The opinion of the court was delivered by: GERRY
This matter comes before this court on an application by the plaintiff for an order adjudging the defendant Robert C. Ciampitti in contempt of a permanent injunction issued by this court on November 28, 1984, imposing a coercive monetary penalty to induce the defendant's compliance with that order, and for an order imposing substantial civil penalties under the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251, et seq. The court conducted an extensive hearing on this motion on March 30 and 31 and April 2, 3 and 9, 1987. The following constitutes the court's findings of fact and conclusions of law in accordance with F.R. Civ. P. 52(a). The court also adopts and incorporates herein the findings and conclusions previously made in this case.
Plaintiff brought this action seeking injunctive relief against defendants Robert C. Ciampitti and Pacific Four Corporation, the developers of the Diamond Beach site in Cape May County, New Jersey, prohibiting them from engaging in fill activities in federally regulated wetlands at the site. The parties previously stipulated that Robert C. Ciampitti is the principal defendant -- "the one responsible for having conducted the activities at the site." U.S. v. Ciampitti, 583 F. Supp. 483, 485-486 (D. N.J. 1984). On April 2, 1984, this court issued a preliminary injunction restraining the defendant from engaging in further fill activities at the site. By order dated September 27, 1984, the defendant was adjudged to be in contempt of that order, after it was determined that he placed further fill in the restricted area. On October 18, 1984, the plaintiff again instituted contempt proceedings, alleging that the defendant had further violated the injunction by placing concrete sidewalks in the wetlands. These proceedings led to a November 26, 1984 consent order which provided for removal of the sidewalks and for a civil fine of $ 1500. for each day on which additional material was placed in the wetlands.
On November 28, 1984, this court entered an order permanently enjoining the defendant from discharging fill material into the wetlands. U.S. v. Ciampitti, 615 F. Supp. 116 (D. N.J. 1984), aff'd, 772 F.2d 893 (3d Cir. 1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1192, 89 L. Ed. 2d 307 (1986). The order further provided that the defendant must remove all fill material placed in the wetlands and designated in yellow on the control map, Gov. Ex. 101, within 75 days. In addition, the order directed the defendant to submit to the Corps of Engineers, within 60 days, a proposed plan for restoration and planting of the area from which fill was removed, and to implement the plan within 45 days after approval by the Corps. The order provided, however, for a stay of the fill removal and restoration pending submission by defendant of an application to the Corps pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344, for a permit to engage in fill activities at the site. The permit application was to be submitted within 45 days. At the same time, we denied, without prejudice, plaintiff's application for the imposition of civil penalties against defendant Ciampitti. We noted that the defendant had violated sections 301(a) and 404 of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1344 on at least 15 separate days. However, we held the issue of penalties in abeyance pending defendant's submission of a restoration plan, reasoning that the defendant's "good faith in preparing and implementing a restoration plan is a relevant factor in assessing the size or necessity of civil penalties." 615 F. Supp. at 125. This court's November 28, 1984 order was affirmed by the Third Circuit on August 29, 1985.
Subsequent to the issuance of the permanent injunction, on January 10, 1985, Gerald E. Speitel Associates (Speitel Associates) submitted, on behalf of defendant Ciampitti, an application for a Department of the Army permit to place fill material, maintain existing unauthorized fill material, and undertake other activities in the federally regulated wetlands. (Testimony of Barry Gale, p. 24, lines 14-17.) On January 28, 1985, Speitel Associates submitted a proposed restoration plan for the Diamond Beach site. (Id. at p. 21, lines 212-15; Gov. Ex. 3.) By letter dated May 8, 1985, the Corps notified Speitel Associates that the restoration plan was unsatisfactory, and that certain specific revisions would be required in order to obtain Corps approval. (Id. at p. 22, lines 17-25; p. 23, lines 1-21; Gov. Ex. 4.) On June 5, 1986, defendant's permit application to develop the Diamond Beach site was denied by the Corps. (Id. at p. 25, lines 1-13, Gov. Ex. 5.) The letter denying defendant's application also directed him to submit a proposed revised restoration plan within 30 days. (Gov. Ex. 5.)
Plaintiff filed the present motion on January 28, 1987. It seeks an order adjudging the defendant to be in contempt of this court's permanent injunction order, and imposing coercive sanctions to compel future compliance, and an order finding the defendant to be in violation of the Clean Water Act and imposing civil penalties. We will address these issues in turn.
