U.S. v. Bayshore Associates, Inc.

• Decision Date: 30 May 1991
• Docket Number: 89-2112,Nos. 89-1454,s. 89-1454
• Citation: 934 F.2d 1391
• Parties: , 19 Fed.R.Serv.3d 1127, 21 Envtl. L. Rep. 21,243 UNITED STATES of America, Plaintiff-Appellee, v. BAYSHORE ASSOCIATES, INC., a Michigan corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1391

934 F.2d 1391

33 ERC 1281, 19 Fed.R.Serv.3d 1127,

21 Envtl. L. Rep. 21,243

UNITED STATES of America, Plaintiff-Appellee, v. BAYSHORE ASSOCIATES, INC., a Michigan corporation,

Defendant-Appellant.

Nos. 89-1454, 89-2112.

United States Court of Appeals, Sixth Circuit.

Submitted March 25, 1991.

Decided May 30, 1991.

Geneva S. Halliday, Asst. U.S. Atty., Jennifer J. Peregord, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

David J. Haywood, Miller, Johnson, Snell & Cumminskey, Grand Rapids, Mich., Michael E. Tindall, Judith R. Weinstein, St. Clair Shores, Mich., for defendant-appellant.

Before GUY and NORRIS, Circuit Judges; and WELLFORD, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiff, the United States Army Corps of Engineers (the government), sought to enjoin defendant, Bayshore Associates, Inc. (Bayshore), from dredging and dumping dredge spoils. The action was brought pursuant to the Clean Water Act of 1977, 33 U.S.C. Sec. 1251 et seq., and the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 401 et seq. The district court granted plaintiff's motion for a temporary restraining order (TRO) and later granted a preliminary injunction. Defendant appeals the following: the district court's grant of a TRO to prevent Bayshore from dredging at the Bayshore Boat Club in Fair Haven, Michigan; the district court's subsequent finding of Bayshore in contempt of the TRO on both February 17 and April 12, 1989; and the preliminary injunction that the district court issued against dredging on August 2, 1989.

Bayshore argues that the TRO was vague and overbroad in violation of Federal Rule of Civil Procedure 65. Additionally, Bayshore argues that, although the district court stated it was holding Bayshore in civil contempt of the TRO, the court actually subjected Bayshore to criminal contempt sanctions. Finally, Bayshore challenges the notice and propriety of the preliminary injunction, termed a permanent injunction by the district court. With the exception of the April 12, 1989, contempt order, we find defendant's arguments without merit and, accordingly, affirm. The fine imposed by the district court in its April 12, 1989, contempt order was a criminal fine. We therefore vacate the portion of the contempt order that imposed a fine on Bayshore.

I.

In August 1988, Bayshore applied for a permit to the Army Corps of Engineers to obtain authorization for maintenance dredging. Bayshore stated that it wanted to dredge 1,000 cubic yards of material and that it would place the dredged material, so-called dredge spoils, on land known as the Vernier site.

The Army Corps of Engineers issued Bayshore a permit. The permit authorized Bayshore to dredge 1,000 cubic yards of material and dispose of it on the Vernier site. Further, the permit provided that Bayshore would be required to obtain review of any changes in the location of the disposal site.

Bayshore subsequently decided to change the location of the disposal site without the required pre-authorization. Bayshore proceeded to put the dredge spoil at the new site. The government alleged that the new, unauthorized site included a wetland area. As a result, Bayshore's actions violated section 404 of the Clean Water Act, 33 U.S.C. Sec. 1344.

In response to the government's request, the district court issued a TRO on February 10, 1989, against Bayshore. The TRO prohibited Bayshore "from dredging in the navigable waters of the United States or disposing of dredged materials in the waters of the United States including its adjacent wetlands."

While the TRO was in effect, several individuals observed Bayshore continuing to dredge. On February 16, 1989, the government moved to hold Bayshore in contempt. At the contempt hearing, Bayshore argued that it was not dredging; rather, it was only breaking a concrete boat launch above the water line, which involved pulling cement blocks from the water onto land. The government argued that Bayshore was dredging because its activities brought up "clay and muck." Further, the government argued that "[i]f you go below the water mark [or line] you're dredging." The court concluded in part, based on defendant Bayshore's own witnesses, that Bayshore was dredging. As a result, the district court granted the government's motion and, by way of sanctions, expanded the original TRO to include the following:

1. Defendant and its agents are prohibited from doing any and all work below the water line until a permit is granted by an appropriate agency or until further order of this court.

