pipes. These pipes protrude through the dike that runs along the southeast side of Cayman Harbor. According to defendant's witnesses, as a result of this discharge Cayman Harbor, which was once completely dredged, has become "unusable as far as boats are concerned; it has to be dredged again." Cayman Harbor now has a depth of zero in the area of the discharge pipes.
Since the time of their creation, all of the lagoons in Plan Six have been navigable in fact, and most have supported various-sized crafts, including fifty-foot ocean-going vessels, as well as, pile drivers and dredges of substantial size. With the exception of periodic obstructions attributable to defendant's dredge, fill and construction activities, they continue to be navigable. These obstructions to navigation result from a number of sources, including: bank failures or dike "blow-outs", i.e., the collapse of dikes into the water, which occur because defendant has overburdened the fill area with dredge spoils; the erosion of dredge spoils defendant has placed on the banks of these waters due to rain, tides and run-off; defendant's direct discharges of dark sludge material into South Harbor and Cayman Harbor; and the presence of defendant's equipment which has blocked South Harbor during work days.
Such occurrences have frequently caused substantial impediments to navigation. On one occasion a "blow-out" of a dike caused the shoaling of South Harbor to such an extent that it required six weeks of dredging before boats could again pass. During that time, several persons damaged their boats trying to get into the Harbor. Similar obstacles caused by defendant have rendered other lagoons in Plan Six useless for navigation and may, in the future, adversely affect other lagoons as well as the Inland Waterway.
South Harbor and its radiating finger lagoons comport in all critical respects with the criteria of navigability established by the United States Supreme Court and are, without question, part of the navigable waters of the United States. See United States v. Appalachian Electric Power Co., 311 U.S. 377, 407, 409, 61 S. Ct. 291, 85 L. Ed. 243 (1940); United States v. The Steamer Montello, 87 U.S. (20 Wall.) 430, 441, 22 L. Ed. 391 (1874); United States v. The Steamer Montello, 78 U.S. (11 Wall.) 411, 20 L. Ed. 191 (1871); and The Steamer Daniel Ball v. United States, 77 U.S. (10 Wall.) 557, 563, 19 L. Ed. 999 (1871). Also, see United States v. Banister Realty Co., 155 F. 583, 588-593 (E.D.N.Y. 1907). These waterways are susceptible of being used in their ordinary condition as highways for commerce. The Daniel Ball, supra 77 U.S. at 563. And, even when they are obstructed by defendant's activities they are, by reasonable improvement, available for navigation within the meaning of the rule of United States v. Appalachian Electric Power Co., supra. See Economy Light & Power Co. v. United States, 256 U.S. 113, 118, 41 S. Ct. 409, 65 L. Ed. 847 (1921); Rochester Gas and Electric Corp. v. FPC, 344 F.2d 594, 596 (2d Cir.), cert. denied, 382 U.S. 832, 86 S. Ct. 72, 15 L. Ed. 2d 75 (1965); and Davis v. United States, 185 F.2d 938, 943 (9th Cir.), cert. denied, 340 U.S. 932, 71 S. Ct. 495, 95 L. Ed. 673 (1950).
In addition, Plan Six itself is part of the navigable waters of the United States for the reason that until it was illegally filled in 1927 by defendant's predecessor in title, it was a wetlands area, having an overall elevation below mean high-water, which was interlaced with substantial rivulets regularly flowed by the tides. See United States v. Rands, 389 U.S. 121, 88 S. Ct. 265, 19 L. Ed. 2d 329 (1967); United States v. State of Washington, 294 F.2d 830 (9th Cir.), cert. denied, 369 U.S. 817, 82 S. Ct. 828, 7 L. Ed. 2d 783 (1962); and United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151 (S.D. Fla. 1971). The fact that this area has been illegally filled does not extinguish its character, in legal contemplation, as part of the navigable waters of the United States, for an area once found to be part of those waters remains so. See United States v. Appalachian Electric Power Co., supra, 311 U.S. at 408, 61 S. Ct. 291; George v. Beavark, Inc., 402 F.2d 977, 978 (8th Cir. 1968); Rochester Gas and Electric Corp. v. FPC, supra ; and Davis v. United States, supra. Also, see Economy Light & Power Co. v. United States, supra, 256 U.S. at 118, 41 S. Ct. 409.