Courts have inherent power to hold parties in civil contempt in order "to enforce compliance with an order of the court or to compensate for losses or damages." McComb v. Jacksonville Paper Co., 336 U.S. 187, 93 L. Ed. 599, 69 S. Ct. 497 (1949). A party seeking to have another held in contempt must demonstrate, by clear and convincing evidence, that the respondent violated a clear and unambiguous court order. See United States v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). "The relevant inquiry in a civil contempt proceeding is whether the defendants took 'all the reasonable steps within their power to insure compliance with the orders.'" Halderman v. Pennhurst State School and Hospital, 526 F. Supp. 414, 422 (E.D. Pa. 1981), quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976). Moreover, "once a prima facie showing of violation has been made, the respondent can defend his failure on the grounds that he was unable to comply . . . . To succeed on this defense, however, the respondent must go beyond a mere assertion of inability and satisfy his burden of production on the point by introducing evidence in support of his claim." United States v. Hayes, supra, at 725 (citations omitted).
In the present case, the November 28, 1984 order of this court required the defendant to remove the fill and to implement a restoration plan within 75 days of the denial, by the Corps, of his application for a permit to engage in fill activities at the site. The order also permanently restrained and enjoined the defendant from placing further fill material in the federally regulated wetlands at the site. In addition, under the consent order entered into by the parties on November 26, 1984, the defendant was required to remove the sidewalks constructed on Memphis Avenue and Rochester Avenue within the area of federal jurisdiction. The plaintiff contends that the defendant is in violation of all aspects of these orders.
a. Removal of fill and restoration of site.
It is undisputed that defendant Ciampitti has not removed any of the fill that he placed at the Diamond Beach site. (Testimony of Robert Pacione, p. 121, lines 1-18; testimony of Robert Ciampitti, p. 502, lines 10-25; p. 503, lines 1-16; p. 538, lines 19-20; p. 541, lines 24-25.) In addition, after the denial of the permit, the Corps twice requested the defendant to comply with the court's order by submitting a revised restoration plan for approval. (Testimony of Gale, p. 29, lines 16-25; p. 35, lines 1-13; Gov. Ex. 6 and 8.) To date, defendant has not submitted a revised restoration plan. (Id. at p. 23, lines 22-25; p. 24, lines 1-2; p. 38, lines 3-6.) Based on these facts, we find that the plaintiff has made a prima facie showing of defendant's non-compliance with the removal and restoration aspects of this court's November 28, 1984 order.
The plaintiff also contends that the defendant has engaged in additional fill activities in the federally regulated wetlands at Diamond Beach, in violation of this court's prohibitory injunction.
On December 7, 1984, Corps inspector Robert Pacione performed an inspection at the Diamond Beach site. At that time, he observed that additional paving -- namely, extensions of Memphis and Rochester Avenues -- had been placed in the federal wetlands. (Testimony of Pacione, p. 87, lines 2-15; Gov. Ex. 11 and 13.) Defendant admitted that he was responsible for placing the additional blacktop on the roads in the wetlands, and that he had not removed it. (Testimony of Ciampitti, p. 541, lines 8-25.) Accordingly, we find that the plaintiff has satisfied its prima facie burden of demonstrating that the defendant has violated the permanent injunction by placing this additional fill in the wetlands.
On August 29 and September 30, 1985, Pacione performed another inspection at the Diamond Beach site. He observed that since the date of the court's order, a concrete boat ramp, dock and pier had been constructed in the southwesterly portion of the Diamond Beach site. (Testimony of Pacione at p. 94, lines 15-16; p. 98, lines 10-16; p. 99, lines 10-25; Gov. Ex. 14 and 15.) Defendant Ciampitti placed the structures there in the late winter or early spring of 1985. (Testimony of Ciampitti, p. 464, lines 4-7.) The concrete ramp is approximately 12' wide and 67' long and is located almost entirely in the federal wetlands delineated on Gov. Ex. 101. (Testimony of Pacione, p. 98, lines 12-22; testimony of Ciampitti, p. 468, lines 23-25; p. 469, lines 1-2; testimony of William Dailey, p. 63, lines 14-17; Gov. Exs. 11, 14 and 15.) In fact, the ramp was built on top of fill previously placed in the wetlands by Ciampitti. (Testimony of Ciampitti, p. 467, lines 12-16.) The dock and pier appear to be wooden structures. (Gov. Ex. 16.) They are located immediately southwest (to the exterior) of the survey closure line on Gov. Ex. 101. (Testimony of Pacione, p. 92, lines 22-25; p. 93, lines 1-10; p. 99, lines 10-18; Gov. Ex. 11, 14, 15 and 16.) At the hearing, there was a dispute as to whether the land southwest of the survey closure line falls within the area of federal wetlands jurisdiction, and whether our November 28, 1984 order clearly prohibited the defendant from engaging in fill in that area outside of the survey closure line.
