U.S. v. Banks, 95-5167

• Decision Date: 24 June 1997
• Docket Number: No. 95-5167,95-5167
• Citation: 115 F.3d 916
• Parties: , 37 Fed.R.Serv.3d 1108, 28 Envtl. L. Rep. 20,060, 11 Fla. L. Weekly Fed. C 86 UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. Park B. BANKS, Defendant-Counter-Claimant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 916

115 F.3d 916

45 ERC 1281, 37 Fed.R.Serv.3d 1108,

28 Envtl. L. Rep. 20,060,

11 Fla. L. Weekly Fed. C 86

UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. Park B. BANKS, Defendant-Counter-Claimant-Appellant.

No. 95-5167.

United States Court of Appeals Eleventh Circuit.

June 24, 1997.

James S. Mattson, Mattson & Tobin, Key Largo, FL, for Defendant-Counter-Claimant-Appellant.

William Keefer, U.S. Atty., Lisa B. Hogan and Dawn Bowen and Barbara K. Bisno, Asst. U.S. Attys., Miami, FL, Jeffery P. Kehne, Appellate Section, Environment & Natural Resources Div., U.S. Department of Justice, Washington, DC, for Plaintiff-Counter-Defendant-Appellee.

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

Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Defendant-Appellant Parks B. Banks appeals the district court's holding that he violated the Clean Water Act ("CWA") by discharging dredged material and fill onto wetlands. Because we find that the district court's application of the CWA to Banks' lands involved no clear error, we affirm.

Facts and Background

Section 404(a) of the CWA, 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the Corps of Engineers ("Corps"), to issue permits for discharges of "dredged or fill material" into waters of the United States. The Corps may authorize these discharges through both individual permits and general, regulatory permits.

In 1980, Banks purchased three lots--lots QQ, IQ and IR--in Big Pine Key in Florida. ¹ Banks began bulldozing lots IQ and IR and covering the lots with fill. Filling continued through approximately 1983, when Banks planted coconut trees on the filled lots and built a house on lot IQ. In March 1983, a Corps biologist informed Banks that parts of lots IQ and IR were wetlands and that discharges onto those areas were unlawful without a permit. In April 1983, the Corps issued a cease and desist order, threatening enforcement action if Banks continued his discharges. The order suggested that Banks apply for an individual permit to authorize retroactively his activities. Banks applied for this "after-the-fact" permit, but the Corps denied it in April 1984. The Corps also told Banks that, to avoid an enforcement action, he must negotiate a restoration plan with them. Banks continued to discharge fill without a permit and entered into no negotiations for a restoration plan.

In 1988, Banks purchased lots IO and IP, located just south of lots IQ and IR. From 1988 to 1991, Banks cleared vegetation from these new lots and prepared them for coconut farming. During this time, Banks also added fill to Lot QQ.

In 1990, the Corps issued four cease and desist orders to Banks, accusing him of discharging fill into U.S. waters without a permit despite clear notice that his conduct was illegal. In December 1991, the government filed this suit against Banks, requesting that the district court enjoin future discharge of additional dredged or fill materials into the wetlands on the property, require Banks to restore the wetlands to their undisturbed condition before such unlawful discharge by removing the fill and otherwise implementing a restoration plan, and require Banks to pay an appropriate civil penalty. ² Banks appealed.

Discussion

I. Statute of Limitations

Because the CWA does not specify a limitations period for enforcement actions under § 309, 33 U.S.C. § 1319, the default limitations provisions of 28 U.S.C. § 2462 ³ apply to the government's actions for civil fines or penalties. The parties dispute, however, the applicability of this statute of limitations to claims for equitable relief. ⁴

Traditionally, "statutes of limitation are not controlling measures of equitable relief." Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946). The plain language of section 2462 does not apply to equitable remedies. See North Carolina Wildlife Federation v. Woodbury, Case No. 87-584-CIV-5 (E.D.N.C.1989) ("The express terms of 28 U.S.C. section 2462 apply only to suits for the enforcement of a 'civil fine, penalty or forfeiture.' "); United States v. Hobbs, 736 F.Supp. 1406, 1410 (E.D.Va.1990) ("[Section 2462], by its own terms, has no bearing on suits in equity.")

