establishes precisely which areas are wetlands, defendants offer to remove voluntarily any fill materials on such wetlands within a reasonable period of time. Post-trial Memorandum by Defendants at 3-4.
This court, however, finds that the declaration of Ann Ciccotti affirmatively establishes that wetlands exist on Malibu Beach. Ciccotti utilized the three-parameter approach for wetlands delineation, and determined that wetlands existed at all four sites. Defendants proffered no evidence to contradict Ciccotti's conclusion that Malibu Beach contains wetlands. In fact, defendants admit that wetlands are present on the property. Therefore, this court finds that the Government has shown that wetlands exist on Malibu Beach.
C. Wildlife on Malibu Beach
The Government proffered evidence to show that numerous birds inhabit the Malibu Beach property, including two endangered species, the piping plover and the least tern. C. David Jenkins, a Senior Zoologist for the State of New Jersey, Department of Environmental Protection, Division of Fish, Game & Wildlife & Nongame Species Program, reported that the piping plover utilizes the site for nesting. Declaration of Jenkins at 2-5. Jenkins indicated that the piping plover uses the pool behind the dunes as an alternative feeding ground, and that the dunes provide the birds with protection from humans and terrestrial predators. Id. at 4-5.
Lomax also testified regarding the nesting and feeding habits of the piping plover. He stated that the bird typically nests on the oceanward foot of beach dunes and feeds within the intertidal zone of the ocean. While the piping plover at Malibu Beach would typically nest and feed on the side of the dunes facing the Great Egg Harbor Inlet, Lomax agreed with Jenkins that the pool constitutes an important alternative feeding ground for this endangered species.
In addition, Lomax testified that the least tern, which has used Malibu Beach in the past, has not been seen at the property since 1983. The Government proffered no direct evidence to rebut Lomax's testimony, but asserted that migratory birds, including the piping plover and least tern, continue to use the property for feeding and nesting, and as a "stop-over" point during migration. Post trial brief by Government at 26.
The Government also introduced a photograph taken by Allen Jackson on August 20, 1987, which depicts numerous shore birds at the edge of the pool. Government exhibit 28. This photograph clearly indicates that birds utilized the pool area at Malibu Beach. Id.
This court finds that the Government has established that migratory and shore birds, including the piping plover, utilize the property and the pool for stop-over purposes and for feeding and nesting. Jenkins and Lomax agree that the piping plover nests at the site and uses the pool as an alternative to its primary feeding area, which is located on the inlet side of the dunes. Defendants do not dispute this fact. Post-trial memorandum by Defendants at 17-18. It is also undisputed that the piping plover has recently been seen at Malibu Beach. Furthermore, Government exhibit 28 clearly shows shore birds utilizing the area surrounding the pool as a stop-over and feeding ground.
The Government, however, failed to establish that the endangered least tern utilized the property any time after 1983. The Government did not proffer evidence to rebut Lomax's testimony that the bird has not recently been seen at Malibu Beach, and, therefore, has not satisfied its burden of proof.
In addition, other species of wildlife utilize the pool area at Malibu Beach. See Declaration of Ann Ciccotti at 6. Ciccotti reported that muskrat runs and fiddler crab burrows existed on the site on August 25, 1988. She observed two muskrats in the eastern area of the pool and numerous juvenile fishes, called "killifish," located among a thick growth of algae in the pool. Ciccotti opined that because the fish were very young, spawning had occurred within the pool. Id. at 8. Finally, she reported to have observed numerous minute mounds of earth along the edge of the pool, indicating the presence of invertebrates. Id.
III. CONCLUSIONS OF LAW
A. Standard for Preliminary Injunctive Relief
The traditional test for whether a preliminary injunction should issue was articulated by the Third Circuit in Ecri v. McGraw-Hill :
The party seeking a preliminary injunction bears the burden of producing evidence sufficient to convince the court that (1) the movant has shown a reasonable probability of success on the merits; (2) the movant will be irreparably injured by denial of relief; (3) granting preliminary relief will not result in even greater harm to the other party; and (4) granting preliminary relief will be in the public interest.
Ecri v. McGraw-Hill, 809 F.2d 223, 226 (3d Cir. 1987) (citation omitted).
In addition to having the authority to forbid the continuance of a course of conduct, the court may also compel a party to perform a particular act. See United States v. Price, 688 F.2d 204, 212 (3d Cir. 1982). Mandatory injunctive relief "is an extraordinary remedy that should be granted only under compelling circumstances and in a limited manner to restore the status quo." Golden State Transit Corp. v. City of Los Angeles, 660 F. Supp. 571, 575 (C.D.Cal. 1987); see Price, 688 F.2d at 212-13. A mandatory injunction may be issued if the status quo "is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon complainant." Price, 688 F.2d at 212 (quoting Toledo, A.A. & N.M. Ry. Co. v. Pennsylvania Co., 54 F. 730, 741 (N.D.Ohio 1893)). A mandatory preliminary injunction designed to prevent that injury is "appropriate if the other criteria relevant to issuing preliminary injunctions are satisfied." Price, 688 F.2d at 212.
