dated April 9, 1999 Memorandum of Agreement involving Land Recovery, Inc., Resource Investments, Inc., and Pierce County, dated April 14, 1999 Registered Letter from Gordon White, Program Manager, Shorelands and Environmental Assistance Program, Department of Ecology, State of Washington, to Jody Snyder, Resource Investments, Inc., dated June 8, 1999, including Department of Ecology Administrative Order No. DE-B-4-01396, dated May 28, 1999 Letter to Jody Snyder, Resource Investments, Inc., from Dale C. Severson, P.E., Washington State Department of Transportation, dated July 20, 1999, including Access Connection Permit

Beginning Page Number in Appendix DSJ000565

GE No. N/A

48 49

DSJ000570 DSJ000578

N/A N/A

50

DSJ000587

16

51

DSJ000597

N/A

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DSJ Exhibit No. 52

Description Excerpts from "Respondents LRI and RII's Memorandum in Opposition to Motions for Summary Judgment and Memorandum in Support of Cross Motion for Summary Judgment Re SSB 5729," Weyerhaeuser v. TacomaPierce County Health Department, Pollution Control Hearings Board, State of Washington, dated August 16, 1999 Excerpts of Deposition of Jody Snyder, dated September 16, 1999 Building Permit Issued by Pierce County to Resource Investments, Inc. (Permit No. 286017), dated October 21, 1999 Notice of Construction and Approval/Air Permit Issued by the Puget Sound Clean Air Agency to Land Recovery, Inc., dated December 10, 1999 Summary Judgment and Dismissal, Weyerhaeuser v. Tacoma-Pierce County Health Department, PCHB 99-067, 99-069, 99-097, Pollution Control Hearings Board, State of Washington, dated January 4, 2000 Dissent, Weyerhaeuser v. TacomaPierce County Health Department, PCHB 99-067, 99-069, 99-097, Pollution Control Hearings Board, State of Washington, dated January 4, 2000

Beginning Page Number in Appendix DSJ000606

GE No. 18

53 54

DSJ000615 DSJ000620

38 N/A

55

DSJ000625

N/A

56

DSJ000630

N/A

57

DSJ000641

N/A

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DSJ Exhibit No. 58

Description Excerpts from Plaintiffs' Responses to Defendant's Second Set of Requests for Admission, dated January 19, 2000 Final Findings of Fact and Conclusions of Law, Order, Concerned Residents on Waste Disposal v. Tacoma-Pierce County Health Department, PCHB 00-045 & 047, Pollution Control Hearings Board, State of Washington, dated August 20, 2001 Site Description: Centralia Municipal Landfill, dated October 2005 Site Description: Colbert Landfill, dated April 2002 Site Description: Fort Lewis (Landfill No. 5), dated April 2002 Site Description: Greenacres Landfill, dated October 2005 Site Description: Hamilton Island Landfill (USA/COE), dated October 2005 Site Description: Hidden Valley Landfill (Thun Field), dated October 2005 Ground Water Protection Description from Land Recovery, Inc.'s Web Site, dated November 27, 2005 Letter to Bob Mowrey, Army Corps of Engineers, from Polly L. McNeill, dated November 1, 1991

Beginning Page Number in Appendix DSJ000647

GE No. 40

59

DSJ000653

N/A

60A 60B 60C 60D 60E

DSJ000677 DSJ000679 DSJ000682 DSJ000684 DSJ000686

N/A N/A N/A N/A N/A

60F

DSJ000688

N/A

61

DSJ000691

N/A

62

DSJ000692

N/A

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DSJ Exhibit No. 63

Description Memorandum of Record regarding Wetland Determination for RII's 304th Street Landfill Site, dated March 2, 1992 Letter (including attachment) to Jody Snyder, Resource Investments, Inc., from Colonel Donald T. Wynn, Corps of Engineers, dated May 13, 1996

Beginning Page Number in Appendix DSJ000694

GE No. N/A

64

DSJ000696

3

65

Registered letter to Daniel D. Syrdal of Heller, Ehrman, White & McAuliffe from Keli McKay, Department of Ecology, State of Washington, dated April 24, 2000, including a Recision of Order and several Agreed Orders from the State of Washington's Department of Ecology

DSJ000701

N/A

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Supplemental Index to Defendant's Exhibits for Memorandum of United States in Opposition To Plaintiffs' Renewed Motion for Summary Judgment (dated February 3, 2006) VOLUME III ­ Exhibit Nos. 66- 69 Pages DSJ000713 - DSJ000729 DSJ Exhibit No. 66 67 Description Beginning Page Number in Appendix DSJ000713

GE No. N/A

Declaration of Bruce C. Allen Letter to Ann D. Navaro from Jonathan M. Palmer dated January 14, 2000 Memorandum of Record from Robert Mowery, Project Manager, dated February 24, 1992 Tacoma-Pierce County Solid Waste Management Plan - Volume I Including: An Annotated Summary, Chapters 1 - 11 and Appendix I ­ WUTC Cost Assessment dated December 15, 1992

DSJ000718

N/A

68

DSJ000723

N/A

69

DSJ000725

N/A

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Supplemental Index to Defendant's Exhibits for Memorandum of United States in Opposition To Plaintiffs' Renewed Motion for Summary Judgment (dated February 3, 2006) VOLUME IV ­ Exhibit Nos. 70 - 72 Pages DSJ000730 - DSJ000739

DSJ Ex. No.

Description

Beginning Page Number in Appendix DSJ000730 DSJ000731 DSJ000736

GE No.

70 71 72

Sales History for the Parcels Composing the Landfill Site at 304th and Meridian Declaration of Mark W. Wolken Letter to William D. Ruckelshaus from William R. Gianelli dated March 19, 1984

N/A

N/A N/A

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Supplemental Index to Defendant's Exhibits for Defendant's Supplemental Brief Pursuant to This Court's Order of May 3, 2006 (dated July 10, 2006) VOLUME V ­ Exhibit Nos. 73 - 92 Pages DSJ000740 - DSJ000809

DSJ Ex. No.

Description

Beginning Page Number in Appendix

GE No.

73

Joint Supplemental Brief in Response to Court's Order of May 3, 2006 (Chronology of Relevant Permitting Processes) Permit Chronology Excerpt from Bill Leonard Deposition - Vol. 1 - dated October 25, 1999

N/A DSJ000740 DSJ000746 N/A 25 DSJ000747

74 75

76

Excerpt from Kathleen M. Larrabee Deposition - Vol. 1 - dated August 18, 1999 Excerpt from Maria V. Peeler Deposition dated October 26, 1999 Excerpts from Carla Vincent Deposition - Vol. 1 - dated August 19, 1999 Excerpts from James Christopher Matthews Deposition - Vol. 1 - dated October 25, 1999 Letter from Daniel Syrdal to Stephen K. Causseaux, Jr.

26 DSJ000754 27 DSJ000756 28 DSJ000762 29 DSJ000766 41 DSJ000769

77

78

79

80

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81 82 83 84 85 86 87 88

Reconsideration of Decision of Case form dated January 11, 1996 Letter from Don Nauer to Janine Redmond dated October 1, 1990 Letter from M.F. Palko to Joseph A. Scorcio Letter from Steven M. Keller to Rick Vining dated April 22, 1992 Letter from M.F. Palko to Tom Mueller dated July 8, 1992 Excerpt of Rodney Erdahl - Vol. 1 dated October 19, 1999 Excerpts of John A. Comstock - Vol. 1- dated October 21, 1999 (Second) Excerpt of Kathleen M. Larrabee Deposition- Vol. 1 - dated August 1999 (Second) Excerpt of Carla Vincent Deposition - Vol. 1 - dated August 19, 1999 (Second) Excerpt of James Chistopher Matthews - Vol. 1 - dated October 25, 1999 Excerpt of William S. Stoner dated February 1, 2000 Excerpt of Polly L. McNeill - Vol. 1 dated September 14, 1999

42 DSJ000770 46 DSJ000771 47 DSJ000772 48 DSJ000778 49 DSJ000780 50 DSJ000783 51 DSJ000785 52 DSJ000788 53 DSJ000790 54 DSJ000792 55 DSJ000794 59 DSJ000796

89

90

91

92

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC.,

No. 98-419 L Hon. Lawrence J. Block

DEFENDANT'S SUPPLEMENTAL BRIEF PURSUANT TO THIS COURT'S ORDER OF MAY 3, 2006, (As Modified by its Order of May 26, 2006) ____________________________________________________

INTRODUCTION In its May 3, 2006 order, this Court requested that the parties file individual supplemental briefs addressing the following points: (a) Delays in the state and local permitting process attributable to or independent of the Federal permitting process, based on the chronological lists contained in the parties' joint filing of June 9, 2006; and (b) Any additional court decisions that have addressed the issue of the Corps' jurisdiction in matters similar to this.

