Watkins et al v. Lawrence County, Arkansas et al

Filing 12

ORDER partly granting and partly denying 3 Motion. Watkins's Clean Water Act claim is dismissed with prejudice and his damages on other claims are limited to those within the statutes of limitation. Watkins must file an amended complaint by 5/4/2018. Lawrence County must respond by 5/23/2018. Signed by Judge D. P. Marshall Jr. on 4/11/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CLEO WATKINS; PYLES FAMILY FARMS
LLC; VICTOR HUTCHERSON; ALVELLA
HUTCHERSON; HELEN KNIGHT;
MICHAEL WATKINS; BETTY WATKINS;
and GEORGE CARNEY

v.

PLAINTIFFS

No. 3:17-cv-272-DPM

LAWRENCE COUNTY, ARKANSAS;
JOHN THOMISON, in his official capacity
as County Judge of Lawrence County,
Arkansas; and WILLIAM POWELL, DONALD
RICHEY, LLOYD CLARK, HEATH DAVIS,
ERNEST BRINER, RONALD INGRAM,
TRACY MOORE, KENNY JONES, and
ALEX LATHAM, all in their official
capacities as members of the Lawrence
County Quorum Court

DEFENDANTS

ORDER
Watkins and the other plaintiffs are farmers in Craighead County,
Arkansas. They've sued Lawrence County and its leaders over a bridge
that Lawrence County built in the early 2000s. It crosses the West Cache
River Slough near the Lawrence/Craighead County line. Watkins and
the farmers allege that Lawrence County improperly built this bridge.
They also allege that Lawrence County hasn't properly maintained it,
violating an after-the-fact§ 404 permit issued by the Army Corps of

Engineers. Because of this, Watkins and the farmers say, the bridge has
turned into a de facto dam that causes frequent- and increasingly
severe-flooding over their property. They've pleaded five counts:
violations of the Clean Water Act; public nuisance under Arkansas law;
declaratory judgment; inverse condemnation under federal and state
law; and violations of 42U.S.C.§1983. They seek injunctive relief, as
well as damages. Lawrence County has moved to dismiss. It argues
that the Clean Water Act doesn't provide a private right of action here
and that the relevant statutes of limitation bar this suit. Both sides have
filed crisp and clear papers.
Clean Water Act. The Clean Water Act doesn't authorize a citizen

suit in these circumstances. Watkins argues that these suits exist to
redress violations of this Act. He's right. But 33 U.S.C. § 1365(a)(l)
limits citizen suits to those involving an

/1

effluent standard or

limitation." For example, § 1365(£) lists National Pollutant Discharge
/1

Elimination System permits when it defines an effluent standard."
These permits are issued by the EPA under§ 1342(a), or by states under
§ 1342(b) ?nd § 1311(a). The Court of Appeals' recent opinion in
City of Kennett v. EPA, No. 17-1713 (8th Cir. 9 April 2018), addressed a

challenge to one of these effluent permits. Watkins' s case, though,
/1

concerns a § 404 dredge or fill" permit issued by the Corps under
§ 1344.

His claims aren't about effluent;

maintenance and silt accumulation.
-2-

they' re about bridge

Watkins notes that § 1311 mentions silt discharge and refers to
§ 1344. He says that this mention and reference, added to the Clean

Water Act's general intention to protect our water, shows that § 1365
applies to § 404 permits. The Court disagrees. First, § 1365(£) defines
"effluent standard" on its own. Its words matter. Second, Congress
differentiated between pollution issues (§ 1342) and navigation issues

(§ 1344) when it passed the Clean Water Act. Different permitting
schemes exist because effluent and dredging are different animals.
Third, even under Watkins's combined reading of 33 U.S.C. §§ 1365(a),
1365(£)(1), 1311(a), and 1344(a), there's probably still an effluent
requirement. Section 1311(a), for example, covers "the discharge of any
pollutant by any person."
There's no controlling precedent from the United States Court of
Appeals for the Eighth Circuit. Though the issue was floating in the
background, Sierra Club v. United States Army Corps of Engineers,
645 F.3d 978 (8th Cir. 2011) is about citizens' standing to challenge a
§ 404 permit in a suit against the Corps and a utility. Watkins and the

other farmers aren't challenging the Corps' permit to Lawrence
County.

·The most persuasive precedent on point is Atchafalaya

Basinkeeper v. Chustz, 682 F.3d 356 (5th Cir. 2012) (per curiam), which this

Court will follow. The Court is not persuaded by Citizens' Alliance for
Property Rights v. City of Duvall, 2014 WL 1379575 (W.D. Wash. 2014).

-3-

Limiting citizen suits to effluent makes sense. The limitation
allows citizens to pursue redress for health issues while reserving other
issues - like infrastructure, navigation, and dredging- to the Corps.
This arrangement follows the traditional framework for navigable
waters, with marginal alterations that enable private vindication of
public health. Here, there's no effluent or effluent standard in play.
Lawrence County's § 404 permit isn't challenged. And the County's
alleged violations of that permit aren't covered by § 1365.
Statutes of Limitation.

Watkins's claims are timely.

The

construction of the replacement bridge was not necessarily injurious.
St. Louis Iron Mountain & Southern Railway Company v. Biggs,

52 Ark. 240, 244, 12 S.W. 331, 331 (1889). The alleged injuries came later
in the form of flooding, silt accumulation, and inadequate maintenance.
Plus, these injuries are recurring. Arkansas Game and Fish Commission v.
United States, 568 U.S. 23, 31-34 (2012). Every time there's a flood,

there's a new injury. And Watkins says that this flooding will continue.
So injunctive relief is available. Montin v. Estate of Johnson, 636 F.3d 409,
415-16 (8th Cir. 2011). The precise scope of any such relief is an issue
for later in the case.
Damages aren't barred, either. Biggs, 52 Ark. at 244. Instead,
they' re limited to injuries sustained within the relevant statutory time
periods. Consolidated Chemical Industries, Inc. v. White, 227 Ark. 177, 179,
297 S.W. 101, 102 (1957). Lawrence County asks, in its fallback position,
-4-

that the Court require Watkins to re-plead specific incidents and exact
damages within these time periods. NQ 7 at 2-3. This embedded request
is partly granted and partly denied. Watkins must clarify the farmers'
claims for damages and give notice about injuries sustained within the
statutory periods. At this stage, though, there's no way to know exact
damages. Precise calculations will come after discovery. NQ 8 at 1-3;
NQ 10; NQ 11 at 2.

*

*

*

Lawrence County's motion, NQ 3, is partly granted and partly
denied. Watkins' s Clean Water Act claim is dismissed with prejudice
and his damages on other claims are limited to those within the statutes
of limitation. Watkins must file an amended complaint by 4 May 2018.
FED.

R. CIV. P. 15(a)(2). He must clarify the timing of his and his fellow

landowners' alleged injuries. And he should put some more meat on
the bones of his § 1983 claims. Lawrence County must respond by
23 May 2018.

FED.

R. CIV. P. 15(a)(3).

So Ordered.
D.P. Marshall Jr.
United States District Judge
It

-5-

4rvJ

(}._Q

l8