US v. Banks

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: JAMES LAWRENCE KING
• Citation: US v. Banks, 873 F. Supp. 650 (S.D. Fla. 1995)
• Decision Date: 13 January 1995
• Docket Number: No. 91-10107-CIV-KING.,91-10107-CIV-KING.
• Parties: UNITED STATES of America, Plaintiff/Counterdefendant, v. Parks B. BANKS, Defendant/Counterplaintiff.

873 F. Supp. 650

UNITED STATES of America, Plaintiff/Counterdefendant, v. Parks B. BANKS, Defendant/Counterplaintiff.

No. 91-10107-CIV-KING.

United States District Court, S.D. Florida.

January 13, 1995.

COPYRIGHT MATERIAL OMITTED

Barbara Bisno, Asst. U.S. Atty., Miami, FL and Martin McDermott, U.S. Dept. of Justice, Washington, DC, for plaintiff.

James Mattson, Key Largo, FL, for defendant.

MEMORANDUM OPINION

JAMES LAWRENCE KING, District Judge.

This Clean Water Act case involves property on Big Pine Key, an island located in a chain of islands known as the Florida Keys. The United States alleges that the Defendant, Parks B. Banks, unlawfully placed pollutants in the form of fill material in adjacent freshwater wetlands without a permit. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345 and 1355, and 33 U.S.C. § 1319(b).

I. THE NATURE OF THE ACTION

The Plaintiff, United States of America, seeks to obtain injunctive relief and civil penalties against the Defendant, Parks B. Banks, for violation of Section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a). The United States alleges that Banks has filled, without obtaining a permit, five freshwater wetland Lots located on Big Pine Key, Florida. The United States further contends that the wetlands Lots are adjacent to navigable waters of the United States in that Lot QQ is adjacent to Pine Channel, and Lots IR, IQ, IP and IO are adjacent to Bogie Channel. For relief, the United States requests that the Court (a) enjoin the discharge by Banks of additional dredged and fill materials into the freshwater wetlands, (b) require Banks to remove materials which he has heretofore unlawfully discharged into the wetlands, (c) require Banks to restore the wetlands to their undisturbed condition prior to such unlawful discharges, and (d) require Banks to pay appropriate civil penalties.

Parks B. Banks admits to placing fill on the subject Lots, but alleges that the property is not jurisdictional wetlands, and therefore, did not require a Section 404 permit under the provisions of the Clean Water Act, 33 U.S.C. § 1344. Banks does not challenge the Corps' denial on April 5, 1984, of his after-the-fact individual permit application to fill Lots IR and IQ.

The trial in this matter was bifurcated in the interests of judicial economy, with the liability phase {items (a) and (b), above} tried in a bench trial, leaving issues of remedy and penalty {items (c) and (d), above} for later resolution by the Court.

For the reasons set forth below, the Court concludes that judgment must be entered for the Plaintiff. The Court finds that, from 1980 to 1983, the Defendant placed unauthorized fill on Lot IR and a portion of Lot IQ on Big Pine Key, Florida, which the Court finds to have been jurisdictional adjacent freshwater wetlands. These wetlands were adjacent to navigable and tidal waters of the United States. Further, the Defendant did not remove the fill when ordered by the United States Army Corps of Engineers in 1984 to do so after the Corps denied his after-the-fact permit application. In the years following this permit denial, the Defendant placed additional fill on three other Lots he owned on Big Pine Key. These Lots, IP, IO and QQ, the Court also finds to be adjacent freshwater wetlands that could not be lawfully filled without a permit from the Corps. All of the unauthorized filling activities, as well as land-leveling and removal of natural vegetation were performed by the Defendant and his agents, to convert the sites to uplands for use in the Defendant's coconut tree farm operations.

II. FINDINGS OF FACT

1. The United States alleges Parks B. Banks has violated the Clean Water Act¹ ("CWA") by his unauthorized discharges of pollutants into waters of the United States at Lots IR, IQ, IP, IO and QQ ("the Lots"), located in Section 22, Township 66 South, Range 29 East on Big Pine Key, Florida.

2. Mr. Banks currently owns the Lots and either placed fill on them himself with a dump truck, bulldozer or similar equipment, or had another individual place the fill for him. This fill took various forms, including rock pit material, silt, manure, organic debris, black dirt, palm fronds and refuse.

3. The subject Lots are adjacent to Bogie Channel and Pine Channel and are part of a meandering wetland slough that extends across Big Pine Key between the two channels. Both Bogie Channel and Pine Channel are tidal navigable waters and both connect to Florida Bay, a tidal navigable water. The band of wetlands is continuous from the Banks' Lots to the navigable waters.

