about purported additional filling in the wetlands, and discussing the matter with Ciampitti. (Testimony of Pacione, p. 131, lines 23-25; p. 132, line 1; testimony of Ciampitti, p. 464, lines 15-24; Gov. Ex. 14.) Pacione then conducted two inspections at the site and determined that the structures intruded into the federal wetlands. (Gov. Ex. 14 and 15.) By letter dated October 16, 1985, the Assistant United States Attorney, Samuel P. Moulthrop, informed the defendant's attorney of his belief that the boat ramp was constructed in the federal wetlands. (Gov. Ex. 24.)
Clearly, under these circumstances, where the Corps was not informed of the existence of the boat ramp until after it was constructed in the wetlands, the defendant cannot plausibly contend that he believed he had authorization from the Corps to implement construction in that area. Defendant also appears to argue, however, that because the Corps took no further action with respect to the boat ramp until it initiated the present proceedings, his non-compliance with the court's order is somehow excused, or its magnitude diminished. We find this argument to be without merit. The defendant need not, and should not, await the institution of contempt proceedings before he begins to comply with an order of this court. As explained above, while this court necessarily must rely upon the Corps to police the defendant's compliance with our orders, the defendant always has an independent duty to follow faithfully the court's directives. Therefore, inaction or delayed action by the Corps has absolutely no bearing on the wrongfulness of defendant's conduct.
Defendant also contends that the Corps was aware of his construction on block 711, lots 1 and 2, and therefore that his incursion into the wetlands in that area is somehow excused. Specifically, the defendant concedes that he knew immediately after construction that the structure on this property, which had the "false corner" described above, intruded on the federal wetlands. (Testimony of Ciampitti, p. 483, lines 12-24.) However, he took no action to rectify the situation, deciding instead to await instructions from the State Department of Environmental Protection (DEP), from whom he had applied for a development permit pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq. (Testimony of Ciampitti, p. 482, lines 19-25; p. 483, lines 1-5, line 25; p. 484, lines 1-5.) Defendant also did not directly notify the Corps of the wetlands problem because he knew that the Corps received copies of the correspondence relating to the CAFRA permit. (Testimony of Ciampitti, p. 484, lines 7-18; p. 485, lines 8-11; Def. Ex. 33A, 34 and 35.) On August 26, 1986, the CAFRA permit was approved by the DEP. (Gov. Ex. 27.) With respect to the structure located on block 711, lots 1 and 2, the CAFRA permit did not order its removal, but instead adopted the defendant's proposal that restoration start one foot from the structure. (Gov. Ex. 27, p. 8; Def. Ex. 6.) Having received this approval from the DEP and having heard no objection from the Corps, the defendant argues that he was entitled to maintain the illegal fill in the area, in the good faith belief that the Corps had implicitly authorized his activities.
We find this argument to be utterly specious. First, as we emphasized earlier, the defendant was and is under a binding court order restraining him from placing fill in the wetlands. Absent modification or relaxation of that order by this court, it is of no relevance whether the Corps, the DEP, or any other state or federal agency approved of the defendant's activities. It is to this court alone that the defendant must apply when he contemplates engaging in fill activities in violation of our order.
The defendant's behavior is even more disturbing, however, because it is abundantly clear from the evidence of record that the defendant never informed the DEP or the Corps that the structure -- which had been completed by the time the CAFRA permit application was submitted -- intruded into the federal wetlands. The building was originally constructed pursuant to a building permit that called for an angled-off corner to accommodate the wetlands line. (Testimony of Ciampitti, p. 477, lines 24-25; p. 478, lines 1-18; Def. Ex. 5.) The structure was eventually built, as noted above, with a squared off "false corner" that intruded into the wetlands. The CAFRA permit application submitted in connection with this property, a copy of which was provided to the Corps, contained nothing that would put the recipient on notice that a portion of the structure for which the permit was being sought was located in the wetlands. (Testimony of Franklin, p. 393, lines 13-19; Def. Ex. 33(a).) Defendant's agent, Speitel Associates, later supplemented the CAFRA permit application with a site sketch of the structure at block 711, lots 1 and 2 and a proposed restoration plan of that property. (Def. Ex. 6.) The site sketch depicts the blueprint of the building as it exists, with the squared-off corner and an unidentified line touching that corner. The sketch also indicates that the area outside of the line would be restored through sloping and grading. Nothing in the sketch or the accompanying letter indicates the location of the federal wetlands boundary. Moreover, neither the sketch nor the letter reveal that a portion of the structure and the area of proposed restoration are in the federal wetlands. (Testimony of Franklin, p. 339, lines 17-25; p. 340, lines 1-3; Def. Ex. 6.) Instead, the sketch gives the impression -- whether intentionally or unintentionally -- that the unidentified line delineates the wetlands boundary and therefore that the structure does not encroach into the wetlands.
