The opinion of the court was delivered by: GERRY
The Government has proceeded under the Federal Water Pollution Control Act (Clean Water Act), the Rivers and Harbors Act, and the Refuse Act. On October 24, 1983, this court issued a temporary restraining order barring any further fill activities by defendants until the matter could be heard. A hearing on the issuance of a preliminary injunction was held November 9, 15 and 17, 1983.
By opinion dated April 2, 1984, the court issued a preliminary injunction preventing any further fill activities. U. S. v. Ciampitti, 583 F. Supp. 483. In that opinion, the court held that the Government had succeeded on the merits of its case under the Clean Water Act, the proofs having established that the site in question constituted wetlands, and that the defendants had discharged fill material without obtaining the required permit. All the requirements for issuance of a preliminary injunction were met. See In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). The defendants were invited to present "RELEVANT" evidence at a permanent injunction hearing to controvert the prior evidence on which basis we ruled that the Government had succeeded on the merits.
As to the Rivers and Harbors Act and the Refuse Act, this court held that the evidence was inconclusive as to whether any portion of the site fell below the mean high water mark and, therefore, within the jurisdiction of the Army Corps of Engineers such that a permit was necessary before fill activities could occur. The preliminary injunction, therefore, was not issued on the basis of these two Acts. However, it was clear from the evidence that the Government had the broadest jurisdiction over the site under the Clean Water Act. 583 F. Supp. at 497. That is to say, much larger areas of the site were wetlands than were arguably below the mean high water mark, and those areas arguably below the mean high water mark were in any event encompassed by the wetlands areas. Thus, success under the Rivers and Harbors Act and the Refuse Act was not crucial to the Government's application for a preliminary injunction.
A hearing on the issuance of a permanent injunction was held on May 21, June 6 and July 5, 1984.
The following shall constitute the court's findings of fact and conclusions of law.
A. The court adopts its previous findings and conclusions and incorporates them herein, with the following supplementations.
There has been no additional evidence submitted which alters the court's finding of jurisdiction under the Clean Water Act. That is, the court continues to hold that the site in question, as described in Government Exhibits RR-5 and 100-102, contains wetlands.
C. Rivers and Harbors Act/Refuse Act
The Rivers and Harbors Act, 33 U.S.C. § 403, and the Refuse Act, 33 U.S.C. § 407, extend federal jurisdiction over and, to a certain extent, beyond, the "navigable waters of the United States." The term "navigable waters," for the purposes of these statutes, means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark. 33 C.F.R. § 322.2. Testimony was introduced at both the preliminary and permanent injunction hearings regarding the presence of territory on the site below the mean high water mark.
Indisputably, some of these 1.45 acres are below the mean high water line. The defendants' witness, Gerald Speitel, conceded that some man-made ditches within the disputed area are below mean high water. Beyond these ditches, however, the evidence is less conclusive.
In order to establish the mean high water line for the Diamond Beach site, the Government's expert, Richard Rauch, had to extrapolate from tidal bench marks above and below the site, since no data was available regarding the site itself. Mr. Rauch obtained data from two tidal bench marks: Bench Mark 5838 E1977, located north of the Diamond Beach site in the vicinity of Sunset Lake, and Bench Mark 5901J, located south of the Diamond Beach site. These two bench marks were chosen because of their proximity to the site.
By using surveying methods, elevations were established for the two bench marks, and then the elevations of the tidal bench marks were related to elevations established at control points on the Diamond Beach site. Mr. Rauch determined the mean high water line on the site to approximate an elevation of 2.94 feet. However, in depicting the mean high water line on Exhibit 101, Mr. Rauch used an elevation of 3.0 feet.
Once the elevation for the site was established, the contours of the area below that elevation (3.0 feet) were made using the process of photogrammetry. This process involves the use of aerial photographs viewed through a stereoscope.
Although there was considerable testimony regarding the accuracy of the elevation established (2.94 feet) and the accuracy of the contours on the map of the site (Government Exhibit 101), this court is still not convinced that, apart from the man-made ditches, any of the land in question lies below the mean high water line. The problem, in the court's view, is with the methodology used to produce the data in question. The affidavit of defendants' expert, James P. Weidener, introduced as Defendants' Exhibit 46, concludes that the depiction of areas below the mean high water line is "flawed and subject to error." Mr. Weidener made, among others, the following criticisms of the Government's evidence. First, he stated, the tide bench marks used were not sufficiently close to the Diamond Beach site and, "more importantly," were in different bodies of water from the Diamond Beach site. Mr. Weidener stated that bench marks should have been established in Jarvis Sound, on which the property lies, because the elevations of mean high water from other bodies of water may not accurately reflect those at Jarvis Sound. Second, Mr. Weidener stated that the tidal datum epoch used in arriving at the mean high water lines for the sites north and south of the property was not the most current epoch for which data was available. The use of slightly stale data, the court infers, could have affected the accuracy of the Government's evidence. Third, Mr. Weidener stated that the use of photogrammetry in order to establish contour boundaries is inappropriate because of problems with accuracy. Finally, the court notes that the Government used a figure of 3.0 feet as the elevation for the mean high water line and made its maps in accordance with this elevation. The actual elevation the Government calculated was 2.94 feet. Although the difference is not great, the use of the 3.0 figure may nevertheless result in a finding that a larger area is below mean high water than is actually the case.
A. Clean Water Act - Injunctive Relief
Having reaffirmed our finding of Corps jurisdiction under the Clean Water Act, and finding no reason to disturb our conclusions regarding the other requirements for injunctive relief, the court will permanently enjoin the discharge of fill material into the wetlands, as designated in Government Exhibits 101 and 43.
The court must briefly address the arguments raised by the defendants in opposition to this conclusion.
First, the defendants contend that, based on a recent case out of the Sixth Circuit, the court should reconsider its conclusion that the property in question contains wetlands.
In U. S. v. Riverside Bayview Homes, 729 F.2d 391 (6th Cir. 1984), the Sixth Circuit was faced with a case where, between the issuance and appeal of a permanent injunction, the Corps promulgated a new regulation changing the definition of "wetlands." The case was remanded for further proceedings in light of the new definition. 615 F.2d 1363 (6th Cir. 1980). On the second appeal, the issue was whether the ...