The opinion of the court was delivered by: SPATT
The United States House of Representatives made the following observation of Jamaica Bay in a report of the proposed Gateway National Park:
The natural values of the area are astonishing. Here, one can escape the maddening crowds and be exposed to a wildlife sanctuary. Against the backdrop of the Manhattan skyline, he can observe numerous species of waterfowl and shorebirds that use the area as a nesting ground.
The saga of the development of the marina in Broad Channel known as the "Schmitt Marina," closely tracks the interesting history of the community in Queens County known as "Broad Channel," the only inhabited island in Jamaica Bay, known as the "Venice of New York" and the "Gateway to the Rockaways."
During these many hearings, the Court was furnished with a number of maps and aerial photographs and a history of Jamaica Bay (Def. Ex. C) which greatly aided the Court's endeavors. Also, the Court notes that the defendant John Schmitt personally obtained from the City of New York and other sources a plethora of maps, charts, photographs and other documents. These documents were of valuable assistance to the Court in its task of discerning the evolving history of the Broad Channel Community and recording a chronological review of the events that are relevant to these proceedings.
Jamaica Bay is an estuary, meaning a boy of ocean water diluted by fresh water runoffs from the land north of the Bay consisting of 18,000 acres of land and water in the shadow of the World Trade Center. It is one the largest open spaces in Brooklyn and Queens, and is operated as a wildlife preserve. This grassy bay has become a haven for a multitude of fish, animal and floral wildlife. Jamaica Bay also is a stopover for migrating birds of all kinds. The grasses in the Bay provide prime spawning ground for a myriad of species of fish and minute animal life.
In the late nineteenth century there was a considerable development of Rockaway Beach, both in hotels and other residences. In the 1880s, a train track was constructed over the water of Jamaica Bay from the then Village of Jamaica south to the Rockaways. This rail line triggered further development of the Rockaways. On the path to the Rockaways, the trains stopped at a number of "fishing stations" along Jamaica Bay. These fishing stations, located in the middle of the bay, were docks at which fishing boats were tied up with a few buildings around the station.
One of the fishing stations in Jamaica Bay was called "Broad Channel," named for the channel near the station. The 1890 Hyde map and enlargement (Pl. Exs. 48 and 49)
reveal that the Broad Channel Fishing Station was comprised of four or five buildings located on a small island north of a larger, uninhabited, grass island called "The Big Egg Marsh," separated by a salt water channel. A photograph probably taken in the early 1900s, shows people waiting for a train at the "L.I.R.R. Ticket Office" at the "Broad Channel" station (Pl. Ex. 56).
A 1907 map of Jamaica Bay shows an area designated "sand filling" (Pl. Ex. 57, Tr. at 5459).
This area eventually became part of Jamaica Bay Boulevard, later renamed Cross Bay Boulevard, which traverses the Bay from the Belt Parkway area to the Rockaways in a generally north-south direction. (See the artist's rendering of Jamaica Bay Boulevard made in the early 1900, [Pl. Ex. 53].) During this period the saltwater passage between Broad Channel Island and Big Egg Marsh Island was filled in. From that time on, the two islands effectively merged into one, variously called Broad Channel and Big Egg Marsh.
In 1912, the New York State Legislature granted to the City of New York ("the City") title to the land and land under water in Jamaica Bay. On December 16, 1914, the City leased a boot-shaped parcel, which included Broad Channel and the Big Egg Marsh, to a developer named Pierre Noel, whose company was called the Broad Channel Corporation. Noel intended to use the leasehold for residential and commercial purposes (Def. Ex. B-152). The Jamaica Bay History (Def. Ex. C) records that in 1914 "all of Big Egg Marsh was leased to Pierre Noel for a term of ten years . . [with] the right to renew the lease for two ten-year terms." The area leased was described as comprising "454.22 acres" (Def. Ex. B-152). A 1914 map indicates that the entire Broad Channel area was called "Big Egg Marsh," was unsettled and without any buildings. (Def. Ex. B-152). However, by 1947, Broad Channel was divided into blocks and lots, and only the marsh area to the south and in the toe of the boot was called "Big Egg Marsh" (Def. Ex. 153).
