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United States v. Smith

United States District Court, E.D. New York

September 30, 2019

GORDON SMITH, SR., Defendant.



         I. Preliminary Statement

         Plaintiff, 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.

         On July 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 22].

         The 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.

         II. Factual Background

         The 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.

         The 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).[1] The discharge of fill material had the effect of expanding upland areas by replacing tidal wetlands bordering Heady Creek with dry land. Id. ¶ 35.

         On 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.

         III. The Preliminary Injunction Hearing

         At the 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.[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 simultaneously.

         When 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 himself

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.

         A. The Government's Witness Stephanie Andreescu

         Stephanie 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, ¶ 1.[3] 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 certification. Id.

         According 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 following areas.

         1. The Property

         Along 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.

         The 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.

         2. The EPA Inspection

         On June 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.

         Andreescu 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.

         The 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 27.

         The 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).

         Andreescu 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 Ocean. Id.

         After 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.

         3. Defendant's Non-Compliance

         At the 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.[4] 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.

         On 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.

         4. The November 10, 2016 Request for Information

         Following 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).

         Based 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.

         Defendant 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.

         5. Defendant's Continued Violations

         As 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.

         The EPA 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.

         B. Status at Conclusion of ...

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