1. Reasonable Likelihood of Success on the Merits
(a) Waters of the United States
The CWA prohibits discharge of any pollutants by any person. 33 U.S.C. § 1311(a). The Act's jurisdiction extends to "all waters of the United States, including territorial seas." 33 U.S.C. § 1362(7); see 33 U.S.C. § 1311(a). The CWA regulations extend the definition of waters to include all waters subject to the ebb and flow of the tide. 33 C.F.R. § 328.3 (a)(1); supra at 1303.
The landward limit of CWA jurisdiction in tidal waters extends to the high tide line. C.F.R. 328.4(b)(1); supra at 1303. The high tide line encompasses all tides, except for those tides affected by "strong winds such as those accompanying a hurricane or other intense storm." 33 C.F.R. § 328.3(d); supra at 1303.
Defendants contend that the Government cannot utilize information gathered in August of 1987 to establish tidal influence in the pool. Defendants argue that any storm activity would cause the high tide line for that day to occur beyond the normal and predictable range of the tide. See 33 C.F.R. § 328.3(d). In the alternative, defendants argue that the winds that accompanied the August, 1987 storm activity, reported to have had velocities between 29 and 41 miles per hour, were "strong winds such as those accompanying a hurricane or other intense storm." Id. Therefore, defendants assert that the Government has failed to establish that the central breaches did not close by natural causes before the alleged fill activities occurred.
The Government asserts that the regulations exclude only those tides affected by intense storms of a synoptic scale. Such storms are "a complex of pressure, winds, clouds, and precipitation that is typically associated with systems of low pressure on the order of a few hundred to 1000 miles in diameter with a well-defined center." Post-trial Brief by Government at 13. Thus, the Government argues that the regulations refer only to large scale storms causing predictable departures from the normal high tide line.
This court rejects the Government's narrow interpretation of section 328.3(d). Such an interpretation would write into the regulations specific dimensional requirements for the term "other intense storms." A plain reading of the regulation indicates that no such limitation is contemplated in the CWA. Localized storms, accompanied by hurricane force winds, for example, would not satisfy the Government's definition, but certainly may cause the type of departure from the normal and predictable range of the tides contemplated by regulation 328.3(d).
However, this court also rejects defendants' position that any storm activity could fall within the section 328.3(d) exception. The regulation clearly refers to the strength of the winds accompanying the storm, and does not contemplate that evidence of any storm or rain in the vicinity can defeat jurisdiction of the CWA. Excluded from the high tide line are those tides affected by intense storms, accompanied by strong winds. The regulations, however, do not exclude tides that involve mere rain storms with lighter wind activity.
Defendants proffered evidence to show that wind conditions on August 25, 1987 ranged between 29 and 41 miles per hour. Even if accompanied by rain storm activity, winds of this magnitude do not rise to the level of "hurricane or other intense storms." Hurricane force winds, by definition, occur at wind velocity of 74 miles per hour or greater. The Weather Almanac at 44 (J. Ruffner & F. Bair 3d ed. 1981). This court need not determine the minimum wind force that falls within the exception of section 328.3(d). However, this court finds that winds of 41 miles per hour do not constitute "strong winds" as contemplated by section 328.3(d). The high tide lines observed in August, 1987, fall within the defined normal and predictable range of the tides.
The Government has presented strong evidence demonstrating that the pool was subject to the ebb and flow of the tide at the time it was filled. Supra at 1304-5. A tidal connection existed through the central breaches on November 3 and 4, 1986, at a time when the tide was unaffected by intense storm activity. Id. at 1305, 1306. Observations of the site made throughout August, 1987 indicate that the water level in the pool rose periodically, evincing tidal influence in the pool. Id. at slip op. 5-7. Dr. Psuty's testimony merely suggests that the tidal flow may have been blocked by the dunes before fill material was dumped. Id. at slip op. 8-9, 12. Accordingly, this court finds the pool behind the dunes at Malibu Beach was subject to the ebb and flow of the tide up until fill activities began on the property. The pool is therefore a water of the United States within the jurisdiction of the CWA as defined in regulation 328.3(a)(1). Defendants, therefore, were required to obtain a permit from the Army Corps of Engineers before they began filling on the property.