Because Plan Six is part of the navigable waters of the United States the Government is entitled, by virtue of an absolute dominant servitude which can be asserted to the exclusion of any other competing or conflicting power over such waters, to regulate its use. See United States v. Virginia Electric Co., 365 U.S. 624, 81 S. Ct. 784, 5 L. Ed. 2d 838 (1961); United States v. Twin City Power Co., 350 U.S. 222, 76 S. Ct. 259, 100 L. Ed. 240 (1956); FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 74 S. Ct. 487, 98 L. Ed. 666 (1954); and Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724, 18 L. Ed. 96 (1865).
As part of its regulatory scheme respecting navigable waters, Congress enacted 33 U.S.C. § 403
which prohibits such activities as those in which defendant has engaged in Plan Six, in the absence of an appropriate permit from the Secretary of the Army.
Contrary to defendant's unpersuasive assertions that the ACOE's actions and communications over the course of the last 24 years misled it into believing that it was not required to secure a permit for its operations in Plan Six, the testimony regarding these assertions plainly demonstrates that defendant was aware of this requirement as early as 1949, and that it most certainly knew, at the commencement of its activities in the Southwest Sector, that it needed a permit to develop Plan Six. Nonetheless, it never completed an application for, nor did it ever receive, an appropriate permit to work in this area.
Defendant did receive a federal permit to dredge access channels in the area fronting on the proposed site of South Harbor; however, that application is not pertinent to the issues here under consideration because defendant knew, or should have known, this permit to be of limited scope and duration.
Except for that federal permit which allowed defendant to dredge access channels in front of what is now the entrance to South Harbor, defendant has not obtained any federal permits for its dredge, fill and construction activities in this area, nor have the communications between defendant and the ACOE, over the course of the last 24 years, in any way obviated defendant's obligation to obtain such permits in respect to those activities. Moreover, even assuming that defendant was somehow misled by the ACOE, the Federal Government cannot be prevented from exercising its authority over the navigable waters of the United States by reason of estoppel, laches or private expenditures founded upon mistaken assumptions. United States v. California, 332 U.S. 19, 39-40, 67 S. Ct. 1658, 91 L. Ed. 1889, Opinion Supplemented, 332 U.S. 804, 68 S. Ct. 20, 92 L. Ed. 382, reh. den., 332 U.S. 787, 68 S. Ct. 37, 92 L. Ed. 370 (1947), pet. den., 334 U.S. 855, 68 S. Ct. 1517, 92 L. Ed. 1776 (1948).
The defense of a denial of equal protection in the inconsistent enforcement of the statutes under which this action was brought is totally lacking in merit. Defendant has not in any way substantiated its claim that the Government arbitrarily singled it out for selective enforcement action. See generally Oyler v. Boles, 368 U.S. 448, 454-456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). On the contrary, the proofs clearly demonstrate that the Government has administered these laws with complete impartiality and that it has acted to insure compliance with their provisions by all known violators.
Defendant argues that the Government established federal harbor lines or ratified State harbor lines and that as a result it was relieved of the requirement to obtain a permit for work done shoreward of those harbor lines. This is incorrect in fact and in law. The Federal Government has not established harbor lines in the Back Thorofare area, nor has it, otherwise, ratified or adopted whatever State harbor lines may exist in this area. The presence of federal harbor lines, however, is irrelevant to the requirement of obtaining an appropriate federal permit for work in navigable waters.
Inasmuch as its dredge, fill and construction activities have obstructed, altered and modified the course, location, condition and capacity of Back Thorofare, South Harbor and the finger lagoons which radiate from South Harbor without having obtained proper authorization from the Secretary of the Army, defendant has violated 33 U.S.C. § 403. The enforcement provisions respecting 33 U.S.C. § 403 are contained in 33 U.S.C. § 406.
That statute specifically authorizes the district court to order injunctive relief to abate such violations.
