Petition for Writ of Certiorari — M. C. C. of Florida, Inc. v. United States

n-“-~

Supreme Court, U.S.

85-1299 : FILED

No. JAN 30 1986

<a JR.

| CLERK

IN THE

Supreme Court of the Uniten States

OCTOBER TERM, 1985

M.C.C. OF FLORIDA, INC.

and

MICHAEL CONSTRUCTION COMPANY,

5 Petitioners

UNITED STATES OF AMERICA

and

STATE OF FLORIDA,

DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

THOMAS A. HARRIS *

MILLIGAN, HOOPER, HARRIS

& BARRY

614 First Tennessee Building

Chattanooga, TN 37402

615/266-5621

Of Counsel: Attorney for Petitioners

E. BARRETT PRETTYMAN, JR.

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

JAMES T. HENDRICK

ALBURY, MORGAN & HENDRICK, P.A.

317 Whitehead Street

P.O. Box 1117

Key West, FL 33040

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does the Seventh Amendment afford trial by jury

when the United States and a state agency sue for money

damages, statutory penalties and equitable relief, and the

defendant contests the material issues of fact and law?

2. Has the mariner’s traditional right to use the bot-

tom of a navigable waterway been revoked by the Rivers

and Harbors Act or the Clean Water Act?

(i)

il

PARTIES TO THE PROCEEDING

Petitioner M.C.C. of Florida, Inc., a defendant-appellant

below, has been merged into its parent, Michael Con-

struction Company, which is a subsidiary of Michael In-

vestment Corporation, a Tennessee corporation. Petitioner

Michael Construction Company, also a defendant-appel-

lant below, is an affiliate of Biloxi Prestress Concrete,

Inc., a Mississippi corporation.

The plaintiff below was the United States, and the

intervening plaintiff was the Department of Environ-

mental Regulation of the State of Florida. Both were

appellees in the Court of Appeals. _

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........-.........2......0-...-cccc0000----- i

PARTIES TO THE PROCEEDINGS BELOW .......... il

pe OE PN 8 ie | rc rrr iv

nc cecnveceoea co nscosvvowboeeetencnce, 1

re Sot 2

CONSTITUTIONAL PROVISION, STATUTES AND

REGULATIONS INVOLVED .............. 2

STATEMENT OF THE CASE .................... Rayon: 7

REASONS FOR GRANTING THE WRIT ............ 11

EAT Se IA do 20

APPENDIX A

Court of Appeals decision ss eG ee ener la

APPENDIX B

District Court rulings, findings, and judgment ____ l4a

APPENDIX C :

Denial of petition for rehearing and suggestion

por cemeering on banc ................................... 44a

APPENDIX D

Statutes and regulations =. 46a

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Atlantic and Gulf Stevedores, Inc. v. Ellerman

Line, Léd., 366 US. S66 (1082) ....:..---------------...:. 14

Atlas Roofing Co. v. Occupational Safety and

Health Review Comm’n, 430 U.S. 442 (1977)... 18, 15

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

I ois cineca suas sie end onconneeibenaieeiemnunmbetsacereabeet 14, 15

Cerrito Vv. Kovitch, 457 So.2d 1021 (Fla. 1984) ee 13

City of Baltimore v. McKim, 3 Bland 453 (Md.

I nocd cic ono utes dodaccuaicaandela aces gear te etnias 17

City of Mobile v. Eslava, 9 Port. 577, 33 Am. Dec.

I SMS IN acess tas tescpeaiemnaecemarnaniadbncens 17

Commonwealth v. Fisher, 1 Pen. & W. 462 (Pa.

RONAN ek ay). Sohn ANE Ucar ew ee Wen eneeee 17

Curtis v. Loether, 415 U.S. 189 (1974) -..............-..- 13, 14

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962)... 14, 15

FAA v. Landy, 705 F.2d 624, 627 (2d Cir.), cert.

denied, 464 U.S. 895 (1983) .......:........--.-..----..0----- 14

Gunter v. Geary, 1 Cal. 462 (1851) ._........... ees 17

Hepner v. United States, 213 U.S. 103 (1909) ....13, 14, 15

Jones Towing Co. v. United States, 277 F. Supp.

RE |. TENE ae all tip eget sopearee Ora 17

Lewis Blue Point Oyster Cultivation Co. v. Briggs,

229 U.S. 82 (1913) St Sul chat RS Dace SES 17

Orange Beach Water, Sewer and Fire Protection

Authority v. M/V Alva, 680 F.2d 1374 (11th

i 2a a So a ea 17

Petition of Kinsman Transit Co., 338 F.2d 708 (2d

Cir. 1964), cert. denied, 380 U.S. 944 (1965) _.... 18

Phenix Construction Co. v. Cornell S.S. Co., 210

N.Y. 113, 103 N.E. 891 (N.Y. 1913), aff’d, 233

U.S. 598 (1914) ..:..... ea ee rd cra ee OS 18

Porter v. Allen, 8 Ind. 1, 65 Am. Dec. 750 (Ind.

RRR NI RRA SPE Aas eee ULAR ATRL yap rd eee 17

Potomac River Ass’n, Inc. v. Lundeberg Maryland

Seamanship School, 402 F. Supp. 344 (D. Md.

Bd aeceia Senet 18

Rocky Point Oyster Co. v. Standard Oil Co., 265

F. 379 (D. R.I. 1920) -

Vv

TABLE OF AUTHORITIES—Continued

Page

Ross Vv. Bernhard, 396 U.S. 531 (1970) —0000.000.... 14

State ex rel. Jennings Vv. Peacock, 126 Fla. 743,

see SR 1.) ORR aee ee 13

The Bart Tully, 251 F. 856 (6th Cir. 1918)........ 17

The City of Boston v. Lecraw, 58 U.S. 426, 432

PIED chases pablo ksranh dar ces suaccantcncitananabeuaiamencarseses 16

The City of Richmond, 43 F. 85 (D. N.Y. 1890)

aff'd sub nom. Western Union Tel. Co. v. In-

man & 1.S.S. Co., 59 F. 365 (2d Cir. 1894)... 17

The Steam Dredge No. 6, 222 F. 576 (D. N.Y.

1915), aff'd sub nom. The No. 6, 241 F. 69

SG SR : SRR MCP ast a 17

United States v. J. B. Williams Co., 498 F.2d 464

4 2 Ae | | | SUE ene eeare oer sh ee 14, 15

United States v. Regan, 232 U.S. 37 (1914) _...... 13, 14, 15

United Siates v. Republic Steel Corp., 362 U.S. 482

CN ite tare ga sa er 17

United States v. Rio Grande Irrigation Co., 174

Te ea ee a ea 18

United States v. Tull, 769 F.2d 182 (4th Cir. 1985),

Cert. emia, Me. BRB x... ooccceccccceicccnseecccckscecc. 11

United States v. Williams, 441 F.2d 637 (5th Cir.

sf | Spee eR eg ter a eee en RO LIS, 256" SoS 15

United States v. Willow River Power Co., 324 U.S.

a | Rl ret aie CMO Wat ant UM 17

Wiggins v. Williams, 36 Fla. 637, 18 So. 859

GP sitieckcactat ls ps eA ee ae 13

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1

GE rn cbar sd et a ae pee ears 18

Constitutional Provisions:

United. States Const., Amend VII ..... 2, 11, 13, 15, 16

Florida Const., Article 1, § 22 0.00000. 13

Statutes, Rules and Regulations:

Fed.R.Civ.P. 38 .............. PELE AOLI DALE) OP ARERR FEA 2

bets We a HD ioe 13

28 8! | isp NLR Rt te eS cma 9

vi

TABLE OF AUTHORITIES—Continued

Page

PA. B AOBAGE CL)... -1.-ns0senscnlece gc sceewsevveriecercemesessitospens 9

We, BI noosa cove enn nnseccscepwcteenencivevenetonensoesongoors 9

op EF 2) FSD | | Seeeeencenennmnn rena sem 9

F.S.A. § 40B.161 (2) CD) ....------:5-2-20<0...--connceccsereesetenene 9

. Sf Eoit 2 | | SRRESSRSe ee nsEaan geetennienuntsns reer 9

hs ED OF, oncivcccesirn ce cevciccedaguriassvectennmmemeenentt 7

Br i Oe Bias sos cncivicsess cccvosss oepeevernedapenerpeentahes 7

ee RIAD aeisce sons cenconececdiacssivaventwhlennaenomitiel 7

eee te Ae ROD ig einicave cack cecannceewesnssaevteonnietacmonoaaniet 7

Rn oe occ cn ccternderbedsionnsicyacomneegnee eee 3

Sv nts RRO eeeaene meeneO Man Sesto 2,3, 9,17

I MII osxirgr cesses cxaweicessuowetersapaeseaen nnn’ 3, 4

I 2 oc oar eigenen ae 3

I ars I cee deer rctvenecesenenekowecerieneenee’ 19

Fk Te 3 enn aemenateem ane ny Setar eeren etme) re 11

I I oe caso nacavs occdccmbietabeureuniensedeunmtieal 2,4, 9,17

SO a NI cis goss occas docenesvvcoves oes cuserietihembaadians 9,15

I, A NI ooo oe ec emceacetcesesssaeodmeneetoente 4

RsaI os cgeaeccnvonedudvaseowessurcacepeepenes 5,9

aE acunar gall icuede eens 15

I coon a ce cate gel esaies a eoaonee 15

nC ses oe er 2 aa roman 5, 15

nS TT nn eee eure maieranen 5

Ly | ot +) EERE ieenen ime sone mer nomra ema ner une sy sans 15

Miscellaneous:

C. Wright and A. Miller, Federal Practice and

TO A ot ais 14

J. Moore, Moore’s Federal Practice (2d ed. 1976) .. 14

S. Rep. No. 722, 95th Cong., 2d Sess. 2 (1978)........ 19

The Oxford Universal Dictionary, 1964 _............. 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No.

M.C.C. OF FLORIDA, INC.

and

MICHAEL CONSTRUCTION COMPANY,

Petitioners

UNITED STATES OF AMERICA

and

STATE OF FLORIDA,

DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Eleventh Circuit entered

in this proceeding on October 7, 1985.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

772 F.2d 1501 and is reproduced at App. la. The perti-

nent rulings, findings and judgment of the District Court

are not reported and are reproduced at App. 14a-43a. _

2

JURISDICTION

The judgment of the Court of Appeals was entered on

October 7, 1985. A timely petition for hearing and sug-

gestion for rehearing en bane was denied by order en-

tered November 13, 1985. App. 44a. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION,

STATUTES AND REGULATIONS INVOLVED

A. As to the right to jury trial.

Amendment VII to the Constitution of the United

States provides:

In suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a

jury shall be otherwise re-examined in any court of

the United States, than according to the rules of the

common law.

Rule 38, Federal Rules of Civil Procedure, provides:

Rule 38. Jury Trial of Right

(a) Right Preserved. The right of trial by jury

as declared by the Seventh Amendment to the Con-

stitution or as given by a statute of the United States

shall be preserved to the parties inviolate.’

The Rivers and Harbors Act, 33 U.S.C. $$ 403 et seq.

(App. 46), and the Clean Water Act, 33 U.S.C. §§ 1311

et seq. (App. 47a), are silent as to the right of jury

trial.

Similar Florida statutes and regulations, reproduced at

App. 50a-55a, are likewise silent as to the right of jury

trial.

1 The enabling act for the Federal Rules of Civil Procedure, which

directed the preservation of the constitutional right of jury trial,

was Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C. former § 2072,

formerly § 723c.

3

B. As to the right of mariners to use the bottom of a

navigable waterway.

The respondent government agencies and the courts

below took the view that the following statutes and regu-

lations prohibited petitioners’ vessels from using soft bot-

tom as part of the navigable waters.

1. Rivers and Harbors Act.

33 U.S.C. § 403. Obstruction of navigable waters

generally; wharves; piers, etc.; excavations and fill-

ing in

The creation of any obstruction not affirmatively au-

thorized by Congress, to the navigable capacity of

any of the waters of the United States is hereby pro-

hibited; and it shall not be lawful to build or com-

mence the building of any wharf, pier, dolphin, boom,

weir, breakwater, bulkhead, jetty, or other struc-

tures in any port, roadstead, haven, harbor, canal,

navigable river, or other water of the United States,

outside established harbor lines, or where no harbor

lines have been established, except on plans recom-

mended by the Chief of Engineers and authorized by

the Secretary of War [Secretary of the Army]; and

it shall not be lawful to excavate or fill, or in any

manner to alter or modify the course, location, condi-

tion, or capacity of, any port, roadstead, haven, har-

bor, canal, lake, harbor of refuge, or inclosure within

the limits of any breakwater, or of the channel of

any navigable water of the United States, unless the

work has been recommended by the Chief of Engi-

neers and authorized by the Secretary of War [Sec-

retary of the Army] prior to beginning the same.

(Mar. 3, 1899, ch. 425, § 10, 30 Stat. 1151.)

33 U.S.C. § 406. Penalty for wrongful construction

of bridges, piers, etc.; removal of structures.

Every person and every corporation that shall vio-

late any of the provisions of sections nine, ten, and

eleven of this Act [33 U.S.C. $$ 401, 403, and 404],

or any rule or regulation made by the Secretary

4

of War [Secretary of the Army] in pursuance of

the provisions of said sections eleven [33 U.S.C.

§ 404], shall be deemed guilty of a misdemeanor, and

on conviction thereof shall be punished by a fine not

exceeding $2,500 nor less than $500, or by both such

punishments, in the discretion of the court. And

further, the removal of any structures or parts of

structures erected in violation of the provisions of

the said sections may be enforced by the injunction

of any circuit court [district court] exercising juris-

diction in any district in which such structures may

exist, and proper proceedings to this end may be in-

stituted under the direction of the Attorney General

of the United States. (Mar. 3, 1899, ch. 425, § 12,

30 Stat. 1151; Feb. 20, 1900, ch. 23, § 2, 31 Stat.

32.)?

2. Clean Water Act.

33 U.S.C. § 1311. Effluent Limitations. ‘:

(a) Illegality of pollutant discharges except in com-

pliance with law, Except as in compliance with this

section and sections 302, 306, 307, 318, 402, and 404

of this Act [83 U.S.C. $$ 1312, 1316, 1317, 1828,

1342, 1344], the discharge of any pollutant by any

person shall be unlawful.

33 U.S.C. § 13819(b) Civil actions.

The administrator is authorized to commence a civil

action for appropriate relief, including a permanent

or temporary injunction, for any violation for which

he is authorized to issue a compliance order under

section (a) of this section. Any action under this

subsection may be brought in the district court of the

United States for the district in which the defendant

is located or resides or is doing business, and such

court shall have jurisdiction to restrain such viola-

tion and to require compliance. Notice of the com-

2 Although the proceeding was a civil action, the courts below

imposed a $20,000 penalty under this misdemeanor provision and

under 33 U.S.C. § 1819(d) (civil penalty of up to $10,000 per day).

