United States v. Carter

Nos. 81-981-Civ-JWK, -982-Civ-JWK (S.D. Fla. December 21, 1982)

The court, having previously ruled, 12 ELR 20682, that defendants filled in wetlands of the East Everglades, Florida without a permit in violation of § 404 of the Federal Water Pollution Control Act (FWPCA), now orders defendants to restore the illegally filled sites. Initially, the court finds that the government's proposed restoration plan would confer maximum environmental benefits since it provides for the natural rejuvenation of wetland species. In addition, the government's plan is practical and equitable in light of defendants' willful violation of the FWPCA and the importance of wetlands to the life support systems of South Florida. Next, the court concludes, based on congressional intent and relevant case law, that restoration is an authorized and appropriate remedy under the Act. In addition, it rules that, when assessing whether a restoration plan confers maximum environmental benefits, a court must consider the cumulative as well as the direct effects of the illegal fill activity. In conclusion, the court orders defendants to complete the government's restoration plan by August 1, 1983 and permanently enjoins defendants from further fill activities on the property.

Counsel for Plaintiff
Michael Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Stephen D.C. Calvarese, Ass't Dist. Counsel
Jacksonville Dist., Army Corps of Engineers, P.O. Box 4970, Jacksonville FL 32232
(904) 791-3761

Counsel for Defendants
Jose E. Martinez
English, McCaughan & O'Brien
201 Alhambra Circle, Suite 1200, Coral Gables FL 33134
(305) 448-6000

Charles J. Crowder
Turner, Fascell & Russo
2222 Ponce de Leon Blvd., Coral Gables FL 33134

Counsel for Amici Curiae Sierra Club et al.
Joseph Z. Fleming
Fleming & Huck
25 SE 2d Ave., Miami FL 33131
(305) 373-0791

Lewis W. Miles II
245 SE 1st St., Suite 403, Miami FL 33131
(305) 358-4026

[13 ELR 20308]

Kehoe, J.:

Final Judgment and Permanent Injunction

This action came on for trial before the Court, the undersigned judge presiding, and the issues having been duly heard and a decision having been duly rendered by this Court's two orders containing findings of fact and conclusions of law, it is

ORDERED AND ADJUDGED:

(1) that the United States is entitled to judgment permanent injunctive relief, and restoration of the subject properties;

(2) that a permanent injunction is hereby issued against the defendants enjoining them from all further fill activities on the subject properties;

(3) that the restoration plan set forth in the Court's Order Containing Findings of Fact and Conclusions of Law Regarding Restoration will be completed by the defendants by August 1, 1983; and

(4) that the Court will retain jurisdiction over this cause for the express purpose of insuring that the defendants fully comply with the Court's restoration plan.

Order Containing Findings of Fact and Conclusions of Law Regarding Restoration

On February 25, 1982, this Court entered its Findings of Fact and Conclusions of Law on liability under the Clean Water Act, 33 U.S.C. § 1311 et seq., finding that the Defendants had placed fill material on wetlands without a permit. During the trial of these cases, December 21-24, 1981, the Government presented its restoration plan, and the cost thereof. The Court reserved its ruling on restoration and civil penalties in order to grant Defendants an opportunity to study the Government's plan and present their objections and counter-proposals, if any, consistent with this Court's findings and conclusions, and also consistent with the guidelines for restoration hearings as set forth in U.S. v. Weisman, 489 F. Supp. 1331, 1343 [10 ELR 20698] (M.D. Fla. 1980), as follows:

(1) the court must have jurisdiction over the portion of the property or activity to be directly affected by their restoration plan, and

(2) the court must conduct a hearing in which the merits, demerits, and alternatives to the restoration plan are fully developed. Once these preliminaries have been satisfied, the court may consider what restoration, if any, may be appropriate. The selected plan must: (1) confer maximum environmental benefits, (2) be achievable as a practical matter, and (3) bear an equitable relationship to the degree and kind of wrong which it is intended to remedy.

Accord, U.S. v. Sexton Cove Estates, 526 F.2d 1293 [6 ELR 20216] (5th Cir. 1976).

This Court had previously found that it had jurisdiction pursuant to 33 U.S.C. § 1319 and 28 U.S.C. § 1345. Pursuant to the second step in the above guidelines, the Court held a three-day hearing on the Government's restoration plan on September 9, 10, and 13, 1982, during which time both parties presented expert testimony and documentary evidence regarding the merits, demerits, and alternatives to the Government's restoration plan. After considering the record developed at this restoration hearing, the record developed at trial, and the Findings of Fact and Conclusions of Law previously entered on February 25, 1982, the Court now makes its Findings of Fact and Conclusions of Law regarding restoration and civil penalties.

Findings of Fact

1.The Court reiterates and incorporates herein its findings of fact contained in the February 25, 1982 order.

