United States District Court, E.D. New York
REPORT AND RECOMMENDATION
KATHLEEN TOMLINSON, MAGISTRATE JUDGE.
the United States of America (“Plaintiff” or the
“Government”), on behalf of the United States
Environmental Protection Agency (the “EPA”),
commenced this action against Gordon Smith, Sr.
(“Defendant” or “Smith”), a member of
the Shinnecock Indian Nation (the “Shinnecock
Nation”), pursuant to Section 309(b) and (d) of the
Clean Water Act (“CWA”), 33 U.S.C. § 1319(b)
and (d). See generally Plaintiff's Complaint
(“Compl.”) [DE 1]. Smith resides at 5 East Creek
Way, Southampton, New York (the “Property”),
within the geographic boundaries of the Shinnecock
Nation's territory. Compl. ¶ 7. He is representing
himself pro se in this matter. The Government alleges, among
other things, that Smith: (1) violated CWA Section 301(a), 33
U.S.C. § 1311(a) by unlawfully discharging
“pollutants in the form of fill material, without a
permit, into waters of the United States, consisting of
salt-marsh wetlands within the geographic boundaries of the
Shinnecock Indian Nation Territory in the Town of
Southampton, New York;” (2) failed to respond “to
an information request issued by [the] EPA pursuant to CWA
Section 308(a), 33 U.S.C. § 1318(a);” and (3)
failed to comply “with an administrative order issued
by [the] EPA pursuant to CWA Section 309(a)(3), 33 U.S.C.
§ 1319(a)(3).” Compl. ¶ 1.
9, 2018, the Government filed a proposed Order To Show Cause
seeking, among other remedies, a preliminary injunction. See
DE 4. Judge Spatt, who was then assigned to this case, signed
the Show Cause Order on July 9, 2018 and directed Defendant
Smith to appear before the undersigned on July 18, 2018 and
show cause “why an Order should not be issued, pursuant
to Rule 65 of the Federal Rules of Civil Procedure, granting
plaintiff (1) a preliminary injunction to restrain Defendant
and those individuals acting in concert with him, from
placing fill material into waters of the United States from
his allotment of land, located at 5 East Creek Way on the
eastern shore of the Shinnecock Indian Nation territory
within the geographic boundaries of the Town of Southampton,
New York; and (2) an order, pursuant to Fed.R.Civ.P. 26(d)(1)
permitting limited expedited discovery requiring defendant to
disclose information, updated to the present, that [the] EPA
requested through an RFI dated May 1, 2017.” DE 6
(“So Ordered” Show Cause Order). Defendant Smith
filed a pro se form Answer on July 17, 2018, generally
denying the Government's claims of violations of the CWA
and asserting that the Court does not have jurisdiction over
him or this action because the Shinnecock Nation has
sovereign immunity and is a “self governing”
Nation. See generally the Answer (“Answer”) [DE
preliminary injunction hearing began on July 18, 2018 and was
continued to August 14, 2018. See July 18, 2018 and August
14, 2018 Minute Orders [DE 8, 15]. On July 19, 2018, the
Government filed its formal Motion for Preliminary
Injunction. See Government's Motion for Preliminary
Injunction (“Govt.'s Mot.”) [DE 10]. Judge
Spatt recused himself from this case on August 14, 2018 and
the case was reassigned to Judge Bianco that same day. See
Order of Recusal [DE 14]. On August 22, 2018, Judge Bianco
referred the formal Motion for Preliminary Injunction to this
Court for a Report and Recommendation. See DE 18. On May 30,
2019, this matter was reassigned to Judge Mauskopf who
presently presides over this action. For the reasons which
follow, this Court respectfully recommends to Judge Mauskopf
that the Government's motion for a preliminary injunction
and other relief be GRANTED.
facts presented here are taken from the Complaint. Defendant
Gordon Smith is a private individual who lives on 5 east
Creek Way, Southampton, New York. Compl. ¶ 7. The
Property was allotted to him for residential purposes only by
the Shinnecock Nation. Id. ¶ 21. At the request
of the Shinnecock Nation Council of Trustees, the EPA
conducted an inspection of the Property on June 30, 2016.
Id. ¶ 23. At the inspection, the EPA recorded
data from soil samples taken from two different locations on
the periphery of the fill area. Id. ¶ 24. Both
locations exhibited characteristics of wetlands as well as
the presence of hydrophytic vegetation and hydric soils.
Id. The data recorded at the inspection confirmed
that the area onto which fill material was placed is wetlands
within the meaning of the Clean Water Act. Id.
¶ 25. These wetlands are adjacent to Heady Creek which
is subject to the ebb and flow of the tide. Id.
