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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1034

## Text

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tom of a navigable waterway been revoked by the Rivers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

44a
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]

45a

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

47a

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

48a

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 th

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0329%3A1. Public record. Not legal advice.