The Noel Developer's Map reveals that a large part of the southerly portion of the boot-shaped leasehold, the foot of the boot, was left undeveloped and in its natural state. There were no streets or canals in that southern portion. This undeveloped southern portion is referred to as the "Big Egg Marsh," the same name as the entire large marsh island now known as Broad Channel was formerly known. This area, south of the flourishing Broad Channel Community, has remained undeveloped to this day, and is the home of countless fish, bird, animal and other wildlife species.
Noel leased portions of the developed land in Broad Channel to individuals for residential and business purposes. Apparently Noel encountered financial difficulties during the Depression, and the City terminated his lease in 1939. From that time on, the City assumed the role of direct landlord to the former subtenants of Noel and all other tenants of Broad Channel. These lessees, almost all residential, then became month-to-month tenants of the City. The leases issued by the City used the block and lot designations set forth on the Developer's Map. The southerly marsh area, including the Big Egg Marsh, remained natural and undeveloped.
In tracing the historical development of the Broad Channel Community, there is some confusion caused by the fact that in some documents the names "Broad Channel" and "Big Egg Marsh" were used interchangeably to describe the same property. A good illustration of this interchange of names is shown in the pamphlet entitled "Jamaica Bay, A History" (Def. Ex. C). The first map in the pamphlet dated in 1911, prior to the Noel development (Figure 16), refers to the entire boot-shaped area as "Big Egg Marsh." However, the third map in the pamphlet dated 1940 (Figure 18), designates only the southerly undeveloped portion of the boot as "Big Egg Marsh".
By the 1930s, New York City Parks Commissioner Robert Moses had plans for the 18,000 acres of water, marshland and meadowland in Jamaica Bay as "offering unlimited possibilities for recreational and residential development . . . [on] the natural grassy islands." He envisioned public use of the meadowlands adjoining Cross Bay Boulevard, including Big Egg Marsh, and purification of the Bay's polluted waters. (Def. Ex. C). Moses also proposed to transfer all the islands of the Bay to the Department of Parks for recreational use, including fishing and boating, and for the preservation of wildlife.
The Moses vision was realized when the City transferred most of the Bay and its marsh islands, except a portion of Big Egg Marsh, to be retained by the Bureau of Real Estate, to the New York City Department of Parks on July 15, 1945. (N.Y.C. Local Law Nos. 31 and 32; Def. Ex. B-319). The city park area was known as the Jamaica Bay Wildlife Refuge. As noted in all the local laws and documents, and is stipulated by the parties, the boot-shaped area known as Broad Channel and Big Egg Marsh was not part of this City park land.
In 1946, the City formally adopted a street map for Broad Channel (City Ex. DB). The City continued to issue leases for occupancy of portions of Broad Channel. By 1982 there were approximately 900 residential tenancies and 50 commercial tenancies on Broad Channel. (Tr. at 6857-6858). A 1941 map, undated to 1951 by the United States Engineer's Office (Pl. Ex. 40), clearly shows this developed area of Broad Channel and the undeveloped area known as the Big Egg Marsh.
C. The Gateway National Park
Among the provisions of the Gateway Act is the following:
that the Secretary of the Interior) shall administer and protect the islands and water within the Jamaica Bay Unit with the primary aim of conserving the natural resources, fish, and wildlife located therein and shall permit no development or use of this area which is incompatible with this purpose.