2. The restoration plan offered by the Government calls for removing the fill and creating saucer-like depressions in the area of the fill pads at an elevation which establishes a hydroperiod enabling the indigenous wetland species found on the subject property to repopulate the sites of the illegal fill.

3. Defendant Carter testified he purchased the subject property in a 120-acre parcel for $150,000.00. He further testified that he has sold some of this land in 5-acre parcels under Agreements for Deed, with his latest sales brining $10,000 per acre.

4. In addition to the Court's prior findings regarding Defendants violation of the United States Army Corps of Engineers' Cease and Desist Orders, this Court finds that since the December, 1981 trial of these cases, Defendant Carter has allowed additional fill to be placed on the subject property, and has allowed another mobile home to be placed on the illegal fill.

5. Post-trial inspection of the subject property by Plaintiff's expert, Mr. Anthony Clemente, Director, Dade County Department of Environmental Resources Management, established that raw sewage is being disposed of from one of the illegal fill sites as well as open drainage of septic tanks into the wetlands areas occurring from two other illegal fill sites.

6. Defendants have taken issue with the Government's assertion that wetlands vegetation will rejuvenate naturally under the restoration plan. The Court finds to the contrary, however that the Government's restoration plan offers the best practical alternative to the present situation.

7. During the restoration hearing Defendants did not come forward with a restoration plan of their own. Defendants maintain that the development activities made upon their properties are reasonably necessary uses of the properties and would not result in any significant environment detriment to either water or wildlife resources. The Court does not find this approach to be a suitable alternative for the following reasons:

a. This approach does not constitute an attempt at restoring destroyed wetlands which this Court has already found to be the object of protection under the Clean Water Act. This Court has also found the East Everglades wetlands to be important to the life support systems of South Florida.

b. This approach constitutes a loss of "waters of the United States," 33 U.S.C. § 1362(7), for the benefit of private gain.

c. Testimony of Plaintiff's experts established that maintaining the fill and ponds in their present state would result in a continuing state of harm to the environmental values of the subject property previously found by this Court.

d. Testimony of Plaintiff's water management experts established that adoption of Defendants' system of surface development would impair rather than enhance the Biscayne Aquifer's functions of storing water and preventing salt water intrusion.

e. The South Florida Water Management District, Dade County's Department of Environmental Resources Management, the State of Florida's Department of Environmental Regulation, and the United States Geological Survey disagree with the soundness of the defense theories of water management.

[13 ELR 20309]

8. Based upon the foregoing, this Court finds:

a. The Government's restoration plan will confer maximum environmental benefits because it will substantially restore the wetland habitat that was lost as a result of the fill violations. Once these wetlands are restored they will resume their contribution to the life support systems of South Florida, whether this contribution be direct or cumulative. The Government's plan stops short of requiring Defendants to purchase wetland species and replant them in the saucer-like depressions. This economic concession to the Defendants will cause the period of restoration to be more lengthy because of the time required for the natural rejuvenation of wetland species.

b. The Government's restoration plan is achievable as a practical matter.

c. The Government's restoration plan bears an equitable relationship to the degree and kind of wrong which it is intended to remedy. The Defendants' violation of federal law has been willful and substantial.

9. It is the public values associated with flood storage, water quantity and quality, surface water supply and flow, and wildlife habitat that tip the equity scales in favor of restoration in this case.

Conclusions of Law

1. The Court hereby incorporates its Conclusions of Law previously found in these cases.

2. Defendants have contested this Court's ability to impose restoration as a remedy in a Clean Water Act case claiming that this Act is silent as to restoration and further claiming that all case law imposing restoration is premised upon a violation of the Rivers & Harbors Act, 33 U.S.C. § 403 et seq., and not the Clean Water Act, 33 U.S.C. § 1251 et seq. The Clean Water Act (also known as the Federal Water Pollution Control Act, F.W.P.C.A.) at 33 U.S.C. § 1251(a) states in part as follows:

"(a) The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (Emphasis added)

Consistent with the above expressed Congressional intent, the Clean Water Act, at 33 U.S.C. § 1319(b) authorizes the commencement of:

". . . a civil action for appropriate relief, including a permanent or temporary injunction . . .Any action under this subsection may be brought in the district court of the United States for the district in which the defendants is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance." (emphasis added)

The rationale for seeking restoration as the "appropriate relief" is best expressed in the case of U.S. v. Weisman, 489 F. Supp. 1331[10 ELR 20698] (M.D. Fla. 1980), affirmed, 632 F.2d 891 (5th Cir. 1980). In that case the Government brought suit under both the Clean Water Act and the Rivers & Harbors Act (33 U.S.C. § 403 et seq.). Defendant had constructed a road over wetlands without a permit. The Court held that: (1) Defendant's discharge of ill into wetlands without a permit was a violation of the Clean Water Act; (2) placing fill in tidal creeks below the mean high water line without a permit was a violation of the Clean Water Act; and (3) restoration of all of the property to its original condition was necessary and proper. Thus, the Court ordered restoration of waters solely within the jurisdiction of the Clean Water Act as well as those waters within the jurisdiction of the Rivers & Harbors Act.

