The opinion of the court was delivered by: Spatt, District Judge.
Situated virtually in the shadows of the skyscrapers of New
York City, and recognized as one of the few national parks within
an urban area, Gateway National Recreational Area ("Gateway"),
which includes the Jamaica Bay Wildlife Refuge ("Jamaica Bay"),
is a natural and national resource protected by federal law.
Created to "preserve and protect for the use and enjoyment of
present and future generations an area possessing outstanding
natural and recreational features" (86 Stat. 1308), Gateway is
the largest pristine open space within the borders of the City of
New York, and is one of the first urban parks in our nation.
Jamaica Bay in particular is a way station for various species of
birds, fish and animal wildlife.
This application by the Government to preliminarily enjoin
certain defendants who operate a marina within Jamaica Bay from
violating the Rivers and Harbors Appropriation Act, 33 U.S.C. § 403,
the Clean Water Act, 33 U.S.C. § 1311, 1344, and from
trespassing on government owned property, raises the following
issues: (1) has the Government demonstrated a likelihood of
success as to any of its causes of action?; (b) must the
Government demonstrate irreparable harm in order for a
preliminary injunction to issue?; and (c) is the Government
precluded from obtaining preliminary injunctive relief by reason
of (a) equitable estoppel, (b) laches, and/or (c) governmental
For the reasons set forth below, the Court finds that the
Government has established a likelihood of success on the merits
that defendants John Schmitt, Adam Schmitt d/b/a Channel Marine
Suzucki and Schmitt's Marina, and Adam Schmitt d/b/a/Adams
Fishing Station (collectively, the "Schmitts")*fn1 violated both the
Rivers and Harbors Appropriation Act and the Clean Water Act. The
Court also finds that the Government need not prove irreparable
harm in order for a preliminary injunction to issue based on a
violation of the Rivers and Harbors Appropriation Act. Further,
the Government has established irreparable harm with regard to
the Rivers and Harbors Appropriation Act and the Clean Water Act
causes of action. Finally, the Court finds that the Government
cannot be precluded from obtaining preliminary injunctive relief
in this case on the grounds of either equitable estoppel, laches,
and/or selective enforcement.
The Schmitts served an answer in which they substantially
denied the allegations of the complaint and asserted fourteen
affirmative defenses. Defendants Carl Midnica and Cave Diggers,
Inc. (collectively, "Midnica") answered and denied the
substantive allegations in the complaint, asserted three
affirmative defenses and alleged five cross-claims against the
By Order To Show Cause signed by The Honorable Eugene H.
Nickerson*fn2 on November 29, 1989, the Government moved for a
preliminary injunction, pursuant to Fed.R.Civ.P. 65, enjoining
the Schmitts from:
"(a) further dumping on and filling of tidal wetlands
in and on Jamaica Bay (b) further expanding the
Schmitt's Marina docks and (c) docking boats at the
Schmitt's Marina docks during the 1990 boating season
. . ."
The Government subsequently clarified its request for preliminary
injunctive relief vis a vis the Schmitts by stating that it
"would like the status quo maintained which is that the boats are
not on federal property . . . and secondly, that [the boats] are
not at the dock which is in violation of the Army Corps
regulations as in section 403." (Tr. at pp. 1001 and 1003)*fn3
A hearing on the Government's application was commenced on
December 22, 1989, and continued intermittently over the course
of ten days of testimony, concluding on February 16, 1990.*fn4
Post-trial memoranda were submitted to the Court on March 9,
On April 4, 1990, the court issued an oral decision temporarily
enjoining the Schmitts from putting any craft into the Schmitt
Cove (as defined on page 8, infra). (See April 4 Transcript at p.
7 ["I am enjoining the defendants temporarily until the rendering
of my decision on the application of the government for [a]
preliminary injunction from putting any boats in the cove, either
at the docks or in the floating
docks. . . ."])
