United States v. Cumberland Farms of Connecticut

• Decision Date: 16 October 1986
• Docket Number: Civ. A. No. 85-0846-Y.
• Citation: 647 F. Supp. 1166
• Court: U.S. District Court — District of Massachusetts
• Parties: UNITED STATES of America, Plaintiff, v. CUMBERLAND FARMS OF CONNECTICUT, INC., Defendant.

647 F. Supp. 1166

UNITED STATES of America, Plaintiff, v. CUMBERLAND FARMS OF CONNECTICUT, INC., Defendant.

Civ. A. No. 85-0846-Y.

United States District Court, D. Massachusetts.

October 16, 1986.

COPYRIGHT MATERIAL OMITTED

Richard E. Welch, III, Asst. U.S. Atty., Boston, Mass., for plaintiff.

Allan Van Gestel, Marjorie R. Corman, Goodwin, Procter & Hoar, Boston, Mass., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW¹

YOUNG, District Judge.

At the inauguration of President Kennedy, Robert Frost read a poem which began:

The land was ours before we were the land's. She was our land more than a hundred years Before we were her people.

Frost, R., "The Gift Outright," The Poetry of Robert Frost, Lathem, E. ed., at 348 (1969). In imagery strikingly parallel to the facts of this case, Frost evokes memories of the colonists who, without benefit of bulldozers and earth moving machinery, cleared the land in order to plant. Cutting away the bark, the colonists girdled the trees until they died and could be felled, moving the logs off the land and rendering it fit for agriculture. That done, they ditched the land to improve its drainage.

I. Findings of Fact

Wetland soil is particularly attractive for agriculture since, in any wet or mucky soil, vegetation decomposes less rapidly than in the uplands. Termed "anerobic" to signal a lack of oxygen, this soil is rich in organic nutrients, its peat-like composition being ideally suited for planting. Throughout history farmers sought out this soil to clear and to cultivate. Such clearing has consequences, however, and today such traditional land use poses the single greatest threat to the nation's wetlands. As a consequence, the Court must now balance two enduring values: serving the needs of the present and safeguarding the dreams of the future.

In fact, it can be said that this case involves a test of what the nation has learned in the last three hundred years. On the one hand, Congress has signaled its desire to preserve our wetlands, an intent now codified in rather sweeping legislation, see 33 U.S.C. ch. 26, § 1251 et seq., and further codified in detailed and extensive regulations administered by the United States Army Corps of Engineers, see 33 C.F.R. ch. 11, § 320 et seq. On the other hand, the Court takes judicial notice that even in this industrial or post-industrial time, this country as breadbasket of nations represents the greatest agricultural success story in the history of the world.

The Great Cedar Swamp

This case involves an area of land lying partly in the town of Halifax and partly in the town of Middleborough in southeastern Massachusetts. Consisting of approximately 2,000 acres, the land is now, and has been at all material times, known as the Great Cedar Swamp. From a saddle between two rolling hills to the south flow two brooks which, in 1977,² meandered northward encompassing between them the majority of the land known as the Great Cedar Swamp. The stream on the east is known as Raven Brook, and the stream to the west is known as Bartlett Brook. In 1977, the brooks snaked through the Swamp until each emptied into the Winnetuxet River to the north. Then and now, the Winnetuxet empties on the west and southwest into the Taunton River and the Taunton, in turn, empties into the Atlantic ocean. In fact, the Taunton is tidal as far north as the City of Taunton, some five to ten miles away from the Great Cedar Swamp.

In 1972 the area was covered in part by a soil of peat and in part by a soil characterized as muck, either shallow or deep. These soils are classified as "hydric," i.e. wet soil kept constantly moist by an high water table. Test borings taken in 1985 at various locations in the area confirm that, below the 30 foot contour line, layers of peat and sand or silt rest on a lower layer of clay. A brickyard immediately northwest of the site confirms the presence of clay in the subsoil. Soil borings coupled with expert testimony confirm that a majority of the acreage in question is or was a wetland, although areas within the original 2,000 acre swamp, roughly those above the 30 foot contour, are not now and, indeed, could not ever have been characterized as wetland. Many of these non-wetland heights, however, were at one time surrounded by wetland.