5

mencement of such action shall be given immediately

to the appropriate State.*

* * * *

33 U.S.C. §$ 1319(d) Civil Penalties.

Any person who violates section 301, 302, 306, 307,

308, 318, or 405 of this Act [33 U.S.C. $$ 1311, 1312,

1316, 1317, 1318, 1328, or 1345], or any permit con-

dition or limitation implementing any of such sec-

tions in a permit issued under section 402 of this

Act [83 U.S.C. § 1342] by the Administrator, or by

a State, or in a permit issued under section 404 of

this Act [33 U.S.C. § 1844] by a State, and any per-

son who violates any order issued by the Adminis-

trator under subsection (a) of this section, shall be

subject to a civil penalty not to exceed $10,000 per

day of such violation.

33 U.S.C. § 1344. Permits for dredged or fill mate-

rial.

(a) Discharge into navigable waters at specified dis-

posal sites. The Secretary may issue permits, after

notice and opportunity for public hearings for the

discharge of dredged or fill material into the navi-

gable waters at specified disposal sites. Not later

than the fifteenth day after the date an applicant

submits all the information required to complete an

application for a permit under this subsection, the

Secretary shall publish the notice required by this

subsection.

3. Corps of Engineers Regulations.

(k) The term “dredged material” means material

that is excavated or dredged from waters of the

United States.

(1) The term “discharge of dredged material’”’ means

any addition of dredged material into waters of the

3 The action in this case was not brought by the Administrator of

the EPA; it was brought by the Corps of Engineers.

6

United States. The term includes, without limitation,

the addition of dredged material to a specified dis-

posal site located in waters of the United States and

the runoff or overflow from a contained land or

water disposal area. Discharges of pollutants into

waters of the United States resulting from the on-

shore subsequent processing of dredged material that

is extracted for any commercial use (other than fill)

are not included within this term and are subject to

Section 402 of the Federal. Water Pollution Control

Act even though the extraction and deposit of such

material may require a permit from the Corps of

Engineers. The term does not include plowing, culti-

vating, seeding, and harvesting for the production of

food, fiber, and forest products.

(m) The term “fill material” means any material

used for the primary purpose of replacing the

aquatic area with dry land or of changing the bot-

tom elevation of a waterbody. The term does not

include any pollutant discharged into the water pri-

marily to dispose of waste, as that activity is regu-

lated under Section 402 of the Federal Water Pollu-

tion Control Act Amendments of 1972.

(n) The term “discharge of fill-material’’ means the

addition of fill material into waters of the United

States. The term generally includes, without limita-

tion, the following activities: Placement of fill that

is necessary to the construction of any structure in

a water of the United States; the building of any

structure of impoundment requiring rock, sand, dirt,

or other material for its construction; site-develop-

ment fills for recreational, industrial, ,commercial,

residential, and other uses; causeways or road fills;

dams and dikes; artificial islands; property protec-

tion and/or reclamation devices such as riprap,

groins, seawalls, breakwaters, and revetments; beach

nourishment; levees, fill for structures such as sew-

age treatment facilities, intake and outfall pipes as-

sociated with power plants and subaqueous utility

lines; and artificial reefs. The term does not include

7

plowing, cultivating, seeding and harvesting for the

production of food, fiber, and forest products.

33 C.F.R. $§ 323.2(k), (1), (m), (n).

Similar Florida statutes and regulations relied on by

the intervening state agency to interdict petitioners’ navi-

gation rights are produced at App. 50a-55a.

STATEMENT OF THE CASE

Two far-reaching questions are presented in this case:

(1) whether a defendant is entitled to a jury trial when

sued by federal and state agencies for damages, penalties

and equitable relief; and (2) whether the Rivers and

Harbors Act. or the Clean Water Act has abolished the

ancient doctrine that soft bottom is a part of the draft

of navigable waters, available to mariners for any mari-

time purpose.

In October 1981, agents of the Corps of Engineers

stopped and boarded petitioners’ vessel as it was proceed-

ing through Niles Channel, a navigable waterway in the

Florida Keys which connects the Gulf of Mexico and the

Atlantic Ocean. The agents served on the captain a cease

and desist order which charged that petitioners were

dredging and filling without a permit. The vessel was

not dredging or filling in any ordinary sense, but was

engaged in transporting barges. The Corps asserted, how-

ever, that the revolutions of the vessel’s propellers were

disturbing the bottom of the waterway and the turtle

grass which grew on the bottom. This disturbance, the

Corps said, was “prop dredging” in violation of the Clean

Water Act, which prohibits the discharge of dredged or

fill material into waters of the United States, unless the

work has been authorized by a permit. District Court

Transcript (“Tr.”) Vol. 6, pp. 197-198; Vol. 5, pp. 208-

211.

Petitioners, when served with the cease and desist or-

der, were beginning to transport bridge segments to a

8

federal aid highway bridge over Niles Channel. Public

agencies, including the Coast Guard, had determined that

it was desirable to build a high rise bridge over the

channel in order to make the waterway there more ac-

cessible to maritime traffic. The pre-manufactured com-

ponents of such a bridge, designed by the Florida De-

partment of Transportation (“Florida DOT’) and ap-

proved by the Federal Highway Administration, could

only be gotten to the site by tugs and barges.

The Corps of Engineers, at the local level, had not

known of the decision to make Niles Channel a new navi-

gational crossing until after work had begun on the

bridge.* The local Corps representatives and representa-

tives of the Florida Department of Environmental Regu-

lation (‘Florida DER’) opposed the concept of inviting

larger vessels through Niles Channel.’ Their concern was

that beds of turtle grass, Thalassia Testudinum, would

be “prop scarred” and disrupted by the propellers of ves-

sels having a draft greater than two feet or so." They

4The Corps of Engineers by administrative agreement had re-

linquished its bridge design oversight to the Coast Guard, which

requested the Florida DOT to erect a high rise bridge at Niles

Channel.

5 }ormerly, sizeable vessels could enter Niles Channel, but they

could not transit from Gulf to Ocean or vice-versa because of the

low and narrow arches of the old bridge carrying U.S. Highway 1.

To make a crossing, larger vessels in the middle Lower Keys had to

travel eastwardly to Bahia Honda Channel or westwardly around

Key West. For a typical 39 foot fishing vessel with 50” draft, based

in the middle Lower Keys, the Niles Channel crossing would save up

to a day in time and several hundred gallons of fuel on each outing.

6 Certain areas of Niles Channel provided a depth above soft

bottom of about four feet at low tide, five to five and a half feet at

high tide, and the blades of the turtlegrass reached about two feet

above the bottom. Turtle grass grows in shallow salt water through-

out the South Florida and Keys area. The propellers of most boats,

even outboards, cause some bottom disturbance when passing over

or bumping soft bottom in the shallow waters of South Florida.

There is no specific-statute protecting turtle grass.

9

were immediately concerned that petitioners’ tug boats

would “prop sear” the soft bottom, and they were lying

in wait with the cease and desist order when petitioners’

tug first began transporting barges in the channel.

The Florida DOT, the Federal Highway Administra-

tion, and the Coast Guard wanted the work to proceed;

the Corps of Engineers and the Florida DER wanted it

halted; and local interest groups took varying positions.

Petitioners, working under a contract completion dead-

line, attempted to satisfy the Corps and the Florida DER

with certain accommodations but advised the Corps that

they relied on their common law right of navigation and

would continue to exercise it. The Corps of Engineers

immediately caused a civil suit to be filed* alleging that

petitioners were violating Section 403 of the Rivers and

Harbors Act (excavating or filling an unauthorized

work),® and Section 1311 of the Clean Water Act (dis-

charging pollutants into waters of the United States).°

The original complaint sought a restraining order, a

permanent injunction, a restoration order, and civil pen-

alties of $10,000 per day under 33 U.S.C. §§ 1311 and

1319(d). The restraining order and application for an

injunction were denied. The intervening plaintiff, Flor-

ida DER, sought general damages, civil penalties of

$10,000 per day under Florida statutes, and a perma-

nent injunction. After petitioners’ oral and written mo-

7 The suit was not brought in admiralty, but in law. For jurisdic-

tion, the Government relied on 28 U.S.C. § 1345 and claimed under

the following statutes: 33 U.S.C. § 403; 33 U.S.C. § 1311 and 33

U.S.C. § 1319.

8 Record Excerpts in the Court of Appeals (“Record Excerpts”),

pp. 9-10.

® Record Excerpts, pp. 9-10.

iO F.S.A. § 403.161(1) (a) (causing pollution); F.S.A. § 403.161

(1) (b) (dredging without a permit); F.S.A. § 403.141(1) ($10,000

per day civil penalty); F.S.A. § 403.141 (liability for general dam-

ages for violating § 403.161).

10

tions to dismiss and for summary judgment were over-

ruled, petitioners filed their answers to the original and

intervening complaints, denying the legal and factual

bases asserted and demanding trial by jury.

Florida DER filed a written motion to strike petition-

ers’ jury demand,'' and the trial court granted the mo-

tion over petitioners’ objection.’ At the beginning of the

liability phase of the trial, the United States filed a writ-

ten motion to strike petitioners’ jury demand,’* and the

trial court granted the Government’s motion over ob-

jection."

Numerous questions of fact and of mixed law and fact

were strongly contested in the liability phase of the trial,

which occupied five days. Questions disputed included the

amount of navigation previously occurring in the chan-

nel; the extent of pre-existing “prop scarring’; the

amount of “prop scarring’’ done by petitioners’ vessels,

as opposed to other vessels; the motives or good faith of

the plaintiffs’ representatives; the credibility of wit-

nesses; the permanence of the bottom disturbance; the

purpose and effect of the new bridge; and the applica-

tion of the statutes relied on to the facts proved. In his

findings of fact and conclusions of law, the trial judge

found substantially all of the many fact, mixed and legal

issues strongly in favor of the Government and against

petitioners.

Following the second or “damage” hearing,'® which

occupied four days and also featured issues of fact, cred-

ibility and reasonableness, the trial court awarded dam-

ages of $200,000 and a penalty of $20,000 against peti-

11 Record Excerpts, p. 51.

12 Record Excerpts, p. 58.

13 Record Excerpts, p. 65.

14 Record Excerpts, pp. 68-76; see also App. 2a, 10a.

15 By this time, the new bridge had been completed.

11

tioners for displacing bottom sediments. He ordered the

Government to file a plan for using the money in a sea-

grass mitigation project in South Florida. Petitioners

appealed, urging, inter alia, that bottom roiling by pro-

peller action was not within the statutory concepts of

dredging, filling or discharging pollutants, that the right

to use the bottom was a part of the dominant right in

navigation, and that the Seventh Amendment afforded

the right to a jury trial upon the factual and legal issues.

The Eleventh Circuit, in an opinion authored by Dis-

trict Judge Hoffman, affirmed the trial court except as to

the mechanics of the submission and approval of a plan

on which to expand the $220,000. According to the ap-

peals court, the displacement of soft bottom by propeller

action in the course of navigation is an unauthorized

dredge and fill work prohibited by 33 U.S.C. § 403. Such

displacement, said the court, is also the “addition of a

pollutant” to the waters of the United States, in viola-

tion of 33 U.S.C. S$ 1252 et seg. The appeals court did

not address the proposition taat the right to use navi-

gable waters includes the right to use the bottom.

Upon the question of a jury trial, the Court of Ap-

peals said that the issues under the Rivers and Harbors

Act and the Clean Water Act were equitable in nature;

therefore, there was no right to a jury trial. The court

relied in part on the Fourth Circuit’s opinion in United

States v. Tull, 769 F.2d 182 (1985), from which cer-

tiorari is being sought in this Court (No. 85-1259). The

effect of the state agency’s claim for general damages in

the consolidated lawsuit was not mentioned in the ap-

pellate court’s opinion.

REASONS FOR GRANTING THE WRIT

1. Right to trial by jury.

The Rivers and Harbors Act and the Clean Water Act

contain no provision against trial by jury. There was no

technical sort of administrative proceeding or hearing

in this case; the Government and the Florida DER sim-

12

ply filed lawsuits against petitioners seeking to have them

enjoined, fined civilly, and held for damages. The Corps

of Engineers was concededly stretching statutes never

before so applied in the interest of saving bottom growth

which had no statutory protection. The testimony of the

Government representatives contained some discrepan-

cies, and a great deal of their testimony was contested

by petitioners’ witnesses, including representatives of

other Government agencies. Thus, there were classic is-

sues of fact and credibility. To a large degree, if the

case were not decided on a point of law, its resolution

involved a value judgment of primary interest to local

citizens: whether increased navigation or unscarred bot-

tom was the higher good.

At the same time, petitioners were facing possible

ruin. To build the bridge, their tugs had to operate in

Niles Channel for more than six months. The plaintiffs

were seeking civil statutory penalties of up to $10,000

a day for every day of operation, in addition to general

damages. Petitioners believed that their positions would

likely be sustained by a Key West jury, some of whom

would be mariners, all of whom would be using the new

highway bridge, and most of whom would know of the

Corps’ penchant for litigation and expanding jurisdic-

tional claims.

Except as to the form of any mitigation or restoration

order, the equitable aspects of the case were eliminated

early when the temporary injunction applications were

denied. The trial court concluded the case by awarding

money damages and a money penalty.

In short, the suit was most similar to a damage suit

at law, and there was no reason not to empanel a jury.

Stripped of pretense, the suit was an action for trespass

to the bed of the waters.

In 1909, this Court assumed and stated that a citizen

sued by the government for a $1,000 penalty for violation

of the immigration laws was entitled to have a jury em-

13

paneled. Hepner v. United States, 213 U.S. 103 (1909)

In 1914, in United States v. Regan, 232 U.S. 37, 47

(1914), another civil penalty case, the Court stated that

a jury trial was demandable in an action of debt involv-

ing more than twenty dollars. In 1977, in Atlas Roofing

Co. v. Occupational Safety and Health Review Comm’n,

430 U.S. 442 (1977), the Co held that the Seventh

Amendment did not prohibit .ongress from assigning

hearing and fact-finding functions and penalty assess-

ments to an administrative agency. However, the Court

also noted that the cases had held “that the Government

could commit the enforcement of statutes and the impo-

sition and collection of fines to the judiciary, in which

event jury trial would be required” (id. at 460), and

that “history and our cases support the proposition that

the right to a jury trial turns not solely on the nature

of the issue to be resolved but also on the form in which

it is to be resolved.” Id. at 460-461."

