The defendants state that the assertion of Corps jurisdiction over the property, combined with the injunction against further discharges onto the property, amounts to a taking for which compensation must be paid.
The first problem with this argument is that neither of the defendants who have answered the complaint (that is, neither Robert Ciampitti nor Albrecht and Heun) is, on the record, a property owner. These defendants, therefore, lack standing to even raise the issue. We only address the issue further because counsel for Robert Ciampitti entered an appearance for Bruce Nicholas Ciampitti and Pacific Four Corporation. Bruce Nicholas Ciampitti, at least, owns some of the property and has standing to raise the issue (although, to do so, he should have filed an answer and counterclaim). Whether a taking claim may even properly be brought in this court, however, is doubtful. If the taking claim exceeds $ 10,000, jurisdiction is exclusive in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491. American Dredging Co. v. Dutchyshyn, 480 F. Supp. 957 (E.D. Pa. 1979), aff'd 614 F.2d 769 (3rd. Cir. 1979); Bayou des Familles Development Corp. v. U.S. Corps of Engineers, 541 F. Supp. 1025 (E.D. La. 1982).
Furthermore, as this court stated in its previous opinion, the issue is, in any event, premature until a permit is applied for and denied. The defendants argue that, if applied for, a permit will most certainly be denied. However, any informal predictions by Corps personnel can hardly take the place of a formal denial following a formal submission in compliance with the application requirements of 33 C.F.R. § 325. The fact remains that no permit application has yet been processed, and the taking issue is premature. See Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 927 (5th Cir. 1983); U. S. v. Byrd, 609 F.2d 1204 (7th Cir. 1979).
The defendants have introduced letters (Defendants' Exhibit 32) which purport to demonstrate that the Corps has been unwilling to meet with them to discuss a possible permit application. It may well be that the Corps at this juncture will not talk to Mr. Ciampitti. See 33 C.F.R. § 326.3(c)(4) and footnote 2 (where Clean Water Act violation is of a nature that complaint is recommended to be filed by U.S. Attorney, after-the-fact permit application should not be accepted until the enforcement action is resolved). This fact still does not convert the Corps assertion of jurisdiction into a taking but further highlights the prematurity of the claim.
Finally, of course, we note that the mere assertion of jurisdiction and the injunction against filling may or may not ultimately, on the merits, amount to a taking. See, e.g., Deltona Corp. v. U. S., 228 Ct. Cl. 476, 657 F.2d 1184 (1981); Andrus v. Allard, 444 U.S. 51, 62 L. Ed. 2d 210, 100 S. Ct. 318 (1979).
In sum, then, the taking argument has no bearing on our conclusion in favor of an injunction. (Of course, the mere fact that property is "taken" only requires that compensation be paid; nothing prevents the Government from taking the property by preventing development.)
To repeat, then: the defendants are hereby permanently enjoined from engaging in fill activities on those portions of the site designated as wetlands.
C. Rivers and Harbors Act/Refuse Act - Injunctive Relief
Above, we found that the man-made ditches on the Diamond Beach site were below the mean high water line. Even though man-made, these ditches are nonetheless subject to Corps jurisdiction. See 33 C.F.R. § 329.8(a)(1) (determination of navigability not limited to natural or original condition of waterbody; a canal or other artificial water body that is subject to ebb and flow of the tide is a navigable water); see also 33 C.F.R. § 329.13(b). Therefore, as to these ditches, a permanent injunction against fill activities is warranted under either 33 U.S.C. § 403 or § 407. However, at this juncture, such an injunction is unnecessary, since the permanent injunction against filling the wetlands already encompasses any activities in these ditches. Moreover, the court at this time lacks a clear survey or metes and bounds description of the ditches such as would make it possible to appropriately fashion an injunctive order. Accordingly, no injunction specifically directed to the man-made ditches will issue at this time.
The Government has apprised the court of case law indicating that jurisdiction under these Acts may extend even beyond the mean high water line, where activities shoreward of the line may have an impact on navigable waters below the line. See U. S. v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1297-99 (5th Cir. 1976); U. S. v. Moretti, 526 F.2d 1306, 1310 (5th Cir. 1976); U. S. v. American Cyanamid Co., 480 F.2d 1132, 1135 (2d Cir. 1973); U. S. v. Esso Standard Oil Co., 375 F.2d 621, 623 (3d Cir. 1967).
Thus, an injunction under these Acts to prohibit fill activities in close proximity to the ditches may be warranted, as fill placed on the banks of, or near, the ditches may erode into the ditches. However, for the reasons given above with respect to the ditches themselves, no injunction specifically directed to fill near the ditches will issue at this time. The injunction we issue with respect to the entire wetlands is sufficient to address the concerns of the Government under all the Acts under which suit was brought.
D. Restoration Plan
The Government seeks an order requiring the defendants to remove all fill placed within the wetlands area and to return the site to its natural state by planting wetlands vegetation and restoring waterways.
There can be no doubt that this court has the power under the Clean Water Act to order the restoration proposed by the Government. See U. S. v. Robinson, 570 F. Supp. 1157 (M.D. Fla. 1983); U. S. v. Outboard Marine Corp., 549 F. Supp. 1036, 1043 (N.D. Ill. 1982); U. S. v. Weisman, 489 F. Supp. 1331 (M.D. Fla. 1980); O'Leary v. Moyer's Landfill, 523 F. Supp. 642 (E.D. Pa. 1981).
The defendants argue, however, that the Government has failed to justify, either procedurally or substantively, its proposed plan. The defendants rely on U. S. v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1301 (5th Cir. 1976) and Weisman, supra. The Weisman court, expanding on the language in Sexton Cove Estates, stated:
There are two prerequisites to be satisfied before any consideration of the restoration plan itself: (1) the court must have jurisdiction over the portion of the property or activity to be directly affected by the restoration plan, and (2) the court must conduct a hearing in which the merits, demerits, and alternatives to the restoration plan are fully developed.
489 F. Supp. at 1342-43. Here, based on the above findings of fact and conclusions of law, there can be no doubt that this court has jurisdiction over the affected portion of the site. As to the hearing requirement, there is nothing in the case law to suggest that the hearing on the restoration plan be a hearing separate and apart from, or subsequent to, the hearing on the merits (the hearing to determine whether the Act was violated). In the Weisman case itself, no separate hearing took place. 489 F. Supp. at 1343. Therefore, this court finds nothing procedurally inappropriate about ordering restoration on the present record.
The Weisman court elaborated as well on the criteria to be applied in evaluating a proposed restoration plan.
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 it is intended to remedy.