In addition to the enthusiastic and descriptive language in the House of Representative Report cited in the opening words of this opinion, the United States Senate report on the bill which became the Gateway Act also praised Jamaica Bay:
Jamaica Bay fascinates biologists and the nature-minded not only for its wealth of birdlife but also because of the seemingly sturdy health of its ecological communities in the midst of unhealthy conditions. Though poor in its water purity rating, it is rich in fish and wildlife. Some 200 species of birds have been reported in Jamaica Bay at breeding and migration periods. It is strategic nesting ground for birds along the Atlantic flyway. To have this outdoor research laboratory within a region of 20 million people is of underminable value.
Sen Report No. 92-345, p.4.
The map depicting the outer perimeter of the Gateway National Recreational Area, dated May 1972, was admitted in evidence as Def. Ex. B-555(a). As stated above, the Gateway Act excluded the Broad Channel Community. While the Gateway Act defined the outer perimeter of Jamaica Bay to be included within the national park, Congress did not fix the borders of the Broad Channel Community. The Gateway National park boundaries were established by the United States National Park Service and the City in a "Gateway Conveyance Map" adopted in 1973 (Pl. Ex. 38B-1).
A review of the crucial Gateway Conveyance Map reflects that the Broad Channel Community area was excluded from the Gateway conveyance by the City to the United States. Significantly, the southwestern, lower portion of the boot, labeled the "Big Egg Marsh," is clearly within the grant of the City to the Gateway National Recreational Area, and since 1973, is owned by and within the jurisdiction of the United States National Park Service. Thus, the Court finds that while the Broad Channel Community area was excluded from the Gateway National Park, Big Egg Marsh at the foot of the boot was included in the conveyance by the City to the United States.
By laws passed in 1973, the City decided to sell the Broad Channel property to its tenants. (Def. Exs. B-55 and B-555). In 1980 the City effectuated the plan to sell the Broad Channel property to "the homeowners" (see letter from Deputy Commissioner Herschman dated May 1, 1980; Def. Ex. B-411).
D. The Schmitt Leaseholds
There are three sets of leases that are relevant to the issues in this case. First, there are the leases directly involving the Schmitt Marina. Second, there are the leases to John Orean, in an area called John's Fishing Station, which eventually were assigned to the Schmitts. Third, are the leases involving the residence of Adam and Ernestine Schmitt. The Court separately will discuss each of the leases and the related documents.
Adele obtained two permits for the area around the foot of West 20th Road. The first permit, dated January 9, 1945 (Def. Ex. SS, Pl. Ex. 33), covered an "area 50' X 100' of marsh land at foot of West 20 Road." The purpose of the occupancy was "For location of houseboat, to be used as a fishing station, and for no other purpose whatsoever." The rent was $ 8.33 per month on a month-to-month basis. The second permit was dated November 1952 for the location "Foot of West 20 Road, Part of Block 210 . . . marshland." The purpose of this occupancy was boat storage and the rent was $ 25.00 per month. (Def. Ex. TT).
(1) The Schmitt Leases at Block 210 - Foot of West 20th Road
Among the voluminous documents in evidence, are the marina leases from the City to Adele. The first such lease is dated July 1, 1959 (City Ex. DK, Def. Ex. B-400). The rent was $ 134 per month with a deposit of $ 268 for this monthly lease. The description of the premises leased is "Foot of West 20th Road . . . Block 210 . . . Lot (marsh land) Queens (Broad Channel)" to be used for "boat storage and fishing station." A cover letter for this lease, dated July 1, 1959 (Def. Ex. 401) stated that the premises to be leased was in Queens, Block 210, marsh land at the foot of West 20th Road. In connection with the July 1, 1959 lease, there is a memorandum in evidence dated August 12, 1959 (Def. Ex. B-402). The memorandum recites that the premises leased is "Foot of West 20 Road - Borough of Queens, Block 210 - Lot marsh land." Of importance is the description of the size of the leased premises, which is set forth as "Space - 200' by 200'." The memorandum also states that the "old agreements cancelled."