In non-government lawsuits, the Court has made it

abundantly clear that a jury may be requested in civil

actions based on federal statutes (Curtis v. Loether, 415

U.S. 189 (1974) ), and that prayers for equitable relief do

16 Florida law would have provided a jury in this case had the

state’s claims been tried in state court. Article 1, $22 of the

Florida Constitution provides that “The right of trial by jury shall

be secure to all, and remain inviolate forever.” The right to a jury

trial has been called “absolute,” ‘‘organic” and “sacred” by the

Florida Supreme Court. State ex rel. Jennings v. Peacock, 126 Fla.

743, 171 So. 821, 822 (1937). Florida has followed Dairy Queen in

holding that a jury is to be provided in mixed legal and equitable

cases. Cerrito v. Kovitch, 457 So.2d 1021 (Fla. 1984). The Florida

Supreme Court has also held that a jury must be provided in new

statutory causes of action where damages and an injunction are

sought in equity. Wiggins v. Williams, 36 Fla. 637, 18 So. 859

(1896).

The Florida statutes sued on by the state agency specifically

provide for alternative administrative or judicial remedies. F.S.A.

§ 403.121(1), (2) (App. 51a). Thus, Florida’s choice to proceed

judicially rather than administratively mandated a jury trial under

the Florida authorities, in the same way as declared in Atlas Roofing.

14

not defeat the jury trial, if legal rights are also to be as-

certained and determined. Ross v. Bernard, 396 U.S. 531

(1970); Dairy Queen, Inc. Vv. Wood, 369 U.S. 469 (1962) ;

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959).

A claim for a money judgment is a legal claim (Dairy

Queen\; the awarding of compensatory and punitive

damages is a traditional legal remedy (Curtis v. Loe-

ther) ; and there is a strong federal policy favoring jury

decisions on disputed fact questions. Atlantic and Gulf

Stevedores, Inc. v. Ellerman Line, Ltd., 369 U.S. 355

(1962).

The aspects of this case which would classify it under

prior holdings of the Court as being in part legal, and

thus requiring a jury, were: (1) it was a lawsuit, filed

on the law (as opposed to admiralty) side of the court;

(2) it was not the culmination of an administrative

agency proceeding; (3) it involved a determination of

legal rights, 7.e., the right to navigate through Niles Chan-

nel; (4) it required resolution of many disputed issues of

fact; (5) the complaint of the Florida DER sought gen-

eral damages; (6) the complaint of each plaintiff sought

statutory civil penalties; and (7) the issues were of pub-

lic interest and were especially appropriate for decision

by local citizens.

There is no modern holding of this Court indicating

that a jury should not be empaneled in such a case. It

may fairly be asserted that the lesson from the holdings

is that a jury is required whenever there may be doubt."”

Juries have previously been afforded when Government

agencies have sought penalties,'* and the intermixing of

17 See J. Moore, Moore’s Federal Practice, para. 38.31[1] (2d ed.

1976); C. Wright and A. Miller, Federal Practice and Procedure,

$§ 2302, 2306, 2308, 2316 (1971).

18 United States v. Regan, 232 U.S. at 47; Hepner v. United States,

213 U.S. at 115; FAA v. Landy, 705 F.2d 624, 627, 635 (2d Cir.),

cert. denied, 464 U.S. 895 (1983); United States v. J. B. Williams

Co., 498 F.2d 464 (2d Cir. 1974).

15

claims for legal and equitable relief certainly does not de-

feat the jury right.’®

The Court should declare that the jury trial pronounce-

ments of Regan, Hepner and Atlas Roofing were not mis-

takes, and the Seventh Amendment should be applied as

in the Second Circuit Court of Appeals. Judge Friendly

for that court reasoned that “if in authorizing a civil

suit by the chief law officer of the Government, a proce-

dure which had always been thought to entail a right of

jury trial, Congress had wished to withhold it (assuming

arguendo that it could), Congress would have said so in

unmistakable terms and not left this as a secret to be dis-

covered many years later.” United States v. J. B. Wil-

liams Co., 498 F.2d at 424-425,

A citizen is in greater need of the protection of a jury

when sued by the Government, with all its resources, than

when sued by another citizen. As Congress expands the

authority of agencies to seek civil penalties in the courts,

the need for Seventh Amendment protection increases.

Under the Clean Water Act alone, there are five separate

civil penalty provisions,” ranging in amounts from $2,000

per violation (33 U.S.C. § 13822) to $50,000 per day (33

U.S.C. § 1415). But outside the Clean Water Act there

are numerous other federal statutes, many passed in the

1970’s and 1980’s, authorizing the pursuit of civil penal-

ties by action in the District Courts. The subject matter

runs the gamut from Agriculture, Animals, Antitrust and

Automobiles through Banking, Commerce, Consumer

Product Safety, Conservation, Energy, Ethics, and so on,

down through Shipping, Solid Waste Disposal, Tariffs,

Toxie Substances and Tunas-Atlantic and Tunas-Pacific

($100,000 per violation). We estimate that over a hun-

19 Dairy Queen, Inc. Vv. Wood, supra; Beacon Theatres, Inc. V.

Westover, supra; United States v. Williams, 441 F.2d 6387 (5th

Cir. 1971).

20 33: U.S.C. §§ 1319, 1821, 1322, 1344, 1415.

16

dred federal statutes enacted since 1972 have authorized

the Government to seek civil penalties in the District

Courts. Surely a jury is going to be demanded, and ought

to be provided, in those cases arising under these statutes

that have not been designated by Congress for adminis-

trative fact-finding. The Seventh Amendment is a protec-

tion against possible oppression and injustice when the

most powerful litigant in the nation finds a favorable

forum.

2. Right of navigation.

For centuries, it has been the law in Western Europe

and in this country that vessels in navigable waters are

entitled to use soft bottom in aid of navigation. In 1633,

the word “dock” (Dutch docke) was used in English to

mean “the bed (in the sand or ooze) in which a ship lies

dry at low water.” The Oxford Universal Dictionary,

1964.

By the common law of England, the right of lit-

toral proprietors, bounding on _ public navigable

waters, extended to high-water mark only. But by

an ancient ordinance, usually denominated the ordi-

nance of 1641, § 3, it is declared, “that in all creeks,

coves, and other places about and upon salt water,

where the sea ebbs and flows, the proprietor of the

land adjoining shall have propriety to the low-water

mark, where the sea doth not ebb above a hundred

rods, and not more wheresoever it ebbs further: Pro-

vided, that such proprietors shall not by this liberty

have power to stop or hinder the passage of boats,

or other vessels in or through any sea, creeks, or

coves, to other men’s houses or lands.”

The City of Boston v. Lecraw, 58 U.S. 426, 432 (1854).

Thus, by the ordinance of 1641, which became part of

the common law of some of our states, the bed of the

water was yet reserved for navigation.

The dominant right of navigation in navigable waters

of the United States has been recognized in many cases,

_

17

state and federal.* The right to use a navigable water-

way includes the right to use the soft muds of the bot-

tom.” A vessel forcing its way through soft mud is

“navigating.” Western Union Tel. Co. v. Inman & 1.8.8.

Co., 59 F. at 367-368. In fact, a tug may plow through

mud at high rpm’s. The Bart Tully, 251 F. 856, 859 (6th

Cir. 1918). Every inch of silt that can be utilized is needed

and should be scrupulously preserved for the uses of navi-

gation as against all unnecessary interference. The City

of Richmond, supra.

By what authority, then, did the Corps of Engineers

seek to prevent petitioners from navigating? The Corps

claimed authority under the Rivers and Harbors Act, 33

U.S.C. § 403, and the Clean Water Act, 33 U.S.C. $$ 1311

et seq.

The Rivers and Harbors Act of 1899 prohibits excavat-

ing or filling unless “the work” has been authorized. See

United States v. Republic Steel Corp., 362 U.S. 482

“1 Among federal cases, see United States v. Willow River Power

Co., 324 U.S. 499 (1945); Lewis Blue Point Oyster Cultivation Co.

V. Briggs, 229 U.S. 82 (1913) ; Orange Beach Water, Sewer and Fire

Protection Authority v. M/V Alva, 680 F.2d 1374 (11th Cir. 1982) ;

Rocky Point Oyster Co. v. Standard Oil Co., 265 F. 379 (D. R.1.

1920); The Steam Dredge No. 6, 222 F. 576 (D. N.Y. 1915), aff'd

sub nom. The No. 6, 241 F. 69 (2d Cir. 1917); The City of Rich-

mond, 43 F. 85 (D. N.Y. 1890), aff'd sub nom. Western Union Tel.

Co. v. Inman S.S. Co., 59 F. 365 (2d Cir. 1894). Exemplar state

cases declaring the primacy of the right to navigation are Porter

v. Allen, 8 Ind. 1, 65 Am. Dec. 750 (Ind. 1856) (whole of river a

public highway); Gunter v. Geary, 1 Cal. 462 (1851) (all belew

low-water mark is public highway) ; City of Mobile v. Eslava, 9 Port.

577, 33 Am. Dec. 325 (Ala. 1839), aff'd, 41 U.S. 234 (1842)

(navigable waters include all soil within high watermark); City

of Baltimore v. McKim, 3 Bland 453 (Md. 1831) ; Commonwealth v

Fisher, 1 Pen. & W. 462 (Pa. 18380).

“Lewis Blue Point Oyster Cultivation Co. Vv. Briggs, supra;

Orange Beach Water, Sewer and Fire Protection Authority v. M/V

Alva, supra; Jones Towing Co., Inc. v. United States, 277 F.Supp.

839 (D.C. La. 1967) ; The City of Richmond, supra.

eee

18

(1960), where both the majority and dissenting opinions

state that “the work,” denoting a planned construction

undertaking, refers to dredge and fill activities. Jd. at

486-487; see also id. at 505 (Harlan, J., dissenting). It

has never before been held that navigating through soft

bottom is an unauthorized dredge and fill “work.” The

holdings below not only strain the 1899 statute beyond

any conceivable thought of Congress; they abolish a solid

body of important primal law—the right of mariners to

use the bottom of navigable waterways—without the

slightest mention of it.

Congress enacted the Rivers and Harbors Act not for

the purpose of environmental protection but rather in

order to enhance commerce by protecting navigation on

the nation’s waterways. Legislation was required because

this Court had ruled in Willamette Iron Bridge Co. v.

Hatch, 125 U.S. 1 (1888), that the common law did not

prohibit obstruction in navigable waters. Hence, Congress

passed the Rivers and Harbors Act for the specific pur-

pose of preserving the navigability of United States wa-

ters. E.g., United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690, 707-709 (1899); Petition of Kinsman

Transit Co., 388 F.2d 708, 718 (2d Cir. 1964), cert. de-

nied, 380 U.S. 944 (1965) (the Act’s “general purpose”

is “insuring freedom of navigation’); Potomac River

Ass’n, Ine. Vv. Lundeberg Maryland Seamanship School,

Inc., 402 F. Supp. 344, 357-358 (D. Md. 1975) (“the

original purpose of the Act was to protect navigation”) ;

Phenix Construction Co. v. Cornell S.S. Co., 210 N.Y. 113,

103 N.E. 891, 893 (N.Y. 1913), aff'd, 2383 U.S. 593

(1914). In light of the well-defined legislative purpose

behind the Act, the courts should be wary of assigning

other purposes to the Congress—such as environmental

protection—under this statute. See Potomac River Asso-

ciation, 402 F. Supp. at 358.”

“3 Moreover, Congress has also plainly recognized that an im-

portant aspect of protecting the navigability of the nation’s rivers

19

The holdings below empower the Corps of Engineers to

halt shipping and boating, or individual vessels, wherever

navigation results in bottom roiling or bottom contact.

The notion that roiling the bottom is “dredging” stretches

the ordinary meaning of the term beyond what Congress

could possibly have intended. Under the evidence in this

case, all but the smallest craft navigating in the waters

of South Florida cause such disturbance. Surely so broad

a power to interdict navigation, which is contrary to the

law of the ages, ought not to be conferred except by ex-

plicit legislative action.

The Clean Water Act was passed in a more ecologically °

conscious time, yet again it contains nothing suggesting

that the mere use of the bed of navigable waters is an

unlawful “discharge” of a pollutant or the “addition of

dredged material into” waters of the United States. Un-

der all antecedent law, the soft bottom is itself a part of

the waters; ergo, its fluid movement could not be an “ad-

dition to” or “discharge into” the waters. Nothing was

emitted from the vessels in this case; nothing was taken

from or added to the waters. As conceded by Government

witnesses, all but the smallest skiffs and outboards will be

violating the Clean Water Act as the boats’ propellers stir

up milky trails of sediment in the shallow waters of

South Florida. Tr. Vol. 5, p. 75; Vol. 7, pp. 93-95, 107,

115-119.

is the removal of snags and debris from river channels. See 33

U.S.C. $§ 603a-606 (provisions for removal of snags and debris from

various waterways, including specifically the Mississippi and Ohio

Rivers). Removal of snags and other obstructions is necessary not

only to foster commercial use of the rivers but also to assure that

the rivers may be used if needed for national defense or other

emergency purposes. See generally, S. Rep. No. 722, 95th Cong., 2d

Sess. 2 (1978) (legislative history of amendments aimed at

encouraging private industry activity in dredging river bottoms).

Here, in fact, the Coast Guard wanted the channel to be accessible

to larger vessels so as to make available a safe harbor from Atlantic

storms and to provide a crossing for patrol boats.

20

Lest it be thought that the Corps would indulge a

judicious weighing process before ordering a he!t to navi-

gation, one need only look to this case. The bridge was

a much-needed joint federal-state project, its high-rise

design requested by the Coast Guard for the purpose of

making Niles Channel a new navigational crossing be-

tween the Gulf and the Atlantic; yet after the project

was under construction, the Corps sought to halt the

navigation because it was dislodging turtle grass. More-

over, there are no standards for granting a permit and

no procedures set up by which the various relevant fac-

tors can be weighed and judged. The holdings below

grant to the Corps of Engineers a vast expansion of its

power and jurisdiction, which may be arbitrarily exer-

cised about the country according to the values of the

local representative, to the detriment of water-borne

commerce.

CONCLUSION

The Court should grant certiorari and expressly hold

that a defendant is entitled to a jury when sued by the

Government for damages, penalties and equitable relief

upon contested facts. The Court should reaffirm that

the navigable waters of this country, including the navi-

gable bottoms, are forever free and open highways for

all classes of vessels, until Congress or state legislatures

expressly declare the contrary, and that neither the

Rivers and Harbors Act nor the Clean Water Act in-

hibits vessels from passing over or through the soft bot-

tom of navigable waters.

