United States v. Lambert

• Decision Date: 11 June 1984
• Docket Number: No. 81-255-Orl-Civ-R.,81-255-Orl-Civ-R.
• Citation: 589 F. Supp. 366
• Parties: UNITED STATES of America, Plaintiff, v. William R. LAMBERT and Lucille H. Lambert, Defendants.
• Court: U.S. District Court — Middle District of Florida

589 F. Supp. 366

UNITED STATES of America, Plaintiff, v. William R. LAMBERT and Lucille H. Lambert, Defendants.

No. 81-255-Orl-Civ-R.

United States District Court, M.D. Florida, Orlando Division.

June 11, 1984.

COPYRIGHT MATERIAL OMITTED

Lawrence R. Liebesman, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Steven C. Calvarese, Asst. Dist. Counsel, Jacksonville Dist., U.S. Army Corps of Engineers, Jacksonville, Fla., for plaintiff.

Allen C.D. Scott, II, Jacksonville, Fla., Michael A. Sterlacci, Washington, D.C., for defendants.

ORDER AND MEMORANDUM OF DECISION

JOHN A. REED, Jr., District Judge.

Subsequent to the filing of the complaint in this case (18 May 1981) Dr. Arnold Banner, a Ph.D. in marine biology employed by the Fish and Wildlife Service, conducted an extensive investigation into the boundaries of suspected wetlands on the defendants' property, the nature of the wetlands and the loss to the surrounding ecology caused by filling operations on the property by the defendant William Lambert. Dr. Banner studied the aerial photographs in evidence as Government's exhibits 4A, B, C and D. He studied topographical surveys of the property, compared measurements of water levels at the culvert south of the defendants' southwest corner with water levels in the Banana River at the Port Canaveral locks. He examined the vegetation on the defendants' property. For that purpose he made several site visits before the litigation commenced and a total of nineteen between 1980 and 1984.

Government exhibit 6 shows a transect line along which Dr. Banner caused elevations to be measured. Overlays to Government exhibit 6 contain photographs taken by Dr. Banner during his site inspections from 1980 to 1982. Many of these photographs show various species of plants relied upon by Dr. Banner as indicators of wetlands. Such plants are listed by the Army Corps manual in evidence as Government exhibit 110 as indicators of wetlands because of their tolerance for life in saturated soil. The plants found by Dr. Banner through his photographic and on site investigations are listed on Government exhibit 12. These plants were, according to Dr. Banner, prevalent in the areas which he ultimately concluded to be wetlands. Based on Government exhibit 5, 8A and 8B, he concluded that the elevation in the suspected wetlands before the filling operation began ranged from .75 feet to 1.5 feet above mean sea level or an average of .9 feet above mean sea level.^*

Dr. Banner testified to a salinity gradient as follows: sea water — 35 parts per 1000; Banana River water — 30 parts per 1000; tidal creek south of Lambert property — 22 parts per 1000; station 10 in western wetlands (Government exhibit 5) 14 parts per 1000. He stated this gradient is typical of an estuary. Dr. Banner personally observed on numerous occasions that when water was measured at 1.5 feet NGVD at the culvert southwest of the property, the water would flow north through the culvert and along the ditch across the south side of the defendants' property all the way to the southeastern end of the property.

The average water level in the Banana River according to the evidence in this case is .57 feet above NGVD. Based on a study of annual changes in water levels of the Banana River, Dr. Banner concluded the river should cause innundation on the property in its unfilled state at least one hundred days a year. This was grounded in part on water level readings gathered at the Port Canaveral locks during a ten year period. The record of water levels during the study period indicated that water levels at the Port Canaveral locks which are less than two miles from the defendants' property equalled or exceeded .9 feet NGVD ninety-six days a year and equalled 1.1 feet NGVD fifty-seven days a year (see Government exhibit 13). Based on visual observations of the soil on the defendants' wetlands, Dr. Banner testified that it was saturated throughout the year — as opposed to innundated.