A summary of the evidence introduced at the hearing follows
Dr. John T. Tanacredi is a research ecologist and Chief of the
Division of Natural Resources and Environmental Compliance at the
National Park Service at Gateway. (Tr. at p. 23) Dr. Tanacredi
was qualified as an expert in ecology and in the operation and
management of national parks. (Tr. at p. 25)
The Schmitt Marina is located in an area called the "Big Egg
Marsh" (Tr. at p. 280), within the confines of Jamaica Bay. (Tr.
at pp. 32 and 107) The Big Egg Marsh is a "protection zone," "the
highest form of management classification that the National Park
Service gives to properties it manages." (Tr. at p. 108)
The Schmitt Marina is on a body of land in Queens County in the
middle of Jamaica Bay known as the Broad Channel Community, which
is a man-filled area (Tr. at p. 277) within the Big Egg Marsh, on
the western portion of Beach Channel Drive. Dr. Tanacredi
testified that the Broad Channel Community, located on a causeway
between the Rockaways and Queens, is "not under the National Park
Services's direct jurisdiction." (Tr. at pp. 133-34)
Dr. Tanacredi also testified that Jamaica Bay is a navigable
waterway, testimony which was unrefuted by the Schmitts. (Tr. at
The Schmitt Marina consists of a land area, floats, floating
docks, and support structures (i.e. buildings) in a diameter of
approximately 1200 to 1500 feet on Jamaica Bay. (Tr. at pp.
421-22) There is a small house on the land area. The Schmitt
Marina has a capacity of approximately 250 boats. (Tr. at p. 325)
The Schmitt Marina has a number of floating docks and a walkway
extending in a cove adjacent to the land area (hereinafter
referred to as the "Schmitt Cove").
According to Dr. Tanacredi, the operation of all boats at the
Schmitt Marina will contribute to polluting the environment in
Jamaica Bay by the use of gasoline, sewage and waste products.
(Tr. at pp. 356-57) Dr. Tanacredi testified at length and in
detail regarding the adverse impact on the ecology of the
inter-tidal marshes and wildlife in the area of the Schmitt
Marina as a result of the installation and the mooring of boats
at the Schmitt Marina. (See, e.g., Tr. at pp. 98-101)
Several miles north-west of the Schmitt Marina by boat and
"tens of miles" northwest of the Schmitt Marina by car (Tr. at p.
336) is the Barren Island Marina. Barren Island Marina has a
capacity of approximately 600 to 700 boats (Tr. at p. 309), and
is situated in Dead Horse Bay, west of Flatbush Avenue in
Brooklyn and across from Floyd Bennett Field. (Tr. at pp. 146 and
148) The Barren Island Marina is a regulated facility licensed as
a concessionaire pursuant to a permit issued by the Corps. (Tr.
at pp. 146, 149 and 310) Unlike the Barren Island Marina, the
Schmitt Marina is not licensed and has no permit from any
The main government witness was Dr. Arthur LaPerriere, an
ecologist and the holder of a doctorate in wildlife biology as
well as degrees in chemistry and meteorology. (Tr. at pp. 73-75)
Dr. LaPerriere is employed by the Corps as Chief of Harbor
Supervision. (Tr. at p. 62) In that capacity he enforces the
statutes of the United States involving the Corps, including the
Clean Water Act and the Rivers and Harbors Appropriation Act.
(Tr. at p. 62)
Dr. LaPerriere's testimony was based on his experience in
wildlife ecology, a review of the Government files and an
inspection of the Schmitt Marina on December 19, 1989. (Tr. at
pp. 63-64) Dr. LaPerriere testified that the owners of the
Schmitt Marina never sought a permit from the Army Corps of
Engineers and no permit of any kind was granted to the Schmitt
Marina. (Tr. at p. 63)
On his visit to the Schmitt Marina on December 19, 1989, Dr.
LaPerriere observed "that there had been discharge of
construction debris, including asphalt" into the Schmitt Cove.