We find, based on the evidence adduced at the hearing, that the plaintiff has met its prima facie burden of showing that the defendant violated this court's order by placing additional fill, in the form of a concrete ramp and a portion of the dock and pier structure, in the restricted wetlands area. We also believe, however, that our order was ambiguous with respect to imposing restrictions on the defendant's fill activities outside of the survey closure line, and therefore we find that he cannot be held in contempt for placing portions of the dock and pier structure outside of that line.
Block 706, Lots 5, 6, 33 and 34.
On January 12, 1987, Corps Inspector Pacione observed that fill material had been placed in the wetlands between Memphis Avenue and Rochester Avenue directly adjacent to two residential structures identified as 105/107 Memphis Avenue (block 706, lots 5 and 6) and 104/106 Rochester Avenue (block 706, lots 33 and 34) that were under construction. (Testimony of Pacione, p. 104, lines 8-23; Gov. Ex. 11, 12 and 19.) The CMD partnership, in which defendant Ciampitti has a 50% interest, acquired these properties in the summer of 1986. (Testimony of Ciampitti, p. 456, lines 24-25; Def. Ex. 13 and 16.) Defendant Ciampitti then undertook construction of the duplex structures presently at the site. (Testimony of Ciampitti, p. 492, lines 4-7 and lines 16-19.) A portion of the wooden deck attached to the structure at 104/106 Rochester Avenue extends into the wetlands by a distance of one foot. A portion of the structure at 105/107 Memphis Avenue extends into the wetlands by a distance of 3.98 feet, and the deck attached to that structure extends into the wetlands by a distance of 10.21 feet. (Testimony of Dailey, p. 67, lines 7-21.) The fill adjacent to these structures extends into the regulated wetland area by approximately 18-20 feet. (Testimony of Dailey, p. 68, lines 16-18.) Based on this evidence, we find that the plaintiff has made a prima facie showing that the defendant has violated this court's order by placing additional fill in the wetlands in the vicinity of block 706, lots 5, 6, 33 and 34.
On January 12, 1987, Corps Inspector Pacione observed that fill material had been placed, and a residential structure identified as 100 and 102 Memphis Avenue (block 711, lots 1 and 2) had been constructed on the corner property northwest of the intersection formed by Memphis and New Jersey Avenues. (Testimony of Pacione, p. 104, lines 6-13; p. 105, lines 3-17; Gov. Ex. 12 and 19.) The southwest corner of the structure located on this land encroaches into the wetlands by 5.93 feet, and the wood deck attached to the structure extends over the federal jurisdictional line by a distance of 13 feet. (Testimony of Dailey, p. 67, lines 22-25; p. 68, line 1; Gov. Ex. 11 and 12.) The fill associated with that structure extends into the wetlands by 27 feet. (Testimony of Dailey, p. 68, lines 11-19; testimony of Ciampitti, p. 523, lines 11-15; Gov. Ex. 11 and 12.)
The CMD partnership acquired block 711, lots 1 and 2, in the winter or spring of 1986. (Testimony of Ciampitti, p. 459, lines 13-16; p. 460, lines 23-23; Def. Ex. 28.) Ciampitti originally intended to construct a duplex on the property with an angled corner to accommodate the wetlands line that runs through the southwest corner of the property. (Testimony of Ciampitti, p. 477, lines 6-25, p. 478, line 1-17; Def. Ex. 5.) However, his mason installed a "false corner" in order to improve the structure's appearance. (Testimony of Ciampitti, p. 480, lines 1-24; p. 481, lines 8-13; Gov. Ex. 19, photo 3-5.) Although he was aware that the structure intruded upon the wetlands, the defendant did not remove the "false corner." (Testimony of Ciampitti, p. 482, lines 19-25; p. 483, lines 1-5.) Instead, he sold the property and duplex to Mr. and Mrs. Raymond Rotella and Mr. and Mrs. Seymour Roth, without first informing them that the land and structure encroached on federal wetlands. (Testimony of Rotella, p. 213, lines 16-25; testimony of Roth, p. 241, lines 15-23.) The wetland jurisdictional line passes through the Rotellas' dining room. (Testimony of Rotella, p. 228, lines 17-18.)
Prior to their purchase of 102 Memphis Avenue, the Rotellas were informed by William Ciampitti, a real estate agent for CMD partnership, that their deck would have an unusual shape due to certain local setback restrictions. They were not informed that the real reason for the deck's shape was the existence of the federal wetlands line on the property. (Testimony of Rotella, p. 215, lines 16-25; p. 216, lines 1-18; Def. Exs. 47 and 48.) The Rotellas later learned that the setback restrictions would not bar an addition to the deck, and thereby unknowingly expanded their deck into the wetlands area. (Testimony of Rotella, p. 223, lines 10-21.)
