U.S. v. M.C.C. of Florida, Inc.

• Decision Date: 07 October 1985
• Docket Number: No. 84-5738,84-5738
• Citation: 772 F.2d 1501
• Parties: , 54 USLW 2243, 3 Fed.R.Serv.3d 49, 15 Envtl. L. Rep. 21,091 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, and State of Florida, Department of Environmental Regulations, Plaintiff-Intervenor, v. M.C.C. OF FLORIDA, INC., Michael's Construction Company, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1501

772 F.2d 1501

23 ERC 1318, 54 USLW 2243, 3

Fed.R.Serv.3d 49,

15 Envtl. L. Rep. 21,091

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant and State of Florida, Department of Environmental Regulations Plaintiff-Intervenor, v. M.C.C. OF FLORIDA, INC., Michael's Construction Company Defendants-Appellants, Cross-Appellees.

No. 84-5738.

United States Court of Appeals Eleventh Circuit.

Oct. 7, 1985.

Thomas A. Harris, Milligan, Hooper, Harris & Barry, Chattanooga, Tenn., for defendants-appellants, cross-appellees.

Michael J. Mitchell, Asst. U.S. Atty., Paul R. Ezatoff, Jr., Asst. Atty. Gen., Dept. of Environmental Regulation, Tallahassee, Fla., Maria A. Iizuka, David C. Shilton, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN ^*, District Judge.

WALTER E. HOFFMAN, District Judge:

The United States for the Corps of Engineers brought a civil action against M.C.C. of Florida, Inc. and Michael Construction Co. ¹ for violating the River and Harbor Act of 1899, 33 U.S.C. Sec. 401 et seq., and the Clean Water Act, 33 U.S.C. Sec. 1251 et seq. The State of Florida, Department of Environmental Regulation (DER) intervened as a plaintiff, charging that M.C.C. had violated similar Florida statutes, sections 403.161(1) and 403.031 Florida Statutes. The case was tried without a jury over the objection of M.C.C. The district court found for the plaintiffs and ordered M.C.C. to pay $200,000 to the court for use in restoration projects in South Florida and $20,000 in civil penalties. M.C.C. appeals this decision and the United States has cross-appealed on the issue of the appropriateness of the remedy.

In late December, 1980, the Florida Department of Transportation (DOT) awarded the contract to M.C.C. to build a replacement bridge over Niles Channel as part of its project to restore U.S. Highway 1. Niles Channel is a navigable waterway connecting the Bay of Florida with the Atlantic Ocean. The contract called for segmental construction which entails the making of large hallow concrete segments at M.C.C.'s casting yard at Conch Key. The segments were too large to be carried over land to the construction site and therefore had to be transported by barge.

The DOT, in 1975, had prepared an environmental impact study which called for a bridge with a 15 foot clearance, but stated that it may be raised. The contract made in 1980 called for a 40 foot clearance. A negative declaration was issued which meant that the project would not adversely affect the environment. DOT was responsible for obtaining all the necessary permits. In 1978, construction permits for the Niles Channel Bridge were issued by the Corps and the DER. The application specified a conventional design which would have involved trucking the construction materials over land. The segmental construction method was not decided upon until the contract was awarded in 1980. The Corps and DER were not notified of the change.

The court found that there was damage to the bottom vegetation in two areas. Site # 1, located four miles from the bridge within the National Key Deer Refuge boundaries and Site # 2, located eight miles from the bridge within the National Key Deer Refuge and the Great White Heron National Wildlife Refuge. The permits issued by the Corps and the DER covered only areas within the DOT right-of-way.

It was during the spring of 1981 that the Corps and DER became aware of M.C.C.'s barge activities. Efforts were made to reach a solution. Failing to reach agreement, the Corps issued a Cease and Desist Order on August 7, 1981, prohibiting M.C.C.'s tugs from engaging in further dredge and fill activities in the subject areas. It was the contention of the Corps and DER that the tugs were engaged in dredging and discharging pollution into the waters when the propellers of the tugs cut into the bottom, uprooting and destroying the sea grass and depositing bottom sediment on adjacent sea grass beds.

On October 7, 1981, DER and Corps personnel stopped one of M.C.C.'s tugs in the subject area and gave a copy of the Cease and Desist Order to the captain. The United States sought a temporary restraining order and on November 29, 1981, the district court held a hearing.

The district court refused to issue a restraining order but instructed the defendants to confine their tugboat trips to high tide and to alert Corps personnel of the time of their movements throughout the subject areas. The United States moved for a rehearing on the preliminary injunction which was denied. After the hearing on the temporary restraining order, M.C.C. restricted the use of its larger tug and made some efforts to comply with the court's instructions limiting its tugboat activities. M.C.C., however, did not comply fully with the court's instructions. Its tugs made at least 112 movements through Niles Channel in connection with its construction work. Many of these movements were at night or in the poor lighting conditions of dawn or dusk.

The court found that there was extensive damage to the bottom vegetation at the two sites which had been caused by M.C.C. ² The court stated that the "damage to the marine vegetation and the bottom sediments in Site # 1 is devestating [sic]. Acres formerly lush with vegetation have been completely denuded. The bottom scarring at Site # 2, although less severe, is still extensive and significant." The court also found that other unknown people had caused some of the damage. It held, however, that since the majority of the damage had been caused by M.C.C., it would not be unjust to hold M.C.C. responsible for all the damage.

The district court held that M.C.C. had violated the River and Harbor Act by dredging with its propeller system without a permit and had discharged pollutants in violation of the Clean Water Act by redepositing bottom sediment on adjacent sea grass beds. The court also held that M.C.C. had violated the similar Florida statutes.

The United States submitted two alternative plans for restoration of the damaged areas. The United States' preferred plan would have cost $793,414 and its alternative plan would have cost $742,063. M.C.C. did not submit any plan of its own. The district court rejected both of the government's plans because their chances of success were very speculative and their costs were so high.

On appeal, we are faced with the questions of whether M.C.C.'s conduct was prohibited by the River and Harbor Act or the Clean Water Act. Also, we are asked to decide whether M.C.C. was entitled to a jury trial and whether the district court's remedy was appropriate.

River and Harbor Act

M.C.C. was found to have violated Section 10 of the River and Harbor Act. 33 U.S.C. Sec. 403. This section provides:

Sec. 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. (Emphasis added).

M.C.C. argues that the term "work" means a planned intentional construction or undertaking. It contends that the dredging and filling caused by the propellers of its tugs was not "work" since it did not specifically intend to dredge a channel and fill the adjacent areas. Therefore, M.C.C. argues, it did not violate the Act.

The Supreme Court discussed this section in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1980), and rejected the narrow interpretation of Section 10 which M.C.C. urges. The Court stated that the "philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U.S. 336, 342 [51 S.Ct. 478, 479, 75 L.Ed. 1104 (1931) ], that 'A river is more than an amenity, it is a treasure,' forbids a narrow, cramped reading either of Sec. 13 or Sec. 10." Id. at 491, 80 S.Ct. at 890.

In Republic Steel, the defendant was discharging solid industrial waste into a river. This progressively decreased the depth of the river. The court held that this activity violated the first clause of Section 10 which prohibits "any obstruction" not approved by Congress. In so holding, the court stated:

The reach of Sec. 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected "in" any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify "the course, location, condition, or capacity of" a navigable river be made unless "the work" has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits "the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity" of such rivers. We can only conclude that Congress planned to ban...