3. Two cases have characterized the remedy of restoration as being an inherent part of injunctive relief and thus these Courts issued a "mandatory injunction requiring total restoration of the original site despite a showing of significant expense." U.S. v. Bd. of Trustees of Fla. Keys Com. College, 531 F. Supp. 267 at pages 274-275 [12 ELR 20391] (S.D. Fla. 1981); U.S. v. Moretti, 478 F.2d 418 at pages 430-431 [3 ELR 20414] (5th Cir. 1973). See also U.S. v. Republic Steel Corp., 362 U.S. 482 (1960).

4. Restoration is a remedy which is used in purely Clean Water Act enforcement actions and not just in mixed Clean Water Act/Rivers & Harbors Act actions. U.S. v. Bradshaw, 541 F. Supp. 884 [12 ELR 20630] (D. Md. 1982); U.S. v. Parkview Corp., 490 F. Supp. 1278 (E.D. Wis. 1980); U.S. v. Tilton, 17 ERC 1891, at p. 1892 [12 ELR 21102] (M.D. Fla. 1982); U.S. v. Lee Wood Contracting, Inc., 17 ERC 1743 [12 ELR 20421] (E.D. Mich. 1981); U.S. v. Isla Verde Investment Corp., Civil No. 78-758 (P.R. 1980); U.S. v. Kirkland, Civil No. 80-743-Civ-EPS [12 ELR 20104] (S.D. Fla. 1981). In Kirkland, supra, the Court ordered restoration for illegal fill placed next door to Defendant Carter's residence.

Review of the purpose of Congress in fashioning the Clean Water Act, plus the above body of case law, leads this Court to the conclusion that restoration is an authorized and appropriate remedy under the Clean Water Act.

5. During the restoration hearing, Defendants contended that this Court should consider only the direct or immediate effects of the illegal fill on the environment in connection with its determination concerning restoration. In assessing whether a plan for restoration confers maximum environmental benefits, the cumulative as well as the immediate effects of the illegal actions must be examined. As stated in Weisman, supra, at p. 1346.

The intricate web of interdependence which characterizes our environment requires that we look beyond the present and immediate in assessing value of any particular element of the environment, or in gauging the harm that will accrue from its destruction.

6. In assessing whether a plan for restoration is achievable as a practical matter, the Court must consider the feasibility and cost-effectiveness of the proposed plan. Weisman, supra. Further, as this Court has previously found in its earlier conclusion of law, Defendants should not be allowed to profit from their illegal acts.

7. In assessing whether a plan for restoration bears an equitable relationship to the degree and kind of wrong which it is intended to remedy, the Court must look to the conduct of the Defendant and to the cumulative impact of the fill activities upon the wetland habitat. Weisman, supra, at page 1348.

8. Based upon the foregoing, it is hereby ORDERED that Defendants will restore the illegal fill sites in the following manner:

1) Remove all planted trees, mobile homes, structures, trash, and residual debris to an upland area.

2) Remove fill and rock as follows:

a) Fill material shall be dozed into the ponds until the fill pads are brought down to Natural Ground Elevation.

b) Fill areas shall be rock plowed so that the rock is fractured and then dozed into ponds.

c) Excess fill material shall be hauled to an upland disposal site.

d) Once the proper elevations are achieved, the fill areas shall be rock plowed one final time inside the saucershaped depression to create a crushed rock and soil substrate to promote natural revegetation by indigenous wetland species.

e) Certification of all final elevations will be by a certified Land Surveyor and subject to review and approval by designated representatives of the Government.

f) Said restoration to be completed before August 1, 1983.

3) Within 30 days from the date of this Order, each Defendant will post will the Clerk of the Court a performance bond in cash or from a licensed surety company. The amount to be posted within 30 days will be $25,000 for Mr. Carter and $10,000 for Mr. San-Cartier.

4) In the event the Defendants do not complete the restoration in a timely manner, as ordered by this Court, or in accordance with the above plan, said performance bonds shall be forfeited to the Government for the express purpose of funding the completion of the Court-ordered restoration by the Government or its contractors. Upon the completion of the restoration work by Defendants and after and Army Corps of Engineers files with this Court a certificate of completion of the restoration work, all unexpended portions of the performance bond will be returned to Defendants.

5) In the event Defendants appeal, they are to post a supersedeas [13 ELR 20310] bond to protect the public's interest during the appeal period in an amount of $25,000 for Defendant Carter and $10,000 for Defendant Cartier.

9. A final judgment will be issued by separate order.

DONE AND ORDERED in chambers at Miami, Florida, this 21st day of December, 1982.