United States v. Lofgren

No. 82-74063 (E.D. Mich. November 30, 1982)

The court grants the United States' application for a preliminary injunction against fill activities in Lake Huron conducted without a permit in violation of § 10 of the Rivers and Harbors Act and § 404 of the Federal Water Pollution Control Act. Initially, the court rejects defendants' interpretation of the Supreme Court's decision in Weinberger v. Romero-Barcelo, 12 ELR 20538. The court rules that there need not be a clear showing of irreparable injury to the United States and of the inadequacy of legal remedies for an injunction to issue, nor will an injunction issue merely upon application of the agency. Instead, it rules, courts must consider the public interest in exercising their equitable discretion.

In conclusion, the court enjoins defendants' fill activities because it finds that (1) the United States has demonstrated a strong likelihood of success on the merits, (2) the United States has shown irreparable injury to the permit process and from existing fill activities, (3) there is no substantial harm to defendants that was not self-inflicted, and (4) the public interest in the integrity of the permit process will be served by issuance of the injunction.

Counsel for Plaintiff
Geneva S. Halliday, Michael Hluchaniuk, Ass't U.S. Attorneys
817 Fed. Bldg., Detroit MI 48226
(313) 226-2163

Counsel for Defendants
Michael J. Hackett
Lyon, Mellow & Hackett
P.O. Box 248, Cheyboygan MI 49721
(616) 627-3138

[13 ELR 20164]

Cohn, J.:

Memorandum Opinion^*

Before me is an application by the United States of America for a preliminary injunction during the pendency of this action and until a final hearing enjoining defendants from commencing or continuing further discharge of fill and solid refuse matter, or building or commencing building structures within the ordinary high water mark of Lake Huron on a parcel of land in Cheboygan, Michigan described as:

fronting approximately 609 feet on Lake Huron, running back approximately 600 feet to Harrison Avenue adjacent and immediately north of a marina which fronts 345 feet on Lake Huron

unless such activities have been authorized by the Secretary of the Army.

The parcel was acquired by defendant Lofgren Construction Company (Lofgren Construction) in June of 1982. It proposes to build six buildings containing six condominium units each on the parcel, three of which buildings will lay within a part of the parcel called the contested area.

Involved are two statutes of the United States, Section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403, which requires a permit from the Secretary of the Army for work done below the ordinary high water mark of any navigable water of the United States and Section 404 of the Clean Water Act of 1972, 33 U.S.C. § 1344, which prohibits placing or depositing dredge or fill material in the waters of the United States and, in this case, wetlands.

The Corps of Engineers of the Department of the Army has published rather elaborate regulations regarding the enforcement of these two statutes. 33 C.F.R. Part 320 delineates the general regulatory policies governing the permit process while 33 C.F.R. Part 323 governs the application and issuance of permits for the discharge of dredged or fill material.

[13 ELR 20165]

II.

The procedural background is as follows:

On Friday, October 29, 1982, the United States filed a complaint for injunctive relief and imposition of a civil penalty and made application for a temporary restraining order. I conducted a brief hearing by telephone with defendant Raymond D. Lofgren (Lofgren) and his lawyer, after which I signed a temporary restraining order enjoining defendants from proceeding with filling or construction. I also issued an order to show cause returnable on November 2, 1982 at 4:00 o'clock in Detroit.

On Tuesday, November 2, I conducted a three hour hearing in which I took testimony from the United States. After the hearing I continued the restraining order pending a hearing on the application for preliminary injunction. The parties were advised that they could have a hearing on the application as soon as they desired.

On Monday, November 8, I conducted a hearing on the preliminary injunction incorporating the record made on November 2. On November 9, I heard oral argument; each party has filed a memorandum of law. Testifying in the two days of hearings have been a variety of persons, including employees of the Corps of Engineers such as engineers and biologists, and a representative of the Fish and Wildlife Service. Also testifying were representatives of the Michigan Department of Natural Resources, Lofgren and the City Manager of Cheboygan.

I am satisfied that the the testimonial record and the exhibits have given me a reasonably complete picture of what has transpired to date, the nature of the parcel, as well as all of the relevant facts and circumstances necessary to make a determination of whether or not a preliminary injunction should issue.

III.

I find:

1. Lofgren Construction acquired the parcel after approximately a 24 month search in June 1982. Lofgren, while an experienced builder, may not been an experienced developer. In general, however, Lofgren was aware that various kinds of permits are required for construction activity along Lake Huron.

2. Sometime in July or August of 1982 defendants began clearing the parcel for construction. The parcel was covered with a variety of trees and other vegetation which required it be stripped before construction began.