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BACKGROUND Permitting a new municipal solid waste landfill in Pierce County involved numerous state and local agencies and authorities. Ultimately, Plaintiffs were required to obtain 16 state and local permits to authorize the construction and operation of the landfill. DSJ Ex. 73 at 740-42. Plaintiffs' effort to obtain the state and local permits necessary to construct their landfill ultimately required numerous applications, permit issuances and time-consuming litigation. The most significant of these are discussed below. 1. Pierce County Conditional Land Use Permit

The most time consuming and contentious approval Plaintiffs obtained at the local level was the Conditional Land Use Permit ("Conditional Use Permit") they sought from the Pierce County Department of Planning and Land Services ("County Planning"). Plaintiffs first applied for this permit on December 29, 1989. PE 8 at 0042. As part of this process County Planning also took the lead in preparing the State Environmental Impact Statement (SEIS). On November 20, 1990, the county issued a final SEIS which supported the construction of the landfill. Weyerhaeuser v. Pierce County, 873 P.2d 498, 500; DSJ Ex. 27 (GE 6 at 5) ("Weyerhaeuser I"). Between December 1990 and February 20, 1991, the Pierce County Hearing Examiner ("Hearing Examiner") held public hearings on the Conditional Use Permit and its supporting SEIS. See id. On April 10, 1991, the Hearing Examiner released a report and decision approving the Conditional Use Permit and dismissing an appeal by community members. See Weyerhaeuser v. Pierce County, 976 P.2d 1279, 1281 (Wash. App. 1999) ("Weyerhaeuser II"); DSJ Ex. 58 at 649 (GE 40). On May 24, 1991, the Hearing Examiner denied community members' requests for

2

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reconsideration and the community members appealed to the Pierce County Council. See Weyerhaeuser II, 976 P.2d at 1281. On November 8, 1991, the Council remanded the decision to the Hearing Examiner for additional findings and conclusions. See id. On January 31, 1992, the Hearing Examiner issued a second decision again approving the permit. See id. Additional public hearings were held in May 1992, after which the Council approved the Hearing Examiner's second decision and dismissed the appeal of the SEIS. Id. After unsuccessfully seeking reconsideration of this decision, community members petitioned for a writ of review in Superior Court for the State of Washington ("Superior Court"). On February 12, 1993, the Superior Court reversed the issuance of the Conditional Use Permit. Id. Plaintiffs then sought and were granted direct review by the Supreme Court of Washington.2/ See id. at 1281-82. On May 26, 1994, the Supreme Court affirmed the Superior Court's reversal of the issuance of the Conditional Use Permit and remanded the matter for further proceedings, holding, inter alia, that the SEIS was inadequate as a matter of law for failure to correctly describe the project purpose, failure to allow community members an adequate opportunity to examine Pierce County employees involved in the project and to consider practicable offsite alternatives such as long haul See Weyerhaeuser I, 873 P.2d at 506, 509. On October 19, 1994, the County Planning Department advised Plaintiffs that it would take no further action on the 1989 Conditional Use Permit application and that Plaintiffs would need to file a new application. DSJ Ex. 58 at 0648. Plaintiffs appealed this issue, and on

2/

As discussed infra at 20-21, Plaintiffs' assertion that they would have foregone this appeal absent the Corps' involvement should be rejected because it lacks any reliable evidentiary support, is contrary to Plaintiffs' obvious strategy to assert litigative challenges wherever possible, and is no more than an attempt to engage in a speculative rewriting of history. 3

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January 13, 1995 the Superior Court directed the county to initiate and complete processing of Plaintiffs' original application. DSJ Ex. 58 at 648; DSJ Ex. 26 at 389-91 (GE 40, 34.) A supplemental final SEIS was published in August 1995, Am. Comp., Para. 34, and the Hearing Examiner held additional hearings in September 1995. On January 2, 1996, the Hearing Examiner issued his third decision, approving Plaintiffs' Conditional Use Permit, subject to certain conditions. See Weyerhaeuser II, 976 P.2d at 1282. One of these conditions required Plaintiffs to obtain a Wetlands' Reasonable Use Exception under Pierce County Wetland Management Regulations. Id. On March 19, 1996, the Hearing Examiner denied motions for reconsideration, and both Plaintiffs and community members appealed. While community members challenged the Hearing Examiner's approval of the Conditional Use Permit, id. at 1282 n.6, Plaintiffs challenged the Hearing Examiner's decision to require a Wetlands Reasonable Use Exception on the ground that the Wetlands Regulations were enacted in 1992, three years after Plaintiffs had filed their original Conditional Use Permit application.3/ See id. at 1282. On appeal to the Superior Court, issuance of the Conditional Use Permit was upheld

3/

Before the 1999 decision in Weyerhaeuser II obviated Plaintiffs need to comply with the Wetlands Regulations, Plaintiffs applied for and received a General Wetlands Reasonable Use Exception. The application was filed May 23, 1996. DSJ Ex. 37 at 510-11; DSJ Ex. 45 at 557 (GE 8, 13). Hearings on the application were held with the Pierce County Planning and Land Services Department ultimately recommended denial. DSJ Ex. 40 at 539-40 (GE 9). Despite that recommendation, the Hearing Examiner granted the Wetlands Reasonable Use Exception on November 27, 1996. DSJ Ex. 42 at 543-47 (GE 1). The grant, however, was conditioned on Plaintiffs implementing a mitigation plan, providing financial guarantees under the Wetlands Regulations, and obtaining all appropriate federal, state and local permits including a Section 404 permit from the Corps. Id. 4