The next lease of this land is dated April 16, 1962 (Pl. Ex. 27). The lessee is "Adele Schmitt d/b/a Adam's Fishing Station - Foot of West 20th Road" residing at "Foot of West 19th Road . . . Broad Channel, Queens, N.Y." The premises were described as "Foot of West 20th Road" at "Block 210 Lot Foot of West 20th Road -- Area 40,000 sq. ft." The premises were to be used for "boat storage in connection with fishing station." The rental was raised to $ 150 per month with a deposit of $ 300. Like the one that preceded it, this lease was a month-to-month rental. There are no leases in evidence between the City and the Schmitts for land in Block 210 or "at the foot of West 20th Road" subsequent to the 1962 lease. Approximately three years later, in 1965, Adele retired. Adam and Ernestine, his wife, took over the Schmitt boatyard. In a bill of sale dated July 5, 1965 Adele sold "a certain business" located at the foot of West 20th Road, known as Adam's Fishing Station to Adam and Ernestine (Def. Ex. B-39). The bill of sale also assigned to Adam and Ernestine the lease of the fishing station and boat storage yard.
At the time of the Gateway conveyance, on March 1, 1974, (Pl. Ex. 5), the 1962 month-to-month lease by the City to Adele was still in effect. The lease encompassed the foot of West 20th Road, Block 210, covering an area of 40,000 square feet of waterfront land with dimensions of 200 feet by 200 feet. Indeed, this lease arrangement, which commenced in 1959, remains in effect to this day. The only changes in the terms and conditions of the successive month-to-month leases were increases in the monthly rent from $ 134 per month in 1959 to $ 229 per month at the present time, an astonishing bargain for 40,000 square feet of waterfront property (see Pl. Ex. 27, City Ex. DO). It is conceded that no part of this original 40,000 square feet of the Schmitt leasehold is on Gateway property.
Also in evidence with regard to the Schmitt Marina leased premises at Block 210, is a letter dated May 19, 1980 from the City to the tenant of Block 210, lot 99 (Def. Ex. B-50). The letter notes that the "lease with the City dated May 1, 1975 for the property referred to above expired on April 30, 1980." The letter refers to "an interim measure" during negotiations for the sale of Broad Channel by the City to the residents, and states that the City renews the lease term for an additional one year period from May 1, 1980 to April 30, 1981, with a 50% increase in rent, and no other changes in the lease provisions.
The Schmitt Marina eventually developed into what was described as "the largest and most substantial marina in the Board Channel area," with a capacity of 250 year round boats (Def. Ex. 00). The manner in which the Schmitt Marina developed and enlarged its areas is a key issue in this case.
Also relevant to this controversy are the leases by the City to John Orean. The first such lease in evidence is dated July 1, 1959 (Def. Ex. B-407). It lists John Orean as tenant, with his residence office at 73 West 19th Road, Broad Channel, New York. The premises leased are at the "Foot of West 19th Road," Block 29, lots 64, 66, 68, 72, 76, 78, 80, 82 and parts of 19th Road. This property apparently was adjacent to, and north of, the Schmitt Marina and also includes a residential area (see Def. Ex. B-408). The premises were to be used for "boat storage and fishing station" and the rent was $ 93.75 per month on a month-to-month basis. The leasehold is apparently known as "John's fishing Station." There is also a part of a lease in evidence dated May 1, 1963 between the City and Orean, residing at 63 West 19th Road covering land in Block 209 (Def. Ex. B-408). On November 25, 1965, Orean assigned his "business, buildings, equipment and home" to his grandson Daniel Pasienza (Def. Exs. B-409, B-410). On April 20, 1968 Pasienza sold "John's Fishing Station" located at Block 209 to Adam and Ernestine (Def. Ex. 41).