(b) Adjacent Wetlands
Wetlands, for the purpose of the CWA, are those areas that are inundated or saturated by water at such a frequency to support vegetation typically adapted for life in saturated soil conditions. 33 C.F.R. § 328.3(b). The regulations define "adjacent" to mean "bordering, contiguous, or neighboring." 33 C.F.R. § 328.3(c). "Adjacent wetlands," therefore, are all wetlands bordering, contiguous, or neighboring waters of the United States, including those wetlands that are separated therefrom "by man-made dikes or barriers, natural river berms, beach dunes and the like." 33 C.F.R. § 328.3(a)(7), (b), (c).
The Supreme Court in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985), examined the definition of wetlands for the purpose of the CWA. The Sixth Circuit had held that an area is not an adjacent wetland unless it is subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391 (6th Cir. 1984). The Supreme Court reversed, determining that
the plain language of the regulation refutes the Court of Appeals' conclusion that inundation or "frequent flooding" by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that the saturation is sufficient to and does support wetland vegetation.
474 U.S. at 129-30.
In the present case, the Government has presented ample evidence to show that wetlands exist on Malibu Beach. Supra at slip op. 13-16. Ann Ciccotti observed the presence of water only eight to nine inches below the surface at each site on Malibu Beach. Each area contains both obligate wetland plants, present in wetland areas over 99% of the time, and facultative wetland plants, commonly found in wetland areas with a frequency of 67%-99%. Ciccotti's findings indicate that the property contains wetlands as defined in regulation 328.3(b). Defendants failed to present any evidence to refute this determination. This court, therefore, concludes that Malibu Beach contains wetlands for the purposes of the CWA. Id. at slip op. 17.
To fall within the definition of adjacent wetlands, a wetland area must be "bordering, contiguous or neighboring" waters of the United States. This court has already determined that the pool was subject to the ebb and flow of the tide from Great Egg Harbor Inlet, which is a navigable waterway within the definition of "waters of the United States." Thus, the wetlands at Malibu Beach are adjacent to waters of the United States for the purpose of the CWA.
Additionally, the wetland areas of Malibu Beach fall within the jurisdiction of the CWA by an alternative means. The CWA regulations include as adjacent wetlands those areas separated by certain man-made or natural structures, including "beach dunes and the like." 33 C.F.R. § 328.3(c). Great Egg Harbor Inlet is a navigable waterway and therefore a water of the United States within the jurisdiction of the CWA. The wetlands of Malibu Beach are separated from the inlet only by beach dunes and sand. Even if this court concluded that the central breach areas had closed by natural causes before fill materials were deposited and that therefore there was no tidal connection between the two bodies of water, the wetlands contained in Sites 2, 3 and 4 are adjacent to the waters of the Great Egg Harbor inlet. Because defendants' property contains wetlands adjacent to waters of the United States, defendants were required to have a permit to fill on the property. See Riverside Bayview, 474 U.S. at 135.
2. Irreparable Injury
The Government has made a sufficient showing of irreparable harm to the environment of Malibu Beach.
The Government established that migratory birds use the property for feeding and nesting. Supra at slip op. 18-19. The piping plover, an endangered species, uses the tidal pool as an alternative feeding ground. Id. Defendants assert that the destruction of an alternative feeding ground does not constitute irreparable harm because the piping plover remains free to utilize the inlet side of the dunes as its primary feeding area. This court disagrees. Although the piping plover uses the pool only as an alternative feeding ground, that area may be needed for protection from predators and from tides affected by storms. The availability of alternative feeding grounds does not eliminate the potential injury to these endangered birds. Also, fiddler crabs and muskrats, which require a moist habitat, utilize the wetlands on the pool side of the dunes, and juvenile fish have been observed in the pool waters. If the fill remains on the property, precluding the passage of water from the inlet to the pool, the habitat for these animals will eventually disappear.
Equitable relief is appropriate here because there is no adequate remedy at law to compensate the public for the harm caused by the disposal of fill material into waters of the United States or in wetlands. Ciampitti, 583 F. Supp. at 498. The tidal pool and the wetlands serve a variety of critical functions, including providing a habitat for wildlife, a stop-over and feeding ground for migratory birds, and a nesting ground for the piping plover. Just as the court observed in Ciampitti, "only if the filling is immediately enjoined will the United States have the continuing benefit of the ecologically valuable lands." Id.
3. Possibility of Harm to Defendant
This court finds that the only foreseeable injury to defendants or any other interested party is economic loss. Defendants' loss, however, would be minimal, because injunctive relief would only require them to cease fill activities and remove fill material placed on the property. This will permit the tidal waters to return until the issues are finally decided. See Ciampitti, 583 F. Supp. at 499.