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against the challenges of both Plaintiffs and community members; Plaintiffs again appealed.4/ See Weyerhaeuser II, 976 P.2d at 1281. On May 29, 1999, the litigation was finally resolved when the Washington Court of Appeals reversed, holding that under Washington's vested rights doctrine, Plaintiffs' Conditional Use Permit application should not be subject to the subsequently-enacted Wetlands Regulations. Id. at 1283. Altogether, the process of obtaining the County Conditional Use Permit encompassed almost ten years, or from December 29, 1989 to May 29, 1999. 2. State Solid Waste Handling Permit

Plaintiffs acquisition of the Solid Waste Permit ("Waste Permit") from the TacomaPierce County Health Department, and the attendant litigation, also consumed a significant amount of time. It took more than six years to complete the permitting process; the application was filed on December 29, 1989 (prior to the Section 404 permit application) and the permit was issued on February 7, 1996. DSJ Ex. 73. Thereafter, there were legal challenges before the Pierce County Pollution Control Hearing Board ("PCHB") which were not resolved until August 20, 2001. DSJ Ex. 59 at 671-75. The initial SEIS completed by the County to support the issuance of the Solid Waste Handling Permit was challenged judicially, and ultimately judged inadequate by the Washington Supreme Court on May 26, 1994. See Weyerhaeuser I, 873 P.2d at 509. Because the SEIS was

4/

As discussed infra 20-21, the facts that plaintiffs appealed the issuance of the Conditional Use Permit undermines Plaintiffs' assertion that they would not have appealed the February 12, 1993 Superior Court decision that vacated the initial issuance of the Conditional Use Permit but for the delay caused by the Corps' process. If Plaintiffs were, as they claim, truly interested in getting the landfill opened as soon as possible, the quickest route to that goal would not have included an appeal of a permit that had been issued. 5

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held insufficient, County Health alerted Plaintiffs that their solid waste application could not be considered to be complete. DSJ Ex. 25 at 385-88 (GE 5). On April 10, 1995, after another round of notice and comment on the supplemental SEIS, County Health informed Plaintiffs that their application still did not show compliance with various state laws5/ and therefore could not yet be considered complete. DSJ Ex. 27 at 392-93 (GE 6). On February 7, 1996, after Plaintiffs application was completed, after review by the State of Washington Department of Ecology ("State Ecology"), and a period of public comment, County Health issued the Solid Waste Permit. DSJ Ex. 34 at 203. The Waste Permit was conditioned on Plaintiffs' compliance with the Conditional Use Permit, receipt of a Water Quality Certification from State Ecology, and receipt of a Section 404 permit from the Corps, prior to implementing any construction or mitigation activities at the site. DSJ Ex. 34 at 466-86 (GE 7). After the Waste Permit was issued, community members vigorously challenged its validity in actions before the PCHB. Neighboring landowners and a citizens group each brought appeals before the PCHB challenging the validity of the actions taken by County Health in issuing Plaintiffs' Waste Permit for the site. DSJ Ex. 56 at 630-40, DSJ Ex. 59 at 653-76. This litigation stretched on until January 4, 2000 when the PCHB dismissed the action, granting summary judgment for County Health and Plaintiffs. DSJ Ex. 56 at 630-40. On August 20, 2001 the PCHB entered its Final Findings of Fact and Conclusions of Law and Order which affirmed County Health's grant of the Waste Permit as well as the subsequent modifications to

The deficiencies in the State SEIS were in no way related to the Corps. See Weyerhaeuser I, 873 P.2d 498. 6

5/

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the permit. Id. 3. Industrial Wastewater Discharge Permit

The landfill project required an Industrial Wastewater Discharge Permit from the Pierce County Public Works and Utilities Division pursuant to Pierce County Ordinance 89-46. DSJ Ex. 45 at 557-58(GE 13). Plaintiffs applied for this permit (date unknown) and it became effective on February 15, 1996. Id. 4. Hydraulic Project Approval

The landfill project required a Hydraulic Project Approval from the Washington Department of Fish and Wildlife pursuant to RCW Chapter 77.55. DSJ Ex. 46 at 561-64. Plaintiffs applied for this permit on March 16, 1992. DSJ Ex. 45 at 557 (GE 13). The permit was not granted until February 25, 1999. DSJ Ex. 46 at 561-64. 5. Dam Safety Construction Permit

