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United States v. Banks

ELR Citation: 28 ELR 20060
Nos. 95-5167, 115 F.3d 916/(11th Cir., 06/24/1997) Affirming district court decision

The court affirms a district court decision that a property owner violated the Federal Water Pollution Control Act (FWPCA) by discharging dredged material and fill into adjacent wetlands without a permit. The court first rejects the property owner's argument that the concurrent remedy rule should apply to bar the government's suit for equitable relief. Absent a clear expression of Congress to the contrary, a statute of limitation does not apply to claims brought by the federal government in its sovereign capacity. Because Congress did not expressly indicate otherwise in the FWPCA's language, and because the government is seeking to enjoin the property owner's discharges and to order wetlands restoration in its official enforcement capacity rather than seeking to vindicate private interests, the government's equitable claims are not barred. The court next upholds the district court's determination that the property owner's lands qualify as jurisdictional wetlands. Sufficient plausible evidence supports this conclusion. The court also holds that the district court's determination that the property owner's lands were adjacent wetlands was not clearly erroneous. The lands were found to have a hydrological and ecological adjacency to navigable waters. Last, the court holds that the property owner failed to show that any of his activities were authorized by nationwide permit 26.

[The district court's opinion is published at 25 ELR 20776.]

Counsel for Plaintiff
James S. Mattson
Mattson & Tobin
P.O. Box 586, Key Largo FL 33037
(305) 852-3388

Counsel for Defendant
Barbara K. Bisno, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Justice Bldg.
99 NE 4th St., Miami FL 33132
(305) 536-4471

Before Tjoflat and O'Neill,* JJ.