U.S. v. Bailey, No. 05-CV-2245 (PJS/RLE).

• Decision Date: 31 March 2008
• Docket Number: No. 05-CV-2245 (PJS/RLE).
• Citation: 556 F.Supp.2d 977
• Parties: UNITED STATES of America, Plaintiff, v. Gary BAILEY, Defendant. Gary Bailey, Third-Party Plaintiff, v. Lake of the Woods County, Third-Party Defendant.
• Court: U.S. District Court — District of Minnesota

556 F.Supp.2d 977

UNITED STATES of America, Plaintiff, v. Gary BAILEY, Defendant.

Gary Bailey, Third-Party Plaintiff, v. Lake of the Woods County, Third-Party Defendant.

No. 05-CV-2245 (PJS/RLE).

United States District Court, D. Minnesota.

March 31, 2008.

Friedrich A.P. Siekert, Assistant United States Attorney, United States Attorney's Office, for plaintiff.

Alan B. Fish, Alan B. Fish, P.A., for defendant.

Scott T. Anderson, Ratwik Roszak & Maloney, P.A., for third-party defendant.

ORDER FOR JUDGMENT

PATRICK J. SCHILTZ, District Judge.

In the summer of 1998, defendant Gary Bailey constructed a road on a parcel of wetland located in Lake of the Woods County, Minnesota ("the Site"), without obtaining a permit under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344. In October 2001, the United States Army Corps of Engineers ("the Corps") issued a restoration order requiring Bailey to restore the wetland to its pre-violation condition. After Bailey refused to do so, the United States brought this action under Section 309(b) of the CWA, 33 U.S.C. § 1319(b), to require Bailey, "at his own expense and at the direction of the Corps, to restore the wetlands to their pre-violation condition in accordance with the Restoration Order dated October 22, 2001, issued by the Corps." Compl. ¶ 12.

On September 25, 2007, the Court granted in part the motion of the United States for summary judgment. The Court found that the Corps properly asserted jurisdiction over the Site under the CWA. The Court further held that, because "the Corps's restoration order [met] all of the requirements of [United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976)]," the Court would "enter an injunction requiring Bailey to comply with that order." Docket No. 148 at 35. The Court then ordered Bailey to submit a proposed restoration plan. After an unsuccessful attempt to appeal the Court's order, Bailey finally submitted a proposed plan. The United States objected to Bailey's proposal and submitted its own proposed restoration plan. Bailey then moved for a stay of the judgment to be entered in this case.

On March 12, 2008, the Court held a hearing on the parties' dispute over the content of the restoration plan, as well as on Bailey's motion for a stay. For the reasons stated in its September 25, 2007 order, and for the reasons that follow, the Court denies Bailey's motion for a stay and issues a final injunction requiring Bailey to restore the wetland that he unlawfully polluted nearly a decade ago.

A. The Restoration Plan

Before addressing the content of the final injunction to be entered in this case, the Court observes that the United States appears to have misunderstood the Court's September 25, 2007 order. In that order, the Court stated that it "will enter an injunction requiring Bailey to restore the Site, at his own expense, to its pre-violation condition in accordance with the Restoration Order dated October 22, 2001 ...." Docket No. 148 at 39 (emphasis added). This Court's order was consistent with the parties' positions during the summary-judgment proceedings. During those proceedings, the United States asked the Court to "order Bailey to restore the property in accordance with the [October 22, 2001] Restoration Order," Docket No. 78 at 44 (emphasis added), and all of the parties' arguments were directed to the propriety of enforcing that restoration order.

The October 22, 2001 restoration order is a one-page order with four numbered paragraphs listing the restoration work Bailey must perform at the Site. See Docket No. 161, Attach. A at COE0701. The United States now proposes a sixteen-page final injunction that goes well beyond the original restoration order. See Docket No. 162. The United States's new proposals include detailed requirements specifying how Bailey must perform the actual restoration work (such as the use of erosion-control barriers and the type and storage of the equipment Bailey must use) and also expands the scope of the work that Bailey must perform (by, for example, requiring Bailey to plant trees, perform soil ripping, and hand-cast and rake in the native grass seed). The United States also seeks to extend the time in which Bailey must undertake these activities: Whereas the Corps's original order requires Bailey to control weeds for three years following restoration, the United States's proposed order would require Bailey to control weeds for five years following restoration and would further require Bailey to submit monitoring reports for each of those five years.