(Tr. at p. 67) Based on his observation, Dr. LaPerriere testified
that 10 acres of natural tidal marsh had been destroyed at the
Schmitt Marina since 1976. (Id.; see also Tr. at p. 85
["Previously, this [tan portion on Plaintiff's Exhibit 3] was all
marshland. Now its construction debris"])
Dr. LaPerriere identified where on Plaintiff's Exhibit 4 (a
1976 black and white print aerial photograph of Little Egg Marsh
which includes the Schmitt Marina [Tr. at pp. 44-49]) the Schmitt
Marina had been constructed. (Tr. at p. 69) Examining Plaintiff's
Exhibit 4, Dr. LaPerriere testified that the photograph:
"Demonstrates that the fill where boats are currently
stored and a crescent shaped area of fill was not
there in 1976, and that there had been a discharge of
toxic pollutants into waters of the United States."
(Tr. at p. 68) Dr. LaPerriere described the "fill" as containing
"asphalt which leaks aromatic hydrocarbons [and] other petroleum
carbons into the waterway." (Id.)
Comparing Plaintiff's Exhibit 4 (the 1976 photograph) with
Plaintiff's Exhibit 3, "an aerial photograph that was taken on
August 8, 1984" (Tr. at pp. 40-44), Dr. LaPerriere testified as
Q: What does it demonstrate to you that photo, the
A: It demonstrates that the fill where boats are
currently stored and a crescent shaped area of fill
was not there in 1976, and that there had been a
discharge of toxic waste pollutants into waters of
the United States.
Q: When you say "toxic," what specifically is toxic,
rather than using a conclusory term, tell the Court?
A: Well, fill, even if it was clean fill, which in
this case it was not, is considered a toxic pollutant
because it kills all of the organisms that live in
the substrata, the plants, anything that happens to
be there is simply buried, deprived of oxygen and
Q: Now, what do you mean by "clean fill," as opposed
to non-clean fill?
A: Well, clean fill would be sand or gravel or rocks.
However, the fill at this particular site contains
asphalt which leaks aromatic hydrocarbons, other
petroleum carbons into the waterway. It is a
Q: What do you say has been done since the
photograph, Plaintiff's Exhibit 4, in the area that
you observed last week? What specifically, what has
A: Well, approximately ten acres of tidal marsh have
been destroyed by fill, and a large number of floats
have been added. Essentially, a marina has been
constructed and storage area for boats.
THE COURT: A marina has been constructed in what
THE COURT: And in 1976 it wasn't there?
THE COURT: Could you put — show me where it is?
THE COURT: You put a red mark where you say it is?
A: This is the cove (indicating).
This area that you see dark was marsh, and now the
fill extends out here and around into this marsh.
This is used as a boat storage area.
In addition, you can see there was only one dock on
the 29th of March, 1976. Now the cove is virtually
filled by the docks.
(Tr. at pp. 68-69 [emphasis supplied]; see also Tr. at pp.
The Government introduced aerial maps and photographs of the
Schmitt Marina area, including aerial map photographs taken on
November 20, 1966 (Plaintiff's Exhibit 23), May 28, 1970
(Plaintiff's Exhibit 17) and August 8, 1984 (Plaintiff's Exhibit
3) (see Tr. at pp. 1043-46 and 1075-76), which, according to Dr.
LaPerriere, demonstrate the changes in the area during an
eighteen year period as follows:
* Nov. 20, 1966 — no fill in the Schmitt Cove
area, a small dock attached to the land and three
boats moored in the water.
* May 28, 1970 — same small dock as in 1966
photograph, approximately six boats moored in the
water and 20 boats moored to the dock.
(Tr. at pp. 1041-46) Dr. LaPerriere testified that no permit of
any kind was ever issued by any governmental or municipal agency
to the Schmitt Marina or to any member of the Schmitt family.
(Tr. at pp. 1044-45, 1103 and 1105.)
As to the impact of the Schmitt Marina on the ecology in Big
Egg Marsh, Dr. LaPerriere stated that marsh islands are in and
surround the cove. The marshes are the most productive ecological
systems on earth and supply the primary organisms for food of
invertebrate species, fish and birds who traverse the Atlantic
flyway, a major bird migratory route. (Tr. at pp. 95-98)
Dr. LaPerriere testified that the operation of the Schmitt
Marina has "an adverse impact on the wildlife because of impact
on the water quality." (Tr. at pp. 76 and 85) In addition, there
is a long-term ecological effect caused by the destruction of the
marshes according to Dr. LaPerriere, namely, the erosion of the
land proper, which is a loss of the wildlife and flora habitat.