21

Respectfully submitted,

THOMAS A. HARRIS *

MILLIGAN, HOOPER, HARRIS

& BARRY

614 First Tennessee Building

Chattanooga, TN 37402

615/266-5621

Of Counsel: Attorney for Petitioners

E. BARRETT PRETTYMAN, JR.

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

JAMES T. HENDRICK

ALBURY, MORGAN & HENDRICK, P.A.

317 Whitehead Street

P.O. Box 1117

Key West, FL 33040

* Counsel of Record

APPENDICES

la &

- APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 84-5738

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Cross-A ppellant,

and

STATE OF FLORIDA,

DEPARTMENT OF ENVIRONMENTAL REGULATIONS

[sic; REGULATION],

Plaintiff-Intervenor,

Vv.

M.C.C. OF FLORIDA, INC.,

MICHAEL’S | sic; MICHAEL] CONSTRUCTION COMPANY,

Defendants-A ppellants,

Cross-A ppellees.

Oct. 7, 1985

Appeals from the United States District Court

for the Southern District of Florida

Before HENDERSON and CLARK, Circuit Judges,

and HOFFMAN,” District Judge.

HOFFMAN, District Judge:

* Honorable Walter E. Hoffman, U.S. District Judge for the

Eastern District of Virginia, sitting by designation.

2a

The United States for the Corps of Engineers brought

a civil action against M.C.C. of Florida, Inc. and Michael

Construction Co. for violating the River and Harbor Act

{sic throughout opinion] of 1899, 38 U.S.C. § 401 et seq.,

and the Clean Water Act, 33 U.S.C. $ 1251 et seq. The

State of Florida, Department of Environmental Regula-

tion (DER) intervened as a plaintiff, charging that

M.C.C. had violated similar Florida statutes, sections

403.161(1) and 403.031 Florida Statutes. The case was

tried without a jury over the objection of M.C.C. The

district court found for the plaintiffs and ordered M.C.C.

to pay $200,000 to the court for use in restoration proj-

ects in South Florida and $20,000 in civil penalties.

M.C.C. appeals this decision and the United States has

cross-appealed on the issue of the appropriateness of

the remedy.

In late December, 1980, the Florida Department of

Transportation (DOT) awarded the contract to M.C.C. to

build a replacement bridge over Niles Channel as part of

its project to restore U.S. Highway 1. Niles Channel is

a navigable waterway connecting the Bay of Florida

with the Atlantic Ocean. The contract called for seg-

mental construction which entails the making of large

hallow concrete segments at M.C.C.’s casting yard at

Conch Key. The segments were too large to be carried

over land to the construction site and therefore had to be

transported by barge.

The DOT, in 1975, had prepared an environmental im-

pact study which called for a bridge with a 15 foot clear-

ance, but stated that it may be raised. The contract made

in 1980 called for a 40 foot clearance. A negative declara-

tion was issued which meant that the project would not

adversely affect the environment. DOT was responsible

for obtaining all the necessary permits. In 1978, con-

1M.C.C. of Florida, Inc. was a subsidiary of Michael Construction

Co. A merger has since occurred and, therefore, no distinction

between the two is necessary. The defendants will hereinafter be

referred to simply as M.C.C.

3a

struction permits for the Niles Channel Bridge were issued

by the Corps and the DER. The application specified a

conventional design which would have involved trucking

the construction materials over land. The segmental con-

struction method was not decided upon until the contract

was awarded in 1980. The Corps and DER were not

notified of the change.

The court found that there was damage to the bottom

vegetation in two areas. Site # 1, located four miles from

the bridge within the National Key Deer Refuge bounda-

ries and Site # 2, located eight miles from the bridge

within the National Key Deer Refuge and the Great White

Heron National Wildlife Refuge. The permits issued by

the Corps and the DER covered only areas within the

DOT right-of-way.

It was during the spring of 1981 that the Corps and

DER became aware of M.C.C.’s barge activities. Efforts

were made to reach a solution. Failing to reach agree-

ment, the Corps issued a Cease and Desist Order on

August 7, 1981, prohibiting M.C.C.’s tugs from engaging

in further dredge and fill activities in the subject areas.

It was the contention of the Corps and DER that the tugs

were engaged in dredging and discharging pollution into

the water when the propellers of the tugs cut into the

bottom, uprooting and destroying the sea grass and de-

positing bottom sediment on adjacent sea grass beds.

On October 7, 1981, DER and Corps personnel stopped

one of M.C.C.’s tugs in the subject area and gave a copy

of the Cease and Desist Order to the captain. The United

States sought a temporary restraining order and on

November 29, 1981, the district court held a hearing.

The district court refused to issue a restraining order

but instructed the defendants to confine their tugboat

trips to high tide and to alert Corps personnel of the

time of their movements throughout the subject areas.

The United States foved for a rehearing on the prelimi-

nary injunction which was denied. After the hearing on

4a

the temporary restraining order, M.C.C. restricted the use

of its larger tug and made some efforts to comply with

the court’s instructions limiting its tugboat activities.

M.C.C., however, did not comply fully with the court’s

instructions. Its tugs made at least 112 movements

through Niles Channel in connection with its construction

work. Many of these movements were at night or in the

poor lighting conditions of dawn or dusk.

The court found that there was extensive damage to

the bottom vegetation at the two sites which had been

caused by M.C.C.* The court stated that the “damage to

the marine vegetation and the bottom sediments in Site

#1 is devestating [sic]. Acres formerly lush with vege-

tation have been completely denuded. The bottom scarring

at Site #2, although less severe, is still extensive and

significant.” The court also found that other unknown

people had caused some of the damage. It held, however,

that since the majority of the damage had been caused by

M.C.C., it would not be unjust to hold M.C.C. responsible

for all the damage.

The district court held that M.C.C. had violated the

River and Harbor Act by dredging with its propeller sys-

tem without a permit and had discharged pollutants in

violation of the Clean Water Act by redepositing bottom

sediment on adjacent sea grass beds. The court also held

that M.C.C. had violated the similar Florida statutes.

The United States submitted two alternative plans for

restoration of the damaged areas. The United States’

preferred plan would have cost $793,414 and its alterna-

tive plan would have cost $742,063. M.C.C. did not sub-

mit any plan of its own. The district court rejected both

of the government’s plans because their chances of success

were very speculative and their costs were so high.

2 The court found that there was insufficient evidence to establish

that M.C.C. had engaged in any dredge or fill activities in a third

site.

lll

5a

On appeal, we are faced with the questions of whether

M.C.C.’s conduct was prohibited by the River and Harbor

Act or the Clean Water Act. Also, we are asked to decide

whether M.C.C. was entitled to a jury trial and whether

the district court’s remedy was appropriate.

River and Harbor Act

M.C.C. was found to have violated Section 10 of the

River and Harbor Act. 33 U.S.C. § 403. This section

provides:

§$ 403. Obstruction of navigable waters generally;

wharves; piers, etc.; excavations and filling in

The creation of any obstruction not affirmatively au-

thorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall not be lawful to build or commence the

building of any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor canal, navigable

river, or other water of the United States, outside

established harbor lines, or where no harbor lines have

been established, except on plans recommended by

the Chief of Engineers and authorized by the Secre-

tary of the Army; and it shall not be lawful to exca-

vate or fill, or in any manner to alter or modify the

course, location, condition, or capacity of, any port,

roadstead, haven, harbor, canal, lake, harbor of

refuge, or inclosure within the limits of any break-

water, or of the channel of any navigable water of

the United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the

same. (Emphasis added).

M.C.C. argues that the term “work” means a planned in-

tentional construction or undertaking. It contends that

the. dredging and fillings caused by the propellers of its

tugs was not “work” since it did not specifically intend

Ty

i

6a

to dredge a channeil and fill the adjacent areas. There-

force, M.C.C. argues, it did not violate the Act.

The Supreme Court discussed this section in United

States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884,

4 L.Ed.2d 903 (1980), and rejected the narrow interpre-

tation of Section 10 which M.C.C. urges. The Court stated

that the “philosophy of the statement of Mr. Justice

Holmes in New Jersey v. New York, 283 U.S. 336, 342

[51 S.Ct. 478, 479, 75 L.Ed. 1104 (1931) ], that ‘A river

is more than an amenity, it is a treasure,’ forbids a

narrow, cramped reading either of § 13 or § 10.” Jd. at

491, 80 S.Ct. at 890.

In Republic Steel, the defendant was discharging solid

industrial waste into a river. This progressively de-

creased the depth of the river. The court held that this

activity violated the first clause of Section 10 which pro-

hibits “any obstruction” not approved by Congress. In

so holding, the court stated:

The reach of $10 seems plain. Certain types of

structures, enumerated in the second clause, may not

be erected “in” any navigable river without approval

by the Secretary of the Army. Nor may excavations

or fills, described in the third clause, that alter or

modify “the course, location, condition, or capacity

of” a navigable river be made unless “the work”

has been approved by the Secretary of the Army.

There is, apart from these particularized invasions

of navigable rivers, which the Secretary of the Army

may approve, the generalized first clause which pro-

prohibits “the creation of any obstruction not af-

firmatively authorized by Congress, to the navigable

capacity” of such rivers. We can only conclude that “¥

Congress planned to ban any type of “obstruction,”

not merely those specifically made subject to ap-

proval by the Secretary of the Army.

Id. at 486-7, 80 S.Ct. at 887.

—————————————

Ta

Later, in Wyandotte Transportation Co. v. United

States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407

(1967), the Court again emphasized the breadth of the

language used by Congress. It stated that the River

and Harbor Act of 1899 “was obviously intended to

prevent obstructions in the Nation’s waterways. Despite

some difficulties with the wording of the Act, we have

consistently found its coverage to be broad.” Jd. at 201,

88 S.Ct. at 385. Clearly, the Supreme Court has rejected

the narrow interpretation of Section 10 which M.C.C.

has advocated. Congress has prohibited all activities

which obstruct the navigable waters of the United States,

not just those that fall within the third clause of Section

10.

But, even if we accept M.C.C.’s interpretation of Sec-

tion 10, M.C.C.’s activities clearly fit within those that

require a permit under the third clause of the section.

The district court found that M.C.C. “willfully violated”

the Act and described their behavior as “illegal and will-

ful.” Furthermore, the district court specifically found

that M.C.C. “knowingly created the propeller-dredged

channel.” We can not say that the district court erred

in its assessment of M.C.C.’s conduct.

M.C.C. made over 112 trips through the area with its

tugs after it was served with a cease and desist order by

the Corps. Also, M.C.C. failed to fully comply with the

district court’s instruction limiting the activities of its

tugs. Repeatedly going back and forth across the subject

areas with equipment that is dredging a channel and

dumping the spoil on the adjacent sea grass beds clearly

fits within the plain language of the third clause of

Section 10. The fact that the equipment used was the

propellers of a tug is immaterial. M.C.C. knew that its

activities were dredging a channel and filling the ad-

jacent areas. It did not comply with the district court’s

instructions which were designed to avoid, or at least

limit, the damages. Although M.C.C.’s ultimate goal was

8a

to construct a bridge for U.S. 1, as part of that work,

it willfully and with full knowledge, dredged and filled

in the subject areas.

Clean Water Act

The Clean Water Act, 33 U.S.C. § 1251 et seq., pro-

hibits, with certain exceptions not applicable in this case,

the discharge of pollutants into the navigable waters of

the United States. The term, “discharge of a pollutant”

is defined as -“(A) any addition of any pollutant to

navigable waters from any point source... .” 33 U.S.C.

$ 1362112). A “point source” is defined as:

any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated animal feeding operation, or

vessel or other floating craft, from which pollutants

are or may be discharged. This term does not in-

clude return flows from irrigated agriculture.”

33 U.S.C. § 1862(14) (emphasis added). The Act de-

fines “pollutant” to mean:

dredged spoil, solid waste, incinerator residue, sew-

age, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive materials,

- heat, wrecked or discarded equipment, rock sand,

cellar dirt and industrial, municipal, and agricul-

tural waste discharged into water.

33 U.S.C. § 186216) (emphasis added).

Clearly, the tugs used by M.C.C. were point sources

since the Act specifically includes vessels within the

meaning of that term. Furthermore, the vegeation and

sediment that was redeposited on the adjacent sea grass

bed was a “pollutant” since the Act includes “dredged

spoil” in the definition of that term. The question pre-

sented to this court, therefore, is whether the redeposit-

9a

ing of the spoil dredged by the propellers of M.C.C.’s

tugs constituted a “discharge of a pollutant,” within the

meaning of the Act. M.C.C. contends that since the def-

inition of “discharge of a pollutant” uses the word “ad-

dition,” that the redepositing did not add anything to the

waters of the United States and therefore it did not

violate the Clean Water Act. We, however, conclude that

M.C.C. did violate the Act by redepositing the vegetation

and sediment on the adjacent sea grass beds.

Congress declared that the objectives 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. The House Committee on Public

Works, in a report which accompanied the House bill,

stated:

Subsection (a) of section 101 declares the objective

of this legislation to be the restoration and main-

tenance of the chemical, physical, and biological in-

tegrity of the Nation’s waters.

The word “integrity” as used is intended to convey a

concept that refers to a condition in which the nat-

ural structure and function of ecosystems is main-

tained.

* * . *

Although man is a “part of nature” and a produc-

tion of evolution, “natural” is generally defined as

that condition in existence before the activities of

man invoked perturbation which prevented the sys-

tem from returning to its original state of equilib-

rium.

This definition is in no way intended to exclude man

as a species from the natural order of things, but

in this technological age, and in numerous cases that

occurred before industrialization man has exceeded

nature’s homeostatic ability to respond to change.

Any change induced by man which overtaxes the

10a

ability of nature to restore conditions to “natural”

or “original” is-an unacceptable perturbation.

H.Rep. No. 92-911, 92d~Cong., 2d Sess. 76-77 (1972),

reprinted in 1 Legislative History 753, 763-764 (quoted

in Minnehaha Creek Watershed District v. Hoffman, 597

F.2d 617, 625 (8th Cir.1979).

Given the broad objectives of the Clean Water Act, we

are in agreement with the Fifth Circuit that the “word

‘addition’ as used in the definition of the term ‘dis-

charge,’ may reasonably be understood to include ‘rede-

posit.’”’ Avoyelles Sportsmen’s League Inc. v. Marsh,

715 F.2d 897 (5th Cir.1983). The redepositing of spoil

dredged up by the tug’s propellers onto the adjacent sea

grass beds clearly disturbs the “physical and _ biological

integrity” of the subject areas. The damage done to those

areas was too severe for nature to be able to restore

them to their natural condition herself. Therefore, we

affirm the district court’s decision that M.C.C. violated

the Clean Water Act.