Mr. Franklin, of Speitel Associates, testified that he did not indicate the location of the wetlands line on the site sketch because he believed that the state authorities already knew where it was. (Testimony of Franklin, p. 348, lines 7-15; p. 349, lines 5-14.) However, there is no evidence in the record that the defendant ever informed the state authorities of the precise location of the wetlands boundary and its relation to his construction and fill activities on block 711, lots 1 and 2. In other words, although the state authorities were aware that the wetland boundary cut across the property, there is no evidence that they were informed that the structure itself intruded into the wetlands. Steven Whitney, the Chief of the Bureau of Planning and Project Review for the DEP's Division of Coastal Resources, testified that the state authorities did not know that a portion of the building was located in the wetlands. (Testimony of Whitney, p. 582, lines 8-20.) The language of the permit itself corroborates this, as it provides:
The structure is not located in the federal wetland area, but one corner touches the wetland boundary line. The applicant has proposed that 'restoration will start one foot from the house. At that point, a rock rip-rap slope at 2:1 ratio will grade into the surrounding lowland elevations. This slope and surrounding area will be hand graded and cleaned.' Given the acceptability of the structure as determined by the DAG, this proposal is acceptable because the site will be graded down to the elevation required for wetlands restoration in the area under jurisdiction of the Corps to the maximum practical extent under the circumstances.
(Gov. Ex. 27, p. 8.)
Moreover, the defendant never informed the Corps, either directly or indirectly, that he was placing fill in the wetlands on block 11, lots 1 and 2. The Corps was not copied on the supplemental permit application and site sketch. (See Def. Ex. 6.) The communications which the Corps did receive, from Speitel Associates or from the State, relative to the CAFRA permit application, did not contain any information that would lead the recipient to believe that the CAFRA permit would authorize filling in the wetlands area. (Testimony of Franklin, p. 393, lines 4-19; p. 394, lines 9-21; p. 399, lines 18-24; Def. Exs. 33(a) and 35 and Gov. Ex. 28.) In addition, as noted above, the CAFRA permit itself, of which the Corps received a copy, did not authorize filling in the wetlands. In fact, one of the administrative conditions for issuance of the permit required that the applicant "carry out wetlands restoration in accordance with the provisions of Judge Gerry's order in Civil Action No. 83-4004 to the satisfaction of the Corps of Engineers, the plan's approval authority."
Under all of these circumstances, we must reject defendant's argument that he maintained the illegal fill on block 711, lots 1 and 2, in the good faith belief that the Corps was aware of it and implicitly approved it. Rather, we find that the evidence of record shows a deliberate and continuous effort by the defendant and his agents to conceal from the state and federal authorities the fact that he had placed further fill in the wetlands in violation of this court's order. We will not now allow the defendant to use the CAFRA permit he obtained through this deception as a defense in this contempt proceeding. For all of the foregoing reasons, we find no merit to the defendant's argument that he relied in good faith on the Corps' inaction as an excuse for his non-compliance with the court's order.
Corps' refusal to meet with the defendant.
Finally, the defendant argues that it was impossible for him to comply with the court's order to remove the fill and restore the site because the Corps refused to meet with him regarding the proposed restoration plan. Defendant contends that in order to develop a realistic restoration plan, he had to meet with the Corps to discuss the problems posed by the presence of utilities and trash in the filled areas, and by the fact that some of the fill was located on properties owned by others. (Testimony of Ciampitti, p. 496, lines 6-24.) As discussed above, we find no evidence in the record that these problems cited by the defendant in any way prevented him from complying with this court's order, although we do believe that a meeting between the Corps and the defendant might well have been useful in expediting development of a satisfactory restoration plan. Even assuming that a meeting with the Corps was necessary before defendant could comply with the court's order, though, we find that the defendant himself is responsible for the failure of such a meeting to occur.
Defendant (through Speitel Associates) submitted his proposed restoration plan to the Corps on January 28, 1985. (Gov. Ex. 3.) By letter dated May 8, 1985, the Corps rejected the proposed restoration plan and notified the defendant that certain specific revisions would be required. (Gov. Ex. 4.) Between that date and June 5, 1986, when the Section 404 permit application was denied by the Corps, the defendant never requested a meeting with Corps officials to discuss the restoration plan. (Testimony of Gale, p. 571, lines 7-24.) By letter dated August 11, 1986 to defendant's counsel, Timothy Sullivan, the District Counsel of the Corps, reminded the defendant of his obligation to submit a revised restoration plan. (Gov. Ex. 6.) Defendant's counsel responded in a letter dated August 14, 1986 that stated, in pertinent part:
. . . As I understand it, the reason that no restoration plan has been submitted is that everyone was well in accord that restoration of what was basically a former garbage dump and of no environmental value would be senseless. . . . Secondly, and perhaps most importantly, the denial by the Corps of Engineers for the application for permit as to the areas in question has 'ripened' our claim in the above matter for inverse condemnation under the recent United States Supreme Court cases . . . . Thus, it would appear to be contradictory for us to restore an area which has already been taken by the United States. We will certainly be cooperative as to your thinking in this regard.
It is my suggestion that before the matter gets off on the wrong track that we all closely coordinate this. I respectfully request a meeting . . . so that this cannot only be discussed but some path pursued. My thinking is basically that we should be pursuing an amicable and agreeable evaluation procedure with regard to the property. Hopefully a market value figure can be reached with respect to the inverse condemnation claim. On the other hand, I am thoroughly open-minded with respect to any other suggestions which you may have.