The landfill project required a Dam Safety Construction Permit pursuant to RCW Chapter 90.03 and Washington Administrative Code (WAC) Chapter 173-175. DSJ Ex. 45 at 557 (GE 13). Plaintiffs applied for this permit on May 22, 1996. Id. The permit was not granted until March 31, 1999. DSJ Ex. 47 at 565-69. 6. County Wetlands Approval

Plaintiffs did not receive Wetlands Approval from the county until April 14, 1999. DSJ Ex. 49 at 578-86. This approval required RII as landowner, and LRI as lessee, to agree to undertake wetland mitigation efforts as described in the document. Id. 7. Forest Practices Permit

Plaintiffs were also required to obtain a Forest Practices approval from the Washington

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Department of Natural Resources in order to cute the trees on the property. Plaintiffs originally applied for this approval from the Washington Department of Natural Resources on November 5, 1990. In their application, Plaintiffs indicated that their purpose in cutting the trees was to construct a landfill. However, since at the time they had not been granted any of their permits to construct the landfill, approval to cut the trees was denied. PE 85, PE 86. Plaintiffs reapplied for the Forest Practices Permit on November 16, 1998. DSJ Ex. 48 at 573. The approval was granted April 9, 1999. Id. 8. Access Connection Permit

Plaintiffs were required pursuant to RCW Chapters 47.50, 47.32 and 47.44, and WAC Section 469-51 to obtain an Access Connection Permit from the Washington State Department of Transportation. DSJ Ex. 51 at 597-605. Plaintiffs did not, however, apply for this permit until November 20, 1998. DSJ Ex. 45 at 557 (GE 13). This permit was granted on July 27, 1999. DSJ Ex. 51 at 597-605. 9. Pierce County Building Permit

Plaintiffs were required to get a building permits from Pierce County. DSJ Ex. 54 at 62024. These permits were not issued until September, 17, 1999, October 21, 1999 and December 7, 1999 respectively. Id. All told, the State and local permit processes, with attendant litigation, began in December, 1989, and continued through August of 2001. 10. Federal Regulatory Approvals Delegated to the States

The landfill project required four state approvals where the programs were based on federal law. First, Plaintiffs were required to obtain State Water Quality Certification pursuant

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to Clean Water Act Section 401. Plaintiffs applied for the State Water Quality Certification on December 8, 1995 and it was issued by the Washington Department of Ecology on June 17, 1996. DSJ Ex. 39 at 528-38 (GE 10). Plaintiffs were also required to obtain National Pollutant Discharge Elimination System (NPDES) permits pursuant to Clean Water Act Section 402(b). Plaintiffs applied for the NPDES permits on January 2, 1996 and received them from on February 16, 1996. DSJ Ex. 45 at 558 (GE 13).6/ The last of Plaintiffs' dual federal-state permits arose from the federal Clean Air Act, Section 110, and required Plaintiffs to give Notice of Construction and to seek an Order of Approval before beginning work at the landfill site. DSJ Ex. 55 at 625-29. Plaintiffs sought this approval on November 5, 1999 and it was granted on December 10 of that same year. DSJ Ex. 55 at 625-629. ARGUMENT I. PLAINTIFFS' ATTEMPT TO ATTRIBUTE THE TIME SPENT IN THE STATE AND LOCAL PERMITTING PROCESS TO THE FEDERAL GOVERNMENT SHOULD BE REJECTED

Plaintiffs have repeatedly asserted that the Corps' assertion of jurisdiction over the wetlands on their property significantly delayed their pursuit of the state and local permits necessary to begin construction on their landfill. As we demonstrate below, Plaintiffs allegations are factually incorrect, rely on questionable evidentiary support and are contradicted by evidence

6/

Acquisition of these NPDES permits at such an early date does not support Plaintiffs' argument that the uncertainty created by the Corps' "indecision" prevented them from acquiring the required State and local permits at an earlier date. 9

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elsewhere in the record. A. Defendant Is Not Responsible for Delays Occasioned by the State and Local Permitting Process

The federal government may not be held liable for the actions of a state absent direct federal involvement in the challenged state action. See Applegate v. United States, 35 Fed. Cl. 406, 422 (1996) (citing Mesa Ranch Partnership v. United States, 222 Ct. Cl. 623 (holding that even the "acts of federal officials in persuading local officials to obstruct development by placing new burdens upon it, or refusing to lift old ones, are not takings imputable to the United States.")). The fact that federal government regulation bears similarity to local planning tools is insufficient to establish federal government liability. See City Nat'l Bank of Miami v. United States, 33 Fed. Cl. 759, 763 (1995). Federal government input into the state's regulatory program is also not enough. See Blue v. United States, 21 Cl. Ct. 359, 362 (1990) ("Although the Navy participated in the [zoning] process by submitting a draft, and providing technical assistance, the County is the ordinance adopting governmental agency.") Even cooperation between the federal government and a state is insufficient. See Custom Contemporary Homes, Inc., v. United States, 5 Cl. Ct. 88, 90 (1984). Plaintiffs here cannot show a sufficient connection between the state and federal processes to attribute any delay in the state and local permitting processes to the Corps. B. The Issue of Whether Plaintiffs Had All Their State and Local Permits Is Relevant to The Questions Of Both Liability and Valuation

