Leslie Salt Co., a Delaware Corporation Cargill, Inc. v. United States

We must decide whether to revisit an issue previously resolved by this court — whether isolated, seasonally dry intrastate waters used only by migratory birds are within the regulatory reach of the Clean Water Act. We also decide whether, in the event of violations of the Act, civil fines are mandatory or discretionary.

I

Cargill, Inc., the corporate successor to Leslie Salt Co., owns a 153-acre tract of land southeast of San Francisco. The property abuts the San Francisco Bay National Wildlife Refuge and lies near Newark Slough, a tidal arm of San Francisco Bay. A road divides the property into a 143-acre parcel and a 10-aere parcel. Until 1959, Leslie Salt used the property for salt manufacturing. The eastern part of the 143-acre parcel still contains pits that were used to collect calcium chloride, and the western part contains shallow basins that were used for crystallizing salt.

This appeal centers on 12.5 acres out of the 143-acre parcel, on which the former crystallizers and calcium chloride pits still he. *1391 During much of the year, these areas are dry. During the winter and spring, however, rainwater creates temporary ponds. Migratory birds use these ponds for…

dissenting in part:

I respectfully dissent from Part IV of the majority opinion.

Section 309(d) of the Clean Water Act (“the Act”) provides:

33 U.S.C. § 1319 (d) (emphasis added). The majority reads this language to mean that civil penalties are mandatory for proven violations of the Act. If section 309(d) had provided “Any person who violates ... shall pay a civil penalty,” I would readily agree with the majority’s interpretation. However, it does not so provide, and we cannot ignore the three words following the word “shall.” To do otherwise “violates the settled rule that a statute must, if possible, be construed in such a fashion that every word has some operative effect.” United States v. Nordic Village, Inc., 503 U.S. 30, 35 , 112 S.Ct. 1011, 1015 , 117 L.Ed.2d 181 (1991).

Section 309(d) did not use the words “shall pay”; it used the words “shall be subject to.” The latter phrase is synonymous with “shall be liable to” or “shall be answerable to.” Black’s Law Dictionary 1278 (5th ed. 1979). Read literally, the section merely states that a violator is liable to be assessed a civil penalty, not that he or she must be. In *1398 other words, civil penalties are…

55 F.3d 1388 40 ERC 1865 , 63 USLW 2746 , 25 Envtl. L. Rep. 21,046 LESLIE SALT CO., a Delaware corporation; Cargill, Inc., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 93-15932. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 14, 1994. Decided May 22, 1995. Edgar B. Washburn, Washburn, Briscoe & McCarthy, San Francisco, CA, for plaintiffs-appellants. David C. Shilton, U.S. Dept. of Justice, Washington, DC, for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before LAY, * PREGERSON, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether to revisit an issue previously resolved by this court--whether isolated, seasonally dry intrastate waters used only by migratory birds are within the regulatory reach of the Clean Water Act. We also decide whether, in the event of violations of the Act, civil fines are mandatory or discretionary. 2 * Cargill, Inc., the corporate successor to Leslie Salt Co., owns a 153-acre tract of land southeast of San Francisco. The property abuts the San Francisco Bay National Wildlife Refuge and lies near Newark…