Heady Creek is an arm of Shinnecock Bay which is a tidal
embayment of the Atlantic Ocean. Id. ¶ 26.
Complaint asserts that beginning in 2013, the Defendant
and/or persons acting at his direction and/or with his
knowledge and/or consent caused and continue to cause
earth-moving activities on the Property that have resulted in
the discharge of fill material into one-tenth of an acre of
the Shinnecock Wetlands. Id. ¶ 29. According to
the Government, Defendant and/or other persons acting at his
direction used mechanized earthmoving equipment to discharge
fill material primarily consisting of construction and
demolition debris as well as gravel, dirt and landscaping
material -- all of which constitute pollutants as defined in
the CWA -- into the Wetlands. Id. ¶¶ 30,
31. The Defendant did not obtain a CWA Section 404 permit
from the Secretary of the Army for the discharge of fill
material into waters of the United States. Id.
¶ 34(a). The discharge of fill material had the
effect of expanding upland areas by replacing tidal wetlands
bordering Heady Creek with dry land. Id. ¶ 35.
March 1, 2017, in accordance with CWA Section 308, 33 U.S.C.
§ 1318, the EPA sent a Request for Information requiring
the Defendant to, among other things, compile a list of all
contractors who dumped fill material at the Property.
Id. ¶ 37. A response was required within 15
days of receipt. Id. Defendant did not respond
within the 15 days nor at any time thereafter. Id.
¶ 38. The EPA issued an Administrative Compliance Order
on May 3, 2017 which directed the Defendant to respond to the
Request for Information; remove all unauthorized fill
material; restore the Shinnecock Wetlands to their
pre-violation condition; and submit a restoration plan and
obtain the EPA's written approval for the plan.
Id. ¶¶ 38, 39. The Defendant did not
comply with the Administrative Compliance Order or take any
actions to restore the Shinnecock Wetlands to their
pre-violation condition. Id. ¶ 41.
The Preliminary Injunction Hearing
outset of the proceedings on July 18, 2018, the Court
reiterated that the Government was seeking a preliminary
injunction “first of all to restrain the defendant and
those individuals acting in concert with him from placing
fill material into the waters of the United States from his
allotment of land located at 5 East Creek Way on the eastern
shore of the Shinnecock Indian Nation territory within the
geographic boundaries of the Town of Southampton.”
Transcript of the July 18, 2018 Preliminary Injunction
Hearing at 2. The Court further noted that the
Government was seeking an order pursuant to Fed.R.Civ.P.
26(d)(1) for limited expedited discovery requiring the
Defendant to disclose information updated to the present that
the EPA requested through its May 1, 2017 Request for
Information (“RFI”). Tr. I at 3. The Government
stated that it was seeking both forms of relief
the Court asked Defendant Smith if he wished to be heard, he
responded that he had built his house in 1982 and began
constructing a barrier in front of it. Id. at 4. He
stated that no one from the tribe had come to him for
assistance or anything. Id. So he took it upon
to do this for my own safety and the security of my house.
During Hurricane Sandy, the water came right up into one of
my garages and destroyed quite a bit of tools, refrigerator,
and other items, and never once has anyone come to see if I
needed assistance or outpour or anything from the tribe. All
right? I think they were very neglectful in their - how can I
say it - secure of the tribe members, in securing the safety
of tribe members and materials.
As far as any coming to me, the only time they did was when
the DEC came down there and told me to stop doing what I was
doing. At that point in time, no one has come [some] to me to
provide any help or anything.
Id. at 4-5. Defendant Smith also advised that he did
not bring any witnesses to testify at the hearing.
Id. at 6. The Court then explained how the hearing
would proceed, including the fact that the Defendant would
have the opportunity to cross-examine any of the witnesses
the Government presented and would also have the opportunity
to give some closing remarks when the testimony was
completed. Id. at 6-7.
Government's Witness Stephanie Andreescu
Andreescu is an environmental scientist and a credentialed
Clean Water Act inspector serving in Region II of the EPA.
Tr. I at 11; see also Declaration of Stephanie Andreescu in
Support of the United States' Motion for Preliminary
Injunction (“Andreescu Decl.”) [DE 10-1],
attached as Ex. 1 to the Govt.'s Mot, ¶
She received a Bachelor of Arts degree in biology with
studies in environmental management from Cornell University
and in 2006, she completed a Masters of Environmental
Management degree from Duke University where she specialized
in wetlands work. Id. at 11. Before going to the
EPA, Ms. Andreescu did a fellowship with EPA Region II and
later served as an environmental consultant with a consulting
firm doing wetlands evaluations and delineations.