(3) The Adam Schmitt Leases in Block 209
The third set of leases in this case concern an area in Broad Channel leased by Adam. The first such lease is dated June 15, 1973 (Def. Ex. B-503) for land located in Block 209, lots 52-62, and containing "approx. 15,000 sq. ft." to be used for the "storage of private boats." The rental charge was $ 60.00 per month on a month-to-month basis. The second lease in evidence involving this land is dated July 21, 1975 (Def. Ex. B-54). The description of the premises and the terms are the same as the June 15, 1973 lease.
Also in evidence is a May 1, 1969 lease between the City and Adam and Ernestine Schmitt covering the land at Block 209 lot 74 for a five year period at the rent of $ 100.00 per month. This lease covers the use of the property as a private dwelling. In 1988, the City sold this land to Adam. The sale of the property by the City was based on the use of this property for residential purposes.
II. THE PROCEEDINGS AT ISSUE
A. The Federal Court Action
This Federal Court action was commenced by the plaintiff United States in June, 1989. The complaint named defendants Adele Schmitt, John Schmitt and Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, as well as Adam Schmitt d/b/a Adams Fishing Station. Also named as a defendant was Carl Mednica, individually and as president of Cave Diggers, Inc.
The federal complaint alleged eight causes of action against all defendants, seeking various relief including: 1) a judgment declaring that defendants are trespassing on the plaintiff's property; 2) an injunction against the defendants from trespassing on the plaintiff's property; 3) monetary damages for the defendants' alleged use and occupancy of plaintiff's property; 4) a judgment declaring that defendants are violating 33 U.S.C. § 403 (The Rivers and Harbors Appropriation Act); 5) an injunction preventing defendants from operating a marina and requiring the defendants to remove the marina operation from the plaintiff's property; 6) a judgment declaring that defendants violated 33 U.S. § 1344 (The clean Water Act); 7) an injunction preventing the defendants from discharging fill into navigable waterways and requiring the defendants to remove the condition allegedly caused by the defendants' unlawful discharge; and 8) monetary damages for the defendants' alleged trespass on plaintiff's property.
In March of 1993, the Court permitted the Schmitts to commence a third party action against the City of New York raising, among other things, the effect of the Gateway Conveyance on the issues in this case. The Schmitts seek a judgment declaring that they were lawfully leasing the property they occupy on broad Channel Island from the City and have a right to purchase that property from the City. They also request that the Court redefine the property included in the 1974 Gateway transfer from the City to the United States, which, by its terms, excluded all portions of the "Broad Channel Community." Further, the Schmitts seek a declaration that the property leased by the Schmitts is not included in the property transferred by the City to the Federal Government under the 1974 Gateway Conveyance.
In response to the Schmitt third-party action, the City interposed an answer consisting of six affirmative defenses. Three counterclaims also were asserted, seeking: use and occupancy compensation from the Schmitts for the property they leased from 1945 to date; a judgment directing the Schmitts to restore the property and remedy any alleged damage caused by their occupancy and actions; and a judgment restoring the City to possession of the subject real property.
In July 1996, the Court granted permission to the Schmitts to serve a supplemental third-party complaint against the City, pursuant to FRCP 15(d), based upon the enactment of a new statute by the New York State Legislature in 1995. The City answered this additional third-party cause of action and asserted another counterclaim for damages.
B. The State Court Action
In June 1990, after receiving thirty-day notices from the City attempting to terminate their tenancy as of June 30, 1990, the Schmitts commenced an action in Supreme Court Queens County in the nature of a declaratory judgment to void the thirty-day notices and to compel the City to sell the leased property to them pursuant to the authority in Ch. 756 of the laws of 1973 and the 1982 Resolution 151 of the Board of Estimate.
In the Supreme Court Queens County action, the Schmitts obtained an injunction staying the termination of their tenancy and directing that the status quo be maintained. On the City's motion to dismiss, the State Supreme Court, (Hentel, J.), dismissed the Schmitts' clams that sought a Writ of Mandamus compelling the City to convey the leased property to the Schmitts. The Supreme Court converted the action into an Article 78 proceeding to determine if the City's actions were arbitrary and capricious. By stipulation, the Article 78 proceeding was removed to this Court and consolidated with the Federal actions.
