No. 95-650L (Fed. Cl. 12/19/2008) (Margolis, J.)

Excerpt of case: Plaintiffs allege that the United States, acting through the Forest Service and the FWS, temporarily deprived them of a property interest and seek $22.5 million in just compensation. Specifically, plaintiffs claim that the Forest Service and the FWS failed to inform plaintiffs of a July 23, 1990 “no jeopardy” biological opinion until March 1992, in violation of federal regulations. Plaintiffs also claim that the Forest Service wrongfully initiated a biological consultation proceeding with the FWS regarding the potential effects of plaintiffs mining operations on the northern spotted owl in April 1992 and delayed in completing that consultation until February 1994, thereby depriving plaintiffs of their rights of use and enjoyment of their property during that period.

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United States v. Cundiff, Nos. 05-5469/5905; 07-5630 (6th Cir. Feb. 4, 2009)

In a case involving drainage of contaminated wetlands in Muhlenberg County, Kentucky into tributaries of the navigable Green River, the Sixth Circuit Court of Appeals upheld the lower court’s decision that the wetlands at issue were protected by the Clean Water Act under both Justice Kennedy’s “significant nexus” test and the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).  At issue in the case were two adjacent tracks of land containing wetlands polluted by acid mine drainage.  Just less than two hundred acres of polluted wetlands were drained by the Cundiffs, who dug extensive ditches and sidecasted the dredged material into the wetlands without a Clean Water Act permit.  The Cundiffs ignored multiple warnings by state and federal officials that there activities were illegal, and orders of compliance from EPA.