Id. She testified that she did an inspection at the
Shinnecock territory connected with this case. Id.
at 13. Prior to this matter, she had conducted approximately
30 - 50 wetlands inspections. Id. She is a
professional wetlands scientist with a Clean Water Act
to Andreescu, wetlands are defined by statute as “areas
that are inundated or saturated with either groundwater or
surface water with a frequency and duration that supports
wetlands vegetation that's adapted to wetland
soils.” Id. at 14. She was assigned by her
supervisor to examine the site in the Shinnecock territory
for potential violations of Section 404 of the Clean Water
Act. Id. at 14-15. It had come to the EPA's
attention that the Shinnecock had observed some dumping areas
on the territory and they wanted the EPA to look into them.
Id. at 15. Ms. Andreescu's testimony covered the
with others, Andreescu went to conduct the CWA Section 404
inspection (the “Inspection”) of the Property at
East Creek Way in Southampton on June 30, 2016. Tr. I at 15.
To prepare for the inspection, Andreescu coordinated with the
U.S. Army Corps of Engineers to determine if any permit had
ever been issued at the Property and viewed years of aerial
imagery. Id. at 16. Andreescu learned that Defendant
Smith had not applied for a permit and no permit had ever
been issued. Id. at 16-17.
Property is bordered by tidal wetlands associated with Heady
Creek. See Andreescu Decl. ¶ 8; Tr. I at 29.
Heady Creek is an arm of Shinnecock Bay, which is a tidal
embayment of the Atlantic Ocean. Andreescu Decl. ¶ 8.
Specifically, Heady Creek, by way of the Shinnecock Inlet - a
shallow water area of the Shinnecock Bay - flows to the
Atlantic Ocean. Andreescu Decl. ¶ 8; Tr. I at 31:16-22.
The Property has a continuous surface connection to Heady
Creek which is subject to the ebb and flow of the tide.
Andreescu Decl. ¶ 8. As a result, the Property is
subject to the jurisdiction of Section 10 of the Rivers and
Harbors Act and is considered a navigable water and a
“water of the United States” under the CWA.
Id.; Tr. I at 30:20-31:18.
The EPA Inspection
30, 2016, at the Request of the Shinnecock Nation Council of
Trustees, the EPA conducted the CWA Inspection of the
Property. Andreescu Decl. ¶ 9 and Ex.1 (EPA Inspection
Report); Tr. I at 15. Representatives of the Shinnecock
Nation, the Army Corps of Engineers and the EPA accompanied
Andreescu to the Inspection. Tr. I at 18. The purpose of the
site visit was to document whether or not fill material was
discharged into waters of the United States. Id. The
group walked through the wetlands and Andreescu took some
photographs. Id. at 19. They took some soil samples
and Andreescu testified that the fill material “was
like an extension of [Defendant's] property” and
was in the wetlands. Id. at 20. In describing the
fill material, Andreescu stated that “there were rocks
and dirt.” Id. at 21. “But there were
also construction demolition materials, including concrete,
concrete slabs, rebar, just large pieces of construction
materials there. Also, landscaping material.”
Id. The material covered about a tenth of an acre of
the wetlands and it qualified as a pollutant. Id.
testified that she was familiar with the term “point
source” in the Clean Water Act and described it as
“a discreet conveyance, as opposed to like a nonpoint
source, like storm water runoff. So one example is like a
pipe. That would be a discreet conveyance.”
Id. at 22. Andreescu determined that the fill had
been entirely discharged into the wetlands using point source
based on the size and quantity of the material at the site
which could not entirely have been put there manually.
Id. She later received information that trucks were
coming to the property to dump. Id.
Government showed Ms. Andreescu a number of photographs that
she had taken during the Inspection. She testified that
Exhibit 3 showed the concrete material that had been
discharged into the wetland area along with some
construction, demolition and landscaping material.
Id. at 25. A group of nine additional photographs
Andreescu took during the Inspection were introduced as
Exhibit 4 and she testified that they each show different
views of the fill material in the wetlands. Id. at
group also dug two sample pits using an auger to determine
the types of soils at the site. Id. at 28. Andreescu
testified that a wetland requires not only hydrology and
vegetation but it requires wetland soil. Id. They
wanted to confirm that all three of those parameters were in
place. Id. Both locations exhibited the scientific
characteristics of wetlands in addition to the presence of
hydrophytic vegetation and hydric soils. Tr. I at 28-30;
Andreescu Decl. ¶ 10 and Ex. 1. The EPA also verified
and documented the unauthorized discharge of fill materials
into the subject wetlands bordering Heady Creek. See
Andreescu Decl. ¶¶ 11-12 and Ex. 1; Tr. I at 20-22.
