U.S. v. Lambert, 81-5789
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before RONEY, TJOFLAT and FAY; RONEY |
| Citation | 695 F.2d 536 |
| Parties | , 13 Envtl. L. Rep. 20,436 UNITED STATES of America, Plaintiff-Appellant, v. William R. LAMBERT, Lucille H. Lambert, and Richard Angel, Individually and d/b/a Southern Seafood Co. of Florida, Defendants-Appellees. |
| Docket Number | No. 81-5789,81-5789 |
| Decision Date | 14 January 1983 |
Page 536
v.
William R. LAMBERT, Lucille H. Lambert, and Richard Angel,
Individually and d/b/a Southern Seafood Co. of
Florida, Defendants-Appellees.
Eleventh Circuit.
Page 537
Elizabeth A. Jenkins, Asst. U.S. Atty., Orlando, Fla., Nancy J. Marvel, David E. Dearing, Anne Almy, Attys., Environmental Defense Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.
Allen C.D. Scott, II, Maxwell & Scott, Jacksonville, Fla., Robert J. DeLucia, for defendants-appellees.
Michael A. Sterlacci, Washington, D.C., for F./Washington Legal Foundation.
Appeal from the United States District Court for the Middle District of Florida.
Page 538
Before RONEY, TJOFLAT and FAY, Circuit Judges.
RONEY, Circuit Judge:
The Government appeals from the denial of a preliminary injunction which it sought to restrain appellees, William R. Lambert, Lucille H. Lambert, and Richard Angel (Lambert), from further construction, filling, or discharging pollutants into the wetlands adjacent to the Banana River without a permit from the United States Army Corps of Engineers (Corps). The district court found that although the Government had demonstrated a likelihood it would prevail on the merits of the litigation, it had failed to demonstrate the effects of that Lambert's activities, even if continued during the pendency of the litigation, could not be remedied by a permanent injunction, a civil fine, or both. Thus the district court concluded the Government had not established the irreparable harm prerequisite to a preliminary injunction. We find no abuse of discretion and accordingly affirm.
Before considering the facts of this case, it is helpful to review the statutory framework. In its complaint the Government alleged that Lambert had violated Sec. 301(a) of the Clean Water Act of 1977 (CWA), 33 U.S.C.A. Secs. 1251-1376, by discharging full material into navigable waters of the United States without the prior authorization of the Corps. The objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A. Sec. 1251(a). The Act prohibits the discharge of any pollutant unless in compliance with the Act, id. Sec. 1311(a), and defines "pollutant" to include "dredged spoil, solid waste, ... rock, sand, [and] cellar dirt ... discharged into water." Id. Sec. 1362(6). Regulations promulgated by the Corps further define dredged and fill material and their discharge. 33 C.F.R. Sec. 323.2(k)-(n) (1981). The Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits for the discharge of dredged or fill materials into navigable waters. 33 U.S.C.A. Sec. 1344.
Discharge of a pollutant includes the addition of a pollutant to navigable waters, id. Sec. 1362(12), which are defined as "waters of the United States, including the territorial seas." Id. Sec. 1362(7). It is generally agreed that Congress intended "waters of the United States" to reach to the full extent permissible under the Constitution. See United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir.1978); United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1324-25 (6th Cir.1974). Accordingly, the Corps' regulations define "waters of the United States" to include wetlands adjacent to tributaries to navigable waters, 33 C.F.R. Sec. 323.2(a)(3) (1981), even though wetlands are not specifically mentioned in the Act itself. Under the regulations the term "wetlands" means "those areas that are 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." Id. Sec. 323.2(c) (1981). Adjacent wetlands are those "bordering, contiguous, or neighboring" navigable waters, including "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like." Id. Sec. 323.2(d) (1981).
Mr. and Mrs. Lambert own a 37-acre parcel of land adjacent to the Banana River in Brevard County, Florida. Since 1977 Lambert has used this tract as a disposal site for the shells of scallops processed by a seafood company owned and operated by the Lamberts. The seafood company produces an average of four million pounds of excess shells a week, requiring 15 or 20 truckloads of shells per day to be transported from the processing plant.
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