3. Prior to August 11 defendants filled portions of the parcel as shown on the drawing attached to the Joint Public Notice relating to the permit application described in paragraph 9. (See Exhibit 9 of Px3)

4. Defendants' activities and the general nature of the parcel are shown on the drawing attached to Exhibit 4 of Px3.

5. Around August 8 or 9, Lofgren Construction made application for a permit to clean the lake water immediately adjacent to the beach at the edge of the parcel so it could be used for wading or swimming.

6. On August 11, during the course of a routine inspection of the marina next door to the parcel, representatives of the Corps of Engineers saw work being done on the parcel and inquired of someone on the site as to what was taking place. They believed that wetlands were involved and that permits might be required for the work they observed. Stop work signs were posted on August 12.

7. On August 17 a formal cease and desist order was issued by the Corps of Engineers. A meeting took place on the parcel with a variety of people present the same day. At that time the Corps of Engineers' permit program was explained to defendants as well as the permit program of the Michigan Department of Natural Resources which runs rather parallel with the Corps of Engineers' program.

8. Defendants were advised as to specific areas which were within the Corps of Engineers' regulatory jurisdiction; these areas were delineated and a transitional line was drawn to delineate the contested area. The activities that could take place lakeward of the line were explained to defendants as well as the activities which could take place upland of the transitional line.

9. On August 18 an application for a permit was made to the Corps of Engineers and to the Department of Natural Resources to allow for filling the area lakeward of the transitional line. This is the area which the Corps of Engineers under the Rivers and Harbors Act and under the Clean Water Act claims jurisdiction. A permit is required to place fill material in this area.

10. On August 27 defendants were advised that the Corps of Engineers had not made any determination on issuance of the permit. They were also told and understood that the Department of Natural Resources could not speak for the Corps of Engineers. It appears that on or about that date the Director of the Department of Natural Resources had written a letter indicating that he though the permits would be granted.

11. On August 31 the Corps of Engineers advised the Mayor of Cheboygan that it had made no determination on the issuance of a permit and that if the permit was denied it might be necessary to remove unauthorized fill.

12. On September 7 Lofgren was advised that the Corps of Engineers was declining criminal prosecution on the unauthorized activity that heretofore had taken place. He was also told that if the permit were denied it might be necessary to remove the unauthorized fill.

13. On September 15 a meeting was held on the site with Lofgren regarding the permit application. Lofgren told the Corps of Engineers' representative that defendants could not wait much longer for the permit because of economic considerations. He was told in turn that if necessary the Corps of Engineers could obtain a court order to halt illegal activity.

14. Finally, on September 27 a Joint Public Notice was issued by the Department of Natural Resources and Corps of Engineers describing the permit application and soliciting public comment.

15. The 20 day open period for soliciting comment expired on Saturday, October 16. On October 15 Lofgren talked to a representative of the Corps of Engineers and was told that the Corps of Engineers had not yet received any responses and that because the hearing period expired on a Saturday responses received before the close of business of Monday, October 18, would be considered.

16. In the conversation Lofgren was told that there was a good likelihood that a letter would be received from the Fish and Wildlife Service protesting the issuance of the permit; that if it was received by October 18 it would be considered part of the record; and if received after that date it would have somewhat less effect.What "less effect" meant was never fully explained.

17. In fact, the Fish and Wildlife Service had objected to the permit application by a letter dated October 14. In the letter it indicated that important wetland functions would be lost if contemplated work was authorized.

18. On October 21, outside of the public review period, the Environmental Protection Agency recommended denial of the permit.

19. Lofgren inquired on October 18 whether or not any letters had been received and was told no. Again, in that conversation there was a clear indication that a letter from the Fish and Wildlife Service was forthcoming.

20. The record does not show anything happening through October 21.

21. On October 22, a Friday, defendants again commenced activity in the contested area; they began placing fill even though they had not yet received a permit from the Corps of Engineers. The activity on Friday was in violation of the cease and desist order issued the previous August.

22. On Saturday, October 23, Lofgren received a copy of the Fish and Wildlife Service letter.

23. Fill activity continued on Saturday and on Sunday, October 22 and October 23 [sic].

24. On Monday, October 25, construction began in the contested area even though no permit had been issued. On that day Lofgren wrote the Corps of Engineers telling them that he reviewed the objections from Fish and Wildlife Service, that he was terribly concerned about them, and in general suggested that he was being seriously disadvantaged by the delays.

25. The concluding paragraph of the letter states:

This is very frustrating to me to try and put a schedule together and also beat winter conditions with my foundation work. Gentlemen, I will not carry on with past statements and stale verbiage. Please understand that it is very much [13 ELR 20166] the best interest of our area that this project is not stalled any longer. My highest hopes are that the processing procedures continue as rapidly as possible.