Jury Trial

M.C.C. contends that it was entitled to a jury trial and

that the district court therefore erred in striking its

demand for one. The Seventh Amendment to the Consti-

tution provides that in “Suits at common law, where the

value in controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved.” U.S. Const. Amend.

VII. The Supreme Court has held that it is “the nature

of the issue to be tried_rather than the character of the

overall action” that is determinative. Ross v. Bernhard,

396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729

(1970). When there are both legal and equitable issues

present, then the right to a jury trial as to the legal

issues remains. Dairy Queen v. Wood, 369 US. 469,

82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc.

v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988

lla

(1959). Therefore, we must examine whether any of the

issues were legal in nature.

The Supreme Court in Williamette Iron Bridge Co. v.

Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1877), held

that there was no common law of the United States which

prohibited obstructions in navigable rivers. /d. at 8, 8

S.Ct. at 814. The River and Harbor Act of 1899 was

passed by Congress to rectify this problem. United States

v. Republic Steel Corp., 362 U.S. 482, 486, 80 S.Ct. 884,

887, 4 L.Ed.2d 903 (1960). Later, in Wyandotte Co. v.

United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d

407 (1967), the Court held that the government could

bring suit to recover the cost of removing a sunken vessel

even though the Act did not specifically provide for it.

The analysis used by the court was equitable in nature.

The Supreme Court has also used an equitable analysis

in interpreting the Clean Water Act. Recently, in Wein-

berger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798,

72 L.Ed.2d (1982), the Court stated that the Clean

Water Act permitted “the exercise of a court’s equitable

discretion, whether the source of pollution is a private

party or a federal agency, to order relief that will

achieve compliance with the Act.” Jd. at 318, 102 S.Ct.

at 1806 (emphasis added). It is clear that both the Clean

Water Act and the River and Harbor Act issues were

equitable in nature. Therefore, M.C:€;-was not entitled

to.aj ral."

* Our attention is directed to K.M.C. Co., Inc. v. Irving Trust

Co., 757 F.2d 752 (6th Cir. 1985). In a financing agreement be-

tween K.M.C. and Irving, a paragraph stated that each party

“waives all right to a trial by jury in any action or proceedings

relating to transaction under this Agreement.” The opinion dis-

cusses the necessity of a waiver being “knowing and voluntary.”

. It is clearly inapposite. On the other hand the recent case of

United States v. Tull, 769 F.2d 182 (4th Cir. 1985), is squarely

in point in that the action was brought under the River and Harbor

Act, 33 U.S.C. § 401, et seq., and the Clean Water Act, 33 U.S.C.

$ 1251, et seq., the same as in the instant case. We incorporate

12a

Remedy

The district court rejected the government’s two alter-

native restoration plans because it determined that their

prospect for success was too speculative and that they

were too costly. In United States v. Sexton Cove Estates,

Inc., 526 F.2d 1293 (5th Cir.1976),* the Fifth Circuit

stated that the “degree and kind of wrong and the practi-

cality of the remedy must be considered in the formula-

tion of that remedy.” Jd. at 1801. In the case at bar,

that is precisely what the district court did in rejec‘ing

the government’s plan. Instead, the district court re-

quired M.C.C. to pay to the court $200,000 to be used

in restoration of areas in South Florida, and a $20,000

fine.

We concur with the district court’s findings and con-

clusion that the government’s two alternative restoration

plans were too speculative and costly. We cannot concur

in the requirement that M.C.C. pay to the court $200,000

to be used in restoration areas in South Florida without

any specific plan having been suggested or submitted.

We concur in the district court’s conclusion that where

on-site restoration cannot be feasibly accomplished, miti-

ion iS an appropriate remedy. We note the district

court’s adoption of the remedy in United States v. Board

of Trustees of Florida Keys Community College, 531

F.Supp. 267 (S.D.Fla.1981). In that case the court sim-

the reasoning of Chief Judge Winter in Tull as fv ther authority

for our conclusion on the jury trial issue.

*On August 26, 1985, appellants filed a motion to supplement the

record, a suggestion of mootness, and a motion to vacate. ‘These

matters, while appearing to be newly discovered, may, or may not,

affect the remedy which we have remanded to the district court.

In permitting further evidence to be submitted, we suggest that

the issues raised by this post-argument motion should be explored.

We do not intimate in any manner what the final result should be;

nor do we make any finding that the damages previously deter-

mined by the district court are in any way affected by the issues

raised by appellants in their post-argument motions.

13a

ilarly concluded that restoration of the destroyed site

was too expensive and was infeasible, and required the

defendant to provide an alternative beneficial environ-

mental area comparable to the destroyed area and one

that would serve the same purpose. We concur in the

district court ordering such a remedy but remand for

the purpose of the court requiring the defendant to pre-

pare and submit a substitute environmental plan together

with estimated costs. The parties should have ample op-

portunity to confer with one another about such an

alternative remedy. The district court should retain

jurisdiction to assess the costs of such a remedy and to

insure its implementation by giving court approval to

the plan and the methodology to be used and the parties

responsible for performing the alternative appropriate

environmental remedy.’ ©

The government asserts that the district court abused

its discretion in refusing to order M.C.C. to restore areas

of the Niles Channel. We agree with the district court

and, additionally, we should note that, as to certain areas

of the Niles Channel, the recent developments mentioned

in footnote 4 may be included therein.

For the reasons stated in the foregoing opinion this

case is AFFIRMED in part, REVERSED in part, and

REMANDED.

®* The decisions of the Fifth Circuit prior to September 30, 1981,

are binding precedent in the Eleventh Circuit. Bonner v. City of

Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

l4a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 81-2373-CIV-EBD

UNITED STATES OF AMERICA,

Plaintiff,

and

STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION,

Plaintiff /Intervenor

VS.

MCC oF FLorIpDA, INC., e¢ al.,

Defendants.

[Filed May 13, 1982]

ORDER

THIS MATTER is before the Court on the Motion of

the Plaintiff/Intervenor to Strike the Demand for Jury

Trial in the Defendants’ Answer to the Intervenor’s Com-

plaint. The Court has reviewed the motion, memorandum

of law and all opposing papers. Based upon an evalua-

tion of the arguments presented, in light of the entire

record in this case, it is

ORDERED and ADJUDGED that the Motion is

GRANTED. The demand for jury trial is hereby stricken

from the Defendants’ Answer. This ruling does not ad-

~ 15a

dress the demand for jury trial contained in the De-

fendants’ Counterclaim.

DONE and ORDERED at Miami, Dade County, Flor-

ida, this 18th day of May, 1982.

/s/ Edward B. Davis

United States District Judge

Copies furnished to:

Paul R. Ezatoff, Jr.

Thomas A. Harris, Esq.

James T. Hendrick, Esq.

Clay McGonagill, Jr.,

Michael J. Mitchell, AUSA

l6a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA j

Case No. 81-2373-CIV-EBD

UNITED STATES OF AMERICA,

Plaintiff,

and

STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION,

Plaintiff /Intervenor

VS.

M.C.C. OF FLORIDA, INC., et al.,

Defendants.

“The Court: Reviewing again my order of May 13th, it

seemed to me at this point the only thing that I left open,

as I view it, was the counterclaim. But I struck it as to

your demand for the jury trial.”

Oral ruling of the district

court, Nov. 1, 1982.

17a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 81-2373-CIV-EBD

UNITED STATES OF AMERICA,

Plaintiff,

and

STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION,

Plaintiff / Intervenor

vs.

M.C.C. or FLoripa, INC., et al.,

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

OF DISTRICT COURT FOLLOWING LIABILITY

HEARING

(12/17/82)

THIS MATTER has come before the Court for trial

without a jury. Based upon the admissible evidence

adduced at trial and the arguments of counsel, the Court

does make and enter the following Findings of Fact and

Conclusions of Law.

FINDINGS OF FACT

1). This is a civil action by the United States of

America under the Rivers and Harbors Act, 33 U.S.C.

$ 403, et seg, and the Clean Water Act, 33 U.S.C. § 1311,

et seq., seeking restoration and civil penlaties.

18a

2). The Plaintiff/Intervenor, the State of Florida De-

partment of Environmental Regulation, [D.E.R.], Stat-

utes [sic] and also seeks restoration. The D.E.R. has

withdrawn their claim for civil penalties.

3). A counterclaim has been brought against the

United States under 28 U.S.C. s 2412 for attorneys’ fees,

experts’ fees and expenses. Similarity [sic], a counter-

claim has been brought against the D.E.R. for general

damages.

4). The Defendant, Michael Construction, is a Ten-

nessee corporation and the parent corporation of M.C.C.

of Florida, Inc.

5). The Defendant, M.C.C. of Florida, Inc, is a

Florida corporation whose principal business involves

bridge construction.

6). Niles Channel is a navigable waterway connecting

the Bay of Florida with the Atlantic Ocean.

7). The Niles Channel Bridge supports U.S. Highway

1 over Niles Channel. This bridge was one of thirty-

seven bridges to be replaced as part of the Florida Keys

Bridge Replacement Program.

8). M.C.C. of Florida-isthe-prime contractor for the

construction of a replacement bridge over Niles Channel.

9) In competitive bidding, M.C.C. of Florida, Ince.,

was awarded the contract for construction of the Niles

Channel Bridge. The Florida Department of Transpor-

tation [D.O.T.] had requested bids for the alternate

methods of construction: conventional girder and seg-

mental construction. M.C.C. of Florida’s bid for seg-

mental construction was the lowest overall bid. |

10). In late December, 1980, the D.O.T. entered into

a contract with M.C.C. of Florida for construction of

the Niles Channel Bridge. The contract called for seg-

mental construction.

19a

11). The D.O.T. has assumed the responsibility for

acquiring permits from all concerned state and federal

agencies for construction of the Niles Channel Bridge,

as well as the other thirty-six bridges which were part

of the replacement program.

12) In 1975, prior to the construction of any of the

thirty-seven bridges, a Draft Environmental Impact

Statement was prepared jointly by the Federal Highway

Administration and the Florida D.O.T.

13). The Environmental Impact Statement noted that

the bridge replacement project would cause damage to

marine vegetation and to marine life, huwever, the dam-

age would be temporary and the areas sustaining the

damage were not considered unique. It further noted

that “while U.S. 1 passes by and provides access to the

Great White Heron National Wildlife Refuge and the

National Key Deer Refuge along with several lesser

sanctuaries, no area of these preserves or species habitat

within these preserves is affecteel by the construction

areas of the bridge replacement project”.

14). After consideration and opportunity for input by

all concerned agencies including the D.E.R. and the De-

partment of Army, Corps of Engineers [Corps], a nega-

tive declaration was issued with respect to the Environ-

mental Impact Statement.

15). The D.O.T., consistent with predictions set forth

in the Negative Declaration, altered the design of the

Niles Channel Bridge raising it from the original pro-

posal of 15 feet to a height of 40 feet. The Corps and

the D.E.R. were aware of this height change and did

not challenge it.

16). The decision to employ a segmental construction

method rather than conventional girder design was not

finally made until the contract was awarded in 1980.

17). When construction permits for the Niles Channel

Bridge were issued by the Corps and the D.E.R. in 1978,

aati ioc ea

20a

a conventional design was specified in the applications.

This method contemplated materials to be trucked in on

overland roads.

18). Neither the Corps nor the D.E.R. learned of the

change to segmental construction until 1981 when actual

construction had begun. No modification was ever made

in the applications or the permits to reflect the change in

construction methods.

19). Segmental construction required the barging of

bridge segments. The segments needed for this method

of construction were too heavy and cumbersome to be

brought to the bridge site on an overland route.

20). The Defendants had a casting yard on Conch

Key where they formed the bridge segments used on the

Niles Channel Bridge. These segments, along with other

construction materials, were loaded on barges and taken

from the casting yard in a southwesterly direction through

Florida Bay down to the Niles Channel construction site.

21). The Defendants used two tugs for the transporta-

tion of bridge segments from Conch Key to the bridge

site: the “LiL’ Pal” and the “Annie L II”. Michael Con-

struction Company is the record title holder of both tugs.

M.C.C. of Florida leased these tugboats from Michael Con-

struction Company and operated them in their work on

the Keys bridges.

22). The route the Defendant’s tugboats travelled from

the casting yard to the bridge site encompassed the three

areas which are the subject of this litigation. These areas

have been designated in the following manner: Site #1

—this site is located north of U.S. Highway 1 in Niles

Channel approximately halfway between Toptree Ham-

mack Key and Big Torch Key; Site + 2—this site is

located northwest of site # 1 in Niles Channel adjacent to

Raccoon Key; and Site # 3—this site is located between

Cudjoe Key and Big Spanish Key in a shallow section

of Big Spanish Channel.

2la

23). Site #1 is approximately 4 miles from the

bridge. Site #2 is approximately 8 miles from the

bridge. Site #3 is approximately 20 miles from the

bridge.

24). Site #1 is located within the boundaries of the

National Key Deer Refuge. Site #2 and Site +3 are

located within the boundaries of both the National Key

Deer Refuge and the Great White Heron National Wild-

life Refuge.

25). The bottom communities at the subject sites are

characterized by lush seagrass vegetation. Species present

include: turtle grass (Thalasia); manatee grass (Sy-

ringodium) and Cuban shoalweed (Haledule), turtle

grass being the most prevalent. The seagrass beds play

an essential role in the areas unique eco-system. These

beds form the critical base link in the aquatic food chain

and serve as a habitat and/or spawning ground for such

marine species as lobster, shrimp, stone crab, snapper and

grouper. The disappearance of any sizeable area of the

seagrass beds causes significant disruptions to the eco-

system of this shallow water marine community.

26). The construction permits issued by the Corps

and the D.E.R. for the Niles Channel Bridge covered only

areas within the D.O.T. right of way.

27). Niles Channel, the location of Site #1 and Site

# 2, is a shallow tidally influenced body of water running

between Florida Bay and the Atlantic Ocean. Water

depths through the Channel range from 0’ mean low

water to —23’ mean low water. The bulk of the area is

heavily vegetated by marine grasses and algae beds. Two

deep areas exist in Niles Channel: one, a narrow channel

running from Florida Bay through Cudjoe Channel to

the north and two, an isolated trench immediately to the

northeast of Treetop Hammock Key.

28). Big Spanish Channel is a navigable tidal water-

body running in a north-south direction between Florida

22a

Bay and the Florida Straits. The channel is vegetated

throughout with marine seagrass. Controlling depths

through the navigable portions of the Channel are —5’

to —6’ mean low water.

29). During the spring of 1981, the Corps and the

D.E.R. first became aware of the Defendants barge ac-

tivities in the subject areas. Efforts were made to work

out a solution that would be acceptable to all concerned

parties. These efforts were unsuccessful.

