United States v. Bayou Des Familles Development Corp.

No. 75-536 (E.D. La. February 28, 1975)

In an action brought under § 10 of the Rivers and Harbors Act and §§ 301 and 309(d) of the Federal Water Pollution Control Act Amendments of 1972, a developer who dredged canals and filled marshes without a permit from the Corps of Engineers agrees, in a final consent judgment, to pay the United States a civil penalty of $25,000. The Judgment requires the defendant to file an application for a permit for all work already done below the mean high tide line, and specifies that no further work will be done below that line without a permit from the Corps. In the event the Corps refuses to grant a permit in one or both of these instances, the defendant reserves the right to challenge the agency's jurisdiction in court.

Counsel for Plaintiff
Charles W. Shipley
Department of Justice
Washington, D.C. 20530

Gerald J. Gallinghouse U.S. Attorney
500 St. Louis Street
New Orleans, La. 70130

Counsel for Defendant
Moise Steeg, Jr.
1210 Oil & Gas Building
New Orleans, La. 70112

[5 ELR 20239]

Mitchell, J.

FINAL JUDGMENT

WHEREAS THE PLAINTIFF, the United States of America, has filed a complaint in the aboved-captioned matter, and the Plaintiff and Defendant, by their respective attorneys, have each consented to the making and entry of this Final Judgment without further pleading or trial or adjudication of or finding on any issues of fact or law raised by the Complaint,

NOW, THEREFORE, without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting evidence or an admission by any party with respect to any such issue in the pending action or in any other proceeding, and, upon consent of the parties as aforesaid, it is hereby

ORDERED, ADJUDGED, and DECREED as follows:

This Court has jurisdiction of the subject matter of this action and of the parties thereto.

The provisions of this Final Judgment shall be binding upon the Defendant, its directors, officers, agents, servants, employees, successors and assigns, and all persons, firms, and corporations acting under, through, or for it, and all persons, firms, and corporations in active concert or privity with it, providing that they have actual notice of the Final Judgment by personal service or otherwise.

III

The defendant shall pay to the United States of America a civil penalty of $25,000. Within 10 days of the entry of this judgment, the defendant shall deliver to Gerald J. Gallinghouse, United States Attorney for the Eastern District of Louisiana, a check for the above sum payable to the Treasurer of the United States of America.

For the purposes of this order, all references to the project area shall be interpreted as those areas within the Bayou des Familles Development Project which were under the ownership of the Defendant on October 17, 1974. The said project area is recorded upon the land records of Jefferson Parish, Louisiana in C.O.B. No. 808, Folio No. 335 as per a plan of re-subdivision made by Joseph F. Varisco, Jr., Land Surveyor, dated March 20, 1973, revised August 17, 1973, and comprises the parcels marked as A, H, I, K, M, N, O, P, Q, R, S, and T. A copy of the Varisco plan is attached as exhibit A-1, A-2, A-3, and A-4. For purposes of orientation the approximate position of the Varisco Plan is marked in red on a New Orleans Quadrangle map which is attached as Exhibit B. [Exhibits not included. — Ed.]

For the purposes of this order, the elevation of mean high tide is 1.5 feet above mean sea level which approximately corresponds to the marsh area shown on the map attached to this order as Exhibit B. Any question as to the elevation of a specific portion of land within the project area will be determined by the Chief of Engineers of the United States Army Corps of Engineers (hereinafter referred to as the Chief). Such determination by the Chief shall be final for the purposes of this order.

Within sixty (60) days from the date this order is entered, the defendant shall file a permit application with the Chief for all work already done within the project area which was done below the elevation of mean high tide.

VII

No further work shall be done below the elevation of mean high tide without a permit from the Chief, unless a court of competent jurisdiction finds that such work requires no permit.

VIII

In the event that the Chief refuses to grant a permit for the work referred to under paragraphs VI or VII of this order, defendants reserve the right to challenge the extent of the chief's jurisdiction in a court of competent jurisdiction.

All land in the project area is below the 100-year flood level as determined by the Secretary of Housing and Urban Development, and any further development activity shall be in accordance with the National Flood Insurance Act, 42 U.S.C. 4012 et seq., and the Housing and Urban Development Regulations issued pursuant thereto insofar as they relate to construction in flood prone areas.

Any further development activity in the project area will be in accordance with the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and all other federal, state, and local laws and regulations.

For the purpose of insuring compliance with this Final Judgment, duly authorized representatives of the United States Attorney's office, the United States Corps of Engineers, and the United States Fish and Wildlife Service shall be permitted access, at reasonable times, to the project area for the purpose of inspecting the progress and status of any development activity.

XII

Jurisdiction is retained for the purpose of enabling either party to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Final Judgment, or the modification or termination of any of the provisions thereof or for the enforcement or compliance therewith.