United States v. Sexton Cove Estates, Inc., 74-1067-Civ-WM.

• Decision Date: 06 February 1975
• Docket Number: No. 74-1067-Civ-WM.,74-1067-Civ-WM.
• Citation: 389 F. Supp. 602
• Parties: UNITED STATES of America, Plaintiff, v. SEXTON COVE ESTATES, INC., Key Largo, Monroe County, Florida, and Ralph E. Oesterle, Defendants.
• Court: U.S. District Court — Southern District of Florida

389 F. Supp. 602

UNITED STATES of America, Plaintiff, v. SEXTON COVE ESTATES, INC., Key Largo, Monroe County, Florida, and Ralph E. Oesterle, Defendants.

No. 74-1067-Civ-WM.

United States District Court, S. D. Florida.

February 6, 1975.

COPYRIGHT MATERIAL OMITTED

Robert W. Rust, U. S. Atty., by Lawrance Belknap Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff.

Corlett, Merritt, Killiam & Mascaro by Michael D. Sikes, Miami, Fla., and David Paul Horan, Key West, Fla., for defendants.

FINAL JUDGMENT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

MEHRTENS, District Judge.

THIS CAUSE having come before the Honorable Court upon a complaint for injunctive relief by the United States of America, and after consideration of pleadings in this matter, the pre-trial stipulation filed by the parties at the pre-trial conference, December 31, 1974, the trial January 27, 1975, and the Court being otherwise fully advised in the premises, the Court enters the following Final Judgment with Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

This action was brought pursuant to the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 403 and 406) by the plaintiff, United States of America, for injunctive relief (1) restraining the defendants, Sexton Cove Estates, Inc. ("Sexton Cove Estates") and Ralph Oesterle, from conducting further filling or excavation or in any manner altering the course, condition or capacity of Blackwater Sound at Sexton Cove Estates, Key Largo, Monroe County, Florida; (2) requiring the defendants to restore those pre-existing canals to their depth and width prior to the widening and deepening activities of the defendants; (3) requiring the defendants to plug and fill in those canals totally constructed by the defendants; and (4) for such further relief as the Court might deem appropriate.

At the trial held January 27, 1975, testimony was taken from the following witnesses:

Mr. Charles M. Allen, Chief of the Inspection Branch, Army Corps of Engineers;

Alonzo Cothron, President of Alonzo Cothron, Inc.;

Richard Chesher, Ph.D., marine biologist;

Jeffrey Gautier, representative of Sexton Cove Estates, Inc.;

William J. Roberts, Esquire; and

Mr. James T. Glass, professional engineer.

Also, four aerial photographs, an overlay photograph, several additional photographs, soundings charts, plat maps and numerous documents were introduced into evidence.

The defendant, Ralph E. Oesterle, was the President and resident agent of Sexton Cove Estates during the dates pertinent to the complaint. The defendant, Sexton Cove Estates, a corporation organized and doing business within the Sourthern District of Florida, owned a tract of land located on Upper Key Largo, Florida, which it had developed into a trailer park. The development included three pre-existing canals which the defendants stipulated they had first caused to be plugged, widened, deepened and then reconnected these tidal canals to Blackwater Sound. The defendants further admitted by stipulation that they had caused the excavating, widening, deepening and connecting of one other canal to Blackwater Sound; that they had caused another canal to be constructed and connected to Blackwater Sound. Finally, the defendants admitted by stipulation that they had caused the excavation of five additional canals on Sexton Cove Estates which have not yet been connected to Blackwater Sound. It should be noted that the parties to the action agree that Blackwater Sound was a navigable water of the United States; that Blackwater Sound was tidal; and that those canals connected to Blackwater Sound were subject to tidal fluctuations.

In 1969, the defendants employed an engineering firm, Bailey, Glass and Post, represented by Mr. James Glass, which initiated preliminary studies and made an engineering proposal to representatives of Sexton Cove Estates. In approximately December of 1969, a plat was filed in Monroe County, Florida, indicating the intended construction of some ten canals which would be connected to Blackwater Sound (Sexton Cove). Mr. Glass and Mr. William Roberts both advised Mr. Jeffrey Gautier that in their past experience a United States Army Corps of Engineers ("Corps of Engineers") permit need not be applied for in this particular instance since the dredging and filling activities would presumably be shoreward of the mangrove fringe rather than bayward of this line. Neither Mr. Glass, Mr. Roberts nor Mr. Gautier ever sought the opinion of any Corps of Engineers representatives concerning the proposed dredging and filling activities to take place on Sexton Cove Estates. Roberts (who was simply offering free advice at this point as he was not employed by Sexton Cove Estates until sometime in mid-1971) and Glass based their advice on various cases they had handled in the past involving the Corps of Engineers permit requirements. Mr. Roberts, during this period of time, was aware of the changing attitudes of the Government toward dredge and fill activities, but did not attempt to contact the Corps of Engineers to learn whether a permit would be required for the dredging and filling activities on Sexton Cove Estates itself.

