ORDER REGARDING REMEDIES
On January 6, 1992 this court entered an order determining those portions of Leslie's property that are subject to the jurisdiction of the United States under the Clean Water Act; determining that Leslie had violated the Clean Water Act at certain points on the property; and directing further proceedings on the issues of remedies. The parties made motions on the issues of remedies, and the motions were submitted to the court for decision. The court has reviewed the motions, the records, the arguments of counsel, and the applicable authorities, and orders as follows:
1. Leslie asks that the court reconsider its decisions regarding certain violations. The requests for reconsideration are denied.
2. The motions present the issue of whether civil penalties under the Clean Water Act, 33 U.S.C. § 1319(d), must be imposed by this court, or whether this court has discretion to determine that no penalties should be assessed.
No Ninth Circuit case has decided this question. The Ninth Circuit cases cited to this court do discuss the subject of remedies, but have not decided the question of whether the civil penalties are mandatory. This court is persuaded by the decisions of two other circuits, holding that penalties are mandatory. Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990) at 1142; and Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200 (4th Cir. 1986) at 1208-9. These decisions are also consistent with the mandatory language of the statute.
3. The statute nevertheless vests wide discretion in this court in setting the amount of the penalties. The statute enumerates certain things to be considered, and adds "such other matters as justice may require." This court may ultimately conclude that some or all of the violations call for only minimal penalties. But that issue will unfortunately require another round of proceedings. This court has not considered the arguments regarding the alleged seriousness of the violations and the extenuating or mitigating circumstances. Those matters will be addressed when the United States makes an appropriate motion for specific penalties. The United States should file its motion by August 31, 1992.
4. The United States has directed some discovery to Leslie on the issue of penalties. However, those discovery requests are extreme. We are dealing with property which has apparently undergone no development since this dispute arose. The vast majority of the property was held not to be subject to the jurisdiction of the Clean Water Act. And some of the evidence requested by the discovery was considered in the trial on the merits.
The court directs that when the United States files its motion for penalties, the United States also specify what discovery it believes is reasonable necessary. Leslie will then either supply that discovery or make its objections.
5. The United States is entitled to injunctive relief which restores the property at the points of violation to essentially their pre-existing condition. Leslie is to submit a plan to the Corps and to the court by August 31, 1992, which describes its proposed restorations.
6. The United States is also entitled to an injunction restraining future violations at those points where this court has found that there were violations of the Clean Water Act. However, the United States is not entitled to an injunction that goes beyond that scope.
7. Leslie's request for an injunction against the United States is denied. While this court would like to see the disputes between the Corps and Leslie with respect to this property put to rest for all time, this court does not have the power to enjoin an agency of the United States from prospective exercise of its claimed jurisdiction. This court will certainly look with disfavor on any attempts by the Corps to relitigate issues and conditions which have already been resolved. But the court cannot preclude the Corps from attempting to exercise its jurisdiction in the future if the conditions or the law change.
IT IS SO ORDERED.
Dated: July 21, 1992.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
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