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January 3, 1992

LESLIE SALT CO., a Delaware corporation, Plaintiff,
UNITED STATES OF AMERICA; JOHN O. MARSH, et al., Defendants. UNITED STATES OF AMERICA, Plaintiff, v. LESLIE SALT CO., a Delaware corporation; CARGILL INC., a Delaware corporation, Defendants.

The opinion of the court was delivered by: CHARLES A. LEGGE


 These consolidated cases are before this court on remand from the United States Court of Appeals for the Ninth Circuit. Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990) cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991). This court was directed to make two determinations on remand. One is whether the former salt crystallizers and calcium chloride pits on the property have a sufficient connection with interstate commerce to be under the jurisdiction of the Clean Waters Act as "other waters" of the United States. Id. at 360. Second, the appellate court determined that some of Leslie's property met the standards for jurisdiction under the Clean Water Act. But because that jurisdiction did not extend to all of the property, the Ninth Circuit remanded for a determination by this court of the portions of property which are subject to the jurisdiction of the act. Id. at 360-61.


 After remand, the parties agreed that these decisions would be made based upon the transcript of the first trial, together with certain additional briefs and exhibits, without the necessity for additional testimony. The parties then filed designations of the exhibits, the transcript references which they believed to be relevant and material, further briefs, and maps of the property showing their contentions about the extent of jurisdiction. They agreed that some portions of the property were within or without Clean Water Act jurisdiction, but some remained disputed. Oral argument was held and the case was submitted for decision.


 This court has reviewed the opinion of the Ninth Circuit, the transcript of the first trial, the exhibits designated by the parties, the briefs of the parties, and the maps submitted by the parties. This order, together with the map which has been drawn by the court and is attached to this order, constitutes the findings of fact and conclusions of law of this court pursuant to Rule 52(a) of the Federal Rules of civil Procedure. The findings are made by a preponderance of the evidence.

 The maps submitted by the parties contain irregular shapes, and can only be compared with one another by the use of overlays. The portions of the property cannot be described verbally, either by reference to plot numbers, acreage or metes and bounds. Visual rather than verbal delineations are therefore necessary. For that reason, this court's decisions as to the portions of Leslie's property that are subject to Clean Water Act jurisdiction are delineated on the attached map.


 Decisions regarding the extent of "other waters" of the United states require a two-step process.

 First, the court must determine the areas that are ponded. The Ninth Circuit said that, "The Corps' determination that the crystallizers and calcium chloride pits are . . . seasonal bodies of water within the meaning of the regulations is proper." Leslie Salt Co., 896 F.2d at 360. However, the crystallizers are large geographic bodies, and the Court of Appeals did not state or imply that because seasonal waters must be considered, the entire crystallizers must be included. Indeed, the whole point of the remand was for this court to determine the portions of the property over which the Corps had jurisdiction in view of the circuit's legal conclusions. Id. at 361. And on remand the Corps does not contend that all of the crystallizers are subject to jurisdiction. This court's responsibility is to accept that seasonal waters meet the jurisdictional requirement, but nevertheless to determine where those seasonal waters are.

 The second step is to determine whether those areas have a sufficient tie to interstate commerce, because of their use as a habitat by migratory birds or other endangered species. Id. at 360. On remand, Leslie made certain concessions regarding which areas were ponded, primarily in the calcium chloride pits, but did not concede that those areas were "other waters."

 This court has delineated on the map attached to this order the areas of the crystallizers and calcium chloride pits which it concludes meet the Ninth Circuit's test of "seasonal bodies of water." And this court finds that based upon the evidence presented, those areas have a connection to interstate commerce as defined in 51 C.F.R. §§ 41206, 41217 (1990). That evidence need not be discussed in this ...

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