Center for Biological v. Marina Point Dev. Assoc., CV04-7036-R.

• Decision Date: 12 June 2006
• Docket Number: No. CV04-7036-R.,CV04-7036-R.
• Citation: 434 F.Supp.2d 789
• Court: U.S. District Court — Central District of California
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. MARINA POINT DEVELOPMENT ASSOCIATES, et al., Defendants.

434 F.Supp.2d 789

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. MARINA POINT DEVELOPMENT ASSOCIATES, et al., Defendants.

No. CV04-7036-R.

United States District Court, C.D. California.

June 12, 2006.

COPYRIGHT MATERIAL OMITTED

Bernice Conn & Michael A. Geibelson, Robins, Kaplan, Miller & Ciresi L.L.P., Los Angeles, CA, Kassia R. Siegel, Center For Biological Diversity, Joshua Tree, Adam F. Keats, Center For Biological Diversity, San Francisco, CA, for Plaintiffs.

Robert D. Crockett & Robert K. Lu, Latham & Watkins, Los Angeles, CA, Janice M. Schneider, Latham & Watkins, Washington, DC, for Defendants.

OPINION AND ORDER FOLLOWING COURT TRIAL

REAL, District Judge.

I. Introduction

The Center for Biological Diversity ["the Center"] and the Friends of Fawnskin ["the FOF"] [together, "the Plaintiffs"] commenced this suit to enjoin the development of a residential condominium project on the shoreline of Big Bear Lake, California ["the Project"]. The Center is a nonprofit public interest conservation organization that works to protect native species and their habitats through science, policy, and environmental law. The FOF is a coalition of local residents of and visitors to Fawnskin that aims to preserve the town's character, environment, and wildlife. The Defendants are the real estate partnership and principals responsible for developing the Project.

The Plaintiffs sued under the Clean Water Act [CWA"] §§ 301 and 404, 33 U.S.C. §§ 1311 & 1344, and the Endangered Species Act ["ESA"] § 9, 16 U.S.C. § 1538. At an extensive court trial, they produced overwhelming evidence of the Defendants' repeated breach of and disregard for their obligations under the law. After considering all the evidence, this Court grants the Plaintiffs a permanent injunction against further development of the Project. The Court also awards them statutory damages in the amount of $1,312,500.00.

II. Procedural History

This case was transferred to this Court in February 2005, after early proceedings before Judge Timlin. At the time of the transfer, the Plaintiffs had obtained temporary and preliminary injunctive relief on the ground that a violation of the ESA was likely to occur in the future.

After the transfer, this Court denied the Defendants' motion to dismiss for lack of subject matter jurisdiction and, later, its motion for summary judgment. The motion to dismiss was based primarily on the requirement, under both statutes, to serve a notice of intent to sue at least 60 days before filing suit. See ESA, 16 U.S.C. § 1540(g)(2)(A)(i); CWA, 33 U.S.C. § 1365(b). The Court denied the motion because it found that the Plaintiffs had sent intent-to-sue letters to the Defendants' managing agent at the Project site—Irving Okovita—and that those letters were sufficient notice of their intent to sue. The Court subsequently denied the Defendants' motion for summary judgment because it found that there existed genuine issues of fact for trial.

At trial, the Court received the direct testimony of the parties' witnesses through trial declarations and presided over cross-examination between August 23, 2005 and August 30, 2005. On December 12, 2005, it heard the parties' closing arguments and then took the matter under submission.

III. Factual Background

The Project site lies on the north shore of Big Bear Lake and the east shore of Grout Bay. It is a key foraging and perching habitat for the bald eagle, a threatened species protected by the ESA, 16 U.S.C. § 1531 et seq. The eagles like to perch on the 200-year-old Jeffrey pine trees on and around the Project site. Prior to any development, aerial photographs compiled by the U.S. Forest Service revealed a montane marsh and wet meadow alongside Grout Creek, a tributary west of the Project site. For the most part, these historic wetlands are rife with plant and animal life.