4. The Lots lie south of Watson Boulevard, a paved road which crosses the wetland slough between Lots IR, IQ, IP, IO and Bogie Channel.

5. Defendant Banks purchased Lots IR, IQ, and QQ in 1980, and has owned those Lots since then. Lots IO and IP were purchased by Defendant in 1988 and have been owned by him since then.

6. Prior to being disturbed by Defendant Banks, Lot IR was vegetated with buttonwood, sawgrass, red mangroves and other wetland plant species as listed in the applicable regulations. Lots IQ, IP and IO were vegetated with sawgrass, slash pine and other wetland species; Lot QQ was vegetated with white mangroves, red mangroves, sawgrass, buttonwood, and other wetland species. A red mangrove pond which has been partially filled by Defendant, is located on the northwest corner of Lot IR. A similar red mangrove pond existed on Lot QQ prior to filling.

7. The wetland slough which crosses Big Pine Key is characterized by the expert witnesses as caprock wetlands. Caprock is a limestone that is highly porous and permeable below the surface. It is somewhat smooth on portions of its surface with cracks, crevices, and low places in which hydric soil accumulates and in which wetland vegetation grows. The soils in these cracks, crevices and low places are often saturated or inundated with water. The majority of the surface area in the wetland slough is covered by hydric soils, not barren caprock.

8. Defendant Banks began filling Lots IR and IQ almost immediately after purchasing them in 1980. Utilizing bulldozers to clear these parcels, he destroyed much of the existing vegetation (buttonwood and other wetland species) and placed six inches to one foot of fill over the Lots. This filling activity, which took place over a three year period, was undertaken to prepare the land for planting the seeds for his coconut palm farming operation. Banks did not notify the Corps of these activities, or seek a permit, either prior to or while they were ongoing.

9. In the mid-1980's, Defendant Banks poured a concrete slab and built a house on Lot IQ.

10. Refuse and other organic material as fill was dumped on Lot QQ in 1983. Mr. Banks then planted coconut palms in that fill. Additional palms were planted on this lot in 1993.

11. In 1989 and 1990, the Defendant built a two to three foot raised berm of crushed limestone fill on the property on the western, southern and eastern sides of Lots IP and IO, continuing north on the eastern property line of Lots IQ and IR. Coconut palms were planted in the raised berm.

12. Defendant Banks did not have a permit required pursuant to CWA Section 404, 33 U.S.C. § 1344, authorizing any of these filling activities in waters of the United States.

13. In 1983, Curtis Kruer, field biologist for the Corps, became aware of the Defendant Banks' unlawful filling activities on Lots IR and IQ. The parties have stipulated that the Corps sent and the Defendant received a Cease & Desist Order in regard to this activity, requesting that Banks cease his filling activity and submit an after-the-fact permit application to the Corps.

14. Defendant Banks subsequently applied for an after-the-fact permit, for fill activities on Lots IR and IQ. The Corps issued a formal public notice of the application, as required by its regulations.

15. After evaluating the site and receiving comments pursuant to the public notice, the Corps denied the after-the-fact application on April 5, 1984, on the grounds that: 1) the property was valuable freshwater wetlands, a scarce resource and important habitat for Key Deer, for shore and wading birds, and other wildlife on Big Pine Key, and that destruction of such wetlands was not in the public interest; 2) that there were alternative sites available to Banks for his activity; and 3) that the activity was not considered water dependent under the regulations.

16. Defendant Banks was contacted by the Corps concerning his actions on Lot IR and Lot IQ (then vegetated with red mangroves, sawgrass and buttonwood) and told that the unauthorized fill which he had placed on these Lots should be removed. At that time in 1984, the Corps did not regulate wetlands dominated by "slash pine", the prevalent overstory vegetation on the major portion of Lot IQ. Therefore, Banks was informed that Lot IQ, with the exception of a small northeast corner, was uplands which could be utilized to continue his farming operations. Banks was also told that a small portion of the southeast corner of Lot IR was being considered uplands due to the presence of slash pines.

17. Mr. Banks did not submit another permit application, nor did he remove the fill from Lot IR or any of Lot IQ.

18. Mr. Banks received a letter in 1985 from the Corps' Office of Counsel, advising him that failure to remove the fill would result in a referral to the United States Attorney's Office for prosecution.

19. The Corps became aware in January, 1990 that the Defendant had undertaken additional filling activities on Lot IR. The parties have stipulated that the Corps sent, and the Defendant received, a Cease & Desist Order in February, 1990, ordering Banks to stop this fill activity and restore the property.

20. The Defendant purchased Lots IP and IO, immediately south of Lot IQ, in 1990 and commenced filling activities on those two additional Lots. The parties have stipulated that the Corps sent,...