The Government's hydrologist, Michael Lofton, corroborated Dr. Banner's findings. He testified that in a typical year water levels at the Port Canaveral locks would equal or exceed .9 feet NGVD one hundred twenty-five days per year. He further testified that when the water level in the Banana River equalled or exceeded 1.0 foot NGVD, the culvert southwest of the property provided a "good hydraulic connection" to the Banana River. He also testified, however, that the culvert would be an obstruction to the northward flow of the water from the river at river stages less than 1.0 foot NGVD. His study of the water data taken from the Port Canaveral locks showed that over the study period, the river on an average annual basis was at or above 1.0 foot NGVD seventy-three days a year. Finally, Mr. Lofton, using water level data gathered over a period of seventeen months at the culvert and the water level data gathered at the Port Canaveral locks, performed a regression analysis. See Government exhibit 56. This analysis purported to show a strong correlation between the water level at the locks and the culvert.

The hydrologist's conclusions, however, are not viewed by the court as conclusive evidence that water levels at or above .9 feet NGVD at the Port Canaveral locks cause innundation on the defendants' wetlands. The regression analysis did not take into account independent factors contributing to the water level at the site such as well water flowing from the defendants' property into the culvert or surface water flowing across the defendants' property from the north from a disposal site which the evidence indicates exists to the north and west of the defendants' property. Furthermore, water levels at the culvert do not necessarily predict an equal water level on the defendants' wetlands. Mr. Lofton admitted that a higher water level in the culvert was required to connect the water to the eastern wetland than to the central or western wetland. He testified that it would require a water level between 1.0 foot and 1.1 feet NGVD to connect water in the culvert with the eastern wetland.

As part of his investigation, Dr. Banner studied soil samples from the wetlands areas. He determined that soils in the wetland areas had three to six inches of organic material at the surface. Based on his studies, Dr. Banner concluded that the defendants' property contained prior to filling operations three "wetland areas" as that term is defined by the Army Corps of Engineers regulation found in 33 C.F.R. 323.2(c) (1980). The factors considered by Dr. Banner were summarized for the court's benefit on plaintiff's exhibit 10. The wetlands found by Dr. Banner were delineated on a survey map in evidence as Government exhibit 20. Although Dr. Banner's wetland determination is contradicted in some aspects by respectable expert witnesses presented by the defendants, it is also corroborated in some respects by those and by other witnesses, particularly Conrad White, Irene Sadowski, and William Kruczynski. On the basis of Dr. Banner's testimony, the court finds that the Government has proved by a preponderance of the evidence that the defendants' property before the filling operations of Mr. Lambert, contained three wetland fingers and a wetland bridge between the western wetland and the central wetland as depicted on Government exhibit 20.

In reaching this finding the court has concluded that proof by a preponderance of the evidence is the burden of persuasion upon the Government. See United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980), and United States v. Regan, 232 U.S. 37, 47, 34 S.Ct. 213, 216, 58 L.Ed. 494 (1914). The court, however, has also concluded that in assessing the weight to be given the testimony of the various witnesses, the court must give substantial deference to the well reasoned conclusions of those Government witnesses who are officials charged by law with administering the provisions of the Clean Water Act. See National Wildlife Federation v. Marsh, 721 F.2d 767 (11th Cir.1983), and Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983).

In Avoyelles, the case was before the district court in a different posture than is the present. In Avoyelles, the trial judge had before him a formal agency determination of wetland boundaries before he was called upon to rule on that same issue. In that circumstance, the trial court was limited in its role to determination of whether or not the agency finding was arbitrary and capricious. In the present case, no formal agency record was established and presented to this court for review; therefore, this court has assumed a broader latitude in dealing with the position of the Government, although it is still bound as stated above to give significant deference to the testimony of responsible Government officials.

There are other reasons why the court has determined to accept as reliable the conclusion of Dr. Banner as to the extent of wetlands on defendants' property. The defendants' principal expert witness, Dr. George Cornwell, conceded that the defendants' property had a central and western wetland and, to that extent, he corroborated the testimony of Dr. Banner. Dr. Cornwell's main objection to the characterization of the eastern finger as wetland was to the use of plants tolerant to life in saturated soil as indicators of wetland. He testified that such vegetation was not "typically adapted" to life in saturated soil. He testified that if a plant lives in wetlands, but also lives in dry areas, it is "a lousy indicator" of wetlands. Regardless of the logic of this conclusion, it has been held that the Corps regulations may encompass plants which in fact are tolerant to life in saturated soil even though they may not live out an entire life cycle in such soil. Avoyelles Sportsmen's League, Inc. v. Marsh, supra, at 913.

The evidence before the court indicates...