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United States v. Ciampitti

ELR Citation: 18 ELR 20419
Nos. No. 83-4004, 669 F. Supp. 684/26 ERC 2026/(D.N.J., 09/22/1987)

The court holds a developer in civil contempt for violating a court order by failing to conduct restoration activities in a wetlands area and by placing additional fill in the area, and for violating a consent order requiring removal of sidewalks built in the wetlands. The court first holds that the United States has made a prima facie showing that defendant failed to comply with the removal and restoration provisions of the court order, that defendant has engaged in additional fill activities in violation of the court order, and that defendant violated the consent order by failing to remove the sidewalks.

The court holds that defendant's noncompliance is not excused by the fact that a substantial portion of the land required to be restored under the court order was owned by other people. Defendant was responsible for placement of the fill in these areas and never requested permission from the other property owners to remove the fill. The existence of public utilities at the site does not excuse defendant's noncompliance, since defendant never contacted the utilities. The court holds that the Corps of Engineers' alleged awareness of defendant's illegal filling and its failure to take any action does not excuse defendant's noncompliance. Defendant had an independent obligation to cease his fill activities under the court order, regardless of the Corps' enforcement efforts. Further, there is no evidence that the Corps knew of the illegal fill activities until after they occurred. The court holds that defendant's noncompliance is not excused by the Corps' alleged failure to meet with him about the restoration plan. Such a meeting was not necessary for defendant to comply with the court order and, even if it was, defendant was responsible for the fact that no meeting was held.

The court holds that coercive sanctions are appropriate given defendant's repeated, flagrant violations of the court orders, his deception of state officials to obtain a state coastal development permit, and his sale of property to innocent purchasers without informing them that the land and structures encroached on wetlands. The court orders defendant to remove all fill he placed on the wetlands within 30 days, except for properties transferred to innocent bona fide purchasers, to submit a revised restoration plan within 30 days, and to pay a $2,000 fine for each day he violates the court order. The court holds that the United States is entitled to an award of attorney fees it incurred in bringing this contempt motion. The court also imposes a $235,000 civil penalty on defendant under Federal Water Pollution Control Act §309(d).

Counsel for Plaintiff
James C. Woods, Special Ass't U.S. Attorney
Federal Bldg., 970 Broad St., Room 502, Newark NJ 07102
(201) 645-2155

Counsel for Defendant
Alfred A. Porro Jr.
Porro & Porro
10 Stuyvesant Ave., Lyndhurst NJ 07071
(201) 438-1923