In sum, after litigating the propriety of the original restoration order, and with no prior notice to Bailey or the Court, the United States is now asking the Court to dramatically expand the scope of the work that Bailey must undertake. The Court rejects, as both unwise and unfair, the United States's attempt to improve the original restoration order. The original order was the product of notice-and-comment proceedings by the Corps—the agency with the expertise to determine what steps are necessary to restore the wetland. Bailey received proper notice of those proceedings and had a fair opportunity to develop a record and to have his views heard and considered. In this case, though, the United States gave Bailey (and the Court) no notice of the new requirements that it seeks to graft onto the original restoration order until long after discovery had closed and the Court had ruled on the parties' dispositive motions. The Court lacks the expertise to determine the propriety of these additional proposals in the first instance, and the United States has submitted no record evidence to aid the Court in responsibly exercising its judgment. Even if the United States had submitted such evidence, Bailey has had no opportunity to respond to it or submit his own evidence. In the main, therefore, the Court will limit the final injunction to requiring Bailey to comply with the original restoration order issued by the Corps.

That said, the Court will include in the final injunction a couple of the United States's new proposals, because those proposals, while not expanding the substance of the restoration order, will assist the Court in ensuring that its final injunction is obeyed. Specifically, the Court will order Bailey to conduct surveys of the Site both before he begins the restoration process and after he has completed earth-moving activities. The Court will also require Bailey to permit the United States reasonable access to the Site. Finally, the Court will clarify that, to comply with the restoration order, Bailey will have to remove the culverts and fill placed on the Site by others. The reasons for ordering Bailey to undertake these tasks are as follows:

1. Surveys. The restoration order requires Bailey to remove the unauthorized road, fill in the ditches, and reestablish the original contours of the wetland using the elevation of the adjacent, undisturbed wetland as a reference. Given the history of this and related litigation, the Court fears that, at some point, the parties will dispute whether Bailey has complied with this aspect of the order. Land surveys will help to prevent such disputes and substantially assist the Court in resolving any such disputes that arise. Thus, under its inherent authority to ensure compliance with its injunctions, the Court will order Bailey, at his own expense, to conduct the surveys requested by the United States.

2. Access. Having issued a valid and enforceable restoration order, the United States has the right to ensure that Bailey complies with it. More importantly, this Court has the authority to ensure that its orders are obeyed. In the absence of any right of access to the Site, the United States will not be able to bring possible violations of the final injunction to the Court's attention. Thus, although the original restoration order does not explicitly require that the United States be given the right to visit the Site for the purpose of monitoring Bailey's compliance, the Court will grant a limited right of access to the United States, as specified in its order below.

3. Culverts and Fill Placed by Others. Bailey objects to the requirement in the United States's proposed order that he remove culverts and fill placed on the Site by others. Bailey contends that the original restoration order does not require him to remove those items and argues that the United States should be sanctioned for contending that he should remove them. If anyone should be sanctioned, it is Bailey. During the summary-judgment proceedings, Bailey stood before this Court and argued forcefully that the restoration order was inequitable precisely because it required him to remove culverts and fill placed on the Site by others. See, e.g., Docket No. 99 at 27; Hr'g Tr. 101-04, May 2, 2007. The Court rejected Bailey's argument, finding that the culverts and fill in question were placed by innocent parties to whom Bailey sold the lots without disclosing his lack of a proper permit for the road, that the culverts and fill would never have been placed on the Site in the absence of Bailey's knowing violation of the law, and that removing the culverts and fill was a de minimis burden on Bailey in light of his obligation to remove a quarter-mile road.

Bailey now excuses his about-face by claiming that he was so overcome by the eloquence of the United States's arguments during the summary-judgment proceedings that he neglected to carefully read the contents of the one-page restoration order—the order over which he has been litigating for about six years. Bailey's claim is not plausible. Because the parties have already fully litigated the issue of the culverts and fill placed on the Site by others, and because Bailey insisted before this Court that the restoration order did require him to remove those culverts and that fill, the Court stands by its earlier ruling that it is equitable, under Sexton...