30). On Agust 7, 1981, the Defendants were served

with a Cease and Desist Order by the Corps prohibiting

the Defendants’ tugs from engaging in further dredge

and fill activities in the subject areas.

31). On September 4, 1981, the Defendants and D.O.T.

officials met with the representatives of the Corps and

the D.E.R. in an attempt to formulate an agreement con-

cerning tug barge movements in Niles Channel. The

meeting concluded without an agreement.

32). On October 7, 1982, D.E.R. and Corps personnel

observed repeated movements of the Defendants’ tug

“Annie L IJ”? through the area designated as Site I.

Some of these movements were for purposes other than

the transportation of heavy materials and equipment. The

functions performed during these movements could have

been accomplished through the use of smaller work boats

which would not cause bottom scarring. The Defendants

were also given a copy of the Corps previously issued

Cease and Desist Order at this time.

33). During September and October of 1981, the De-

fendants continued tug and barge movements in the sub-

ject area and this action was brought. On November 29,

[sic; October 29] 1981, an injunction hearing was held

concerning the Defendants’ conduct.

34). Following the hearing, the Court denied the gov-

ernment’s motion for a preliminary injunction, however,

23a

the Defendants were instructed to confine their tugboat

trips to high tide and to alert Corps personnel regarding

the time of their movements through the subject areas.

35). On some, but not all occasions, the Defendants

contacted Corps personnel regarding the movements of

their tugs and barges through Niles Channel.

36). Following the November preliminary injunction

hearing the Defendants restricted to a large extent, the

use of the larger tug “Lil’ Pal” in Niles Channel.

37). The Defendants made some effort to conduct their

tug and barge movements in Niles Channel during high

tide periods, although they did not do so in all instances.

38). The Defendants’ tugs made at least 112 move-

ments through Niles Channel in connection with the bridge

project. Many of these movements were at night or in the

poor lighting conditions of dawn or dusk.

39). Personnel from the Corps and the D.E.R. have

personally observed channel dredging and filling by the

propeller systems of the Defendants’ tugboats in the areas

designated as Site #1 and Site #2.

40). The on-site observations by D.E.R. and Corps

personnel detail Channel dredging by the propeller sys-

tems of the Defendants’ tugs of depths of up to two feet.

Also observed on these occasions was the accompanying

uprooting and destruction of sea grass, as well as the

deposition of bottom sediment on adjacent sea grass beds.

41). Log records and on-site observations by the Corps

personnel establish several groundings by the Defendants’

tugs and barges in the subject areas.

42). The Defendants’ tug activities have, on at least

three occasions, caused turbidity over an extensive area

well in excess of fifty Jackson Units above the natural

functioning of the marine eco-system.

24a

43). The damage to the marine vegetation and the

bottom sediments in Site #1 is devestating [sic]. Acres

formerly lush with vegetation have been completely de-

nuded. The bottom scarring at Site #2, although less

severe, is still extensive and significant.

44). There is insufficient evidence to establish that the

Defendants engaged in any dredge and fill activities in

the area designed as Site # 3.

45). There were alternative methods of transporting

bridge segments which would have avoided any impact

on the subject areas, the least costly of which would have

been the use of shallow-draft tugboats. The Defendants

considered and rejected these alternatives.

46). Neither the Corps nor the D.E.R. engaged in acts

or tactics of harassment in their investigation and en-

forcement efforts with respect to the Defendants activities.

CONCLUSIONS OF LAW

1). This Court has subject matter jurisdictiom over

the issues raised in the pledings of this law suit pur-

suant to 28 U.S.C. § 1845 and 33 U.S.C. § 408, 406, 1311

and 13819.

2). The Complaint charges the Defendants with vio-

lations of the Rivers and Harbors Act. Section 10 of this

Act states in part:

. it shall be unlawful to excavate or fill, or in any

manner to alter or modify the course, location, con-

dition, or capacity of, any port, roadstead, haven,

arbor, canal, lake, harbors of refuge, or inclosure

within the limits of any breakwater, or of the chan-

nel of any navigable water of the United States,

unless the work has been recommended |, the Chief

of Engineers and authorized by the Secretary of the

Army prior to beginning the same... 33 U.S.C.

$ 403.

25a

3). “Navigable waters” are those waters subject to

the ebb and flow of the tide and/or are presently used or

have been used in the past, or are susceptible for use to

transport interstate or foreign commerce. 33 C.F.R.

§ 329.4.

4). The areas which are the subject of this litigation

are “navigable waters” within the meaning of the Rivers

and Harbors Act.

5). Section 10 of the Rivers and Harbors Act has

been broadly construed in determining if violations have

occurred. U.S. v. Republic Steel, 362 U.S. 482 (1960) ;

See U.S. v. Moretti, 526 F.2d 1306 (5th Cir.1976).

6). The Defendants have committed violations of Sec-

tion 10 of the Rivers and Harbors Act. These violations

occurred when the propeller systems of the Defendants’

tugboats made contact with the sea bottoms uprooting

sea grasses and causing the adjacent areas to become

filled with dredged materials. Such excavation and fill

activities by boat propellers, of the extent and devesta-

tion which occurred in this instance, constitutes channel

dredging.

7). The fact that the Defendants mistakenly placed

reliance on the D.O.T. to obtain the necessary permits for

them does not excuse the violations. U.S. v. Board of

Trustees of Florida Keys Community College, 531 F.

Supp. 267 (S.D.Fla.1981).

8). The awareness of the change in bridge height on

the part of the Corps and the D.E.R. prior to the com-

mencement of construction did not constitute a waiver of

the permit requirements. U.S. Board of Trustees of

Florida Keys Community College, supra.

9). The Clean Water Act, 33 U.S.C. § 1311, set seq.

sets up a comprehensive regulatory scheme which pro-

hibits, with certain narrow and well defined exceptions,

the discharge of pollutants into the navigable waters of

the United States.

ee

26a

10). The term “discharge of a pollutant” is defined in

33 U.S.C. .§ 1862 (12) as follows:

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addi-

tion of any pollutant to navigable waters from any

point source. (B) any addition of any pollutant to

the waters on the contiguous zone or the ocean from

any point source other than a vessel or other floating

craft.

11). The term “point source” is defined in 33 U.S.C.

§ 1362 (14) as follows:

The term “point source” means any discernible, con-

fined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock, con-

centrated animal feeding operation, or vessel or other

floating craft, from which pollutants are or may be

discharged. This term does not include return flows

from irrigated agriculture.

(12). The term “point source” expressly includes ves-

sels and has been found to encompass bulldozers, dump

trucks, land-clearing equipment and ditch excavation

equipment. See U.S. v. Weisman, 489 F. Supp. 1331

(M.D. Fla. 1980).

(13). The Defendants’ tugboats are point sources

within the meaning of the Clean Water Act.

(14). Dredge spoil, sand and biological materials are

listed as “pollutants” in Section 1362(6) of the Clean

Water Act. See Weiszmann v. District Engineer, U.S.

Army Corps of Engineers, 526 F.2d 1302 (5th Cir.

1976}.

(15). The Defendants have violated the Clean Water

Act. These violations occurred when the propeller sys-

tems of the Defendants’ tugboats dredged channels in the

sea bottom of the areas designated as Site #1 and Site

#2. This propeller dredging caused dredge materials,

a ee Te

27a

sand and biological materials to be deposited on the ad-

jacent seagrass beds. The extent of the harm to the im-

pacted environment caused by these violations is far too

severe and significant to be considered de minimus.

(16). Niles Channel and the subject areas of this ac-

tion are “water of the State” as that term is defined in

Section 403.031(3) of the Florida Statutes.

(17). Dredging and filling in waters of the State with-

out a permit constitutes violation of Section 403.161(1)

(b).

(18). Dredging, as defined in Rule 17-4.02 (12) of the

Florida Administrative Code is “excavation, by any

means’. The excavation of bottom sediments by the pro-

peller systems of the Defendants’ tugs constitutes dredg-

ing within the meaning of this Rule.

(19). Because no permit has been obtained for dredg-

ing activities outside the D.O.T. right of way, the De-

fendants’ propeller excavations in Niles Channel were in

violation of Section 403.161 (1) (b).

(20). Pollution is defined in Section 403.031(2) of the

Florida Statutes in the following manner:

Pollution is the presence in the outdoor atmosphere

or waters of the state of any substances, contami-

nants, noise, or man-made or man-induced alteration

of the chemical, physical, biological, or radiological

integrity of air or water in quantities or at levels

which are or may be potentially harmful or injurious

to human health or welfare, animal or plant life, or

property, or unreasonably interfere with the enjoy-

ment of life or property, including outdoor recrea-

tion.

(21). The Defendants’ dredging activities has resulted

in the destruction of lush seagrass beds. This destruction

has taken two forms: uprooting through direct contact

with the propeller systems of the Defendants’ tugboats;

and habitat displacement as a result of the deposition of

dredge materials on adjacent beds.

™ snennteneantteta

28a

(22). The destruction of the seagrass beds has ad-

versely altered the physical and biological integrity of

the waters of Niles Channel. This has had a harmful and

destructive effects on the marine communities which live

and breed in this area.

(23). The Defendants’ dredging activities have caused

pollution in violation of Section 403.161 (1) (a) of the

Florida Statute.

(24). Turbidity in excess of fifty Jackson Units above

the natural background is pollution above the acceptable

level as set forth in Rule 17-3.061 (2) (b) of the Florida

Administrative Code. It is a violation of Section 403.161

(1) (a) and (b) of the Florida Statutes to cause turbidity

in excess of this standard. The Defendants, on at least

three occasions, have violated this statute.

(25). The Corps and the D.E.R. acted reasonably in

their efforts to prevent environmentally harmful viola-

tions within the respective spheres of their jurisdiction.

There was no harassment by either agency as to these

Defendants.

(26). The Counter-plaintiffs have failed to establish

any damages which they may have suffered as a result

of any act or position taken by the D.E.R.

(27). The Counter-plaintiffs have not prevailed on

either of their counterclaims.

The Court reserves ruling on the issues of restoration

and civil penalties in order to afford the parties sufficient

opportunity to study the restoration alternatives. A sep-

arate hearing on these issues will be set by future order.

DONE and ORDERED this 17th day of December,

1982.

/s/ Edward B. Davis

United States District _— Judge

Copies Furnished to Counsel

29a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 81-2373 CIV-EBD

UNITED STATES OF AMERICA,

Plaintiff,

and

STATE OF FLORIDA,

DEPARTMENT OF ENVIRONMENTAL REGULATIONS

[sic; REGULATION ],

Plaintiff /Intervenor,

VS.

M.C.C. OF FLORIDA, INC., et al.,

Defendants.

[Filed March 12, 1984]

ORDER ON RESTORATION HEARING

This matter came to be heard without a jury to deter-

mine the appropriate remedies and civil penalties for the

defendants’ violations of the Rivers and Harbors Act, 33

U.S.C. sec. 403 et seg. and the Clean Water Act, 33 U.S.C.

sec. 1311 et seg. On December 17, 1982, the Court issued

findings of fact and conclusions of law on the liability

phase of this trial. In that Order, the Court found that

the defendants committed violations of 33 U.S.C. sec. 408,

33 U.S.C. sec. 1811 et seqg., and Fla.Stat. 403.161(1) (a)

by uprooting seagrasses with the propellers of their tug-

boats in certain areas of Niles Channel and by causing

30a

adjacent areas to become filled with dredged materials.

These propeller tracks were made by the tugboats as they

transported segments of a bridge to the bridge construc-

tion site at Niles Channel.

It was found that the damage had “adversely altered

the physical and biological integrity of the waters of Niles

Channel. This has had a harmful and destructive effect

on the marine communities which live and breed in this

area.” (Conclusion of Law No. 22). The extent of the

harm was significant.

Prior to the remedies phase of this trial, the govern-

ment submitted a restoration proposal containing two

alternate plans. The restoration hearing dealt mainly

with the merits of the proposal—whether it was feasible

and whether it was appropriate under the circumstances.

Although the defendants suggested that any remedy be

limited to a small off-site mitigation project, they basically

used the hearing to attack the government’s proposal. The

State of Florida was also represented at the hearing.

FINDINGS

A. Description of Sites 1 and 2

Sites 1 and 2 are located in an area of the Florida

Keys called Niles Channel, a navigable waterway con-

necting the Bay of Florida with the Atlantic Ocean. Site

1 is located north of U.S. Highway 1 in Niles Channel

approximately halfway between Toptree Hammock Key

and Big Touch Key. Site 2 is located northwest of site

1 in Niles Channel adjacent to Raccoon Key.

Site 1 is an area covered with Thalassia testudinum,

known as turtle grass. The depth of the water is 3-4

feet mean low water. In site 1 lies a propeller-dredged

channel running north-south for about 2000 feet. (G.Exh.

97). Its width ranges from 50 to 200 feet and its

depth in the center contains portions 2.5 to 3 feet below

3la

the natural bottom elevations. Next to the channel are

individual propeller tracks—also called scars or cuts—

which range from 18 to 42 inches wide and 12 to 15

inches deep. (G.Exh.97 ;T.Lewis, Bishof).

The dredged channel was formed by individual pro-

peller tracks which coalesced. The channel is, to a sig-

nificant extent, bare of any vegetation. (G.Exh.93 (1-11) ;

112-120). There are scattered islands of Thalassia re-

maining within the channel. New growth consists mainly

of rhizophytic green algae with only a very limited new

appearance of seagrasses. (D.Exh.57,58,59,90A,90B ;T.Zie-

man,Lewis).

The sediment is quite deep except in the extreme south.

(T.Zieman). Sediment depth varies from a thin layer

over the caprock to extensive areas where the sediment

is greater than 3 feet deep. As a result of the propeller

dredging, sediment in some areas was thrown onto the

adjacent seagrass beds. (G.Exhs.97,98).

The areas that have been heavily damaged by the de-

fendants now serve none of the beneficial environmental

functions which they served formerly. The areas mod-

erately and lightly damaged presently serve very limited

environmental functions.

At site 2 there are propeller-dredged cuts of up to two

miles long. (G.Exh.97). In some areas the cuts have

coalesced and all seagrass cover has been eliminated. The

individual propeller tracks at site 2 range from 18 to 54

inches in width. (Gov.Exh.97;T.Bishof,Lewis). The sedi-

ment structure at site 2 is less disturbed than at site 1.

At most locations at least 12 inches of sediment remains

in the propeller cuts. Only minimal natural recoloniza-

tion has occurred at site 2. This minimal recolonization

consists of the same pioneering algae found at site 1.

(T.Zieman,Lewis).