It is undisputed that the defendant has failed to remove the sidewalks as required by the November 26, 1984 consent order. (Testimony of Ciampitti, p. 538, lines 19-20; p. 539, lines 14-15.) Accordingly, we find that the plaintiff has made a prima facie showing of defendant's violation of the consent order.
We now turn to a consideration of the reasons offered by the defendant for his non-compliance with this court's order in the ways just enumerated. Initially, we will briefly dispose of several of the proffered defenses that we find to be utterly meritless. At the hearing, the defendant introduced considerable evidence concerning the presence of garbage in the federally regulated wetlands. (See, e.g., testimony of Gary Paul Franklin, pp. 274-278; Def. Ex. 29.) One purported explanation for the introduction of this evidence was to establish that the defendant was not responsible for the placement of the garbage in the wetlands, and that it would be difficult for him now to remove it. Under this court's November 28, 1984 order, however, the defendant was obligated only to remove fill and to restore areas shaded in yellow on Gov. Ex. 101, and therefore those are the only areas, with respect to defendant's removal and restoration obligations, that are relevant to the present proceedings. A comparison of Gov. Ex. 101 with Def. Ex. 29 (which denotes areas containing trash) reveals that very few of the areas to which defendant's removal and restoration obligation extends contain garbage. More importantly, the court has already determined that the defendant must remove fill and restore the areas shaded in yellow on Gov. Ex. 101, and that determination was embodied in an order that was affirmed on appeal. If those areas contain garbage, then the defendant was and is obligated to remove it. We will not now allow relitigation of the wisdom or validity of the underlying final order issued by this court.
Defendant also points to the existence of garbage at the site in the hope of convincing this court that the area is of "nominal environmental value," (Defendant's Proposed Findings of Fact and Conclusions of Law, pp. 30-31), and that his non-compliance with this court's order is thereby excused. We find it incredible that the defendant is still raising this argument at this stage in the litigation. The court has already found that the wetlands area at issue here is of significant environmental value. Defendant's opinion to the contrary is no defense for his failure to comply with the court's order.
Defendant also argues that certain distortions in Gov. Ex. 101 prevented him from accurately locating the limits of the federal wetlands in the field and thereby from complying with this court's order. According to the testimony of Gerald E. Speitel, a land surveyor, the Corps' jurisdictional line as laid out on Gov. Ex. 101 does not correspond exactly with its legal description. (Testimony of Speitel, p. 432, lines 17-23; Def. Exs. 40, 41 and 45.) Defendant's environmental specialist, Gary Paul Franklin, also observed that Gov. Ex. 101 was slightly out of square. (Testimony of Franklin, p. 389, lines 1-3; lines 19-21; Def. Ex. 28 and 29.) However, there is no evidence that the defendant detrimentally relied on the legal description of the line or was otherwise prejudiced by the existence of this "distortion" in making his decisions concerning construction. In fact, in the one area -- block 711, lots 1 and 2 -- in which there is a significant deviation between the legal description and the line as it appears on Gov. Ex. 101 (Testimony of Speitel, p. 432, lines 17-25; p. 433, line 1), the evidence is clear that the defendant knew where the wetland line passed through the property and knew that a corner of the building he had built extended over the line. (Testimony of William Sweeney, p. 548, lines 3-14; testimony of Ciampitti, pp. 475-480; Def. Exs. 4 and 5.) Because defendant's obligations arose from this court's November 28, 1984 order which incorporates Gov. Ex. 101 by reference, and because we are satisfied from the evidence that defendant's surveyor had no difficulty locating that line in the field, we find the purported deviation between the line on Gov. Ex. 101 and its legal description to be irrelevant for purposes of this proceeding. We now turn to the more substantive defenses raised by the defendant.
Defendant claims that he was frustrated in his attempt to remove fill and to restore the designated wetlands areas by the fact that many of the areas to which such obligations extended were owned by other people. We agree that a substantial portion of the land represented by the areas shaded in yellow on Gov. Ex. 101 is owned by others. (Testimony of Ciampitti, p. 454, lines 2-23; Def. Exs. 24 and 28.) However, this fact, by itself, should not preclude defendant's compliance with this court's order. At the first hearing in this matter, which ultimately led to the issuance of a preliminary injunction, we made the following findings:
Bruce Nicholas Ciampitti, Robert's brother and the largest single owner of parcels of land at the site, gave Robert a power of agency for all land at the site in the name of Bruce Nicholas . . . . [Bruce Ciampitti holds ...