2. Defendant and its agents are prohibited from removing or relocating any dredged or spoil material, including concrete, from the area commonly known as the Bayshore Boat Club, without a valid permit or specific agreement from the U.S. Army Corps of Engineers or without prior approval of this Court.

On February 17, 1989, the parties stipulated to the extension of the TRO and the sanctions. The stipulation was to "remain in effect until a decision [was] rendered on the plaintiff's motion for a preliminary injunction or until further order of the court."

Upon hearing reports from observers that Bayshore placed several floating docks at the Bayshore Boat Club after the February 17 order, the government sought to have Bayshore held in contempt. Bayshore argued that because the docks floated on the water, their placement did not constitute activity below the water line, which was prohibited. The court found, however, that Bayshore violated the earlier order when it put the docks in the water. As a result, the court imposed the following additional sanctions:

1. Bayshore Associates, Inc.'s president, Michael Tindall, shall report at 10:00 a.m. on April 13, 1989 to the custody of the United States Marshal. Mr. Tindal [sic] shall remain in the Marshal's custody until all of the docks placed since February 17, 1989 by defendant, are removed to the satisfaction of the U.S. Army Corps of Engineers. Mr. Tindall will be released from the custody of the United States Marshal only after the parties appear before this Court and verify that the docks have been removed.

2. Bayshore Associates, Inc. shall pay a committed fine of $5,000.00 due within ten days from April 12, 1989.

On April 12, 1989, Bayshore filed a motion to dissolve or, in the alternative, receive partial relief from the TRO. To enable Bayshore to continue its business activities throughout the boating season, the parties and court agreed to a modified order on April 28, 1989. This order allowed Bayshore to launch or remove boats in the ordinary course of marina business, allowed placement of non-contested docks as well as removal of a cofferdam, and permitted the removal of approximately two to three yards of existing dredge spoils.

A hearing on the motion to dissolve was not held until August 2, 1989. At the hearing, the government requested that the court permanently enjoin Bayshore from dredging. The court denied Bayshore's request to dissolve the injunction and granted the government's motion for a permanent injunction. The court's order, entitled "ORDER GRANTING PERMANENT INJUNCTION," stated:

IT IS ORDERED AND ADJUDGED for reasons stated on the record, that Defendant's motion to modify this Court's Temporary Restraining Order is DENIED.

IT IS FURTHER ORDERED AND ADJUDGED for reasons stated on the record, that defendant, Bayshore Associates, Inc., and its employees and agents, are hereby permanently enjoined from dredging in the navigable waters of the United States or disposing of dredged materials in the waters of the United States, including its adjacent wetlands, without first obtaining a permit from the United States Army Corps of Engineers.

IT IS FURTHER ORDERED AND ADJUDGED for reasons stated on the record, that this Court's Order finding defendant in civil contempt entered on February 17, 1989, and as modified by this Court's Order of April 28, 1989, shall remain in full force and effect.

Bayshore appealed.

II.

Bayshore argues that the district court abused its discretion when it issued a "permanent injunction" against dredging or disposing of dredged material in the navigable waters of the United States. The government "concedes that permanent injunctive relief cannot properly be awarded in advance of [an] upcoming trial." Instead, the government argues that the order was the district court's "attempt to formalize and consolidate [its] prior orders." We agree.

Although the district court inartfully called its order a permanent injunction, it was, in effect, a preliminary injunction. We have previously held that the actual effect of an order, rather than the district court's characterization of it, shall be considered on appeal. American Motors Corp. v. FTC, 601 F.2d 1329, 1331-32 (6th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 294, 62 L.Ed.2d 307 (1979). Thus, for the purposes of this appeal we will treat this order as a preliminary injunction.

The government argues that our jurisdiction to review the district court's preliminary injunction is discretionary. We disagree.

Although the general rule is that an appellate court can review only final judgments, 28 U.S.C. Sec. 1292(a)(1) creates an exception for interlocutory orders. Section 1292(a) provides that "the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." The preliminary injunction issued by the district court in the present case falls precisely within the ambit of the statutory language. Indeed, our court normally assumes, without extensive discussion, that appeals from preliminary injunctions are appeals as of right pursuant to section 1292(a)(1). See, e.g., Sutton v. Evans, 918 F.2d 654, 655 (6th Cir.1990); Moraine Indus. Supply, Inc. v. Sterling Rubber Prods., 891 F.2d 133, 135 (6th Cir.1989); Beukema's...