32a

Site 2 is in general shallower than site 1. There has

been no substantial undercutting of the rhizome structure

as has occurred at site 1. (T. Zieman).

B. Size of Sites 1 and 2

The parties disagree on the extent of the actual area

damaged. The government presented a seagrass damage

classification scheme using four categories of damage.

(G.Exh.98,100) : 100% seagrass removal due to (1) heavy

track damage due to individual propeller cuts (2) heavy

excavation due to coalesced propeller cuts (3) heavy spoil

damage due to the deposition of excavated spoil; and (4)

50% removal of seagrass due to closely spaced but un-

coalesced propeller cuts. David Bishof of the Florida De-

partment of Environmental Regulation used a ruler to

measure individual propeller scars selected at random.

The features actually measured were then found on an

aerial photograph so that the photograph could be scaled.

(T.Lewis). Based on the aerial photographs, the govern-

ment estimates that the actual area of damage at site 1

is 7.74 acres and at site 2 is 19.35 acres. (G.Exhs.97,98,

100 ;T.Lewis).

The defendants, on the other hand, claim that the gov-

ernment’s estimate of the damage at the two sites is

greatly inflated. Sandford Young, a private environ-

mental consultant appearing for the defendants, measured

site 1 by “eyeballing’” the channel on a scaled aerial

photograph and counting the individual tracks. On cross

examination, the government had Young calculate the

total area of site 1, draw a rectangle representing that

area to the scale of an aerial photograph, and super-

impose his estimated area on the photograph. |(G.Exh.122;

D.Exh.61). The Court notes a significant discrepancy be-

tween the defendant’s estimate and the contours of site 1

on the aerial photograph. Although the government’s ¢al-

culation seems to overstate parts of both sites, and al-

though Mr. Bishof’s random measurements may have

33a

been skewed towards the wider portions of the channel, the

Court accepts the government’s figures as a fairly reliable

estimate of the damaged area in Niles Channel.

The defendants object to being charged with all the

scarring at sites 1 and 2. One defense witness, Rex Latta,

testified that he observed propeller tracks in the Niles

Channel area before the defendants began their tugboat

operations. The Court does not doubt that propeller scars

were in existence before the defendants entered the area,

and that tracks were created by others both during and

after construction of the bridge. However, it is clear that

the defendants made at least 112 trips through the same

area in connection with the bridge project(Finding of

Fact No. 38), and that the dredged channel as well as

a majority of the individual scars were created by the

defendants’ tugs. Under the circumstances, the court

does not believe it is unjust to hold the defendant re-

sponsible for the entire damage in that area. The defend-

ants have not shown this Court that the extensive damage

at sites 1 and 2 existed to any significant degree before

they began their activities.

C. Regrowth of the Dredged Areas Without Restoration

The Court finds that turtle grass beds are the climax

community in south Florida marine waters. (G.Exh.94).

They possess the highest biomass and primary produc-

tivity, are best able to stabilize the ocean sediment, and

support a more diverse and abundant animal community

than other seagrass beds. (G.Exh.131,132).

When an area is denuded of turtle grass, the species

succession process must start all over again. The first

species to appear are the pioneering rhizophytie green

algae. These algae provide a limited amount of sediment

binding capability, and do not stabilize an area very well.

The algae are succeeded by shoal grass, Halodule wrightii,

which further stabilizes the sediment and creates a more

34a

productive environment. In some, but not all areas.

manatee grass, Syringodium filiforme, is the next de-

velopmental sequence.

Turtle grass maintains extensive rhizome and root

systems which trap and retain particles in the sediment

with much greater efficiency than the predecessor species.

Because of its large leaves, turtle grass offers a much

larger surface area than the other grasses, permitting

a great increase in the colonization of epiphytic algae and

fauna. In addition, the larger leaf area of turtle grass

has a greater baffling and sediment trapping effect, thus

enhancing internal nitrogen recycling.

The natural succession of plant species from rhizo-

phytic algae to turtle grass takes many years. When an

area is dredged, this process must start over from the

initial stage.

Several scientific studies have shown that even in the

absence of disturbance, turtle grass recolonizes dredged

areas very slowly. Numerous areas in the Florida keys,

dredged many years ago, still have not been fully re-

colonized. Furthermore, in areas that are subject to

continued or repeated disturbances, the successional de-

velopment may be permanently arrested at any point

along the developmental gradient.

The succession of seagrass species just recounted and

the evaluation of the relative benefits of the various

seagrass and algal species is supported by the publica-

tions of the experts for both sides. (G.Exh.85,133,135,

140,142;T.Zieman).

Without any restoration, the linear seagrass islands

in the channel will suffer erosion as depicted in G.Exh.91.

(T.Zeiman). Erosion will also occur at the periphery of

the channel, destroying more of the seagrass bed. (T.

Zieman). The sides will eventually reform and reprofile

to form a more stable configuration. (D.Exh.90;T.Wan-

35a

less). The seagrass beds upon which sediment was de-

posited will likely be smothered; furthermore, without the

baffles or other similar physical barrier placed at the

ends of the dredged channel, deeper draft boats will con-

tinue to use the channel and thereby slow, if not prevent,

the recovery of the seagrass beds in the channel. |(G.Exh.

142;T.Zieman)

D. Practicality of the Government’s Plan

The government’s preferred plan requires that baffles

be placed at both ends of the channel, and that the chan-

nel be filled with sand. Aprons would be installed around

the baffles to prevent scouring or undermining of the

breakwater. The channel, as well as the tracks outside

the channel, would be planted with anchored Halodule

shoots on 2-foot centers. Once the area was stabilized,

Thalassia would be planted on 3-foot centers. At site 2,

the government proposes to similarly plant Halodule,

followed by Thalassia. To prevent the breakwater from

becoming a hazard to navigation, warning markers would

be placed at the site and a reference made on navigation

charts. According to the government, the backfilling and

baffles at site 1 would prevent large boat traffic from

entering site 2 and causing additional damage. (G.Exh.

97).

Experts for both sides testified to successful seagrass

plantings in the waters of south Florida. (T.Thorhaug,

Lewis). All basically agreec that restoration in Niles

Channel presents difficulties not generally encountered in

other plantings: the high energy currents at the sites, the

scope of the project; the volume and type of backfill to

be used, and the interaction of these elements.

David Tackney, a hydrologist called by the government,

testified that the velocity of water differs over the leneth

of the water column. He found that the highest velocities

were in the lower center part of the channel. Further-

more, he testified that the sheer stress, or bottom re-

36a

sistance, was low enough to allow the sediment to move;

hence, it would be necessary to construct baffles to lessen

the current velocity. The government proposal incorpo-

rates a baffle design submitted by Tackney. Although

there would be some sediment loss, he estimated it to be

no more than 2%. He would not venture a guess as to

the sediment loss during a hurricane, although he be-

lieved that the island grouping around the site 1 and 2

areas would act as a sufficient buffer. Tackney was not

aware of any other project similar in scope or design to

~ the government’s proposal.

The defendants put on Roger Walness [sic; Wanless] |

a marine sedimentologist. He disputed Tackney’s conclu- |

sions, stating that the current shows no respect for the

channel and would not be slowed by the baffles. (D.Exhs.,

67,68,69). He said the current in the north end relates

to the deeper part of the Niles Channel area called

Mary’s Hole, that sediment was drifting to the east, and

that the velocity at the bottom of the channel was less

than at the surface. The observations and conclusions of

Roger Wanless were based mainly on surface patterns,

such as in D.Exhs.65,66. Tackney insisted that surface

currents do not reveal the true tidal velocities at the

bottom where the plants would be anchored. On cross-

examination, Wanless said that his opinions were not

based on measurements of sheer stress or grain size, but

that bottom resistance was calculated in a qualitative

sense after analysis of the sediments, samples of which

he presented at the hearing. His opinion was that the

bottom mud was cohesive, more so in the north.

Prior seagrass plantings have involved much less

acreage than the 27.09 acres at issue in this case. Both

Robin Lewis and Anitra Thorhaug attempted test plant-

ings in the channel at site 1. Neither planting was suc-

cessful. It is the government’s position that the back-

filling and baffles are necessary ingredients for a success-

ful planting in that area.

«~~

37a

Under the government’s alternate plan, the sites would

not be restored to their original state. The channel would

be filled with crushed rock and sand fill. Halodule would

be planted in the spaces of the rock fill over about 25%

of the surface, while individual propeller tracks would be

fully planted. Under this plan, baffles would be unnec-

cessary, although the government would still post warning

markers.

The Court finds that the government’s preferred plan

is a highly speculative undertaking with an insufficient

guarantee of success. Tackney’s methodology is more

rigorous than that of Wanless, and the Court accepts

Tackney’s testimony that different current velocities may

be found at different depths. The Court does not, how-

ever, have confidence that the bottom current will run

down the channel and that the baffles designed by Tack-

ney will adequately prevent 18,000 cu. yards of sand

screenings dumped on the ocean floor from migrating,

causing the plantings to uproot and despoiling the neigh-

boring seagrass beds. Neither Fackney nor anyone else

testifying at the hearing had heard of or had undertaken

a planting in such a high energy environment. Lewis was

not aware of any successful planting with sandfill, or

within a navigable channel.

In addition to the problems of current and sand, there

is the question of whether the seedlings would survive.

Even discounting the special problems encountered at

sites 1 and 2, the recolonization of a seagrass bed is still

an uncertain undertaking. (G.Exh.139). Towards the end

of the hearing, each side spent some time disparaging

the success rate of the other’s expert at the Lake Surprise

project. In his deposition, Richard Lotspeich, an Environ-

mental Specialist for the Department of Environmental

Regulation, described Lake Surprise as an easy area in

which to plant.{D.Exh.97). If the replanting experts

encountered problems in the quiet water of Lake Sur-

prise, the Court must be wary of the success of a planting

38a

at Niles Channel. The government assured the Court that

Robin Lewis would guarantee his work. On cross exam-

ination, his unconditional guarantee sounded less iron-

clad.

The government’s alternate plan poses fewer problems,

especially in regard to sand movement. Still, such a fill

project, never before attemptéd,~is a speculative under-

taking too. Many fewer plants would be introduced into

the area, reducing the chances of survival, and creating

a different and, according to the government, less pro-

ductive area than the original Thalassia bed.

Both plans are very expensive. They greatly exceed the

cost per acre of other restoration projects in the area.

(D. Exh.97,pp.9-14). If the Court believed that the gov-

ernment’s preferred plan would work, it would be in-

clined to order the defendants to pay for the total restora-

tion of sites 1 and 2. If the Court were convinced that

the alternate plan would work, and would create the

maximum environmental benefit, it would order it into

effect. However, those assumptions cannot be made, and

so cost must be placed on the scales, along with all the

other factors previously discussed. On balance, the Court

finds that the costs for the government’s plans are ex-

cessive and inequitable in light of the speculative nature

of the undertaking. The high cost and the tenuous

chances of success overcome even the defendants’ willful

violation of the pollution and environmental laws. Were

the Court to adopt the government’s plan, it would in

effect be assessing a fine to conduct an experiment in

which the Court cannot place its confidence. Such a de-

cision would not be a prudent response to the fact [sic] of

this case.

CONCLUSION

1. The defendants willfully violated 33 U.S.C. see. 408

and 33 U.S.C. sec. 1311 et seg. The Court’s findings of

fact and conclusions of law, entered in this case on De-

39a

cember 17, 1982, are hereby adopted and made a part of

this Order.

2. For violations of 33 U.S.C. sec 403, “the district court

has powerful tools at its disposal in fashioning relief.”

United States v. Sexton Cove Estates, Inc., 526 F.2d

1293, 1301 (5th Cir. 1976). Under 33 U.S.C. sec.

1319(d), the Court may impose a fine for violations of

the Clean Water Act.

3. In Sexton Cove Estates, supra, 526 F.2d at 1301, the

Fifth Circuit discussed the general standards for evaluat-

ing a restoration plan. U.S. v. Weisman, 489 F.Supp.

1331, 1343 (M.D.Fla. 1980) condensed those standards

into a three-part test. A restoration plan must:

(a) confer maximum environmental benefits

(b) be achievable as a practical matter

(c) bear an equitable relationship to the degree and

kind of wrong which it is intended to remedy

4. The Court concludes that the government’s preferred

plan, if feasible, would confer the maximum environ-

mental benefits to the Niles Channel area. The alternate

plan, if feasible, would confer lesser benefits.

5. At this stage in our scientific knowledge and experi-

ence, the planting of 27.09 acres of seagrass seedlings on

18,000 cubic yards of sand fill in a area of the ocean floor

with high tidal velocities is not achievable as a practical

matter. The government’s alternate plan is somewhat

more achievable. Still, it is highly speculative that the

plan can be physically implemented and that it would

create a productive habitat.

6. Although the defendants knowingly created the

propeller-dredged channel and tracks at sites 1 and 2,

the Court concludes that the cost of the government’s

restoration proposal is excessive in the extreme. The

cost per acre is far beyond the restoration costs for

other seagrass plantings in the area. (D.Exh.81).

40a

7. Although the cost of the proposal is excessive, the

court might order the defendants to pay for the govern-

ment’s plans if they were practical and _ reasonable.

However, the Court concludes that they are not, and

therefore, the cost factor assumes greater prominence

in the weighing of the equities of this case. The Court

concludes that the government’s proposal bears no equi-

table relationship to the degree and kind of wrong it was

intended to remedy.

8. Although the Court rejects the government’s prob-

posals, it does not believe that the defendants should be

permitted to escape the consequences of their illegal and

willful behavior. There need not be a choice between no

action and complete on-site restoration. There is a third

alternative—mitigation. Where restoration is not feas-

ible, but the intent of the environmental laws can none-

theless be implemented by preserving another endangered

or destroyed area, mitigation is an appropriate remedy.

One other court in this district has already seen fit to

follow this path when warranted. U.S. v. Board of

Trustees of Florida Keys Community College, 531

F.Supp. 267 (S.D.Fla. 1981). -

9. The defendants shall pay to the plaintiffs the sum of

$200,000. That sum shall be used for restoration of

seagrass beds in south Florida under a plan to be ap-

proved by the Court.

10. The defendants shall pay to the plaintiffs the sum

of $20,000 as a penalty for violating 33 U.S.C. sec. 403

and 33 U.S.C. sec. 1311 et seq.

11. The plaintiffs shall have thirty days from the date

of this Order to either submit a stipulation on how the

damages assessed against the defendants shall be allo-

- cated between plaintiffs, or to submit individual proposals

on that issue.

4la

DONE AND ORDERED this 12th day of March, 1984

/s/ Edward B. Davis

United States District Judge

ce: David Dearing, Esq.

Thomas Harris, Esq.

Paul Ezatoff, Jr., Esq.

