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U.S. v. SCHMITT

April 17, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ADELE SCHMITT, JOHN SCHMITT AND ADAM SCHMITT, D/B/A CHANNEL MARINE SUZUCKI AND SCHMITT'S MARINA, AND CARL MIDNICA, INDIVIDUALLY AND AS PRESIDENT OF CAVE DIGGERS, INC. AND ADAM SCHMITT D/B/A ADAMS FISHING STATION, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM AND ORDER

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 selective enforcement?

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.

BACKGROUND

The Government instituted this action by service of a summons and complaint dated June 26, 1989 setting forth eight causes of action which allege, in substance, that (1) the defendants constructed and operate a boat marina (hereinafter referred to as the "Schmitt Marina") with a sea wall partially on real property owned by the Government without the Government's consent, (2) the defendants constructed and operate a marina without plans recommended by the Army Corps of Engineers (the "Corps") and authorized by the Secretary of the Army, and that (3) the defendants have caused or are causing the discharge of fill material into navigable waterways. The complaint seeks damages, a declaratory judgment and injunctive relief.

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 Schmitts.

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

THE HEARING

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, 1990.

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 below.

A. The Plaintiff's Case

1. The Testimony

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)

Dr. Tanacredi testified that the legislation which established the National Park Service in 1972 created Gateway. (Tr. at p. 26) The property comprising Gateway was conveyed to the United States by the City of New York in 1972 and was placed in operation in 1974. (Tr. at p. 310) Jamaica Bay is a district within Gateway consisting of 17,000 acres of land and water in the shadow of the World Trade Center; it is one of the largest open spaces within Brooklyn and Queens and it is operated as a wildlife preserve and a haven for a multitude of fish, animal and floral wildlife. (Tr. at p. 27; Plaintiff Exhibit 1)

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 p. 635)

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 governmental agency.

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 follows:

  Q: What does it demonstrate to you that photo, the
  Exhibit 4?
  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
  killed.
  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
  continuing thing.
  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
  been done?
  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
  area?

A: In the cove.

THE COURT: And in 1976 it wasn't there?

A: No, sir.

THE COURT: Could you put — show me where it is?

A: Yes, sir.

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. 1276-78)

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.
  * Aug. 8, 1984 — The presence of additional
  floating docks and a walkway are noted in the Schmitt
  Cove; 10 acres of intertidal

  marsh have been filled in, where there is now no
  vegetation and is "denuded."

(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 [403] jurisdiction exists section [403] 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. 1092-93)

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 Schmitt.

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)

Daniel Turbidy has lived in Broad Channel for over thirty years and is familiar with the Schmitt Marina. (Tr. at p. 1117) He presently resides in close proximity to the Schmitt Marina. (Tr. at p. 1118) Mr. Turbidy testified that the floating docks in the Schmitt Cove were not present during the period from 1962 to 1964. (Tr. at p. 1121)

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 ...


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