The Government, here, seeks a statutory injunction pursuant to 33 U.S.C. § 406. Such applications are considered differently from those made pursuant to Rule 65 of The Federal Rules of Civil Procedure. SEC v. Globus International Ltd., 320 F. Supp. 158 (S.D.N.Y. 1970). The Supreme Court consistently has held that where the activity against which the injunction is sought constitutes a violation of a federal statute, the public interest should bear more than traditional weight upon the deliberations of the court, even to the point of slackening the customary equitable criteria. See United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 (1944); United States v. City & County of San Francisco, 310 U.S. 16, 60 S. Ct. 749, 84 L. Ed. 1050 (1940); Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789 (1937); and 7 MOORE'S FEDERAL PRACTICE, para. 65.04, at 65-45.
Other federal courts have even further restricted the application of the traditional equitable criteria usually considered in Rule 65 applications, in cases involving statutes which specifically provide for injunctive relief. Where, as here, the activity sought to be enjoined is a violation of a statute, and the statute makes specific provision for injunctive relief, plaintiff need not show irreparable injury to enjoin the violation. This principle has enjoyed wide application involving many different statutes.
Because 33 U.S.C. § 406 makes specific provision for injunctive relief against violations of 33 U.S.C. § 403, the Government need not demonstrate irreparable injury to secure an injunction; it is only required to prove that the statute has been violated. See Hecht Co. v. Bowles, supra ; NLRB v. Aerovox Corp., 389 F.2d 475 (4th Cir. 1967); United States v. Town of Brookhaven, 2 ERC 1761 (E.D.N.Y. 1971); and SEC v. Globus International Ltd., supra. The Government has proven defendant's repeated violations of 33 U.S.C. § 403 and is, therefore, entitled to a permanent statutory injunction interdicting a continuation of defendant's dredge, fill and construction activities in Plan Six.
In addition, because defendant has disposed dredge spoils to the various lagoons in Plan Six and to the Inland Waterway by means of direct discharge, erosion from the banks and fill areas, and the collapse or "blow-out" of dredge-spoil dikes it has violated 33 U.S.C. § 407. See United States v. Standard Oil Co., 384 U.S. 224, 227-230, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966).
Inasmuch as these activities adversely affect the navigable waters of the United States by, among other things, impairing the commercial, navigational and recreational use of these waters, and, inasmuch as they constitute an unlawful encroachment upon the public domain, defendant's activities amount to a public nuisance in violation of federal common law and, as such, are subject to abatement at the instance of the Government. See Illinois v. City of Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972); New Jersey v. New York City, 283 U.S. 473, 51 S. Ct. 519, 75 L. Ed. 1176 (1931); New York v. New Jersey, 256 U.S. 296, 41 S. Ct. 492, 65 L. Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 238, 27 S. Ct. 618, 51 L. Ed. 1038 (1907); In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895); Denney v. United States, 185 F.2d 108 (10th Cir. 1950); United States v. United States Steel Co., 356 F. Supp. 556 (N.D. Ill. 1973); Commonwealth v. S. Covington & C. St. R.R., 181 Ky. 459, 205 S.W. 581 (1918); and Attorney General v. Richards, 2 Anstr. 603, 3 Rev. Rep. 632 (Ex. 1795). Note, Developments in the Law-Injunctions, 78 HARV. L. REV. 994 (1965).
Alternatively, the United States is entitled to a permanent injunction because it has established that irreparable injury to the environment, commerce and recreation has and will result, if defendant is allowed to continue its operations.
In accordance with the views expressed hereinabove, it is on this 13th day of June, 1973 hereby ORDERED, ADJUDGED and DECREED that defendant, Stoeco Homes, Inc., its directors, officers, agents, servants, employees, attorneys, successors and assigns and each of them, and all persons, firms, and corporations acting under, through or for it or in active concert or privity with it, be permanently enjoined and restrained from engaging in or permitting, suffering, or causing, directly or indirectly, any dredge, fill or construction operations in an area of Ocean City, New Jersey, bordered by Bay Avenue, Tennessee Avenue, Spruce Road and the Back Thorofare of the Intracoastal Waterway, without the prior recommendation of the Army Corps of Engineers and approval of the Secretary of the Army. No costs.