Because plaintiffs did not have all state and local permits in hand on the date the Corps denied the Section 404 permit application, the evaluation of both liability and valuation is impacted. First, on the liability issue, plaintiffs must establish causation -- did the Corps legally

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cause delay when at that time plaintiffs were still in the process of obtaining necessary nonfederal permissions. "It is essential to any takings claim against the United States that liability be dependant upon acts of the Federal Government." Applegate v. United States, 35 Fed. Cl. 406, 422 (1996), citing Griggs v. Allegheny County, 369 U.S. 84, 89 (1962) see also United Nuclear Corp v. United States, 912 F.2d 1432, 1435 (Fed. Cir. 1990). To establish that the United States was the cause of the delay, "plaintiffs must demonstrate that but for the Government's action, they would have undertaken development efforts." Bass Enters. Prod. Co. v. U.S., 45 Fed. Cl. 120, 122 (1999) (italics added). However, plaintiffs did not receive the most significant of their non-federal permits until November 1996, and did not received all the remaining necessary local permits until after the issuance of the Ninth Circuit's mandate on February 10, 1999. As Wyatt v. United States, 271 F.3d 1090, 1097 (Fed. Cir. 2001), established, a court cannot excuse a Plaintiffs' lack of compliance with a "bedrock requirement" ­ causation -merely because a federal permit process was ongoing. The existence of state and local restrictions on development must be taken into account in evaluating both liability and damages. See City Nat'l Bank of Miami v. U.S., 33 Fed. Cl. 224, 232 (1995). The situation would be quite different were the actions of the State of Washington or Pierce County imputable to the United States. Where the federal government and the State and local entities are coordinated parts of the same undertaking, or where the federal government acts through a State or local agent, such activities may in certain circumstances be properly attributable to the federal government. See Preseault v. United States, 100 F.3d 1525, 1551 (Fed Cir. 1996); Hendler v. United States, 952 F.2d 1364, 1378-79 (Fed. Cir. 1991). Similarly, where

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the federal government creates the statutory framework and exercises independent and ultimate control over a state's regulatory action, or even exercises joint control over the state's regulatory actions, state participation in the process is insufficient to protect the federal government from a takings claim. See Ciampitti v. United States, 18 Cl. Ct 548, 555 (1989); City Nat'l Bank of Miami v. United States, 33 Fed. Cl. at 763. C. Landfill Permitting is A Time-Consuming and Complex Process

As an initial matter, it is not surprising that permitting this site, at local, state, and federal levels, took a number of years. As seen by examining the state and county's efforts alone, permitting solid waste landfills is a complex and time consuming process. DSJ Ex. 73, 74. The significant expenses involved in siting landfills, difficulties experienced by decision-makers in the face of virulent local opposition, and expanding state solid waste management laws and regulations result in many such projects languishing for years in the permitting process. See Bruce Parker and John Turner, Overcoming Obstacles to the Siting of Solid Waste Management Facilities, 21 N.M. L. Rev. 91, 93, 95 (1990). This protraction of the permitting process is due in large part to the fact that "[a] dispute over a proposal to site a modern commercial landfill is usually accompanied by a heightened legal consciousness among both proponents and opponents . . . ." Gary Abraham, Concepts of Community in Environmental Disputes: Farmersville and Western New York's Garbage Wars, 7 Buff. Envtl. L.J. 51, 52 (2000). The permitting process surrounding Plaintiffs' landfill surely reflected this "heightened legal consciousness" taking several diversions into the state and federal courts, as well as significant travel through the state and administrative processes. The duration and complexity of landfill permitting is greatly exacerbated by the presence