III. THE PRELIMINARY INJUNCTION HEARING
After a ten-day hearing which concluded on February 16, 1990, the Court rendered an oral decision, later issued in writing, enjoining the Schmitts from putting any craft into a sheltered water area adjacent to the Schmitt Marina, known as the Cove. United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y. 1990). The parties, including counsel for defendant Mednica, agreed that all testimony at the preliminary injunction hearing "is deemed admitted in evidence at any future trial." Therefore, the Court will consider the evidence at the preliminary injunction hearing in its determination of the issues in this plenary trial.
Dr. Arthur LaPerriere, an ecologist employed as Chief of Harbor Supervision, concurred with Dr. Tanacredi's opinion that ten acres of natural tidal marshland had been destroyed at the Schmitt Marina since 1976. Also, he stated that, as a result of the Schmitt Marina, these marshland acres were covered with construction debris. The Marina also discharged toxic pollutants into the navigable waters of Jamaica Bay. Dr. LaPerriere testified that the operation of the Schmitt Marina had an "adverse impact on the wildlife" in Jamaica Bay.
Michael P. Flynn, a lifetime resident of Broad Channel who worked at the Marina, testified about how the Schmitts placed more and more floating docks and boats in the Cove throughout the years. He described the two riprap walls that were built by the Schmitts. Flynn saw Adam using a bulldozer to push riprap to the northwest corner of the Marina. One of the riprap walls the Schmitts constructed was built in 1976-1977 in a semi-circle on an area partially surrounding the Cove known as the Hook. Adam talked to Flynn in 1977 or 1978 about extending the riprap wall. This wall was made of broken concrete, and its function "was to protect the marina from storms . . . (and) to prevent storm damage" (PI Tr. at 547).
Daniel Turbidy, another long time resident of Broad Channel, saw garbage trucks dumping industrial waste in the Schmitt Marina area, usually after 10:00 p.m. The trucks heaved this waste onto the green marshlands surrounding the Cove. Turbidy also saw bulldozers spread the garbage and place dirt and rocks over it.
John Burke, an environmental conservation officer for the New York State Department of Environmental Conservation ("DEC") testified that on November 19, 1984 while on routine patrol, he saw that a new breakwall had been built. During a conversation with John Schmitt on the same day, John admitted that he was responsible for building the breakwall, and for the backfilling (PI Tr. at 1195-1196).
John Schmitt testified that there was no written assignment of the lease of the Schmitt Marina from his father Adam to him. He is not the named tenant on the lease and is presently the manager of the Schmitt Marina with the permission of his father. John denied that he personally dumped on or filled tidal wetlands. Significantly, he testified that the Schmitt Marina had no known or definite boundaries, no site markers and only fixed, indefinite boundaries (PI Tr. at 1362).
In its decision, this Court determined the following:
(1) The evidence admitted at the hearing clearly demonstrated that the government has shown a likelihood of success on its claim that the Schmitts violated the Rivers and Harbors Appropriation Act, 33 U.S.C. § 403, with regard to the docks, floating docks and the walkway located in the Cove adjacent to the Schmitt Marina. In fact, in their post-hearing memorandum, the Schmitts stated that "there is no objection to that portion of plaintiff's motion that seeks to enjoin or restrain" the Schmitts from "'filling of tidal wetlands,'" although they deny that they have previously done so. (Schmitts' Post-Hearing memorandum at p.1).
(2) The government demonstrated a likelihood of success on the merits that the Schmitts violated the Clean Water Act, 33 U.S.C. § 1344, in that they polluted navigable waters of the United States.
4) "The Government cannot be estopped from prosecuting its Rivers and Harbors Appropriation Act and Clean Water Act claims" Id. at 1056; the doctrine of latches is unavailable to the defendants as a defense Id. at 1057; and the Schmitts failed to establish a defense of selective enforcement Id. At 1057.