Based on its observations and photographs, the EPA determined
that “approximately one-tenth of an acre of fill
material, consisting primarily of construction and
development debris (such as bricks, rebar, and concrete), as
well as gravel, dirt and landscaping material (such as sod,
branches, and shrubs) had been discharged into a tidal
wetland.” Andreescu Decl. ¶ 12 and Ex. 1. The
presence of fresh landscaping material indicated that the
unauthorized filling was ongoing. Id. and Exs. 1 and
3 (Photo P6300016).
further testified that wetlands are a type of waters of the
United States. Id. at 31. To be found as such,
wetlands have to have a connection to a navigable water. In
this case, according to the guidance used by the EPA, Heady
Creek is subject to the ebb and flow of tide and the wetlands
that are at the site are adjacent to Heady Creek. Heady Creek
flows into Shinnecock Bay which flows into the Atlantic
the Inspection, the group returned and spoke to the
Shinnecock representatives about what they found and talked
about next steps. Id. at 33. The Shinnecocks wanted
to resolve the issue but they wanted to try to do so
internally at first. Id. They asked for a summary of
Andreescu's findings to bring to Defendant Smith
“to see if he would understand that what he was doing
was detrimental.” Id. During her testimony,
Andreescu was shown Exhibit 1 of her Declaration which she
identified as a summary of her inspection report.
Id. She also identified a letter signed by former
EPA Regional Judith Enck to which Andreescu's memorandum
was attached. Id. at 34. The memorandum summarized
Andreescu's inspection findings and talked about the
importance of the wetlands and Shinnecock Bay and the damages
that putting fill material in wetlands causes to the
ecosystem. Id. Andreescu understood that the
memorandum had been sent to the Shinnecock leaders.
Id. at 35.
time of the inspection, the Tribal Council had planned to
meet with Defendant to discuss the results of the EPA
findings, to help the Defendant understand the detrimental
effects of his actions, and to offer assistance to help him
achieve compliance with the CWA. To that end, the EPA sent a
letter on July 22, 2016 to Bryan Polite, then Chairman of the
Shinnecock Nation Tribal Council, enclosing Investigator
Andreescu's memorandum, which summarized the findings
from the inspection. The letter also discussed potential
impacts of the fill on the aquatic system. Tr. I at
34-35. On September 12, 2016, the Tribal Council
issued an Order to Cease and Desist, directing Defendant to
stop the illegal filling of wetlands on the Property. The
Cease and Desist Order was delivered to the Defendant by the
Tribal Council, together with a copy of the EPA's July
22, 2016 Letter. Andreescu Decl. ¶ 16 and Ex. 6
(September 12, 2016 Cease and Desist Order with enclosures);
Tr. I at 35. The Cease and Desist Order further demanded that
Defendant meet with the Tribal Council on September 15, 2016.
Andreescu Decl. ¶ 16.
October 6, 2016, the Tribal Council participated in a
conference call with the EPA and the U.S. Department of
Justice, during which the Tribal Council advised the EPA that
Defendant had refused to comply with their demands as set
forth in the Cease and Desist Order. Id.; Tr. I at
35. Andreescu participated in that conference call. Tr. I at
35. During the call, the Tribal Council further advised the
EPA that Defendant's neighbors had witnessed Rafael
Valdespino, owner and president of Valdespino &
Associates, or other persons associated with Valdespino &
Associates, engaging in dumping activity on the Property.
Andreescu Decl. ¶ 19; Tr. I at 37. Andreescu testified
that the Shinnecock representative they had spoken to had
video evidence and photographic evidence that Valdespino or
his company had been dumping at the site. Tr. I at 37.
Thereafter, by letter dated October 11, 2016, the Tribal
Council advised the EPA that it was unable to resolve the
matter with Defendant and formally requested that the EPA
exercise its enforcement authority to remedy the matter.
Andreescu Decl. ¶ 18 and Ex. 7 (October 11, 2016 Tribal
Council Letter to EPA); Tr. I at 36-37.
The November 10, 2016 Request for Information
the Tribal Council's request for EPA enforcement, the EPA
sent a Request for Information (“RFI”) dated
November 10, 2016 to Rafael Valdespino, requesting
information concerning his activity on the Property. Tr. I at
37; Andreescu Decl. ¶ 19 and Ex. 8(RFI to Valdespino).
