# Opposition Brief — M. C. C. of Florida, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0329%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1034 ## Text Supreme Couit, U.S. riL B-v (9) MAY 5 1986 . 85-1292 Bes, No, S-1s8 JOSEPH F. SPANIOL, JR. —— ——_--_ -4 In the Supreme Court of the United States OCTOBER TERM, 1985 M.C.C. oF FLORIDA, INC. AND MICHAEL CONSTRUCTION CO., PETITIONERS Vv. UNITED STATES OF AMERICA AND FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION CHARLES FRIED Solicitor General . Ny ope eres vst General MARTIN W. MATZEN ced Maria A. [1zUKA Attorneys Department of Justice Washington, D.C. 205380 - (202) 633-2217 QUESTIONS PRESENTED 1. Whether the Seventh Amendment guarantees a jury trial to an alleged violator of the Clean Water Act and Rivers and Harbors Act in an action brought by the United States seeking injunctive relief, mitiga- tion, restoration of damaged seabed, and civil penal- ties. 2. Whether petitioners violated the Rivers and Harbors Act and Clean Water Act when their vessels’ propellers destroyed sea grass, deposited bottom sedi- ment on adjacent sea grass beds, and dredged chan- nels in the sea bottom. (1) oe TABLE OF CONTENTS Page nck sudthacms atmenaien pes oeeiennuaibnomindebibapenenen 1 bed ceencsnetoiniiacasneumeningienenlsenn 1 a SDL Se sndiinsnedpagnnleesiqasdovvailionticbaaaiiden 2 SR RE A SER ee een 4 ei cccmeeeaniabomasoosammananieets 11 TABLE OF AUTHORITIES Cases: Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 480 U.S. 422 ..................cccccessseee 5 Avoyelles Sportsmen’s League, Inc. Vv. Marsh, 715 i | Sea IS ERE EL A TE TR 10 Berenyi Vv. District Director, INS, 385 U.S. 630...... 11 City of Milwaukee v. Illinois, 451 U.S. 304 _......2.. 6 Parsons V. Bedford, 28 U.S. (3 Pet.) 433........ hee caits 5 Pernell v. Southall Realty, 416 U.S. 363 —.....000000..... 6 Rogers Vv. Lodge, 458 U.S. 618 ...............2.....-.--sceceese-- 11 Ross v. Bernhard, 396 U.S. 581 .................-..............-. 6 Thomas v. Union Carbide Agricultural Prods. Co., eB | Ee ee 6 United States v. Atlantic Richfield Co., 429 F. Supp. 830, aff’d sub nom. United States v. Gulf oo Se SS eee 5 United States v. Lambert, 19 Env’t Rep. Cas. RSS al Ra Ft ae 5 United States v. Republic Steel Corp., 362 U.S. 482.. am United States v. Riverside Bayview Homes, Inc., oe Bo EE |) een 7,10,11 United States v. Tull, 769 F.2d 182, petition for cert. pending, No. 85-1259..................................... 4,5, 7,8 Weinberger v. Romero-Barcelo, 456 U.S. 305 .......... 7 (III) a") mR @ Constitution and statutes: a sc semenciedbeteniwans Rivers and Harbors Act, 33 U.S.C. 401 et seq......... SE TODD secs iveciicinienestinigesnnesumeswescvsnenty | SE a rc Clean Water Act, 33 U.S.C. 1251 et seq.................... itched ececimnvonrtinriaverisinnidenietenenmmaners 1 Se te I TOF ED orcas scescrsesenvesesvccdanrezens en a 5, i 5 SRS ee ee Be I oo vciisecceresinrsvrenimscpaniiccnsneiiibennathistanise eConrno wan No Iu the Supreme Court of the United States OCTOBER TERM, 1985 No. 85-1292 M.C.C. OF FLORIDA, INC. AND MICHAEL CONSTRUCTION CO., PETITIONERS Vv. UNITED STATES OF AMERICA AND F'LORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la- 13a) is reported at 772 F.2d 1501. The decisions of the district court (Pet. App. 17a-28a, 29a-41a) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 7, 1985. A petition for rehearing was de- (1) 2 nied on November 13, 1985 (Pet. App. 44a-45a). The petition for a writ of certiorari was filed on January 30, 1986. The jurisdiction of this court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. In 1981, the United States brought an action against petitioners under the Rivers and Harbors Act, 33 U.S.C. 401 et seg., and the Clean Water Act, 33 U.S.C. 1251 et seg. The government, seeking in- junctive and other equitable relief, alleged that the propellers of petitioners’ vessels had, in making con- tact with the bottom of Niles Channel in southern Florida,’ vertically cut into{the bottom sediments, damaging the fertile grass bed area, causing perma- nent trenching or scarring, diminishing the water quality due to turbidity, destroying the spawning areas of fish and wildlife, and depositing bottom sediment on adjacent sea grass beds. Petitioners were charged with violating Section 10 of the Rivers and Harbors Act, 33 U.S.C. 403, which prohibits, inter alia, the unauthorized “creation of any obstruction * * * to the navigable capacity of any of the waters of the United States,” as well as unauthorized ex- cavating or filling which “alter[s] or modif[ies] the course, location, condition, or capacity of * * * the channel of any navigable water of the United States.” Petitioners were also charged with violating Section 301 of the Clean Water Act, 33 U.S.C. 1311, which prohibits the discharge of any pollutant into the wa- ters of the United States from any point source. 