Based upon these finding and conclusions, the Court issued the following preliminary injunction:
(1) the defendants John Schmitt, Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, and Adam Schmitt d/b/a Adams Fishing Station are hereby preliminarily enjoined from placing or allowing th docking or storage of boats in the Schmitt Cove (see Plaintiff's Exhibit 3) until further Order of this Court; and
(2) the defendants John Schmitt, Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, and Adam Schmitt d/b/a Adams fishing Station are hereby preliminarily enjoined from any further expansion of the Schmitt Marina into the Schmitt Cove or any portion of Jamaica Bay until further Order of this Court.
Following the issuance of the preliminary injunction, the parties modified the terms of the preliminary injunction, on consent, to permit the Schmitts to use one single dock in the Cove below the mean water parallel to the mapped 96th Street in a north-south direction for docking and boat storage. This dock is referred to in this opinion as "Dock A." Also permitted was a second smaller float approximately 20 feet in length and 10 feet in width, a few feet seaward of and parallel to Dock A. The parties further modified the preliminary injunction in a stipulation on the record on April 29, 1994. (See Tr. 1838-1843, subject to certain concerns by the City regarding environmental problems; see also problems in connection with this stipulation at Tr. 1860-1901).
IV. THE TRIAL -- FINDINGS OF FACT
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). See Rosen v. Siegel, 106 F.3d 28, 32 (2d Cir. 1997); Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.
The Schmitts offered the testimony of two expert witnesses seeking to establish that any docks placed in the Cove prior to 1968, could remain without a written permit. One expert witness, James Haggerty, Chief of the Eastern Permit Section of the Army Corps of Engineers, testified by deposition with regard to "nationwide permits." A Nationwide Permit is a general permit issued from headquarters in Washington, authorizing "many types of minor activities without going through a full blown permit process." There is another type of permit called a "grandfather" permit which provides that no permit is required for any completed structure built in navigable waters prior to December 18, 1968. Thus, a dock placed in navigable waters prior to December 18, 1968 would need no permit from the Corps of Engineers.
The second witness, James M. Mansky is an expert in ecology, and was formerly Chief of Compliance Section of the New York District of the Corps of Engineers. Mansky also discussed the issue of Nationwide permits. He testified that a Nationwide Three Permit authorizes the repair and rehabilitation, without a written permit, of a structure that was constructed and placed in the water prior to December 18, 1968.
THE COURT: If there are docks into the water before 1968, you say they could stay there without a permit?
Mansky testified that he visited the Schmitt Marina on June 5, 1993 and again on August 29, 1993. In Mansky's opinion, three portions of the Schmitt Marina qualify for a Nationwide Three Permit: (1) the bulkhead close to the house, (2) the fill behind the bulkhead, and (3) the long dock with slips for boats parallel to the shore adjacent to the bulkhead, in the Cove. This permit would also cover a same size, same place replacement dock and the use of the dock to tie up boats. However, Mansky also stated that the other docks perpendicular to the main dock or walkway would not qualify for the Nationwide Three Permit.
According to Mansky, at the time of his visits to the scene, "the marsh and the site animals within the marsh were surviving and functioning within the normal condition and it did not appear that there was anything that the marina was causing as a disturbance." The Court does not credit this testimony. The overwhelming evidence is to be the contrary.
During his visit, and after reviewing aerial photographs, Mansky observed "filing in" that took place in the Hook around the Cove over a two acre area. Mansky testified that he saw "fill in the Hook area" extending from the south and curving around the Cove shoreline. He stated that the filing of the Hook could have been done by dump trucks. Of importance, he observed asphalt in th fill area around the Cove and a substantial change in the vegetation along the shoreline. In sum, Mansky testified that there was significant filing in the Hook with two acres of fill which would be a violation of the law. (Tr. at 287-288, 309).
