US v. Bd. Of Trustees of Fla. Keys Comm. College, 80-2894-Civ-CA.

• Decision Date: 03 September 1981
• Docket Number: No. 80-2894-Civ-CA.,80-2894-Civ-CA.
• Citation: 531 F. Supp. 267
• Parties: UNITED STATES of America, Plaintiff, v. BOARD OF TRUSTEES OF FLORIDA KEYS COMMUNITY COLLEGE, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

531 F. Supp. 267

UNITED STATES of America, Plaintiff, v. BOARD OF TRUSTEES OF FLORIDA KEYS COMMUNITY COLLEGE, et al., Defendants.

No. 80-2894-Civ-CA.

United States District Court, S. D. Florida.

September 3, 1981.

COPYRIGHT MATERIAL OMITTED

David E. Dearing, Dept. of Justice, Washington, D. C., Michael Mitchell, Asst. U. S. Atty., Miami, Fla., for plaintiff.

David Paul Horan, Key West, Fla., for defendants.

MEMORANDUM OPINION

ATKINS, Chief Judge.

THE ABOVE CAUSE was before the Court for a non-jury trial on May 18, 19 and August 3, 1981.

The United States seeks restoration of an open water slough on the edge of the Florida Bay, which it contends was filled by defendants in violation of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 and the Clean Water Act, 33 U.S.C. §§ 1311, 1344. Defendants concede the failure to obtain a necessary federal permit for the fill work. Defendant Charley Toppino & Sons, Inc. contends it should not be held liable for any of the unauthorized work since it relied on the defendant Board of Trustees to obtain the permits and performed the construction work in question while believing the permits had been obtained. Defendant Board of Trustees contends that the violation was not intentional and that the remedy urged by the United States is unwarranted.

Jurisdiction over the cause is predicated on the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 406 and the Federal Clean Water Act, 33 U.S.C. § 1319(b) and 28 U.S.C. §§ 1345, 1355.

The central legal issues—Charley Toppino & Sons' liability and the nature and extent of any remedy—are relatively narrow. The dispute brings to mind the popular maxim, "Beauty is in the eye of the beholder." Here, one party's unsightly swamp was another party's endangered wildlife refuge. Resolution of the dispute requires inquiry into the background of the unauthorized activity (Section I) and its effect on the environment (Section II). Section III discusses liability while Section IV sets forth the mandated remedy. The findings of fact and conclusions of law which are required by Rule 52, Fed.R.Civ.P., are incorporated herein.

I.

The Board of Trustees for the Florida Keys Community College (hereafter referred to as defendant Board) is a corporate body authorized by the State of Florida to conduct the business of operating Florida Keys Community College, which is located on Stock Island, Monroe County, in the Southern District of Florida. Defendant Charley Toppino & Sons, Inc. (hereafter Toppino) is a construction company organized under the laws of the State of Florida and doing business within Monroe County.

The Board holds legal title to the Stock Island campus of the College. The Board's original plan called for the installation of "riprap," a line of large rocks and boulders as a barrier against erosion of the northeastern wall of an embayment located on the southwestern edge of the campus. The original plan was the subject of a permit which authorized placement of approximately 800 feet of riprap and which permitted removal of approximately 150 feet of mangroves along the northeastern edge of the slough. See Government Exhibit 43. This permit was issued by the Florida Department of Environmental Regulation on April 12, 1977. A federal permit, number 77K-0192, was issued July 1, 1977 for the same project. Neither of these permits authorized any filling of the shallow water pocket or slough depicted in Government Exhibit 43.

During 1977, the College's director of resource development and planning was Mr. William Ceely. During April of 1977, the site was visited by Mr. Robert Mannix, a field inspector for the Florida Department of Environmental Regulation. After meeting with Mr. Mannix at the site and apparently as a result of their conversations, Mr. Ceely came to the understanding that the State of Florida would be receptive to a modification of the riprap project so as to seal off the open end of the slough with riprapping and fill in the pocket with dirt. According to Mr. Ceely, Mr. Mannix "suggested" the fill project as a reasonable means to eliminate the slough which was described by Mr. Ceely as an unhealthy area, a debris trap. Mr. Mannix denied that any specific recommendation was made to Mr. Ceely. Despite the disparity as to the origin of the filling plan, it is apparent that Mr. Ceely was correct in his impression that the state would not be hostile to the modification. On April 15, 1977, Mr. Ceely sent a letter to Robert Mannix in which he submitted architectural drawings of the proposed revision of the riprap project to include filling of the slough. The materials were transmitted to the appropriate office of the Florida Department of Environmental Regulation, which on August 25, 1977 issued a state permit and certified the water quality for the modified project. As modified, the project included the filling and bulkheading of the entire slough.

