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Hartford Assocs. v. United States

ELR Citation: 22 ELR 20881
Nos. No. 91-4585, 792 F. Supp. 358/(D.N.J., 03/30/1992)

The court holds that a corporation and its principals are not entitled to a preliminary injunction preventing the United States from investigating and bringing a criminal action against them for alleged violations of §404 of the Federal Water Pollution Control Act (FW-PCA) on farmland owned by the corporation in Maryland. The corporation conducted drainage improvement activities on a part of the land that the government characterized as a tributary whose waters ultimately flow into the Chesapeake Bay. The Army Corps of Engineers (the Corps) directed the corporation to stop its drainage improvement activities, and a Corps ecologist advised it to either restore the site or litigate the matter. The corporation restored the site. Federal agents subsequently searched the corporation's offices in New Jersey and seized documents found there.

The court first holds that it lacks authority to issue the requested injunction based on the government's alleged failure to comply with the Johnston Amendment, which allows landowners involved in ongoing Corps enforcement actions to opt for wetlands delineation under the 1987 or 1989 federal manuals for identifying and delineating wetlands. The government's alleged noncompliance may be raised by the plaintiffs as a defense, in the event that the government chooses to pursue a criminal indictment against them. The court holds that the plaintiffs' claims are not ripe for review, since they are based on contingent future events. The court holds that the plaintiffs do not have a reasonable likelihood of success on the merits in challenging the search of their offices, because probable cause for the search was based on the observations of a federal agent and an informant that there was reason to believe that the wetlands on the corporation's property had been filled in violation of the FWPCA. Further, the warrant sufficiently described the place to be searched and was tailored to permit only the seizure of specific categories of business records. The judge issuing the warrant included a procedure to preclude unnecessary invasion of the attorney-client privilege of the corporation counsel's clients. The court holds that there is no basis to believe that the plaintiffs will be irreparably harmed by following this procedure.

The court next holds that the plaintiffs are not likely to succeed in their claim that the government is precluded from pursuing an enforcement proceeding against them due to its alleged failure to follow the procedural mandate of the Johnston Amendment. They may only raise the government's alleged failure to comply with the Johnston Amendment as a defense to an indictment, and there is no basis, other than their own assertions, to find that the Johnston Amendment is a precondition to bringing an enforcement action under the FWPCA. Further, the court finds that the government analyzed data collected on the corporation's land under the criteria of both the 1987 and 1989 manuals. Addressing the plaintiffs' argument that they have a reasonable probability of success on their claim that the corporation's activities were exempt under FWPCA §404(f), the court holds that the certification of a Corps ecologist opposes the plaintiffs' reliance on §404(f)'s agricultural exemption and refuses to decide whether the government is estopped from denying the applicability of the exemption based on prior litigations involving other property of the corporation. The court further holds that there is no authority to support the plaintiffs' position that the government may not bring an action for an FWPCA violation notwithstanding restoration of the property.

The court defers addressing the plaintiffs' claim that the FWPCA is unconstitutional as applied to them, since permitting the government to proceed and the plaintiffs to raise their constitutional claims as defenses is preferable to deciding such an issue on the abbreviated record before the court. The court holds that the threat of irreparable injury is not such as to warrant injunctive relief, since the case is in the investigative stage and the defendants may choose not to proceed against the plaintiffs. Also, the plaintiffs have alternative remedies. The court holds that the balance of harms favors the government, because the government's law enforcement efforts would be impaired by an injunction. Finally, the court holds that there is no reason to grant the plaintiffs' request for the return or in camera review of the documents by the government in view of the procedures set forth in the original search warrant.

Counsel for Plaintiffs
Carl Poplar
1010 Kingshighway S., Cherry Hill NJ 08034
(609) 795-5560

Counsel for Defendants
Thomas Crawford
300 N. Cooper Rd., Berlin NJ 08009
(609) 768-9200