James Hendrick, Esq.

42a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 81-2373 CIV-EBD

UNITED STATES OF AMERICA,

Plaintiff,

and

STATE OF FLORIDA, DEPARTMENT OF

ENVIRONMENTAL REGULATIONS,

Plaintiff /Intervenor,

¥.

M.C.C. OF FLORIDA, INC., et al.,

Defendants.

ORDER (1) DENYING DEFENDANTS’

MOTION FOR NEW TRIAL OR TO ALTER

OR AMEND JUDGMENT AND (2) DENYING

PLAINTIFF’S MOTION TO ALTER JUDGMENT

AND TO AMEND JUDGMENT

THIS MATTER has come before the Court upon the

following motions: :

1. Defendants’ Motion for New Trial or to Alter or

Amend Judgment; and,

2. Plaintiffs’ Motion to Alter Judgment and to Amend

Judgment.

After careful consideration of the briefs submitted, and

in light of the entire record in this cause, it is

43a

ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion for New Trial or to Alter or

Amend Judgment is DENIED.

2. Plaintiffs’ Motion to Alter Judgment and to Amend

Judgment is DENIED.

DONE AND ORDERED this 15th day of August,

1984.

/s/ Edward B. Davis

United States District Judge

ee: counsel of record

iene aaa ae a aaa

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APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-5738

UNITED STATES OF AMERICA,

Plaintiff-A ppellee /

Cross-appellant,

STATE OF FLORIDA, ETC.,

Plaintiff-Intervenor,

versus

M.C.C. OF FLORIDA, INC., et al.,

Defendants-A ppellants /

Cross-appellees.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion October 7, 1985, 11 Cir., 1985, —— F.2d .

[Filed Nov. 13, 1985]

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Before Henderson and Clark, Circuit Judges, and Hoff-

man*, Senior District Judge.

PER CURIAM:

(“) The Petition for Rehearing is DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court

be polled on rehearing en bane (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Albert J.Henderson

United States Circuit Judge

* Honorable Walter E. Hoffman, U.S. District Judge for the

Eastern District of Virginia, sitting by designation.

a

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APPENDIX D

1. Rivers and Harbors Act

§ 403. Obstruction of navigable waters generally;

wharves; piers, etc.; excavations and filling in

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is hereby

prohibited; and it shall not be lawful to build or

commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other

structures in any port, roadstead, haven, harbor,

canal, navigable river, or other water of the United

States, outside established harbor lines, or where

no harbor lines have been established, except on

plans recommended by the Chief of Engineers and

authorized by the Secretary of War [Secretary of the

Army]; and it shall not be lawful to excavate or

fill, or in any manner to alter or modify the course,

location, condition, or capacity of, any port, road-

stead, haven, harbor, canal, lake, harbor of refuge,

or inclosure within thc limits of any breakwater,

or of the channel of any navigable water of the

United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by

the Secretary of War [Secretary of the Army] prior

to beginning the same. (Mar. 3, 1899, ch 425, § 10,

30 Stat. 1151.)

33 USC § 403.

$406. Penalty for wrongful construction of bridges,

piers, etc.; removal of structures

Every person and every corporation that shall vio-

late any of the provisions of sections nine, ten, and

eleven of this Act [33 USC §§ 401, 403, and 404},

or any rule or regulation made by the Secretary of

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War [Secretary of the Army] in pursuance of the

provisions of said section eleven [33 USC § 404],

shall be deemed guilty of a misdemeanor, and on

conviction thereof shall be punished by a fine not

exceeding $2,500 nor less than $500, or by both such

punishments, in the discretion of the court. And

further, the removal of any structures or parts of

structures erected in violation of the provisions of

the said sections may be enforced by the injunction

of any circuit court [district court] exercising juris-

diction in any district in which such structures may

exist, and proper proceedings to this end may be

instituted under the direction of the Attorney Gen-

eral of the United States. (Mar. 3, 1899, ch 425,

§ 12, 30 Stat. 1151; Feb. 20, 1900, ch 238, § 2, 31

Stat. 32.)

33 USC § 406

2. Clean Water Act

§ 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law. Except as in compliance with

this section and sections 302, 306, 307, 318, 402, and

404 of this Act [83 USCS §§ 1312, 1316, 1317, 1328,

1342, 1344], the discharge of any pollutant by any

person shall be unlawful.

33 U.S.C. See. 1311

+ . * *

(b) Civil actions. The Administrator is authorized

to commence a civil action for appropriate relief, in-

cluding a permanent or temporary injunction, for

any violation for which he is authorized to issue a

compliance order under section (a) of this section.

Any action under this subsection may be brought in

the district court of the United States for the district

in which the defendant is located or resides or is

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doing business, and such court shall have jurisdic-

tion to restrain such violation and to require com-

pliance. Notice of the commencement of such action

shall be given immediately to the appropriate State.

33 U.S.C. Sec. 1319 (b)

* . * ”

(d) Civil penalties. Any person who violates section

301, 302, 306, 307, 308, 318, or 405 of this Act [33

USCS § 1811, 1812, 1316, 1317, 1318, 1328, or

1345], or any permit condition or limitation imple-

menting any of such sections in a permit issued

under section 402 of this Act [3838 USCS § 1342] by

the Administrator, or by a State, or in a permit

issued under section 404 of this Act [33 USCS

§ 1344] by a State, and any person who violates any

order issued by the Administrator under subsection

(a) of this section, shall be subject to a civil penalty

not to exceed $10,000 per day of such violation.

33 U.S.C. See. 1819 (d)

§ 1344. Permits for dredged or fill material

(a) Discharge into navigable waters at specified dis-

posal sites. The Secretary may issue permits, after

notice and opportunity for public hearings for the

discharge of dredged or fill material into the naviga-

ble waters at specified disposal sites. Not later than

the fifteenth day after the date an applicant submits

all the information required to complete an applica-

tion for a permit under this subsection, the Secretary

shall publish the notice required by this subsection.

33 U.S.C. Sec. 1344 (a)

3. Corps of Engineers Regulations

(k) The term “dredged material” means material

that is excavated or dredged from waters of the

United States.

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(1) The term “discharge of dredged material”

means any addition of dredged material into waters

of the United States. The term includes, without

limitation, the addition of dredged material to a spe-

cified disposal site located in waters of the United

States and the runoff or overflow from a contained

land or water disposal area. Discharges of pollutants

into waters of the United States resulting from the

- onshore subsequent processing of dredged material

that is extracted for any commercial use (other than

fill) are not included within this term and are sub-

ject to Section 402 of the Federal Water Pollution

Control Act even though the extraction and deposit

of such material may require a permit from the

Corps of Engineers. The term does not include plow-

ing, cultivating, seeding, and harvesting for the pro-

duction of food, fiber, and forest products.

(m) The term “fill material” means any material

used for the primary purpose of replacing an aquatic

area with dry land or of changing the bottom eleva-

tion of a waterbody. The term does not include any

pollutant discharged into the water primarily to dis-

pose of waste, as that activity is regulated under

Section 402 of the Federal Water Pollution Control

Act Amendments of 1972.

(n) The term “discharge of fill material” means

the addition of fill material into waters of the United

States. The term generally includes, without limita-

tion, the following activities: Placement of fill that

is necessary to the construction of any structure in a

water of the United States; the building of any struc-

ture of impoundment requiring rock, sand, dirt, or

other material for its construction; site-development

fills for recreational, industrial, commercial, resi-

dential, and other uses; causeways or road fills;

dams and dikes; artificial islands; property protect-

tion and/or reclamation devices such as _ riprap,

cere rename

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groins, seawalls, breakwaters, and revetments; beach

nourishment; levees, fill for structures such as sew-

age treatment facilities, intake and outfall pipes as-

sociated with power plants and subaqueous utility

lines; and artificial reefs. The term does not include

plowing, cultivating, seeding and harvesting for the

production of food, fiber, and forest products.

33 C.F.R. § 323.2(k) (1) (m) (n).

4. Florida Constitution

F.S.A. Const, Art. 1, Sec. 22.

Sec. 22. Trial by jury.

The right of trial by jury shall be secure to all

and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed

by law.

Florida Rule of Civil Procedure

Rule 1.430. Demand for Jury Trial—Waiver

The right of trial by jury as declared by the Con-

stitution or by statute shall be preserved to the

parties inviolate.

on

6. Florida Statutes

F.S.A. Sec. 403.031 (2)

Pollution is the presence in the outdoor atmosphere

or waters of the state of any substances, contami-

nants, noise, or man-made or man-induced alteration

of the chemical, physical, biological, or radiological

integrity of air or water in quantities or at levels

which are or may be potentially harmful or injurious

to human health or welfare, animal or plant life, or

property, or unreasonably interfere with the enjoy-

ment of life or property, including outdoor recreation.

i

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F.S.A. See. 403.121

The department shall have the following judicial

and administrative remedies available to it for viola-

tion in a court of competent jurisdiction to

(1) Judicial remedies:

(a) The department may institute a civil ac-

tion in a court of comnetent judisdiction to

establish liability and to recover damages for

any injury to the air, waters, or property, in-

cluding animal, plant and aquatic life, of the

state caused by any violation; and

(b) The department may institute a civil ac-

tion in a court of competent jurisdiction to im-

pose and to recover a civil penalty for each vio-

lation in an amount of not more than $10,000

per offense. However, the court may receive evi-

dence in mitigation. Each day during any por-

tion of which such violation occurs constitutes a

separate offense.

(c) It shall not be a defense to, or ground for

dismissal of, these judicial remedies for damages

and civil penalties that the department has failed

to exhaust its administrative remedies, has failed

to serve a notice of violation, or has failed to

hold an administrative hearing prior to the in-

stitution of a civil action.

(2) Administrative remedies:

(a) The department may institute an ad-

ministrative proceeding to establish liability and

to recover damages for any injury to the air,

water, or property, including animal, plant, or

aquatic life, of the state caused by any viola-

tion. The department may order that the violator

pay a specified sum as damages to the state.

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Judgment for the amount of damages deter-

mined by the department may be entered in any

court having jurisdiction thereof and may be

enforced as.any other judgment.

(b) If the department has reason to believe a

violation has occurred; it may institute an ad-

ministrative proceeding to order the prevention,

abatement, or control of the conditions creating

the violation or other appropriate corrective

action.

(c) [Administrative procedure]

(d) Nothing herein shall be construed as pre-

venting any other legal or administrative action

in accordance with law.

F.S.A. Sec. 403.131. _-

* * * ”

(2) All the judicial and administrative remedies

in this section and Sec. 403.121 are independent and

cumulative except that the judicial and administra-

tive remedies to recover damages are alternative and

mutually exclusive.

F.S.A. See. 403.141. Civil liability; joint and several

liability

(1) Whoever commits a violation specified in

$ 403.161(1) is liable to the state for any damage

caused to the air, waters, or property, including ani-

mal, plant, or aquatic life, of the state and for rea-

sonable costs and expenses of the state in tracing

the source of the discharge, in controlling and abat-

ing the source and the pollutants, and in restoring

the air, waters, anc property, including animal,

plant, and aquatic life, of the state to their former

condition, and furthermore is subject to the judicial

imposition of a civil penalty for each offense in an

amount of not more than $10,000 per offense. How-

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ever, the court may receive evidence in mitigation.

Each day during any portion of which such violation

occurs constitutes a separate offense. Nothing herein

shall give the department the right to bring an ac-

tion on behalf of any private person. .

F.S.A. See. 403.161 (1)

It shall be a violation of this chapter, and it shall

be prohibited—

(a) to cause pollution, except as otherwise pro-

vided in this chapter, so as to harm or injure

human health or welfare, animal, plant or

aquatic life or property.

(b) to fail to obtain any permit required by this

chapter or by rule or regulation, or to violate

or fail to comply with any rule, regulation, order,

permit or certification adopted or issued by the

department pursuant to its lawful authority.

Florida Regulations

17-3.051 Minimum Criteria for All Waters at All

Times and All Places. All waters of the State shall

at all places and at al! times be free from:

(1) Domestic, industrial, agricultural, or other

man-induced non-thermal components of discharges

which, alone or in combination with other substances

or in combination with other components of dis-

charges (whether thermal or non-thermal) :

(a) Settle to form putrescene deposits or

otherwise create a nuisance; or

tb) Float as debris, scum, oil, or other matter

in such amounts as to form nuisances; or

(ec) Produce color, odor, taste, turbidity, or

other conditions in such degree as to create a

nuisance; or

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(d) Are acutely toxic; or

(e) Are present in concentrations which are

carcinogenic, mutagenic, or teratogenic to hu-

man beings or to significant, locally occurring,

wildlife or aquatic species; or

—, (f) Pose a serious danger to the public

health, safety, or welfare.

(2) Thermal components of discharges

which, alone, or in combination with other dis-

charges or components of discharges (whether

thermal or non-thermal) :

(a) -Produce conditions so as to create a

nuisance, or

.(b) Do not comply with applicable provisions

of Subsection 17-3.05(1), F.A.C. .

Rule 17-3.051, Fla. Admin. Code.

17-4.02(12) “Dredging” is the excavation, by any

means, in waters of the state. It is also the excava-

tion (or creation) of a water body which is, or is

to be, connected to any of the waters listed in Sec-

tion 17-4.28(2) F.A.C., directly or via an excavated

water body or series of excavated water bodies.

Rule 17-4.02 (12), Fla. Admin. Code.

17-4.02(15) “Filling” is the deposition, by any

means, of materials in waters of the state.

Rule 17-4.02 (15), Fla. Admin. Cede.

17-4.28 Dredging or Filling Activities; Permits,

Certifications.

(2) Pursuant to Sections 403.061, 403.087, or

403.088, F. S., those dredging or filling activities

i ia cial

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which are to be conducted in, or connected directly

or via an excavated water body or series of exca-

vated water bodies to, the following categories of

waters of the state to their landward extent as

defined by Section 17-4.02(17), F.A.C. require per-

mit from the department prior to being undertaken:

* * * *

(e) Atlantic Ocean out to the seaward limit of

the State’s territorial boundaries;

(f) Gulf of Mexico out to the seaward limit of

the State’s territorial boundaries;

* ad * *

Portion of Section 17-4.28(2), Fla. Admin. Code.

~

17-4.29(1) Subject to [certain exceptions], the

following activities at or below the line of mean high

water or ordinary high water in, on or over the

navigable waters of the State require a department

permit:

(b) Dredging and/or digging by pumping sand,

rock, silt, or earth of any kind by any means includ-

ing dredging to connect artificial waterways or

waterbodies to navigable waters; and dredging asso-

ciated with construction and/or installation activi-

ties described in this rule.

Portion of Section 17-4.29(1), Fla. Admin. Code.