No application for a federal permit for the riprap project as modified was ever made by the Board nor did there exist a procedure whereby the State automatically referred state applications to appropriate federal officials. There was discussion during mid 1977 about the creation of a joint application procedure. However, the procedure which would have permitted the filing of a joint state and federal permit application, was not to be effective until September 1, 1977. See Government Exhibit 62. The decisions would continue to be made separately by the state and federal agencies involved.

In the college's chain of command, the most direct responsibility for obtaining necessary permits rested with Mr. Ceely, who in turn reported directly to the college's president. Mr. Ceely testified that throughout the period in question he was aware that separate state and federal permits were required and that it was his experience in the past that state approval was closely followed by issuance of a federal permit. He testified that Mr. Mannix had led him to believe that Mr. Mannix would process the state and federal permits—that Mr. Mannix would submit any necessary federal application. Mr. Mannix denied such a representation.

It is this Court's finding that no representations were made by Mr. Mannix that he would secure the necessary federal permit. Despite this finding, it is possible that Mr. Ceely sincerely believed a separate federal application was unnecessary—or that he negligently failed to submit one. Clearly any belief that a separate application was unnecessary was mistaken. More importantly, as discussed in Section III, Mr. Ceely was also mistaken as to the existence of all necessary federal permits at the time construction was begun. This Court concludes that whatever factual predicate may have existed for Mr. Ceely's failure to submit an application for the federal permit, it did not justify or supply a reasonable explanation for the decision to take action on the modified project when no federal permit had been received. Despite his confusion over the application process, Mr. Ceely acknowledged that he was aware that separate state and federal permits were required and that he had received no federal permit for the work.

In plaintiff's post-trial briefing, the Government urges that a chronological review of the documents submitted to the various agencies reveals a conscious effort on Ceely's part to deceive the Corps by pretending that it intended to proceed only with the original project. This Court is not persuaded that such a plan or intent is revealed. The Court's observation of Mr. Ceely at trial leads it to conclude that although he demonstrated a tendency to rationalize his actions and to place blame on other persons, his failure to submit the separate application was not a willful attempt to avoid the law.

Sometime in 1977, prior to October 5, Toppino installed riprap boulders across the mouth of the slough. Its actions were in accordance with its contract with the college. There was a factual issue at trial as to whether Toppino was aware that a necessary federal permit for the modified project had not been obtained. Frank Toppino, president of the defendant company, testified that in the past he had always relied on the college to obtain any necessary permits. Review of the bid documents reveals the college's representation to bidders that "the college will be responsible for acquiring State of Florida Department of Environmental Regulation and Army Corps of Engineers permits necessary for construction of this project." See e.g. Government Exhibit 5 at page 6. Mr. Toppino acknowledged his awareness of the state and federal permit requirements and of their importance with respect to dredge and fill work in the Florida Keys. In summary, this Court finds that although defendant Toppino was aware that the federal permit was a necessary prerequisite to construction, it relied on the College to obtain it, and assumed it had been obtained when told by the College to commence construction of the riprap across the mouth of the slough.

On or about October 5, 1977—subsequent to the installation of the riprap boulders but prior to removal of the mangroves or filling of the slough, Mr. Charles Schnepel, a biologist employed by the Corps of Engineers, visited the site and noted that the work under construction did not conform to the federal permit issued in July. Government Exhibit 18 depicts the area as it existed on that date. An airplane flight by Mr. Schnepel over the area in December of 1977 revealed that no additional work had been done on the site. A second flight during April of 1978 revealed that the slough had been filled. Mr. Schnepel made reports to his superiors following each of these observations. During May of 1978, Mr. Schnepel again visited the site, this time talking with Mr. Ceely. According to Mr. Ceely, it was at this time that he first learned that the work was in violation of federal permit requirements, that the necessary...