During the 1980s, the Defendants began to plan for the development of the site and went about securing the necessary permits. They obtained initial approval from the County of San Bernardino ["the County"] in 1983 and final approval in 2001. In the interim, they applied to the Army Corps of Engineers ["ALOE"] for a permit under § 404 of the CWA [a "404 permit"]. Following public comment on and several redesigns of the Project, the ACOE issued them a 404 permit on September 10, 1991. The permit forbade the Defendants from (1) placing rip-rap below the then-present contours of the lake bottom; (2) depositing sand below the high water line; (3) transferring fill or structures to the neighboring wetlands; and (4) working at all from December 1 to April 1 of any year, out of deference to the seasonal habits of the bald eagle population. As a final condition of the permit, the Defendants had to obtain a waiver or a certification from the relevant state agency in order to satisfy § 401 of the CWA. That state agency—the California Regional Water Quality Control Board ["RWQCB"]—issued its order for water discharge requirements ["WDR"] in February 2002. The 404 permit itself was extended in 1994 and then again in 1997 and 2000, with a final expiration date set for September 10, 2002.

As part of this process, the Defendants secured two other necessary permits. To work in state waters, they obtained a permit from the California Department of Fish and Game ["CDFG"]. Two conditions of this permit were that they (1) install silt curtains; and (2) locate their siltation basins away from the lake. The permit was issued in June of 1992 and its expiration date was extended over time to November 30, 2003. Finally, in September 2001, the Big Bear Municipal Water District ["BBMVVD"] issued them a permit to dredge the lake, provided that they employ mitigation measures including silt curtains, slope protection, and a public footpath to the lake. Notably, the Defendants never obtained a permit under CWA § 402 [a "402 permit"].

Construction began in May 2002, and by the end of August of that year the Defendants had graded nearly the entire site by bulldozer. They then applied for an extension to their 404 permit, in view of its September expiration date. The evidence, however, is that their contractor returned without a permit on October 7, 2002 to grade the site and weed-whack the willows on the adjacent wetlands. In any event, on March 3, 2003, the ACOE denied the Defendants' request for an extension, citing the need further to evaluate the impact of the Project on the bald eagle population (all the more so because twelve years had passed since it had issued the original 404 permit). Although the ACOE did not reinstate the expired permit, it did promise to review and process their next permit application expeditiously. No new application was submitted, however, until June of 2004.

Instead, on May 1, 2003, the Defendants deployed dredging equipment on the site and began dredging on the west bed of the lake. They did so without using silt curtains and by using a dragline dredge that, unlike a clamshell dredge, creates more than incidental fallback of material into the water and thus could not be used without a 404 permit. Throughout early May, moreover, their contractors continued bulldozing the Project site. On May 16, the County suspended the grading permit (and did not reinstate it until March 30, 2004) but the dredging continued into June. During this time, the Defendants deposited buckets of fill material below the lake's ordinary high water mark ["OHWM"]. By the end of the month, they had discharged significant amounts of fill below the OHWM and, on shore, they had accumulated piles of rock beneath the neighboring pine trees. On June 30, 2003, the ACOE sent them a letter explaining that their dragline dredging violated applicable regulations and required a 404 permit.

Meanwhile, a July 1, 2003 email by one of the Defendants' principals acknowledged that the County inspector's photos showed that there was no silt curtain in place. By July 8, contractors had hastily installed one but it was not long enough, and it tore quickly. Photographs taken after its installation show that silt easily escaped from the sides and underbelly and even through holes in the curtain itself. Nonetheless the dredging continued into July. To facilitate their activities, the Defendants removed rip-rap from the marina jetty, which exposed the soil to erosion from waves, wind, and precipitation and, as a result, sediment streamed directly into the lake. Indeed, July turned out to be a busy month. By July 15, 2003, the Defendants had (1) removed a concrete boat landing that had existed on the east side of the site, and then graded the area; and (2) bulldozed a streambed that was also on the east side, removing willows and other vegetation in the process. Because both the landing and streambed helped demarcate the high water mark, their removal obscured whether the Defendants had been working below that mark (ahead of an ACOE inspection on July 16). All the while, the dredging continued.

Finally alerted to this activity, the ACOE issued a cease-and-desist order on July 23, 2003. Two weeks later it met with the Defendants and advised them that no further work would be permitted until it issued either a new permit or an interim remedial action order. The Defendants subsequently requested interim approval to resume work. In response, the ACOE issued an Initial Corrective Measure Order ["ICMO"] on October 16, 2003 that required the Defendants to complete detailed remedial action by December 1, 2003, ahead of the arrival of the bald eagles. In particular, the ICMO mandated (1) rock stabilization on the jetties; (2) the plugging of the marina entrance; and (3) the installation of geotextile materials on the remainder of the project's shoreline. The order expressly stated that it authorized only the remedial actions prescribed and that any further development of the site would require a new permit.

The ICMO required a showing of compliance by December 15,...