Valdespino responded to the RFI on December 26, 2017 and
stated that his company had dumped a total of 118 cubic yards
of fill material consisting of a “mix of loam, clay,
and sand” at the Property in December of 2015 and
October of 2016. Tr. I at 38; Andreescu Decl. ¶ 20 and
Ex. 9 (Valdespino RFI Response Letter).
on Valdespino's response, Andreescu and the other EPA
representatives concluded that there were other contractors
or individuals providing material at the site. Tr. I at 39.
On March 1, 2017, the EPA sent an RFI to Defendant Smith (1)
advising him of the EPA's investigation into unauthorized
dumping of fill material into wetlands on the Property; (2)
setting forth the EPA's authority for the
investigation/RFI; and (3) requesting, among other things, a
description of the fill material dumped on the Property, the
dates any such fill material was dumped, and a list of the
contractors who had engaged in the dumping. Tr. I at 39;
Andreescu Decl. ¶ 21 and Ex. 10 (RFI to Defendant). The
RFI directed Defendant to contact Ms. Andreescu with any
questions and was signed by Richard Balla, the Chief of the
Watershed Management Branch of Region 2 of the EPA. Tr. I at
41; Andreescu Decl., Ex. 10. In response to the RFI, on March
10, 2017, Defendant telephoned Richard Balla and stated in
sum and substance, “you've got your info . . . if
you want to go to court, I'll take you to court and sue
you.” Andreescu Decl. ¶ 22 and Ex. 11 (Richard
Balla Summary of Call with Defendant); Tr. I at 42.
never provided any of the information requested in the RFI.
Andreescu drafted an Administrative Compliance Order
(“ACO”) and on May 3, 2017, the EPA issued that
ACO, Docket # CWA-02-2017-3502, pursuant to Section 309(a) of
the CWA. Tr. I at 43; Andreescu Decl. ¶ 23 and Ex. 12
(ACO). In the ACO, the EPA (1) set forth the bases for its
enforcement authority; (2) summarized the facts as determined
by the EPA's investigation into unauthorized dumping of
fill material into wetlands on the Property, and (3) directed
Defendant to cause no discharges of dredged or fill material,
to remove all unauthorized fill material, and to restore the
wetlands to their pre-violation condition. Andreescu Decl.
¶ 23 and Ex. 12; Tr. I at 44-45. Andreescu testified
that the findings in the ACO were based on her observations
from the inspection, the photographs that were taken and the
facts of the case. Tr. I at 44-45. The EPA wanted Defendant
Smith to submit a restoration plan within 15 days to remove
the fill material and restore the wetlands to how they were
prior to being disturbed. Tr. I at 45; Andreescu Decl. Ex.
12. The ACO also informed Defendant Smith that if he could
not comply with the deadlines in the Order, he should
immediately notify Ms. Andreescu by email that he could not
meet the deadline. Tr. I at 46. Defendant did not respond to
the ACO nor did he take any remedial action to restore the
wetlands. Andreescu Decl. ¶ 24; Tr. I at 46. After
introducing several other exhibits, counsel for the
Government concluded Ms. Andreescu's testimony.
Defendant's Continued Violations
recently as February 13, 2018, Shinnecock Nation Tribal
Council members informed the EPA that earth-moving activity
was being conducted on the Property in violation of the May
3, 2017 ACO. Andreescu Decl. ¶ 24. Further, on February
27, 2018, the EPA received a letter from the Tribal Council
with a photograph depicting additional fill material which
had been brought onto the Property. See Id. ¶
26 and Ex. 14 (February 27, 2018 Letter with photo
attachment). Significantly, Defendant recently erected a
fence upon the Property, preventing Shinnecock Nation members
from observing his activities, including whether he continues
the unauthorized dumping of fill materials into the wetlands.
Andreescu Decl. ¶ 27. To date, Defendant has not
obtained a permit from the U.S. Army Corps of Engineers for
his activities. Id. ¶ 28.
maintains that the wetlands at issue perform important
ecological functions throughout the year. Id. ¶
33. The Shinnecock Bay, which includes Heady Creek, is
designated by the New York State Department of Environmental
Conservation as a Significant Coastal Fish and Wildlife
Habitat and is one of the largest estuarine ecosystems in New
York State. Id. ¶ 29. The marshes and tidal
flats, like those adjacent to the Property, serve as nursery
and feeding grounds for many fish found in the bay, wintering
areas for important waterfowl, and home to shellfish, the
harvest of which is important to the region. Id.
¶ 31. Further, the marshes and tidal flats reduce wave
energy and protect the shoreline from erosion. Id.
The discharge of fill material into these wetlands diminishes
the extent to which the wetlands can perform these functions
and maintain healthy aquatic ecological communities.
Id. ¶ 33.
Status at Conclusion of ...