1 Niles Channel carries a designation under state law as an “outstanding Florida Water.” Such a designation requires special environmental protection for an area. U.S. C.A. Br. 27 n.21. 3 Dredged spoil, sand, and biological materials are listed in the Act as “pollutants” (33 U.S.C. 1362(6)), and a “point source” includes a “vessel or other float- ing craft” (33 U.S.C. 1362(14) ).? 2.a. The district court denied petitioners’ request for a jury trial (Pet. App. 14a-16a). After a bench trial, the district court held that petitioners had vio- lated both the Rivers and Harbors Act and the Clean Water Act because the propellers of their vessels had uprooted sea grasses on the bed of Niles Channel and had redeposited the dredged materials on adjacent areas (id. at 25a-27a). The court found damage to one of the two sites at issue “dev[a]stating” and, to the second site, “extensive and significant” (id. at 24a). The district court reserved ruling on the issues of restoration of the damaged sites and civil penalties in order to permit the parties an opportunity to study restoration alternatives. The United States submitted two alternate plans for restoring the damaged sites; petitioners submitted none (Pet. App. 4a, 12a, 30a). The district court rejected the government’s proposed restoration plans on the basis of cost and insufficient guarantee of success (id. at 37a-38a). In lieu of adopting either of the two plans, the district court ordered petitioners to pay the United States $200,000 to be used for restoration of sea grass beds in south Florida under a plan approved by the court and as- sessed a $20,000 penalty (id. at 40a). 2 The district court declined to issue a preliminary injunc- tion, but imposed conditions on petitioners’ continued use of Niles Channel, requiring, among other things, that petitioners’ vessels travel with lighter loads and at high tides (Pet. App. 22a-23a). At trial, the court found that petitioners had failed to comply with these conditions (id. at 23a). 4 b. The court of appeals affirmed (Pet. App. la- 13a). It carefully analyzed the Rivers and Harbors Act and Clean Water Act (id. at 5a-10a), pointed out that the district court had found petitioners’ be- havior to be “ ‘illegal and willful’” (id. at 7a), and concluded that petitioners had violated both statutes. The court also rejected petitioners’ argument that the district court had erred in striking petitioners’ de- mand for a jury trial (id. at 10a-1la), finding that the issues under both statutes “were equitable in na- ture” (id. at lla). While agreeing with the district court’s findings that the government’s proposed plans were expensive and speculative, the court of appeals reversed the district court’s requirement that peti- tioners pay $200,000 without any specific restoration plan; it remanded so that the district court could or- der petitioners to submit an alternative plan (id. at 12a-13a). ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals.* Accordingly, further re- view is not warranted. 1. The first question presented in this case is sim- ilar to the first question presented in Tull v. United States, petition for cert. pending, No. 85-1259.* In both cases, petitioners have claimed entitlement to a jury trial in actions brought by the United States to enforce the Clean Water Act and Rivers and Harbors Act. Indeed, the court of appeals here (Pet. 3 No explicit assertion of a conflict in the courts of appeals is made on either question presented. * Petitioners in each case will be sent both briefs in opposition. 5 App. lla-12a n.3) “incorporate[d] the reasoning * * * in Tull [769 F.2d 182 (4th Cir. 1985)] as fur- ther authority for our conclusion on the jury trial issue.” Both decisions are entirely correct, and there are no court of appeals or district. court decisions to the contrary.° Petitioners here have a slightly better basis for their claim to a jury trial than does the petitioner in Tull. Here, at least, there were disputed questions of fact that might have been submitted to a jury; in Tull, we pointed out that “there was no function for the jury to perform” (Br. in Opp. 8). Nonethe- less, in neither case was there any legal (rather than equitable) issue and, therefore, there is no Seventh Amendment right implicated in either.* See Parsons v. Bedford, 28 U.S. (3 Pet.) 483, 446-447 (1830). The court of appeals correctly held (Pet. App. lla (footnote omitted) ) that “[i]t is clear that both the Clean Water Act and River and Harbor Act issues were equitable in nature. Therefore, [petitioners were] not entitled to a jury trial.” The mere circum- 5 The district courts that have considered the issue have also held that there is no right to a jury trial in a Clean Water Act enforcement action. See, e.g., United States v. Atlantic Richfield Co., 429 F. Supp. 830, 839-840 n.13 (E.D. Pa. 1977), aff’d sub nom. United States v. Gulf Oil Corp., 573 F.2d 1303 (3d Cir. 1978) (33 U.S.C. 13821) ; United States v. Lambert, 19 Env’t Rep. Cas. (BNA) 1055 (M.D. Fia. 1983) (33 U.S.C. 1819). ® The lack of any legai (rather than equitable) issue in this case makes it unnecessary to resolve whether there is ever a jury trial right in a civil case with the government. See Aflas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 449-450 n.6 (1977). 