In 1977, the Great Cedar Swamp was a typical fresh water swamp. Portions remain so even today. Scientists term the swamp areas "pollustrian wetland" because they are dominated by sedges, ferns, moss, shrubs, cattails, bullrushes and distinctive varieties of trees. The ground cover of the Great Cedar Swamp included sphagnum moss, boneset, blue vervain, water-cress, smartweed, tear-thumb, swamp aster, bedstraw, reed canary grass, pond lilly, manna grass, broomsedge, bur-reed, pondweed, water weed, common duckweed, greater duckweed, pickerelweed, larger blue flag, arrow-arum, skunk cabbage, rush, beakrush or spike-rush, softstem bull-rush, wood-grass bullrush, inflated sedge, silvery sedge, cattail, and royal fern. These plants grew in and around such shrubs as black alder, poison sumac, swamp azalea, grass-leaved willow, mountain holly, smooth alder, silky dogwood, and sweet gale. Although recognizing that the catalogue above stems from expert studies done in 1985, the Court infers that this flora, indigenous to swamp lands, was found in the area in 1977.

Beyond hosting plants and trees, the swamp and its adjacent damp woodlands support a large variety of bird life. Bird nesting grounds have been noted in this area for at least 35 years. Birds present today include the Ruffed Grouse, Downy and Hairy Woodpeckers, the American Crow, the Blue Jay, and the Black-capped Chickadee. Less extensive, but also present in the area over the past 35 years are the Veery, the Northern Waterthrush, the Northern Yellowthroat, and the Canada Warbler. The Northern Waterthrush and Canada Warbler are rarely found outside white cedar swamps.

The area also shelters the Red-Tailed hawk which the Court finds to have been present for at least the last 20 years. On several occasions, the Eastern Bluebird has been found breeding in Red Maples in the swamp.³

Other animal life is now, and was in 1977, prevalent in the Great Cedar Swamp. Such animal life includes deer, raccoon, skunk, and frogs — evidence of which the Court observed on a view taken on March 17, 1986. The Court also saw a pheasant but, on the totality of the record before it, cannot infer the presence of pheasant in the area beyond the immediate time frame of the view.

On the present record, the Court cannot conclude that, prior to Cumberland's acquisition, any significant portion of the area was ever utilized for agricultural purposes, although there was a mill in or close to the area at one time. During World War II, the armed forces used a center strip of the swamp for a strafing run. Even recent aerial photographs capture a difference in vegetation growth which still marks the course of the strafing run.

In 1972, V.S. Hasiotis Incorporated ("Hasiotis") purchased the land in question. Shortly thereafter, Hasiotis leased the land to a related corporation owned by roughly the same group of shareholders, Cumberland Farms of Connecticut, Incorporated ("Cumberland"). At or about the time of purchase, Cumberland commissioned studies relative to possible use of the site for agricultural purposes. The Court finds that these studies would indicate to a reasonable farmer that, for the area to become productive farmland, the trees would have to be removed from the better portion of the land. Moreover, the level of the swamp would have to be lowered significantly by ditches which could both irrigate the land when dry and drain the land when excess water inundated the soil. These studies would indicate to a reasonable farmer that once cleared and drained, the mucky or peaty soil would be more than adequate for farming. In short, the land was ripe for conversion to agriculture, following methods little changed from colonial times.

Beginning in 1972 and working roughly from north to south, Cumberland endeavored to bring the Great Cedar Swamp into productivity as arable farmland. Sporadic but persistent, Cumberland's activities derive from its corporate resources and its corporate need. Clearing has occurred on a broad front both on the eastern and western sides of Raven Brook, reaching even to the far side of Bartlett Brook as well. Adjoining Fuller Street, a large field has been cleared, this field marking the approximate southernmost extension of cleared area. By 1977, a finger of cleared land just to the west of Raven Brook had already appeared. Today, areas about the southern tip of land have also been cleared and used as farmland.

By 1977, Cumberland had already installed a significant network of drainage ditches in the northernmost area and had straightened the meandering course of Raven Brook from approximately the midpoint of the property southward to the terminus of a dirt-packed farm road. In 1977 and 1978, the network of ditches on the western side of the property had extended only so far as the cleared land, and Bartlett Brook south of the cleared area still followed its normal meandering course.

From 1977 through 1985, Cumberland continued the process of clearing and ditching. Raven Brook was straightened throughout its entire length and Bartlett Brook, having earlier been straightened only in the portion where the land had been cleared, was straightened to the southern terminous of the property. In 1983, the headwaters of the two streams were joined by a ditch. The western boundary of the swampy portion of the site was ditched in 1983, all this work being performed by bulldozers and backhoes. Two farm roads running parallel to Bartlett and to Raven Brook were in place by 1985. Over the period 1978 through 1985, Cumberland converted 674.4 acres of wetland or cut-over wetland to agricultural use. Cumberland cut down the trees with power...