ELR Citation: ELR 21334
No(s). 97-1236 (10th Cir. Jun 25, 1998)

The court holds that 28 U.S.C. §2462's five-year statute of limitations for civil penalty actions does not bar the federal government's Federal Water Pollution Control Act (FWPCA) claim for injunctive relief against a Colorado ski area for illegally filling approximately 45 acres of wetlands. In its request for injunctive relief, the government sought to enjoin the ski area from discharging additional material, and to require the ski area to restore damaged wetlands to their prior condition or create new wetlands to replace those that could not be restored. The court first holds that the government's request for injunctive relief is not a civil penalty barred by 28 U.S.C. §2462's five-year statute of limitations. The restorative injunction is not a penalty because it seeks to restore only the wetlands damaged by the ski area's acts to the status quo or to create new wetlands for those that cannot be restored. The injunction does not seek compensation unrelated to or in excess of the damages caused by the ski area's acts. And the lack of precise symmetry between actual damages sustained by the government and the costs of mitigation or the costs of the sanction, does not change the nature of the remedy. The court also holds that the concurrent remedy rule does not apply to the government when it seeks equitable relief in its official enforcement capacity.

[Prior decisions in this litigation are published at 24 ELR 21458 and 25 ELR 21578.]

Counsel for Plaintiff
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
David C. Warren
Arnold & Porter
1700 Lincoln St., Denver CO 80203
(303) 863-1000

Before Barrett and Lucero, JJ.