US v. Lambert

Citation915 F. Supp. 797
Decision Date31 January 1996
Docket NumberCivil Action No. 2:94-1012.
CourtU.S. District Court — Southern District of West Virginia
PartiesUNITED STATES of America, Plaintiff, v. Judith L. LAMBERT, Individually and as Executrix of the Estate of Donald A. Lambert, deceased, Defendants.

Rebecca A. Betts, U.S. Attorney, Carol Casto, Ass't. U.S. Attorney, Charleston, WV, Robert E. Lefevre, Daniel R. Dertke and Lois J. Schiffer, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, for plaintiff.

J. Randolph Query, Spradling & Query, Charleston, WV, for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is the Plaintiff's Motion for Partial Summary Judgment on Liability. Defendants have not responded and the motion is ripe for determination.1 Based upon the absence of a genuine issue of material fact and the law, the Court GRANTS the motion.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only:

"If the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."

Fed.R.Civ.P. 56(c). The moving party has the burden of initially showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its initial burden, the burden shifts to the nonmoving party to "establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To discharge this burden, the nonmoving party cannot rely on its pleadings but instead must have evidence showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. Furthermore, "unsupported speculation is not sufficient to defeat a summary judgment motion." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

The undisputed facts are as follows. Donald A. Lambert and Judith L. Lambert jointly owned residential property bordering on the western bank of the Kanawha River ("the River") in Charleston, West Virginia. Because portions of the riverbank began eroding during the 1970's, the United States Army Corps of Engineers ("Corps") issued a General Permit to allow placement of fill material for protection of the riverbank. Work authorized to be done under the General Permit had to conform substantially to the existing shoreline configuration and could encroach into the River no further than five feet from the existing normal waterline.

On January 26, 1983 Mr. Lambert applied to the Corps under the General Permit for permission to place two hundred seventy-five (275) cubic yards of fill material at the River's edge to stabilize the riverbank and to prevent further erosion of the property. On February 1, 1983 the Corps authorized Mr. Lambert's request, subject to the conditions of the General Permit.

Mr. Lambert, an attorney, arranged for one of his clients, I.V. Cunningham, to perform the bank stabilization work by depositing fill material, consisting of concrete rubble, limestone riprap, and topsoil, on the riverbank. Mr. Lambert paid for this work by issuing Mr. Cunningham a twenty-five thousand five hundred dollar ($25,500.00) credit against Mr. Cunningham's accrued legal bills. Mr. Lambert also paid a second contractor, J. Wesley Carr, Incorporated, seven hundred forty-four dollars ($744.00) for nineteen (19) tons of limestone, and for renting a truck and a bulldozer.

Although Mr. Lambert had permission to place only two hundred seventy-five (275) cubic yards of fill material, he actually placed one thousand two hundred twenty-five (1,225) cubic yards. The material was placed both on the riverbank and in the River.

In 1985 Mr. Lambert constructed an eight (8) by fifty (50) foot boat dock, extending eight (8) feet from the fill into the River. Again the work was contracted through Cunningham and financed by a fourteen thousand five hundred seventy-five dollar ($14,575.00) offset to Cunningham's accrued legal bills. In 1989 Mr. Lambert paid ShoreMaster, Incorporated, six thousand six hundred fifty dollars ($6,650.00) for three extensions, or "fingers," which were added to the dock to create two (2) boat slips. Each finger is four (4) feet wide, approximately twenty-three (23) feet long, and is angled sixty (60) degrees downstream. Mr. Lambert did not apply for authorization to install either the dock or the fingers.

The Corps first became aware of the unauthorized fill and dock in August 1989 when a neighbor of the defendant complained the fill had encroached on his property. A Corps official investigated the site on August 16, 1989. On September 29, 1989, the Corps informed Mr. Lambert the fill extended further into the River than his General Permit allowed and the boat dock lacked proper authorization. In response, Mr. Lambert applied for an "after the fact" permit2 on November 3, 1989.