6 stance that there are issues of fact for the court to resolve does not, of course, convert an equitable pro- ceeding into a legal one (or confer a right to a jury trial into a suit in equity). The right to a jury trial attaches only when “the action involves rights and remedies of the sort tra- ditionally enforced in an action at law” (Pernell v. Southall Realty, 416 U.S. 363, 375 (1974)). It is clear that, in designing the complex remedial scheme at issue here, Congress was creating rights and rem- edies greatly different not only in degree but also in kind from those that existed at common law. Cf. ‘Thomas v. Union Carbide Agricultural Prods. Co., No. 84-497 (July 1, 1985), slip op. 18-23; City of Milwaukee v. Illinois, 451 U.S. 304, 318 (1981). Moreover, in Ross v. Bernhard, 396 U.S. 581, 538 n.10 (1970), this Court stated: As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such ques- tions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Not only does the action here fail the first test, it fails the two others as well. Neither liability nor © remedial issues could have their “jury” and “judge” components teased apart in the civil enforcement ac- tions brought under these statutes. Thus, as dis- cussed below, the liability issues presented were be- yond the jury’s “practical abilities and limitations” and the remedy sought was an equitable one. Indeed, the factual issues in this case were en- tirely mixed with questions of law. The trial here focused largely on the question whether a statutory violation occurred when petitioners’ propellers dredged the waterbed and redeposited the bottom 7 material on adjacent sea grass beds. Similarly, in Tull it was on whether the areas filled were “wet- lands.” These were “primarily [questions] of regu- latory and statutory interpretation” (United States v. Riverside Bayview Homes, Inc., No. 84-701 (Dec. 4, 1985), slip op. 4), and were thus for a court, not a jury, to decide. The remedies in these cases, moreover, are solely equitable. As this Court held in Weinberger v. Ro- mero-Barcelo, 456 U.S. 305, 316 (1982), a district court in a Clean Water Act proceeding is called upon to exercise its “traditional equitable discretion in en- forcing the statute.” Such discretion should result in an order “that will achieve compliance with the Act” (id. at 318 (emphasis in original) ). The equi- table nature of the remedies is especially apparent in 33 U.S.C. 1319 and 406, the provisions, respec- tively, of the Clean Water Act and the Rivers and Harbors Act which were involved here. As we have explained in more detail in our response in Tull (at 7-8), the civil penalties, no less than the other relief provided, were equitable in nature. Moreover, the civil penalty in this case was part of an overall remedial plan which included mitiga- tion and restoration.’ Specifically, the district court ordered petitioners to pay $200,000 to be used “for restoration of seagrass beds in south Florida under a plan to be approved by the Court” (Pet. App. 40a) and the court of appeals remanded “for the purpose of * * * requiring [petitioners] to prepare and sub- mit a substitute environmental plan together with estimated costs” (id. at 18a). As the court of ap- ™The government sought injunctive relief as well (Pet. App. 3a). 8 peals in Tull explained (769 F.2d at 187 (footnote omitted) ) : [T]he assessment of penalties intertwines with the imposition of traditional equitable relief. The district court fashions a “package” of rem- edies, one part of the package affecting assess- ment of the others. This combined relief serves several goals, including environmental preser- vation and fairness to third party property buy- ers as well as deterrence. Petitioners do not appear to argue—and surely they would not—that a jury would formulate any part of the package except civil penalties. But the package’s- coherence would be lost if one part were formulated by the jury and the rest by the court. In sum, the remedies sought and guaranteed in this case in par- ticular, and under the Clean Water Act and Rivers and Harbors Act generally, are equitable. 