(Tr. at p. 95) This is especially critical where there is a small
marsh area to begin with, as in the Big Egg Marsh. (Tr. at p. 97)
According to Dr. LaPerriere, the docking of motor boats in the
Schmitt Cove will cause habitat elimination. (Tr. at p. 95) In
addition, petroleum waste products and chemicals used in marina
activities such as paints, solvents and wood preservatives
pollute the water with highly carcinogenic and nitrogenic
elements which cause abnormal cell growths in certain marine
organisms. This petroleum pollution is especially toxic in
sensitive intertidal marshes, as are present in the area of the
Schmitt Marina. (Tr. at pp. 99-101)
Importantly, Dr. LaPerriere testified that the entire Jamaica
Bay, including the Schmitt Cove (identified by Dr. LaPerriere
with a red circle on Plaintiff's Exhibit 3 [Tr. at p. 84]), is
navigable water. (Tr. at pp. 66, 1027-28, 1093 and 1236) The U.S.
Army took jurisdiction over the navigable water and adjacent
wetlands in Jamaica Bay (and the Schmitt Cove) to the high tide
water line on October 18, 1972. (Tr. at pp. 1242-43) As long ago
as 1897 the U.S. Army recognized that Jamaica Bay is navigable
water. (Tr. at pp. 1028 and 1236) In fact, Dr. LaPerriere stated
that there is substantial maritime commerce in Jamaica Bay with
more than 2 million tons of commerce per year. (Tr. at p. 1029)
Schmitt cove has a depth of 16 feet at its deepest, 15 feet at
the mouth of the cove and 4 to 10 feet at the shoal areas. (Tr.
at pp. 1253-55) However, according to Dr. LaPerriere, the depth
of the water does not determine its navigability. (Tr. at p.
1281) If the water is in a tidal area it is navigable even if the
water is shoal. (Tr. at pp. 67 and 1280)
Under the Rivers and Harbors Appropriation Act, jurisdiction is
determined by mean high water. Using Plaintiff's Exhibit 16, a
United States geological survey map, Dr. LaPerriere testified
that the Big Egg Marsh was within the mean high tide line. (Tr.
at pp. 1032-34) Dr. LaPerriere indicated on Plaintiff's Exhibit
3 the approximate location of the mean high tide line, which
included the Schmitt Marina and the floating docks. (Tr. at p.
1039) Dr. LaPerriere also testified that the Corps' jurisdiction
up to the mean high tide could not be defeated by the
construction of land fill which would arguably push the mean high
tide line seaward: "[t]he rule of jurisdiction is once Section
 jurisdiction exists section  jurisdiction always
exists regardless of man made altering." (Tr. at p. 1040)
Under the Clean Water Act, jurisdiction is determined by
"spring tide" which is the highest tide of the year in the
absence of a tide surge caused by a storm. (Tr. at pp. 1242-43)
As he succinctly stated, "If you let the tide in, you've brought
the Army in." (Tr. at p. 1103) Referring to Plaintiff's Exhibit
16, Dr. LaPerriere testified that the Schmitt Marina is within
the high tide line and therefore within the Corps' jurisdiction
under the Clean Water Act. (Tr. at p. 1037)
On cross-examination, Dr. LaPerriere testified that "harbor
lines" (see 33 U.S.C. § 403) had been abolished on December 28,
1951 (Tr. at pp. 1084, 1086, 1092, 1249 and 1282), and, in any
event, the Schmitt Marina was not shoreward of the harbor lines
but was seaward of or within the harbor lines. (Tr. at pp.
Michael P. Flynn grew up in the Broad Channel community. He has
been openly opposed to the operation of the Schmitt Marina and
made a number of complaints to various municipal agencies. (Tr.
at p. 496) Since May, 1982 he has owned a home at 76 West 18th
Road, which is approximately 40 feet from the Schmitt Marina.
