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United States v. Context-Marks Corp.

Citation: 14 ELR 20459
No. No. 82-5444, 729 F.2d 1294/20 ERC 2142/(11th Cir., 03/29/1984)

The court holds that application of the Corps of Engineers' revised Federal Water Pollution Control Act § 404 regulations to defendants' property would be retroactive and inappropriate, and that an order for partial restoration of filled wetlands is equitable under the circumstances. Because defendants' filling above the mean high-water line (MHWL) could have been completed legally if the Corps had not issued a broad cease and desist order in 1973, without determining the location of the MHWL, the court holds that application of the Corps' revised 1975 regulations, covering lands above MHWL, would be retroactive and inappropriate. The court notes that despite a history of nonenforcement of filling laws near defendants' property, the Corps cannot be estopped from seeking restoration of that part of the site filled illegally under the old regulations. The affirmative misconduct exception to the rule against estoppel of the government is not recognized in this circuit. However, restoration is an equitable remedy, properly granted only after examination of environmental factors and practicalities. The court holds that the court below weighed the proper factors and did not abuse its discretion by ordering only partial restoration. The district court did not hold the individual defendants liable for restoration, but the circuit could holds that there is no need to decide whether this is error, since the court below made restoration a condition for further development by either corporate or individual defendants.

Counsel for Plaintiff
Anne S. Almy, Maria A. Iizuka
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Counsel for Plaintiff-Intervenor
Paul Ezatoff
Dep't of Envtl. Regulation, 2600 Blair Stone Rd., Tallahassee FL 32301
(904) 488-9730

Counsel for Defendants
Joel D. Eaton
Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadows & Olin
1201 City Nat'l Bank Bldg., Miami Fl 33130
(305) 358-2800

Melissa F. Allaman
Ervin, Varn, Jacobs, Odom & Kitchen
P.O. Box 1170, Tallahassee FL 32302
(904) 224-9135

Before HILL and HATCHETT, Circuit Judges, and ALLGOOD*, District Judge.