ELR Citation: ELR 21243
No(s). s. 89-1454, -2112 (6th Cir. May 30, 1991)

In an action brought by the Corps of Engineers under the Federal Water Pollution Control Act (FWPCA) and the Rivers and Harbors Act, the court upholds the district court's issuance of a temporary restraining order (TRO) and preliminary injunction preventing the defendant from dredging at its boat club. The defendant obtained an FWPCA §404 permit from the Corps for maintenance dredging and disposal of the dredge spoils, but later changed the location of the disposal site without the required approval. The government alleges that the new site includes wetlands. The court first holds that the defendant has an appeal as of right from the district court's preliminary injunction against dredging or disposing of dredged material. The court then holds that the district court did not abuse its discretion in issuing the injunction. The defendant had adequate notice of the preliminary injunction hearing and opportunity to respond. The court holds that it has jurisdiction to review the TRO and accompanying civil contempt orders, because the TRO became a preliminary injunction when the TRO was extended by the parties' stipulation. The court then holds that the district court did not abuse its discretion in issuing the TRO. The prevention of dumping on wetlands protects the public interest, the dumping could cause irreparable harm, and the government showed that it was likely to succeed on the merits. The court also holds that the TRO was not overbroad and vague.

The court holds that the district court's first contempt order was not criminal in nature and thus should not be vacated. The order, which prohibited all work below the water line without a permit or court order, merely clarified any ambiguity in the TRO. The courts holds that the portion of the district court's second contempt order requiring an individual to be jailed until the floating docks were removed is an appropriate sanction for civil contempt. However, the court holds that the portion of the second contempt order requiring the defendant to pay a $5,000 fine was criminal in nature and must be vacated.

Counsel for Appellee
Jennifer J. Peregord
U.S. Attorney's Office
231 Lafayette Blvd., Ste. 817, Federal Bldg., Detroit MI 48226
(313) 237-4761

Counsel for Appellant
Michael E. Tindall
100 Maple Park Blvd., Ste. 124, St. Clair Shores MI 48081
(313) 776-6670

Before: GUY and NORRIS, Circuit Judges; and WELLFORD, Senior Circuit Judge.