Banks, however, urges us to adopt the "concurrent remedy rule," which provides that "equity will withhold its relief ... where the applicable statute of limitations would bar the concurrent legal remedy." Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947). ⁵ Banks relies chiefly on United States v. Windward Properties, Inc., 821 F.Supp. 690 (N.D.Ga.1993) to support his position. In Windward, the government sought equitable relief and civil penalties under section 309 of the CWA against the defendant for unpermitted discharge of dredged or fill materials into streams and adjacent wetlands. There, the court applied the concurrent remedy rule to bar the government's claims for equitable relief under similar facts to this case. Id. at 693.

The Windward court, however, did not address the well-established rule that "an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly imposing it," E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed. 788 (1924); United States v. Alvarado, 5 F.3d 1425, 1427 (11th Cir.1993), or the canon of statutory construction that "any statute of limitations sought to be applied against the United States 'must receive a strict construction in favor of the Government.' " Alvarado, 5 F.3d at 1428.

Incorporating these principles into the analysis, the properly constructed rule is that--absent a clear expression of Congress to the contrary--a statute of limitation does not apply to claims brought by the federal government in its sovereign capacity. The statute is enforced against the government only when the government is acting to vindicate private interests, not a sovereign or public interest. See United States v. Beebe, 127 U.S. 338, 347, 8 S.Ct. 1083, 1088, 32 L.Ed. 121 (1888). ⁶

We conclude, therefore, that the concurrent remedy rule cannot properly be invoked against the government when it seeks equitable relief in its official enforcement capacity. Because Congress did not expressly indicate otherwise in the statutory language of section 2462, its provisions apply only to civil penalties; the government's equitable claims against Banks are not barred.

II. Jurisdictional Wetlands

Banks also disputes that his lots qualify as jurisdictional wetlands. Wetlands are "those areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 C.F.R. § 328.3(b). A "wetland" under the CWA must meet the three criteria set out in the Corps' 1987 Wetlands Delineation Manual: ⁷ (1) a prevalence of hydrophytic plants, (2) hydrological conditions suited to such plants, and (3) the presence of hydric soils.

Banks specifically contests the district court's finding that his lots meet the hydric soil criterion; he cites the report of one of the government's experts, Dr. Kruczynski, who was the Environmental Protection Agency's leading regional wetlands biologist. In his report, Dr. Kruczynski concluded: "There is little or no soil at this location ... Caprock limestone wetlands are described in the [1989 Corps Delineation Manual] as a Problem Area ... and meet the criteria despite the lack of hydric soils when wetland hydrology is present." ⁸ In the light of other evidence presented at trial, however, we find that the district court's conclusion about the hydric soil criterion was not clearly erroneous.

First, Dr. Kruczynski explained in testimony that he did not spend a lot of time analyzing the soils on Banks' lots for his report: the soils present were clearly hydric and the quantity of soil was not critical in the 1989 Manual, under which he was properly operating at the time. He also testified that he would have classified Banks' lots as wetlands under the 1987 Manual.

The government also presented other expert testimony about soil conditions on Banks' land. For example, Dr. Wade Hurt, a soil scientist who formerly headed the Florida office of the U.S. Department of Agriculture's Soil Conservation Service, testified that Banks' lots, before his clearing and filling, would have been approximately 30 percent exposed rock, 15 percent non-hydric soils and 55 percent hydric soils. Dr. Ronald Jones, a professor of environmental sciences, and Curtis Kruer, a former Corps employee and biologist with special expertise in water level monitoring and aerial photography interpretation, also testified that Banks' lands were wetlands under the 1987 Manual's criteria.

"If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (applying clearly erroneous standard to district court's determination that respondent's property met wetlands criteria). Sufficient plausible evidence supports the district court's decision.

III. Adjacent Wetlands

The district court concluded that Banks' lands were wetlands adjacent to navigable, tidal waters and therefore subject to the Corp's regulatory jurisdiction. See 33 C.F.R. § 328.3(a)(1), (7) (1995). Banks disputes,...