(Tr. at p. 445) Mr. Flynn is familiar with the Schmitt Marina
since the 1960's, and in fact worked there during the summers of
1977 and 1978. (Tr. at p. 447) He testified that in the 1960's
there were no floating docks in the Schmitt Cove. During that
period the boats were at moorings. Now, he stated, there are
floating docks at which approximately 300 to 350 boats can be
moored. (Tr. at pp. 447-48)
Mr. Flynn pointed out the progression in the construction of
the floating docks, and a walkway to the docks, in the Schmitt
Cove. For example, Plaintiff's Exhibit 4, the photograph taken in
1974, shows no docks in the cove. (Tr. at p. 451) Mr. Flynn
testified that in 1977 and in 1978 a walkway extending west from
the Schmitt Marina was constructed in addition to the
construction of finger slips for purposes of docking. (Tr. at p.
452) Plaintiff's Exhibit 3, the 1984 aerial photograph, shows
floating docks and a walkway. (Tr. at p. 448 ["finger slips for
each individual boat, two boats for each finger"]) Plaintiff's
Exhibit 6, a 1988 photograph, shows additional moorings in the
cove. (Tr. at p. 449 ["An extension was made towards 18th Road,
parallel with the shoreline, extending to the right of way for
the 18th-19th Road Canal"]) Mr. Flynn testified that Plaintiff's
Exhibit 6 illustrated that the Schmitt Marina expanded since 1984
by the construction of mooring docks on the north-west side of
the Schmitt Marina. (Tr. at pp. 450-51)
Mr. Flynn also testified that two riprap walls ("a wall built
out of loose fill such as broken concrete without any
bulkheading" [Tr. at p. 456]) were constructed at the Schmitt
Marina. The first riprap wall was built at the northwest corner
of the Schmitt Marina in the early to mid 1970's. (Tr. at pp.
456-57) He saw Adam Schmitt using a bulldozer to push the riprap
to the northwest corner of the Schmitt Marina. (Tr. at pp.
487-88) Used for boat storage (Tr. at p. 457), the wall was built
of loose fill such as broken concrete on top of the marshland,
which pushed the riprap land further out in the bay. Before the
riprap wall was built, Mr. Flynn testified that the ground was
wetland and part of the bay. (Tr. at p. 494)
The second riprap wall was built during 1976-1977 in a
semi-circle on the crescent around the Schmitt Cove near the
Schmitt Marina's office. (Tr. at p. 457) This wall was made of
broken concrete. Mr. Flynn had a conversation with Adam Schmitt,
the father of John Schmitt, some time in 1977 or 1978, at which
time Adam Schmitt said he intended to build a wall out of
concrete riprap to extend out as far as the sandbar shown in
Plaintiff's Exhibit 12. (Tr. at pp. 460 and 462-63)
Mr. Flynn indicated on Plaintiff's Exhibit 3, the 1984 aerial
photograph, the presence of filled in land, which the Schmitts
did in stages, beginning in 1977. (Tr. at p. 467) For example,
the former office area was filled in from 1981 to 1982. (Id.)
Prior to the fill, the northwest corner of the Schmitt Marina
constituted wetlands, which was covered over with riprap by Adam
In the Spring of 1988, Mr. Flynn had a conversation with
defendant John Schmitt in which he told Mr. Schmitt that "he went
too far" and asked him to scale back the north expansion of the
Schmitt Marina which was near his home. Mr. Schmitt responded
that Mr. Flynn was asking too much and "I [Mr. Flynn] could do
what I had to do but the docks were staying." (Tr. at p. 493)
During the years 1976 and 1977, and in 1985, Mr. Turbidy saw
garbage trucks dumping industrial waste in and around the Schmitt
Marina area, usually after 10 P.M. The trucks dumped this waste
onto green marshlands and also in the area of the crescent
surrounding the Schmitt Cove (which he indicated by looking at
Plaintiff's Exhibit 3). He also ...