United States v. Sami

No. R-81-3051 (D. Md. April 18, 1984)

The court appoints a third-party trustee under FED. R. CIV. P. 70 to restore wetlands filled without a Federal Water Pollution Control Act § 404 permit and holds the owner of the wetlands, who has ignored a previous restoration order, in contempt. Should the trustee fail to restore the wetland, the court empowers the Corps of Engineers to do the job.

Counsel for Plaintiff
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2682

Counsel for Defendant
Gregory E. Kubash
2600 Virginia Ave. SW, Suite 600, Washington DC 20037
(202) 965-4980

[14 ELR 20431]

Strass, J.:

Order Pursuant to Rule 70 F.R.CIV.P. Holding Mohammad Sami to Be in Civil Contempt and Imposing Sanctions

1. On March 1, 1984, this Court entered an order in this case requiring the defendant, Mohammad Sami, to restore or cause the restoration of a fringe marsh which he destroyed by the bulkheading and fill which he placed, without a permit, at his property on St. Leonard Creek in Calvert County. The March 1, 1984 order requires removal of the bulkheading and fill, to be followed by revegetation of the affected area.

2. That March 1, 1984 order contains a schedule of activity which requires that the defendant, Mohammad Sami, post with the Court a $20,000 performance bond by March 16, 1984, and that the defendant, Mohammad Sami, provide to the Court, and to Mr. James E. Brogdon of the Corps of Engineers, a plan of work two weeks before commencement of restoration work, which restoration work, excepting revegetation, is to be completed by May 1, 1984.

3. The defendant, Mohammad Sami, has failed to post the $20,000 performance bond, and has failed to provide the restoration work plan.

4. On April 3, 1984, the defendant, Mohammad Sami, was sent, by certified and by regular mail, an order to show cause why he should not be held in civil contempt, and sanctions imposed. The order was returnable on April 13, 1984. The defendant, on receipt of that show cause order requested and obtained a postponement until April 18, 1984.

5. The defendant, Mohammad Sami, has still not posted the required bond, or provided the required restoration plan.

6. Wherefore, the defendant, Mohammad Sami, is hereby found to be in civil contempt, and it is ordered as follows:

7. Pursuant to Rule 70, F.R.CIV.P., Mr. William L. Want, c/o Environmental Law Institute, 1346 Connecticut Ave., N.W., Suite 600, Washington, D.C. 20036, is appointed as Trustee for the lands at issue in this case, to act on behalf of, and in the name of Mohammad Sami, for purposes of overseeing or carrying out the restoration of the lands at issue in this case. The Trustee is to keep strict time records, and is to be compensated at the rate of $100 per hour.

8. The defendant, Mohammad Sami, shall be civilly fined the sum of $1,000.00 per day for five days, and thereafter, the sum of $5,000.00 per day, the fine to be paid into the registry of the Court to the order of the Trustee, until the sum of $25,000 is reached or until such time as the defendant, Mohammad Sami, shall have deposited with the Clerk of the Court an executed construction contract to do the work required in this Court's March 1, 1984 order, a plan for the restoration work under that contract, and a bond or cash in the sum of $25,000 to secure the Trustee and the United States for the cost of the restoration work as well as any compensation and expenses (including reasonable attorneys' fees) in enforcing the instant order or this Court's March 1, 1984 order. The defendant, Mohammad Sami, shall provide copies of all papers filed or deposited with the Clerk of the Court to Mr. Brogdon and to the Trustee, as well as to government counsel.

9. In the event that the defendant, Mohammad Sami, has failed to deposit any one of the aforementioned, contract, plan of work, bond or cash, or in the event that the restoration work required in this Court's March 1, 1984 order, excepting revegetation, has not been completed for any reason by May 1, 1984, the Trustee, or any person acting on behalf of the Trustee, including private contractors and/or their employees may enter the lands at issue and do or complete the entire remaining restoration work, including revegetation, at the defendant, Mohammad Sami's, expense and risk, on behalf of the defendant, Mohammad Sami, and in his name, as provided for in Rule, 70, F.R.CIV.P.

10. In the event that the defendant, Mohammad Sami, does not file a bond,post cash, or pay into the registry of the Court Civil Contempt fines, in the sum of $25,000 by April 25, 1984, then, pursuant to Rule 70 F.R.CIV.P., the Trustee is empowered to act in the name of the defendant, Mohammad Sami, to mortgage or otherwise encumber the land at issue in the amount of $25,000.00, and to deposit that sum into the registry of the Court to be used to pay for the restoration work and other costs.

11. In the event that the Trustee fails to act or is unable to act, the Corps of Engineers or its contractors may enter the lands [14 ELR 20432] at issue and do or complete the restoration work, including revegetation, at the defendant Mohammad Sami's expense and risk and in his name, as provided for in Rule 70, F.R.CIV.P.

12. If the work is done by the Trustee, or the Corps, or persons acting on behalf of Trustee or the Corps, the cost of doing the restoration work, including all reasonable expenses, costs, the Trustee's fee, other salaries incurred in doing the work, and including the United States' costs and reasonable attorneys' fees in bringing and carrying out this civil contempt motion, shall be compensable out of any bond, cash, or fines posted by the defendant, Mohammad Sami. If those sums prove insufficient, the deficiency shall be a lien upon the lands at issue in this case, and any other property owned by the defendant, Mohammad Sami, which are within the reach of this Court's jurisdiction.