Mr. Lambert admitted in the after the fact permit application he deposited a total of approximately one thousand two hundred twenty-five (1,225) cubic yards of material, as opposed to the two hundred seventy-five (275) cubic yards authorized by the General Permit. Mr. Lambert estimated approximately seventy-three and one half percent (73.5%) of the fill material was deposited below the ordinary high water mark.3 The fill extends approximately ninety-two and one half (92.5) feet along the riverbank, and approximately thirty (30) feet into the River. Mr. Lambert also admitted in the application he did not have a permit for either the dock or the fingers.

The United States Department of the Interior Fish and Wildlife Service ("FWS"), Environmental Protection Agency ("EPA") Region III, and the West Virginia Department of Natural Resources ("WVDNR") each objected to issuance of an after the fact permit. FWS noted the fill resulted in the loss of approximately one thousand five hundred (1500) square feet of valuable nearshore shallow water habitat. FWS concluded the need to stabilize the riverbank did not justify the extent of the fill. FWS recommended the permit for the fill portion of the work be denied, the fill be removed, and the shoreline be stabilized. FWS further stated it did not object to the issuance of a permit for the boat dock or the riprap.

EPA Region III agreed the project had resulted in the loss of a portion of the shallow water habitat for aquatic fauna and flora. The EPA further stated:

"the fill has created an obstruction in the river, disrupting normal flow and circulation patterns and subsequently increasing erosion and sedimentation. Such could be a significant factor in the erosion taking place along the unprotected existing bank immediately upstream from the fill area.
This approximately 40-foot by 90-foot level fill goes far beyond that which is necessary to provide the applicant's stated purpose of bank protection and shoreline stabilization. Rather, creating a relatively level grassed area for recreational use was evidently an additional project purpose ... The bank protection, shoreline stabilization, and boat dock placement can all be accomplished without need for the adjacent level fastland."4

(Letter from Greene A. Jones, Director, Environmental Services Division, to Colonel Thomas E. Farewell, District Engineer, 1/22/90 at 2). The EPA recommended the permit be denied, the fill placed for the creation of fastland be removed, the area restored to its original contours, and the riprap for bank protection and shore stabilization be brought back in line with the existing adjacent shoreline. Regarding the boat dock, the EPA only recommended Mr. Lambert be required to provide the existing dimensions of the structure and an explanation for a need for two boat slips.

Similarly, the WVDNR expressed concern about the gradual loss of critical wildlife habitat.5 The WVDNR recommended the permit be denied and the riverbank be restored to its original contours. The WVDNR also denied the State Certification required under Section 401 of the CWA for the issuance of a permit. See 33 U.S.C. § 1341.

In addition, the adjacent upstream and downstream neighbors of the Lamberts objected to a permit for the fill material.

As a result, on June 11, 1990 the Corps denied Mr. Lambert's after the fact permit application and directed him to remove excess fill and riprap beyond that necessary to achieve bank stabilization no later than August 1, 1990. The Corps advised Mr. Lambert the boat dock could remain but must be moved thirty (30) feet closer to the shoreline to conform to the new alignment of the riverbank after the completion of the corrective work. To date, no action has been taken to remove the excess fill and riprap. Donald A. Lambert died on April 8, 1995.

The United States, on behalf of the EPA, initiated this action against Donald and Judith Lambert. Subsequent to Mr. Lambert's death, the Court granted Plaintiff's motion to substitute Judith L. Lambert, as Executrix of the Estate of Donald A. Lambert, as a party defendant in this action. Count I of the two-count Complaint seeks injunctive relief and civil penalties for violations of Section 301 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311 (1994). Count II seeks injunctive relief under Sections 10 and 13 of the Rivers and Harbors Act ("RHA"), 33 U.S.C. §§ 403 and 407 (1899). This motion seeks partial summary judgment on liability on both Counts as to Judith L. Lambert as Executrix of the Estate of her husband.6 The remaining allegations against Judith L. Lambert individually are not a part of Plaintiff's motion or governed by the decision rendered in this Memorandum Opinion and Order.

I. THE CLEAN WATER ACT

The CWA is a comprehensive statute designed to ...

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