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of an environmentally sensitive feature such as a wetland on or near the proposed landfill site. Dean Jerrehian, Special Places, Special Rules: The Place of NEPA, SEPAs, and Environmentally Sensitive Features in Regulation of Municipal Solid Waste, C355 ALI-ABA 79, 81-82 (1988). A proposed solid waste facility involving wetlands may require multiple reviews by various federal, state and local agencies, "may preclude facility development altogether, may require special conditions affecting facility operation and usually will increase permitting costs and delays." Id. Plaintiffs' proposed landfill not only involved a sensitive environmental feature, a wetlands landfill, but, as Bill Leonard of the Washington Department of Ecology ("Ecology") described it, the project was "the single largest wetland fill ever permitted by Ecology in the state of Washington," with an almost "precedent setting" potential for "extraordinary" environmental impacts. DSJ Ex. 75 at 748, 753 (G.E. 25 at 239 (p. 11, lines 1-7), 244 (p. 29, lines 5-23).)7/ Mr. Leonard was not alone in feeling that Plaintiffs' landfill proposal was extraordinary. The Washington and Pierce County officials involved in the process of permitting Plaintiffs' landfill testified to the arduous nature of the undertaking and ranked Plaintiffs' project as setting in motion among the most complex permitting processes in state history. (See, e.g., DSJ Ex. 79 at 767 (G.E. 29 at 258 (p. 18, lines 9-15); DSJ Ex. 78 at 765 (G.E. 28 at 256 (p. 73, 16-17)).)

This deposition and the others cited in this brief were included in the exhibits filed by the United States as part of the 2000 summary judgment briefing. They were not cited udring Defendant's briefing of the "Renewed" motions for summary judgment because they were not directly relevant to the arguments being presented. However, the depositions excerpts are directly responsive to the State/County permitting issues on which this Court has requested supplemental briefing on and are therefore included as part of Defendant's renumbered (DSJ) exhibits at this time. 13

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This is, in part, because the environmental issues presented were extraordinary in the experience of Washington State and Pierce County regulators. Aside from the fact, discussed above, that this was the single biggest wetland fill in state history, Kathleen Larrabee, a Resource Management supervisor with the Pierce County Planning, also stated that the landfill was, "[f]rom an environmental standpoint . . . probably the most complex that [she had] been involved with." DSJ Ex. 76 at 755 (G.E. 26 at 246 (p. 9, lines 13-14).) The permitting process itself was equally daunting. Ecology's Chris Matthews noted that the project was the most complex process he had ever worked on. DSJ Ex. 79 at 767(G.E. 28 at 18, lines 9-15.) Maria Peeler explained that the permitting process took a "huge" amount of time, given difficulties in clarifying what the state required and in getting the relevant information from plaintiffs. DSJ Ex. 77 at 758, 761 (G.E. 27 at 249, lines 2-3; 252, lines 1-10.) Bill Leonard noted that working through the issues and getting an approved mitigation plan for this unusual project took six years, an unusually long amount of time. DSJ Ex. 75 at 749-50 (G.E. 25 at 240-41 (p. 16, line 18 to p. 18, line 2).) Carla Vincent, from Pierce County Planning and Land Use Services Department, stated that the project was the most complex she had ever worked on. DSJ Ex. 75 at 752 (G.E. 28 at 256 (p. 73, lines 14-17).) The project took such a long time despite the fact that it was, as Mr. Leonard testified, "at the top of my priority list" DSJ Ex. 78 at 763 (G.E. 25 at 243 (p. 28, lines 22-23)), had been, as Ms. Vincent noted, placed on the "fast track," was prioritized over other matters, and had an additional county official assigned to the project at Plaintiffs' expense. (G.E. 28 at 254 (27, lines 11-18).) Putting the landfill that Plaintiffs' proposed, and ultimately built, into this context is a helpful first step in understanding why the state and local permitting process was destined to be

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an extremely time consuming process that operated largely independent from the Section 404 permit process.

D.

The State and Local Permitting Process Proceeded Separately from the Section 404 Permitting Process

Plaintiffs' conclusory statements aside, no evidence has been presented which supports Plaintiffs' position that the Corps' 404 process somehow delayed the State and local permitting processes. Instead, Plaintiffs turn to the self-serving and obviously biased declarations of a former attorney and an employee to support their argument. As we now discuss, even these declarations do not fully support Plaintiffs' arguments; in addition they are contradicted by other evidence in the record. 1. The Declaration of Plaintiffs' Former Attorney Polly McNeill Does Properly and Fully Support Their Argument

Despite the fact that Plaintiffs argued in local administrative proceedings that the Section 404 process was "another, totally separate case and process," DSJ Ex. 80 at 768 (G.E. 41 at 314), they now contend that the 404 process delayed their State and local permitting efforts. However, the evidence offered in support of this argument is in part based on the declaration of Plaintiffs former attorney, Polly McNeill. PE 79. Putting aside for the moment the inherently biased nature of presenting a declaration from a party's attorney as "evidence," the declaration does no more than present conclusory statements from an obviously biased source with little citation to the record. Proffering a declaration such as this does not constitute specific facts showing a genuine

