United States of America v. Bunn et al

Filing 22

ORDER granting 20 Motion for Consent Decree - the Court will enter the consent decree by separate order. Signed by Judge Dana L. Christensen on 11/19/2020. (CDH)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

UNITED STATES OF AMERICA,
CV 20–107–M–DLC
Plaintiff,
vs.

ORDER

PAUL BUNN and SNYDER
LOGGING AND LANDSCAPING,
LLC,
Defendants.
Before the Court is the United States’ Unopposed Motion to Enter Consent
Decree. (Doc. 20.) The United States requests the Court enter a partial consent
decree after reaching settlement with Defendant Snyder Logging and Landscaping,
LLC. (Id. at 2.)
BACKGROUND
The United States commenced this action under 33 U.S.C. § 1319(b) and (d)
of the Clean Water Act alleging that Paul Bunn and Snyder Logging discharged
pollutants into waters of the United States without authorization. (Doc. 1 at 2.)
The Complaint alleged that Mr. Bunn hired Snyder Logging for earthmoving work
related to several ponds he wanted to build on his property. (Id. at 3.) Snyder
Logging is alleged to have discharged dredge or fill material from Mr. Bunn’s

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property into a wetland adjacent to the Yaak River. (Id. at 5–7.) The United States
contends that these wetlands are “waters of the United States” within the meaning
of the Clean Water Act. (Id. at 8.) Neither Mr. Bunn nor Snyder Logging obtained
any permits to perform this work. (Id. at 6.)
DISCUSSION
The United States moves the Court for entry of a partial consent decree.
(Doc. 20.) Consistent with 28 C.F.R. § 50.7, the United States posted the partial
consent decree for public comment from October 5, 2020 through November 4,
2020 and received no comments. Neither Mr. Bunn nor Snyder oppose its entry.
(Id. at 2.)
A consent decree is “not a decision on the merits or the achievement of the
optimal outcome for all parties, but is the product of negotiation and compromise.”
United States v. State of Oregon, 913 F.2d 576, 580 (9th Cir. 1990). Consent
decrees “encourage[e] informal resolution of disputes, thereby lessening the risks
and costs of litigation.” SEC v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984).
The decision to enter a proposed consent decree falls within the district
court’s discretion. Oregon, 913 F.2d at 580. A court evaluates the proposal to
ensure its terms are “fundamentally fair, adequate and reasonable,” id., considering
both procedural and substantive fairness, United States v. Chevron U.S.A., Inc.,
380 F. Supp. 2d 1104, 1111 (N.D. Cal. 2005). Additionally, the consent decree

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“must conform to applicable laws” although it “need not impose all the obligations
authorized by law.” Oregon, 913 F.2d at 580.
A court’s review of the terms should be informed by the public policy
favoring settlement, giving deference “where the decree has been negotiated by the
Department of Justice on behalf of an agency[.]” Chevron, 380 F. Supp. 2d at
1111 (citing United States v. Comunidades Unidas Contra La Contaminacion, 204
F.3d 275, 280 (1st Cir. 2000)). On the other hand, a court must independently
evaluate the decree to avoid giving it “rubber stamp approval.” United States v.
Montrose Chem. Corp. of Cal., 50 F.3d 741, 747 (9th Cir. 1995) (quoting City of
Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir. 1974)). For the following
reasons, the Court finds that the proposed consent decree is both procedurally and
substantively fair and consistent with the purpose of the Clean Water Act.
I.

Procedural Fairness
The first step is to determine whether the proposed consent decree is

procedurally fair. Courts evaluating procedural fairness look to determine whether
the negotiation process was “full of adversarial vigor.” United States v. Pac. Gas
& Elec., 776 F. Supp. 2d 1007, 1025 (N.D. Cal. 2011) (quoting United States v.
Telluride Co., 849 F. Supp. 1400, 1402 (D. Colo. 1994)). A decree that is the
product of “good faith, arms-length negotiations,” is “presumptively valid[,]”
Oregon, 913 F.2d at 581, so long as no collusion has taken place, Pac. Gas &

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Elec., 776 F. Supp. 2d at 1025 (citing United States v. Colorado, 937 F.2d 505, 509
(10th Cir. 1991)).
Here, the proposed consent decree is the result of months of adversarial
negotiations between the United States and Snyder logging, both of whom were
represented by counsel. (Doc. 20 at 7.) These negotiations provided both parties
with the opportunity to evaluate the strengths and weaknesses of each other’s
cases. And there is no evidence of collusion. Therefore, the decree is procedurally
fair.
II.

Substantive Fairness
The second step requires the Court to assess whether the terms are

substantively fair. The question is not whether “the settlement is one which the
court itself might have fashioned or considers ideal.” Pac. Gas & Elec., 776 F.
Supp. 2d at 1025 (citing United States v. Cannons Eng’g Corp., 899 F.2d 79, 84
(1st Cir. 1990)). Instead, the “court’s approval is nothing more than an amalgam
of delicate balancing, gross approximations and rough justice.” Oregon, 913 F.2d
at 581 (internal quotations omitted). “The court need only be satisfied that the
decree represents a reasonable factual and legal determination.” Id. (internal
quotation omitted).
The proposed consent decree requires Snyder Logging to pay a civil penalty
of $10,000 to the United States but does not require it to perform any restoration

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work on Mr. Bunn’s property. (Doc. 20 at 5.) This penalty is fair and reasonable
given that Snyder Logging is not the owner of the property but was hired to
perform the earthmoving work. The $10,000 penalty represents a significant
portion of the proceeds Snyder Logging was paid for the work. Although the
United States initially sought a higher penalty, this payment is a reasonable
settlement figure reflective of the effort saved by avoiding trial and inherent risks
of trial. Moreover, the consent decree does not resolve any of the claims against
Mr. Bunn which are still outstanding.
III.

The Clean Water Act

The final step requires the Court to determine whether the consent decree is
consistent with the purpose of the Clean Water Act, “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). The Clean Water Act’s civil penalty provision is designed to provide
specific and general deterrence. Ecological Rights Foundation v. Pacific Lumber
Co., 230 F.3d 1141, 1153 (9th Cir. 2000).
Here, imposing a civil penalty is consistent with the deterrent aims of the
Clean Water Act. Accordingly,
IT IS ORDERED that the Motion (Doc. 20) is GRANTED. The Court
Court will enter the consent decree by separate order.
DATED this 19th day of November, 2020.

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