Lofgren did not disclose in the letter the fact that construction activity had commenced on that day, and over the previous three days fill material had been placed in the contested area.

26. The fill and construction activity in the contested area or area lakeward of the transitional line was not authorized and hence illegal and unlawful. There is substantial testimony that the contested area consists of wetlands.

27. The Department of Natural Resources issued a permit on October 19 or 20. It specifically stated that it was subject to the issuance of federal permits.

IV.

A number of considerations obtain as to whether or not a preliminary injunction should issue.

First, defendants were not misled; they were fully advised of the permit program. Lofgren was cautioned that the issuance of a permit by the Department of Natural Resources did not mean automatically the Corps of Engineers would issue a permit.

The Corps of Engineers has an important interest in the maintenance and continuity of the Congressionally mandated regulatory scheme and in the integrity of that scheme. The activity carried on without a permit was more than simply an indiscretion; it was willfull. Not to issue a preliminary injunction would mean that I would be substituting my judgment for the judgment of the Corps of Engineers. No judge should become prematurely entangled in the decision-making process of a regulatory agency. Also, for me not to issue the preliminary injunction would short circuit the public interest review required of the Corps of Engineers under the regulations governing the permit process.

Much has been made by defendants of the decision in Weinberger v. Romero-Barcelo, 42 L. Ed. 2d 91 [12 ELR 20538] (1982), in which the Supreme Court held that where there are violations of the permit requirements of the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., a court is not obligated to issue an injunction automatically but rather the traditional equity considerations of balancing interests and the like must take place.

Defendants urge me to find that there must be a clear showing of irreparable injury to the government and a finding of inadequacy of legal remedies for an injunction to issue, and argues that in this case the government has not demonstrated that these two factors are present.

I do not read Weinberger in that narrow fashion. The sentence in Weinberger which counsel calls my attention to reads:

The Court has repeatedly held that the basis for injunctive relief in the Federal Courts has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corporation, 442 U.S. 49, 61 (1975); Sampson v. Murray, 415 U.S. 61, 88 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-507 (1959); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).

72 L. Ed. 2d at 98. Weinberger, and the cases cited therein, do stand for the proposition that courts are to exercise their independent discretion in granting injunctive relief and are not to issue injunctions merely upon the application of administrative agencies. However, an indicated in Hecht Company, 321 U.S. at 330-331, an action to enforce the war-time Emergency Price Conrol Act, that discretion should be exercised with flexibility and with sensitivity to the larger public interest at play when an administrative agency requests an injunction in aid of its enforcement of the law:

We repeat what we stated in United States v. Morgan [307 U.S. 183, 191], respecting judicial review of administrative actions: ". . . court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed to attain that end through coordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be gegarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim." The Administrator does not carry the sole burden of the war against inflation. The courts also have been entrusted with a share of that responsibility. And their discretion under § 205(a) must be exercised in light of the large objectives of the Act. For the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases.

I conclude that irreparable injury and inadequacy of legal remedies are not rigid but rather flexible concepts depending on the circumstances of the particular case.

I find that an overreaching public interest requires the issuance of the preliminary injunction when I apply the standards traditional to the Sixth Circuit as most recently expressed in Friendship Materials, Inc. v. Michigan Brick, 679 F.2d 100 (6th Cir. 1981):

1. Whether the plaintiff has shown a strong or substantial likelihood or probability of success on the merits? I find that the United States had clearly shown that the permit requirements of Section 10 and Section 404 have been violated, and that it would be entitled to a permanent injunction enjoining the activity in question if permits are not issued.

2. Whether the plaintiff has shown irreparable injury? I find that the insult to the permit process that exists in this case, the fact the public interest review required by the statute may not be implemented, and that the existing activity should the permit not issue must be undone, all constitute a form of irreparable injury.

3. Whether the issuance of a preliminary injunction would causesubstantial harm to others? Any harm to defendants is self-inflicted. They proceeded without permits and with the knowledge that permits were required. That the project is important to Cheboygan may well be true. Counsel for the United States in his oral argument adequately covered this point. Whatever the importance of the project, however, it must be consistent with the regulatory scheme.

4. Lastly, whether the pbulic interest would be served by issuance of a preliminary injunction? I find that it would. Failure to issue a preliminary injunction would mean that every time a permit applicant determines to go ahead before an application is acted on a court would be forced to predict the agency's decision whether or not a permit is likely to issue.

VI.

A preliminary injunction will issue as prayed for by the government and shall include a provision that defendant may carry on such activity as is necessary to preserve the integrity of the construction in place.

* This is an edited version of my bench opinion of November 9, 1982.