On May 20, 1970, a contract was signed by Jeffrey Gautier, Ralph Oesterle and Alonzo Cothron which established Mr. Cothron as the supervisor of the dredging and filling activities on Sexton Cove Estates. Mr. Cothron began work on the southernmost canal during June of 1970 and finished the three southernmost canals, unplugging these three in December of 1970.

In February of 1971, Charles M. Allen of the Corps of Engineers' Inspection Branch visited Sexton Cove Estates' project and observed the three opened canals; returned to his office in Miami; searched the files for permits or applications and, learning that there was none pending and no permits issued, caused a letter and booklet to be sent Ralph Oesterle, President of Sexton Cove Estates on February 22, 1971, warning of the necessity for a permit for such excavating. On March 22, 1971, a letter was sent by Jeffrey Gautier stating that on advice of counsel no permit was required. Charles Allen returned to the project on May 19, 1971, and discovered that work was underway on two additional canals. These two canals had pre-existed the work of the defendants and had been open to Blackwater Sound prior to their being plugged. While plugged, they were widened and deepened from, as Mr. Cothron stated, approximately six to ten feet to thirty-five to forty feet; they were also extended considerably from their pre-existing length and width.

Mr. Allen returned to his office and a letter dated June 2, 1971, was sent to Mr. Oesterle advising him of the necessity to obtain a Department of the Army permit for the canals. On June 16, 1971, a letter was sent to Mr. Oesterle from the Chief of Operations Division, Jacksonville, Florida, once again stating that Sexton Cove Estates was in error in assuming that no permit was necessary. The defendants chose to ignore the three letters of warning and simply continued their dredging and filling activities.

Approximately December of 1971 the plugs in the canal observed by Mr. Allen were removed, thus connecting them to Blackwater Sound. In May 1971, one of the five canals which remain plugged was under construction. By February, 1972, these five canals, although plugged, were excavated by the defendants and they exhibited tidal fluctuations. On October 28, 1971, an after-the-fact permit application was submitted by Sexton Cove Estates and on June 12, 1973, the application was denied.

In November, 1974, Mr. Allen once again ventured to Sexton Cove Estates; his mission was to take soundings in the five canals opened by the defendants onto Blackwater Sound. Mr. Allen, during his boat trip, did not observe any "no trespassing" signs on or near the canals. He completed the soundings in each canal without incident.

The result of the development in this area was the complete removal and destruction of all living mangrove plants and the widelife that existed therein. Further, the plugging and later unplugging of what had been the three pre-existing canals (which were navigable and upon whose banks lay the mean high tide line prior to the defendants' excavating) affected the waters of Blackwater Sound. The connecting of the other two canals by pulling their plugs at the completion of the excavation also affected this navigable water of the United States. The waters of Blackwater Sound are now diverted into the canal system with the tidal fluctuations; and waters from the canals return to Blackwater Sound thus altering the course, location, condition and capacity of Blackwater Sound. The mean high tide line is now situated on the banks of each of the canals. Finally, in all regards, the Corps of Engineers acted reasonably in respect to the operations on Sexton Cove Estates. The defendants, on the other hand, conducted these operations for their personal gain, failing to obey the law applicable and ignoring the warnings sent out by the Corps of Engineers.

II. CONCLUSIONS OF LAW

A. The Court has jurisdiction over the subject matter and the parties to this action.

B. The activities of the defendants described in the above Findings of Fact constitute violations of the Rivers and Harbors Act of 1899 ("the Act"), 33 United States Code, Section 403 by: (1) creating an obstruction, (2) building a structure, and (3) excavating or filling — all within the navigable waters of the United States and without proper federal authorization.

As stated in Zabel v. Tabb, 430 F.2d 199, 207 (5th Cir. 1970), cert. denied 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971):

. . . The Act covers both building of structures and the excavating and filling in navigable waters. It is structured as a flat prohibition unless — the unless being the issuance of approval by the Secretary after recommendation of the Chief of Engineers. The Act itself does not put any restrictions

...