ELR Citation: ELR 21015
No(s). CV 89-2126 (ADS) (E.D.N.Y. Apr 17, 1990)

The court enjoins the operators of a marina in a national wildlife refuge in New York City from docking boats in a cove and expanding the marina in violation of the Rivers and Harbors Act (RHA) and the Federal Water Pollution Control Act (FWPCA). The court first holds that the government has shown a likelihood of success on its claim that defendants violated RHA §10. The marina was within the Corps of Engineers' jurisdiction under RHA §10, which extends to the mean high-water mark, and is within navigable waters as defined in the Corps' regulations. Defendants' floating docks, moorings, and walkways are obstructions under §10, and defendants never applied for or possessed a permit for these structures. The fact that the Corps did not make a formal determination that the water in and around the marina is navigable is not evidence that the water is not navigable. The government has adequately demonstrated that the marina operates outside harbor lines or where no harbor lines have been established. The statutory exemption for water that is considered navigable based on its historical use does not apply, since the government's expert testified that these waters are currently navigable in fact. Defendants' construction of the floating docks is not exempt from RHA compliance under the grandfather clause in §10, since the clause does not include obstructions that replace existing structures. The court holds that the government has shown a likelihood of success on its claim that defendants violated FWPCA §404. The marina is within the Corps' §404 jurisdiction, and defendants discharged fill material into waters of the United States. Further, defendants never applied for or received a Corps permit for construction of the riprap breakwall in the tidal marsh area.

The court rules that irreparable harm is presumed when the government seeks a preliminary injunction under a statute that expressly authorizes entry of an injunction on a showing of a violation of law. The court rules that the government is not required to demonstrate irreparable injury to obtain injunctive relief under the RHA, since the RHA expressly authorizes the government to obtain injunctive relief for violations of the Act. Even if the government were required to show irreparable harm, it has clearly done so with testimony that the floating docks and moorings would harm the environment in and around the cove. The court rules that the government must show irreparable injury to obtain injunctive relief under its FWPCA claim, since the FWPCA does not expressly provide for injunctive relief for the violations alleged by the government. The court holds that the government has shown irreparable harm under its FWPCA claim. The destruction of marshland and vegetation caused by the construction of the riprap wall is irreparable. The court holds that the government is not estopped from enforcing its RHA and FWPCA claims. The government's alleged misrepresentation occurred after defendants built the obstructions, and there is no evidence of affirmative misconduct by the government. The court holds that this action is not barred by laches, since laches cannot be a defense when the United States is enforcing its rights. Finally, the court rejects defendants' selective enforcement defense.

Counsel for Plaintiff
Andrew J. Maloney, U.S. Attorney
Kevan Cleary, Ass't U.S. Attorney
U.S. Courthouse, 255 Cadman Plaza E., Brooklyn, NY 11201
(718) 330-7106

Counsel for Defendants
Burton Citak
Citak & Citak
18 E. 48th St., New York NY 10017
(212) 759-9585

Lee J. Mondshein
Semon & Mondshein
100 Crossways Park W., Woodbury NY 11797
(516) 364-8100