Mansky also testified that the Corps of Engineers had jurisdiction tot he mean high water line and could not be deprived of jurisdiction because the area was filled in. In addition, he bolstered the Government's contention that the Big Egg Marsh is vital to national wildlife abounding in Jamaica Bay:
Q Now, Big Egg Marsh isn't it true that the marsh play a role in the food chain production of the estuary, Jamaica Bay?
Q Isn't it fair to say that the wetlands that were all around the marina in 1967 as clear from that photograph, they also played a part in food chain production, didn't they?
Q And what about general habitat and nesting, spawning, rearing and nesting sites for aquatic or land species? Isn't it true that small fish tend to hid in the grasses, in the Spartina at the high tides to prevent them from being eaten by the larger fish?
Q Isn't it true that birds are generally shy, and if there is an area that they can nest that is protected by grasses, high grasses, that the may use it for spawning and nesting; is that true?
A Fish spawn and birds nest.
Q And they also provide resting sites for aquatic and land species? Don't these --
Q And isn't it true that Jamaica Bay is place where all species of birds stop by on their way in the fall and in the spring? It is a stop over area?
A It is a stop over area.
Q Isn't it true that those grasses as they existed in Exhibit 39, that 1967 beach erosion photograph, isn't it true that those grasses around the marina, isn't it true that they could have easily provided resign sits for various birds and stop over points for various birds?
Q You would expect birds to the there?
Q They are not now because it has been buried with concrete?
A They could be off shore where the wetlands were before, but you would not tend to find them on top of the fill.
Q So you don't build normal streets through marsh land if you want to protect it for the animal life, isn't that true?
A. You would not normally put asphalt on top of a street with marsh land.
Is it fair to say that it was a wetland set aside for study of aquatic environment or as sanctuaries or refuges, isn't that exactly what Big Egg Marsh is?
A As depicted on this map, yes.
(Tr. at 246-253) (emphasis supplied).
Significantly, Mansky testified that the marsh islands of Jamaica Bay are "unique":
Q Isn't it fair to say that the marshes -- the marsh islands of Jamaica Bay, which are part of the wildlife refuge, isn't it fair to say that they are unique in terms of their lack of development inside of the borders of New York City?
Q Isn't it fair to say they are scarce in New York City this kind of wetland and bird habitat?
Further, Mansky testified, after some evasion, that the boats in the Schmitt Marina did do some damage to the wetlands. (Tr. at 259).
Mansky testified in June and August 1993. On August 3, 1995, Mansky was recalled by the Schmitts. In his initial testimony, he was of the opinion that Dock A and a bulkhead were authorized under a Nationwide Three Permit. In his 1995 testimony, Mansky asserted that the Schmitts also were entitled to Nationwide Two Permit under the provisions of 33 CFR 330.6(2). This provision, in effect since 1988, authorized structures constructed in artificial canals in residential areas where the connection of the canal to navigable waters had been previously authorized. Thus, according to Mansky the Schmitts can place and maintain any structure they want in an artificial canal. In Mansky's opinion, the Schmitts are entitled to a Nationwide Two Permit because there the Cove is an artificial canal in the Schmitt Marina area.
Mansky also testified, after reviewing the applicable maps an aerial photographs, that he concluded that the Cove was created between 1924 and 1938. Also, the water depths around Broad Channel vary from 2 feet to 11 feet, while the depth of water in the Cove is 16 feet. He then deducted that the Cove was created by dredging the area and was a man made artificial canal. According to Mansky, nature could not have made a 16 foot deep cove surrounded by shallower water. Mansky's conclusion is that the Cove is an artificial canal and the structures within the Cove are authorized by a Nationwide Two Permit, as long as the structures did not have a significant impact on navigation. As such, according to Mansky, the Schmitts do not need written authorization from the Army Corps of Engineers to maintain the docks in the Cove. He also stated that the docks in the Cove do not ...