United States v. Baker

No. 70 Civ. 2773 (S.D.N.Y. July 29, 1971)

Preliminary injunction granted to halt further filling by the New York National Guard and to remove all present filling of wetland marsh adjoining military camp. The federal court has jurisdiction because the tidal marsh is within the navigable waters of the United States under the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. The values of the area in its original wetlands condition are the ecological values, which were intended to be protected by the Rivers and Harbors Act and other more recent legislation, the economic values, because the wetlands help cleanse the ecological system of the river itself, the wildlife values, including spawning fish, nesting birds and unique plant life, and the educational values. The public is being irreparably harmed by the continuation of the fill in the marsh.

Counsel for Plaintiffs;
Whitney North Seymour, Jr. United States Attorney
Ross Sandler Assistant United States Attorney
United States Courthouse
Foley Sq.
New York, N.Y. 10007
(212) 264-6535

Counsel for Defendants:
Louis J. Lefkowitz Attorney General
Thomas Harrison Assistant Attorney General
80 Centre St.
New York, N.Y. 10013
(212) 488-4141

[1 ELR 20379]

Lasker, D.J.

The court: Gentlemen, I am ready to announce my decision in this matter.

This is an application for a preliminary injunction by the United States of America against Major General John C. Baker as Chief of Staff to the Governor, and I guess that means as an officer of the National Guard of the State of New York. It seeks an injunction to prevent the General and his subordinates from putting any more fill in a wetland marsh adjoining Camp Smith, New York, and mandatorially to enjoin and order him and his subordinates to take all steps necessary to remove all of the scrap wood, masonry, rubble, earth and other varieties of fill which the defendants had placed into the Camp Smith tidal marsh, as the area is described in the order to show cause on this motion.

The case was initiated by the filing of the complaint and the signing of an order to show cause by Judge McLean on June 23, 1971, returnable June 29th, asking for the preliminary injunction.

The matter, as I understand it, was adjourned on the consent of the government from June 29, 1971 until July 27, 1971.

I believe that the United States Attorney indicated in argument on the motion in open court on July 27th that the adjournment was based in part, if not in whole, on the sworn statement submitted by Colonel Arthur Sulger, a codefendant of General Baker's, which states, in part, that "Further, defendants unequivocally state that their intent is and has since the cessation of fill in March been to remove such material — the precise relief sought by the plaintiff."

The issues in the case do not seem to involve the facts, as I read it. There is no dispute about the fact that defendants have committed the acts specified nor does there seem to be any dispute about the fact that the area in question is a wetland marsh or that it is a tidal area, and I find, as I will indicate later, that as a matter of law the area is within the navigable waters of the United States.

The disputes, as I understand them, between the defendants and the government relate to the question of whether this court has jurisdiction, and, if it does have jurisdiction, as to what relief should be granted on the application.

It is the government's position that it is necessary to issue the injunction at the present time and to include the mandatory provisions in order to save the wetland marsh area in question.

It is the State's position that since the State presently, according to its counsel, does not have funds specifically allocated for the purpose of correcting the situation, it ought not to be ordered by the Federal Government to take action immediately.

I deal first with the question of jurisdiction. I find that the Court does have jurisdiction of the subject matter, and there is no issue of jurisdiction of the person.

Under Section 10 of the Act with which we are dealing, which is the Rivers and Harbors Act of 1899, Section 403, Title 33, the Courts have jurisdiction to deal with matters which affect the navigable waters of the United States.

I am persuaded by the affidavits in support of the motion and by the arguments put forward in the Government's brief and the cases cited therein that these waters, being tidelands which are defined by determining whether the water within the area is equal in ebb and flow to that of the river which is concededly navigable, that under those circumstances the waters are considered navigable waters within the statute and within the Constitution and that the Court has jurisdiction to redress the grievances of the Government which arise under the Act referred to.

I come, therefore, to the question of relief. In the first place, we deal with the question of whether an injunction ought to issue under any circumstances. The classic criteria of the determination of that question are whether the moving party, which in this case is the plaintiff, will probably succeed, and even if it will probably succeed at trial whether it is being irreparably harmed pendente lite.

On the first question, that of probable success, there seems to be absolutely no question that the Government will succeed at trial if it has to go to trial on the question of irreparable harm. I find that the Government has established that it is being irreparably harmed and that the public is being irreparably harmed by the continuance of the present condition.

In the first place, there is no doubt about the value of the area in its original wetlands condition, that is, the value of having it in that condition. There are ecological values which are intended to be protected by the Act which confers jurisdiction here and by recent Acts enacted by the Congress which are referred to in the papers of the Government.

There is educational value to the wetland condition of the area as is established by the affidavit in support of the motion on the part of educators who have actually used the marsh for that purpose and others whose backgrounds are such as to make it clear that there is such value. There is economic value to the wetlands which, as I understand it from the papers — this is undisputed — help to cleanse the ecological system of the river itself. One of the affidavits indicated that such a cleansing system may be valued at something between $10,000 and $30,000 a year. There are values as to wildlife which, of course, fall within the ecological subhead that I have mentioned but which should be specified, namely, certain types of fish which spawn and breed in the area — I recall shad and I think bass, but I'm not sure of the latter — which have economic value in themselves. There are other types, birds which nest in the area, and there are various forms of plant life which can only be found in such areas.

There is no doubt, to proceed to a further factor, that the marsh has been damaged by the fill and that if it were to continue in its present condition the damagewould be literally irreparable.

Furthermore, the affidavit of Mr. Buckley, I believe it is, in support of the motion offers the opinion, which is not refuted, that if the fill is left in the marsh it will be impossible to revive the ecological characteristics of the marsh after the end of August, 1971. That is about one month from now.

I find it perfectly reasonable to believe that since the fill has been in the marsh since March, 1971 the marsh would certainly be dead unless the fill were rapidly removed.

Under all these circumstances I find there is no reason to hold a hearing on this subject and the application of the Government for a preliminary injunction is granted.

Now, I do understand the problems which the State faces.I think that the Government indicated in argument that it was prepared to permit the State to put before the Court such proposals as it has to work out this problem as equitably as possible, and I would suggest, Mr. Harrison, addressing my remarks to you as the counsel for the State, that you try to work with Mr. Sandler to work out an order here, but if you are unable to agree on one you are free to submit a counterorder and I will give it consideration, bearing in mind your argument.

My statements in open court constitute the required findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure.