Ozark Materials River Rock, LLC v. David Benham

Whether the doctrine of primary jurisdiction under United States v. Western Pac. R.R. Co. 352 U.S. 59, 64, 77 S.Ct. 161 (1956) applies and the lower courts should have initially abstained from enforcement of a citizen suit under section 404 of the Clean Water Act because the claims contained questions and issues Congress intended for the Army Corps to address including a jurisdictional determination of wetlands (a JD) or a section 404 permit even though the Army Corps issued Letters of No Violation prior to the commencement of the suit. Whether the lower courts’ decisions are clear error when the testimonial admission of the citizen’s expert that he had no evidence to distinguish whether the deposition of gravel into the alleged wetlands was caused by Ozark or was deposited and filled in by natural causes such as the deposition of tons of rock and gravel from upstream flooding.