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issue for trial, as required by Fed. R. Civ. P. 56(e) to defeat a motion for summary judgment. See Fed. R. Civ. P. 56(e). A party may not rely on self-serving affidavits or declarations, unsupported by specific facts in the record, to defeat a motion for summary judgment. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1986); Evans v. Technologies Applications and Service, 80 F.3d 954, 962 (4th Cir. 1996) ("we generally consider self-serving opinions without objective corroboration not significantly probative"). The declaration is also contains highly speculative statements. For example, as discussed in more detail below, Ms. McNeill opined that the Plaintiffs would not have sought an appeal of the February 1993 Superior Court decision that validated the overturning of the original SEIS but for the Corps presence. PE 79 at 1006 (¶¶25, 26). In contradiction to Plaintiffs' current position, Ms. McNeill, indicated in her deposition testimony this matter that the Conditional Use Permit process and state EIS process proceeded on a separate track from the Corps Section 404 process. DSJ Ex. 92 at 797 (G.E. 59 at 388A.) Ms. McNeill further testified that during the pendency of the appeal of the State EIS to the Washington Supreme Court in 1993, the other state processes were not at a standstill. DSJ Ex. 92 at 799 (G.E. 59 at 383C). Indeed, Plaintiffs were working with the Health Department on moving their Solid Waste Permit application along. Id. In light of this evidence, it is difficult to make sense of Plaintiffs' theory that the Corps somehow held delayed the state and local processes. In her declaration, Polly McNeil accuses the Corps of "delay" and keeping Plaintiffs in "limbo." PE 79 at 1006 (¶¶ 25, 26). In truth, this time in "limbo" was, Ms McNeill acknowledged, necessary for the completion of ". . . lengthy studies on fishery resources, frog

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habitat and mitigation analysis." Id. (¶ 26). This contradicts Plaintiffs' repeated allusions that the Corps was sitting idly by, letting time pass. Plaintiffs' own evidence shows that the Corps was active during this period ensuring that all relevant and necessary studies of the proposed landfill were completed. Indeed, in communications at the time, Plaintiffs' agents praised the efforts of the Corps. See, e.g., PE 23, PE 79 at Ex. P. Moreover, these studies were relevant to both federal and State/local regulatory agencies' concerns. Indeed, the studies were conducted to address the "concerns identified by the resource agencies' comments. . . ." Id. at 1004 (¶ 20). Among the "resource agencies" requesting these studies was the Washington State Department of Ecology. PE 79 at 1070. 2. The Declaration of Plaintiffs' "Director of Regulatory Services" Jody Snyder Does Not Properly and Fully Support Their Argument

In support of their argument that the Corps' permitting process delayed their State and local permitting process, Plaintiffs cite to the declaration of Jody Snyder, LRI's "Director of Regulatory Services." Putting aside for the moment the inherently biased nature of presenting a declaration from a party employee as "evidence," the declaration does no more than present conclusory statements from an obviously biased source with little citation to the record. As discussed, offering such a declaration does not constitute specific facts showing a genuine issue for trial, as required by Fed. R. Civ. P. 56(e) to defeat a motion for summary judgment. See Fed. R. Civ. P. 56(e). A party may not rely on self-serving affidavits or declarations, unsupported by specific facts in the record, to defeat a motion for summary judgment. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1986); Evans v. Technologies Applications and Service, 80 F.3d 954, 962 (4th Cir. 1996). 17

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Further, another fundamental flaw with Plaintiffs' evidence, Ms. Snyder's statement about what officials "indicated" to her, is inadmissible hearsay. As the Federal Circuit has noted, "a report of the statement by the [local officials] is hearsay; it therefore does not satisfy the requirement of Fed. R. Civ. P. 56(e) that affidavits opposing summary judgment `shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters states therein.'" Scosche Indus., Inc. v. Visor Gear Inc., 121 F.3d 675, 680 (Fed. Cir. 1997) (citing Fed. R. Civ. P. 56(e)). In her declaration, Jody Snyder states that officials from the county and the TacomaPierce County Health Department ("County Health") "indicated to me that . . . it would be better simply to wait until the Corps finished its review before they moved on their own process." (P.E. 78 at 955-56 ¶25.) Beyond the hearsay problems with that statement, no time is given as to when this conversation supposedly occurred. This is particularly relevant because Jody Snyder did not become "Director of Regulatory Services" until "late 1993." PE 78 at 0948 (¶ 1). She apparently didn't start "pressing the County and the Health Department to move the permits forward" until 1994. PE 78 at 0956 (¶ 25). Thus, she has no relevant or competent testimony for events prior to late 1993 or early 1994. More importantly, from that point forward, she offers no statements alleging that the Corps meaningfully interfered or delayed the St