615 F.Supp. 610 (E.D.Va. 1983), Civ. A. 81-688, United States v. Tull

Docket Nº:Civ. A. 81-688
Citation:615 F.Supp. 610
Party Name:United States v. Tull
Case Date:September 28, 1983
Court:United States District Courts, 4th Circuit, Eastern District of Virginia
 
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Page 610

615 F.Supp. 610 (E.D.Va. 1983)

UNITED STATES of America

v.

Edward Lunn TULL.

Civ. A. No. 81-688-N.

United States District Court, E.D. Virginia, Norfolk Division. .

Sept. 28, 1983

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Diane L. Donley, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., John F. Kane, Asst. U.S. Atty., Norfolk, Va., for plaintiff.

Richard A. Nageotte, Woodbridge, Va., for defendant.

OPINION AND ORDER

DOUMAR, District Judge.

This matter came on for a trial by the Court sitting without a jury.

The government filed its original complaint on July 1, 1981. On April 2, 1982, the government amended its complaint. During the course of the trial, the government sought leave to amend its complaint again. Leave was granted, and on October 5, 1982, the government's second amended complaint was filed.

In claim (1) of the second amended complaint, the government charged that between July 1975 and the present, the defendant, without benefit of a permit issued by the United States Army Corps of Engineers, discharged pollutants, namely fill material, into wetlands adjacent to navigable waterways known as Fowling Gut and Black Point Drain. These alleged wetlands were located on properties collectively referred to as Ocean Breeze Subdivisions and specifically referred to as Ocean Breeze Mobile Home Sites, Ocean Breeze Mobile Home Sites Section B and then Section C. (Section C is shown on the plat of Section B and the three Sections are shown on Exhibits 55A and 55B).

Similar allegations were set forth by the government in claim (2) of its most recent amended complaint. Claim (2) states that sometime between September 28, 1977 and November 14, 1980, the defendant, again without benefit of a permit, discharged fill material into wetlands located on the Mire Pond Camper Sites I and II. The wetlands referred to in claim (2) were likewise alleged to be adjacent to Fowling Gut.

In claim (3) of the amended complaint, the government alleges that the defendant discharged pollutants into wetlands adjacent to Eel Creek, another navigable waterway for the island of Chincoteague. Once again, it is alleged that the defendant failed to apply for a permit prior to placing fill material on the described wetlands.

The government asserts that in filling of the wetlands without a permit the defendant has violated the requirements of the Clean Water Act. 33 U.S.C.§§ 1311, 1344 and 1362(7). Relief is sought pursuant to 33 U.S.C. § 1319.

In its second amended complaint, the government further charges that the defendant filled a navigable waterway of the United States, namely an extension of Fowling Gut, which at one time traversed through Ocean Breeze Mobile Home Sites. The government claims that this extension of Fowling Gut was filled, blocked and closed by the defendant without the authorization of the Secretary of the Army and recommendation of the Chief of Engineers. Relief is sought pursuant to 33 U.S.C. §§ 406; 1319.

The defendant has denied liability on all counts. Additionally, the defendant has raised several affirmative defenses which will be hereinafter discussed in detail.

A lengthy trial before the Court thus ensued. Based upon the factual findings and legal conclusions embodied within this

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opinion, judgment will be entered for the United States of America.

I.

A long time inhabitant of Chincoteague, defendant Tull is actively engaged in the business of filling and developing residential resort properties on the island. In this action, the Court shall only concern itself with Mr. Tull's alleged activities on the properties commonly known as Ocean Breeze Mobile Home Sites, Ocean Breeze Mobile Home Sites Section B, Ocean Breeze Mobile Home Sites Section C, (all of which comprise the Ocean Breeze Subdivision), Mire Pond I, Mire Pond II (both of which comprise Mire Pond), Eel Creek (not yet subdivided into lots) and a body of water hereinafter sometimes referred to as "Fowling Gut extended". 1 A brief general description of these properties will provide the backdrop for the analysis of Mr. Tull's alleged activities thereon.

The Ocean Breeze Mobile Home Sites are located on the Southwestern portion of Chincoteague Island, Virginia. They lie southeast of Chincoteague Channel and northwest of Black Point Drain and Assateague Channel. (See Exhibit 10). Portions of Ocean Breeze Mobile Home Sites abut Fowling Gut and lie atop what is Fowling Gut Extended, a winding navigable waterway which feeds into Chincoteague Channel to the west and into Andrews Landing Gut to the south. On Exhibit 10 Ocean Breeze Mobile Home Sites is circled and lies approximately at the letter "g" of the word "Fowling" and proceeds northeasterly atop said waterway approximately 1000 feet.

