Ace Black Ranches CWA Case Dismissed

LINCOLN, Neb. (DTN) -- A federal court in Idaho dismissed a Clean Water Act lawsuit against Ace Black Ranches, ruling the U.S. Environmental Protection Agency failed to show alleged wetlands on the property have a continuous surface connection to navigable waters.

The court, however, gave the EPA 30 days to file an amended complaint, meaning the complaint is due by Sept. 28, according to the ruling from the U.S. District Court for the District of Idaho.

In the ruling, the court cited the Supreme Court's ruling in the Sackett case, https://www.dtnpf.com/….

The Bruneau, Idaho-based Ace Black Ranches filed a motion to dismiss the case in April 2024, arguing the government failed to comply with the Sackett ruling.

EPA alleged the ranch made several alterations to the Bruneau River and surrounding wetlands, as part of a sand and gravel operation. The agency alleged the ranch had been operating without a Clean Water Act dredge-and-fill permit.

"In relevant part, the government's complaint alleges on numerous occasions that Ace Black Ranches discharged pollutants into the river and 'adjacent wetlands,'" the court said in its ruling.

"From the court's own estimations, the term 'adjacent wetlands' is used at least 29 times in the complaint. Although the government certainly asserts that these wetlands fall under the scope of the act, nowhere does the government specify that these wetlands have a continuous surface connection with the river to be considered indistinguishable from the river, satisfying the adjacency test. Although the court must accept the government's complaint as true at this stage, 'unwarranted inferences will not defeat an otherwise proper 12(b)(6) motion to dismiss.' Simply put, the court agrees with Ace Black Ranches. The government's pleadings are not sufficiently clear, and the reader must infer that 'adjacent wetlands' are at issue here and, accordingly, fall under the scope of the act without further information or justification."

EPA said in the complaint that the ranch operated by Terry and Telby Black used "heavy machinery" to "clear and level" dozens of acres of wetlands to install roads and center-pivot irrigation systems.

The complaint alleges pollution discharges occurred not only on the ranch but on neighboring parcels of privately owned and state-owned land, including a portion of the nearby C.J. Strike Wildlife Management Area.

The court said in its ruling EPA will need to provide specifics in an amended complaint.

"Lingering questions abound," the court said.

"Which wetlands are at issue? Do those wetlands currently maintain a surface connection with the river? Did they at some point maintain a surface connection to the river? How are the wetlands indistinguishable from the river? Similar questions arise regarding Ace Black Ranches' mining operation. The government asserts that during discovery it will be able to flesh these issues out, gather additional evidence and clear up any confusion. But as the court has noted before, 'this approach is incorrect and puts the discovery cart before the pleading horse.'"

The court said the deficiencies in EPA's complaint "could be cured.

"Ace Black Ranches itself recognizes that, per Ninth Circuit caselaw, the court will likely give the government an opportunity to amend."

According to EPA's original complaint, the ranch faces civil penalties of up to $66,712 per day per violation.

The agency said in the lawsuit that ranch owners initially agreed to join the EPA and the U.S. Army Corps of Engineers on a visit to inspect the ranch on May 18, 2021.

On May 17, 2021, however, the ranch instead filed a complaint and a motion for preliminary injunction in the U.S. District Court for the District of Idaho to prevent the agencies from entering the ranch.

That court action was dismissed in February 2022, according to the lawsuit. EPA obtained an administrative warrant in May 2021 and inspected the ranch for the first time from June 14 to June 16, 2021. The agency conducted another inspection from April 24 to April 28, 2023

Read more on DTN:

"Ranch Presses Court to Follow Sackett," https://www.dtnpf.com/…

"SCOTUS Sides With Sacketts in CWA Case," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on social platform X @DTNeeley

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