2. Petitioners also urge review by this Court of the findings by two lower courts that they had vio- lated both the Rivers and Harbors Act and the Clean Water Act. Since violation of either Act independ- ently supports the remedy awarded, petitioners have the burden of showing that both statutes have been misapplied. They assert that their vessels were sim- ply “navigating” (Pet. 17) and that Congress never intended either of the two statutes to preclude the activities found illegal. Neither assertion is correct. a. Petitioners characterize the effect of the deci- sion in this case as empowering the Corps of Engi- neers “to prevent petitioners from navigating” (Pet. 17) and “to halt shipping * * * wherever navigation results in bottom roiling or bottom contact” (id. at 19). But petitioners’ vessels were found to have done a great deal more than merely navigating or making 9 incidental contact with the bottom of Niles Channel. The district court found that the propellers of peti- tioners’ vessels had been observed uprooting and de- stroying sea grass and depositing the bottom sedi- ment on adjacent sea grass beds (Pet. App. 23a) and had also, “on at least three occasions, caused turbid- ity over an extensive area well in excess of fifty Jackson Units above the natural functioning of the marine eco-system” (ibid.). Petitioners’ vessels were found to have been largely responsible for a propel- ler-dredged channel approximately 2,000 feet long and ranging from 50 to 200 feet wide (id. at 30a). Petitioners’ violations of the pollution and environ- mental laws were found to be willful (7d. at 38a). All this goes beyond simply “navigating.” b. Petitioners are correct in stating that Congress enacted the Rivers and Harbors Act to enhance nav- igation (Pet. 18). Petitioners also urge the Court, however, to adopt an interpretation of Section 10 which, in light of their “devastating” and destruc- tive actions, would be a “narrow, cramped read- ing” of the statute (United States v. Republic Steel Corp., 362 U.S. 482, 491 (1960)) and would fail to draw a distinction between de minimis and fla- grant violations. The court of appeals correctly re- jected this narrow reading of Section 10 in finding that the first clause of Section 10 had been vio- lated, and went on to find that, in any event, peti- tioners had violated the third clause of Section 10 as well (Pet. App. 7a) : Repeatedly going back and forth across the sub- ject areas with equipment that is dredging a channel and dumping the spoil on the adjacent sea grass beds clearly fits within the plain lan- guage of the third clause of Section 10. The fact 10 that the equipment used was the propellers of a tug is immaterial. [Petitioners] knew that [their] activities were dredging a channel and filling the adjacent areas. This factbound finding is correct and does not merit further review. In also urging the inapplicability of the Clean Water Act, petitioners assert that the “mere use of the bed of navigable waters” (Pet. 19) is not an un- lawful discharge of a pollutant or the addition of dredged material into waters of the United States. But, on gain, petitioners’ activities were hardly of the dé minimis sort they assert them to be. More- over, petitioners’ discussion of the Clean Water Act disregards the fact that the 1972 amendments to the Act represented “a comprehensive legislative at- tempt ‘to restore and maintain the chemical, physi- cal, and biological integrity of the Nation’s waters’ ” (Riverside Bayview Homes, Inc., slip op. 10 (quoting 33 U.S.C. 1251)). Thus, in asserting that its ves- sels added nothing to the waters of Niles Channel (Pet. 19), petitioners ignore the fact that, as noted by the court of appeals, the word “addition” as used in defining “discharge” “‘ ‘may reasonably be under- stood to include “redeposit”’” (Pet. App. 10a, quot- ing Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983)). That redeposit “clearly disturb[ed] the ‘physical and biological in- tegrity’ of the subject areas” (Pet. App. 10a (quot- ing 33 U.S.C. 1251) ), in contravention of Congress’s mandate. Petitioners cite no authority to the con- trary. Petitioners conclude by asserting that “[t]he hold- ings below grant to the Corps of Engineers a vast expansion of its power and jurisdiction, which may 11 be arbitrarily exercised about the country” (Pet. 20). This Court has, however, recently acknowledged “the breadth of federal regulatory authority contem- plated by the [Clean Water] Act itself” (Riverside Bayview Homes, Inc., slip. op. 12) and that “[a]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable. and not in conflict with the expressed intent of Con- gress” (id. at 9). Moreover, petitioners’ claim that the government has shown a propensity to abuse its regulatory authority in this case is far-fetched. Both the district court and the court of appeals found, as a factual matter, that petitioners’ vessels had re- peatedly gone back and forth through Niles Channel, dredging a channel and filling adjacent areas. This finding is not seriously disputed, and this Court has, of course, repeatedly expressed its reluctance to re- view factual findings concurred in by two lower courts. See, e.g., Rogers v. Lodge, 458 U.S. 613, 623 (1982) ; Berenyi v. District Director, INS, 385 U.S. 630, 635 (1967). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General MARTIN W. MATZEN MARIA A, IIZUKA Attorneys MAY 1986 YoU. S. GOVERNMENT PRINTING OFFICE; 1986 491507 20205 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0329%3A2. Public record. Not legal advice.