4. Public Interest
The express purpose of the Clean Water Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Strict enforcement of the CWA can only further the public interest of cleaning up the nation's waters and preserving the surrounding ecological environment. Ciampitti, 583 F. Supp. at 499. In the present case, the relief sought by the Government goes beyond private interests, and clearly involves matters of public concern. Accordingly, this court finds that the requested injunctive relief would further the public interest.
The Government has satisfied its burden for the issuance of preliminary injunctive relief barring defendants from further filling at Malibu Beach. In addition, this court is satisfied that mandatory injunctive relief requiring the removal of fill material placed at the site is necessary.
In this case, the status quo is a condition of action, and the existing condition of rest, where the fill material continues to exist at Malibu Beach precluding the flow of water into the pool, will cause serious harm to the ecological value of the property. See Price, 688 F.2d at 212. If this court allowed the fill to remain on the site, the very damage sought to be remedied by this action would continue, irreparably injuring the environment.
1. Defendants are required to remove all fill material from waters of the United States present on the Malibu Beach property, to the extent described:
a. Western Breach. The western breach is a berm area lying between Great Egg Harbor and the tidal pool of the Malibu Beach property in the extreme western portion of the property. Fill is to be removed from the western breach between the area marked by the yellow ribbons which have been placed at each end of the berm. This area constitutes a distance of 63 feet from west to east. Fill is to be removed to the depth indicated by a marker at the base of the berm.
b. Central Breaches. The central breaches are located eastward along the beach from the western breach. Fill is to be removed from the first central breach between the area marked by the yellow ribbons which have been placed at both ends of the fill, which spans some 19 feet from west to east. Fill is to be removed from the second central breach between the area marked by the yellow ribbons which have been placed at both ends of the fill, which spans some 36 feet from west to east. Fill is to be removed from the third central breach between the area marked by the yellow ribbons which have been placed at both ends of the fill, which spans some 31 feet from west to east.
c. Road Fill. The road fill is located east along the beach and through the dunes to the tidal pool and the southern end of the violation that the parties have designated as such. Fill is to be removed from the road fill area beginning at the point on the southern end marked by a yellow ribbon and northward for the entire length of the fill area which extends to the northern edge of the tidal pool. This fill shall be removed to a depth that is level with the natural contour of the tidal pool bottom.
d. Beach Fill. The beach fill is located toward the beach from the road fill and eastward until one reaches an area constituting a long mound of material approximately 4 feet high. The area of the violation measures approximately 170 feet east to west. This fill shall be removed.
e. Eastern Fill. The eastern fill is located in the tidal pool, on the northern side, just west of Sutor's Sports Club. The violation is comprised of two areas of fill: the first or northernmost area (located a short distance from the edge of the tidal pool) is approximately 10 feet high and 27 feet wide measured east to west. The second area of fill lies just to the south and west of the first. It is a graded area that forms an "L" shape that measures approximately 62 feet north to south and 50 feet west to east. The particular location and dimensions of the eastern fill areas are evidenced by the raised contour they form in contrast to the undisturbed grade of the tidal pool bottom. This fill shall be removed.
f. Half Moon Fill. The half moon fill is a fill in the shape of a half moon that exists on the edge of the tidal pool oceanward of Longport Boulevard. The portion of the half moon fill that lies in waters of the United States measures 138 feet from west to east and 58 feet from north to south. This portion of the fill shall be removed.
Any and all additional removal of fill, including removal of fill from the 400 feet fill, and any additional restoration of the affected areas shall occur following a final disposition of the case on the merits.
The removal of the fill ordered above shall occur under the supervision of representatives of the United States. Any disputes regarding the proper implementation of this order shall be resolved in the first instance between representatives of defendants and representatives of the United States. Should such resolution prove impossible, then such dispute shall be presented to this Court.
This court concludes that preliminary relief barring further fill activity at Malibu Beach, and mandatory injunctive relief, requiring removal of fill material already in place at the site, must issue. The Government has established a strong likelihood of success that defendants placed fill in waters of the United States and on adjacent wetlands, in violation of the Clean Water Act. This court also finds that irreparable injury will occur to wildlife and to the environment if such relief is not granted. Further, the potential economic harm to defendants is minimal compared to the potential damage to the environment if relief is not granted. Finally, the public interest of maintaining clean waters and preserving the surrounding ecological environment can only be furthered by the granting of this preliminary injunction.
The foregoing serves as the court's Findings of Facts and Conclusion of Law pursuant to Fed. R. Civ. P. 52(a).
An appropriate order will be issued.
Dated: April 27, 1989
ORDER - April 27, 1989, Filed and Entered
For the reasons set forth in this court's opinion filed even date;
IT IS on this 27th day of April, 1989 ORDERED that plaintiff's motion for a preliminary injunction is GRANTED; and
IT IS FURTHER ORDERED that plaintiff's motion for a mandatory injunction is GRANTED.