United States v. American Capital Land Corporation

No. S74-81(N) (S.D. Miss. October 20, 1975)

In an action under §§ 10 and 13 of the Rivers and Harbors Act of 1899, the court refuses to require the defendant land developer to restore completely three acres of marshland destroyed by illegal canal construction and dredge spoil deposits. While massive destruction of wetlands can have serious adverse ecological impacts, the loss of three out of the state's total of 64,000 acres of marshland will have only a relatively slight impact. In addition, defendant's violation of the statute in constructing the canals without a Corps of Engineers permit was unknowing rather than willful. Both the company and innocent, though negligent, purchasers of real estate would be severely penalized by an order compelling full restoration. Because of its insistence on complete restoration of the area, the plaintiff has not furnished the court with any proposed appropriate equitable remedies. The parties are directed to consult with each other and agree upon a proposed equitable remedy within 30 days. Failing such agreement, the court will conduct evidentiary hearings in order to determine an appropriate remedy.

Counsel for Plaintiff
Robert E. Hauberg U.S. Attorney
Daniel E. Lynn Asst. U.S. Attorney
U.S. Post Office & Courthouse
Jackson, Miss. 39205

Bruce J. Chasan
Department of Justice
Washington, D.C. 20530

Counsel for Defendant
Roy C. Williams
Megehee, Brown & Williams
3112 Canty Street
Pascagoula, Miss. 39567

[5 ELR 20705]

Nixon, J.

MEMORANDUM OPINION

This action seeks to enjoin the defendant, American Capital Land Corporation (American), from dredging a canal across Simmons Bayou in Jackson County, Mississippi, and depositing the dredged spoil therefrom in the adjacent marsh, in violation of §§ 10 and 13 of the River and Harbor Act of 1899 (33 U.S.C. §§ 403, 407); to compel the defendant to remove the dredged material which it deposited in the marsh; and to fill the dredged canal and restore the altered or changed areas to their pre-dredged conditions. The court has jurisdiction of this action under 28 U.S.C. § 1345. The matter is before the court at this time on the plaintiff's Motion for Summary Judgment.

FINDINGS OF FACT

Pursuant to plans for the development and sale of lots in a recreational and residential subdivision at Ocean Springs, Mississippi, in 1972 the defendant dredged a canal adjoining a pre-existing canal at Simmons Bayou, in Ocean Springs, Mississipp, and deposited the dredged spoil therefrom on intertidal wetlands adjacent to Simmons Bayou. After being notified of the existence of the canal and conducting a preliminary investigation, on June 11, 1973 [5 ELR 20706] the Corps of Engineers notified American's president, Mr. D. C. Armbrust, that this dredging had been done in violation of § 10 of the River and Harbor Act of 1899, since no permit had been issued therefor. Armburst promptly replied to the letter, and on June 28, 1973, the defendant applied for an after-the-fact dredging permit. The Corps of Engineers wrote to Mr. Armburst on July 2, 1973, advising that the application was incomplete for failure to include a certificate from the Mississippi Air and Water Pollution Control Commission reciting that the work would not violate water quality standards. No such certificate was ever submitted. On November 8, 1974, the District Engineer advised Armburst that processing of the permit application was being suspended and that the matter was being forwarded to the office of the Chief of Engineers for appropriate action. Thereafter this suit was filed.

CONCLUSIONS OF LAW

This court has jurisdiction of the parties and of the subject matter.

All parties concede, and correctly so, that Simmons Bayou is a navigable waterway of the United States, that the actions of the defendant in dredging a canal adjoining Simmons Bayou were in violation of the River and Harbor Act of 1899, that the United States is entitled to injunctive relief, regardless of the seriousness of the environmental impact of the dredging, and that one remedy which this court may order is complete restoration of the affected area. See Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. den., 401 U.S. 910 (1971); Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963); United States v. Sexton Cove Estates, Inc., 389 F. Supp. 602 (S.D. Fla. 1975); United States v. Cannon, 363 F. Supp. 1045 (D. Del. 1973); United States v. Underwood, 344 F. Supp. 486 (M.D. Fla. 1972). The only present dispute between the parties is the appropriate remedy.

The court has informally requested the parties to consult with each other to attempt to reach a mutually agreeable resolution of this issue. The defendant has stated its willingness to do so, and has submitted proposals to the plaintiff. These proposals have been unqualifiedly rejected by the plaintiff, which insists that it will agree only to a complete restoration of the affected area.

In support of its motion the government has submitted the uncontradicted affidavits of several employees of the Corps of Engineers. These affidavits disclose that the dredging work conducted by the defendant destroyed a total of approximately three acres of a total of some 64,000 acres of marsh land in Mississippi, which serve as a source of food and shelter for fish and as a nutrient trap. The affidavits further disclose that destruction of large amounts of nutrient trap can result in a decrease of the amount of dissolved oxygen in the water, increasing the likelihood of fish kills.

The defendant does not contest the facts set forth in these affidavits. It merely requests that the court temper its injunctive powers in light of the fact that it did not conduct its dredging operations knowingly in violation of federal law, that when such violations were pointed out, it immediately ceased work and expressed a willingness to comply with the law, and that complete restoration of the area would be beyond the financial means of the defendant and would deprive innocent purchasers for value of property purchased from the defendant as waterfront property. The plaintiff insists that such limited relief would be contrary to the public interest.

While it is well settled that this court has the power to order a complete restoration of the affected area, it is equally well settled that not every case involving a violation of the River and Harbor Act requires such a severe sanction, and that the court may consider the equities involved in determining the appropriate remedy. United States v. Sunset Cove, Inc., 514 F.2d 1089 (9th Cir. 1975); United States v. Underwood, supra. The Fifth Circuit has recently pointed out this fact in remanding the case of United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 431 (5th Cir. 1973), and upon remand the District Court ordered a remedy which would not "create a hardship upon the presumably innocent, albeit negligent, individual property owners." United States v. Joseph G. Moretti, Inc., 387 F. Supp. 1404, 1407 (S.D. Fla. 1974).

This court is of the opinion that this also is a case in which an equitable remedy is appropriate. While the court does not doubt that massive destruction of marsh lands would have the destructive effect on wildlife described by the plaintiff's supporting affidavits, the court finds that the relatively slight destruction which occurred in this case will not precipitate the catastrophies described. The court has no desire to encourage willful disregard of the provisions of the River and Harbor Act by others, but it likewise has no desire to make an example of this defendant or punish innocent, though negligent, purchasers of real estate. Therefore this court declines to order the complete restoration of the area affected by the defendant's dredging.

Despite our desire to enter an order at this time completely and finally resolving this litigation, we are unable to do so based on the record before us at this time. Because of its insistence on complete restoration of the area, the plaintiff has not furnished the court with any proposed appropriate equitable remedies. The court declines to order such a remedy based solely on the information supplied by the defendant.

For the above stated reasons, the court hereby informs all parties that it will not order a complete restoration of the area in question. The parties are directed to consult with each other and present to the court within thirty days from the date of this Opinion, a proposed equitable remedy which is agreeable to all parties. See, e.g., United States v. Bailey, No. S74-241(R) (S.D. Miss., Sept. 9, 1975); United States v. County of Jackson, No. S74-201 (N) (S.D. Miss., Feb. 26, 1975). If the parties are unable to agree upon an appropriate remedy, the court will thereafter conduct evidentiary hearings in order to determine the appropriate remedy.

An Order conforming with the above Findings of Fact and Conclusions of Law, approved as to form by attorneys for both sides, shall be presented to this court within the time and manner prescribed by the Rules.