An extension of Ridge Road, Virginia State Route 2102, traverses Ocean Breeze Mobile Home Sites in a southwesterly direction. Initially Ridge Road only extended into the property immediately adjacent to and east of what is now the subdivision of Ocean Breeze Mobile Home Sites and was the only public road which served the subdivision. A service road built and maintained by the defendant Tull, now bounds the Ocean Breeze subdivision to the south, and is referred to on one plat as "Bunker Hill Campground Road" 2, which road was filled in by Mr. Tull. As is shown on a registered survey plat (Ex. 55A) prepared by Mr. Ralph Beebee, the following lots are situated and have been developed to the northwest of Ridge Road and to the south of what is left of a portion of Fowling Gut (and a 50 foot wide reserved right of way which runs through the top or northeastern portion of the subdivision): Lots 23-70, 120-121; Drain Field Lots 23-38, 39-54, 54-70; and several lots denominated as Future Drain Field Lots. To the southeast of Ridge Road the following Ocean Breeze Mobile Home Sites lots are shown on the survey plat: Lots 1-22, 71-119 and six lots denominated as Future Drainfield sites.

Ocean Breeze Mobile Home Sites and Ocean Breeze Mobile Home Sites Section B (Ex. 55B) are separated by a lane approximately 22 feet wide which is designated on the defendant's subdivision plats as "Drainage Easement." In actuality, a very narrow ditch approximately two feet wide is located within this area. The following lots comprise Ocean Breeze Mobile Home Sites Section B: Lots 1B-78B, inclusive. Ocean Breeze Mobile Home Sites Section C borders Ocean Breeze Mobile Home Sites Section B to the northeast. At present Ocean Breeze Mobile Home Sites Section C is composed of four 50 foot by 100 foot lots; 8C, 9C, 10C and 11C and one 80 foot by 100 foot lot; 7C is shown on the same plat as Ocean Breeze Section B.

Sea Shore Drive bounds those numbered lots developed on Ocean Breeze Mobile Home Sites Section B to the southeast. Between Sea Shore Drive and Bunker Hill Campground Road lie three unnumbered lots which are designated as drainfield lots.

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To the west of the subdivision of Ocean Breeze Mobile Home Sites B was an undeveloped area which, at the time of the Court's September 1982 view of the property, gave the appearance of a swamp or a bog.

With the exception of a few drainfield lots, the majority of lots in Ocean Breeze Mobile Home Sites measure 50 feet by 100 feet. In Ocean Breeze Mobile Home Sites Section B, most lots likewise measure 50 feet by 100 feet. Some of the lots adjoining Sea Shore Drive in Ocean Breeze Mobile Home Sites are irregular in shape and are slightly larger than the standard 50 foot by 100 foot lot dimensions.

Ingress and egress within the Ocean Breeze Subdivisions are provided through Sea Breeze Drive, Sea Gull Drive, Sea Shell Drive, Sea Spray Drive and Sea Horse Drive, roadways which run in a northwesterly direction and generally perpendicular thereto are Ridge Road Extended and Sea Shore Drive, all of which were developed by defendant Tull from 1975 onward. Approximately 150 feet to the south of and parallel to Sea Shore Drive is Bunker Hill Campground Road.

The defendant claims to have owned all the lots in Ocean Breeze Subdivisions. At various intervals, beginning in 1975, and continuing until the present, the defendant either leased or sold these lots in Ocean Breeze to third parties, many of whom have placed mobile homes on their parcels. Defendant Tull is currently involved in a separate lawsuit with regard to the title to some of the area in the Ocean Breeze subdivision, but for this Court's purposes, that litigation is not material to this lawsuit. As of the date of trial, Lots 4, 14, 19, 64, 65, 66, 67, 68, 69, 70, 74, 76, 96, 97, and 106 were still owned by the defendant. Currently, the defendant also owns lots 7C, 8C, 9C, 10C, 11C, 11B and the drainfield lots. The defendant realized approximately $5,000 net profit per lot for the sales of the lots in Ocean Breeze Mobile Home Sites.

Mire Pond I and Mire Pond II Camper Sites are located a few miles northeast of the Ocean Breeze Mobile Home Sites. The Mire Pond properties also lie east of Chincoteague Channel. Fowling Gut borders the Mire Pond properties to the west. Virginia State Route 2102 abuts Mire Ponds I and II to the east. (See Ex. 116 which shows both sections).

Mire Pond I consists of twenty-nine smaller sized and sometimes irregularly shaped lots, suitable for the placement of camper trailers. At no time material to this action did the defendant own the lots in Mire Pond I. Although the present owners of the lots in Mire Pond I purchased their properties directly from the defendant's parents, who were the then title holders to those properties, the defendant played the instrumental and paramount role in the development and sale of the lots located in Mire Pond I and otherwise dealt with them as his own.

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