Enforcement actions

Sep 012015

Reprehensible. Oppressive. Dishonest.

Those were just three of the adjectives used by a federal judge who ruled for Texas real estate developer Thomas Lipar and against the United States, which had brought an enforcement action for filling wetlands in north Houston. U.S. District Judge Lynn N. Hughes ordered the government to pay Lipar's attorney fees (U.S.A v. Lipar, H-10-1904, S.D. Tex.).  (Opinion)

"The government has not shown that the wetlands it says that Lipar and the other defendants filled were jurisdictional waters of the United States. It will take nothing," Hughes said in his eight-page ruling.

"Because its conduct has been oppressive and dishonest, [the government] must pay the reasonable attorney's fees incurred defending this suit," he said.

Hughes packed a lot into his brief opinion, issued Aug. 30.

"The government has not followed court orders or has done so only after months of recalcitrance," he said. "When ordered to produce data, it either did not comply or did so only halfheartedly."

He continued: "It has never followed the spirit of the court's orders, and, at best, it only sometimes complied with the letter. It has withheld papers under claims of privilege either maliciously or because it is grossly incompetent. It has abused its power in an attempt to brow-beat the defendants and discourage their colleagues and competitors from developing similar areas. Its behavior is reprehensible."

Hughes' opinion could be vulnerable on appeal. Earlier this year, the Fifth Circuit took a False Claims Act case away from him after concluding he had not complied with the appeals court's mandate (U.S.A. v. Shell Exploration, 14-20156). Said the court:

"In the prior appeal, we declined to have this case reassigned to a different judge on remand. The circumstances are now different because the district judge disregarded our clear mandate and failed to apply the legal standards we established in our opinion for public disclosure and to address the specific questions we set out in that opinion. Facing a lengthy and detailed summary judgment record, the district judge issued a five-page opinion with few citations to either record evidence or relevant legal authority—not surprising given that neither the summary judgment evidence nor the law support the conclusions he reached. The opinion consists almost entirely of conclusory statements. The district judge reached the same conclusion he reached in his previous opinion by employing the same overly broad reasoning that we rejected before."

More excerpts from Hughes' Lipar opinion:

For ten years the government has investigated whether the two sites contained jurisdictional wetlands. It gathered data for five years before it sued. In ten years, the government has discovered no fact to show that the developed areas were jurisdictional wetlands.

Despite this, it has been intractable, uncooperative, and defiant.

The government's own papers suggest that it sued Lipar and the other defendants in part to discourage other companies from developing similar tracts in Houston. It disagreed with Lipar's interpretation of the United States Supreme Court's construction of the [Clean Water] Act, and it was worried that other developers were aligning with Lipar's interpretation.

The court is not convinced that Spring Creek is navigable. During all but a flood, a craft of more than six-inches draft would likely not be able to navigate it. Though, perhaps, a canoe or kayak may be able to ply its waters, these recreational uses are not customary modes of trade and travel. A river boat, cargo ship, tanker, or other burdened vessel could not traverse it.

Assuming that Spring Creek is navigable, the wetlands about which the government complains are not sufficiently connected to it to be jurisdictional waters. Following the government's reasoning, Mill Creek is adjacent to Spring Creek, a navigable water. Dry Creek is adjacent to Mill Creek. Windcrest Lake is adjacent to Dry Creek. Three tributaries are adjacent to the lake. The wetlands about which it complains are adjacent to the three tributaries.

The government has nothing to show that the wetlands it complains about affect the chemical, physical, and biological integrity of Spring Creek or other waters farther downstream. It has nothing to show that fill discharged in the wetlands eroded and silted jurisdictional waters farther downstream, or something similar.

* * *

Each area of wetland, the government says, has a continuous surface connection to the tributaries. These are conclusory legal generalizations. They are supported only by broad reference to the aerial photographs and topographical maps. What is more, they are belied by the naturalists themselves who attest that a continuous surface connection is, at best, a guess for some locations.

Assuming the government had proof, it does not matter. The seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the Act. Wetlands with only an intermittent, physically remote hydrologic connection lack the necessary connection to jurisdictional waters.

The government fares no better under the significant-nexus test. It has no particular data about the impact that these wetlands have on the west fork or Spring Creek. Like before, general allegations that the area is part of the watershed are unavailing.

Aug 192015

Company in bankruptcy pleads guilty to felony violation. Press release from DOJ follows. DOJ's link here.


FOR IMMEDIATE RELEASE                                                                                             ENRD


(202) 514-2007

WWW.JUSTICE.GOV                                                                                    TTY (866) 544-5309


WASHINGTON — Mississippi Phosphates Corp. (MPC), a Mississippi corporation which owned and operated a fertilizer manufacturing facility located on Bayou Casotte in Pascagoula, Mississippi, pleaded guilty today to a felony information charging the company with a criminal violation of the Clean Water Act, announced Principal Deputy Assistant Attorney General Sam Hirsch of the Justice Department’s Environment and Natural Resources Division and U.S. Attorney Gregory K. Davis for the Southern District of Mississippi.

As part of the guilty plea, MPC admitted discharging more than 38 million gallons of acidic wastewater in August 2013.  The discharge contained pollutants in amounts greatly exceeding MPC’s permit limits, resulting in the death of more than 47,000 fish and the closing of Bayou Casotte.  MPC also admitted that, in February 2014, MPC discharged oily wastewater from an open gate on a storm water culvert into Bayou Casotte, creating an oily sheen that extended approximately one mile down the bayou from MPC.

MPC entered its guilty plea before Chief Judge Louis Guirola Jr. of the U.S. District Court for the Southern District of Mississippi.  Because MPC is in bankruptcy and is obligated to assist in funding the estimated $120 million cleanup of its site, the court accepted the parties’ agreement for MPCto transfer 320 acres of property near to its Pascagoula plant to become a part of the Grand Bay National Estuarine Research Reserve, which is managed by the Mississippi Department of Marine Resources as part of the National Oceanic and Atmospheric Administration’s National Estuarine Research Reserve System.

“With this plea, Mississippi Phosphates has accepted responsibility for having discharged millions of gallons of industrial pollutants that killed tens of thousands of fish, damaged marine habitats and polluted recreational waterways,” said Principal Deputy Assistant Attorney General Hirsch.  “Mississippi Phosphates has acknowledged its misconduct and has been sentenced to transfer property it owns that is adjacent to the Grand Bay National Estuary, thus protecting and potentially rehabilitating a vital marine resource that this company’s pollutant discharges had severely damaged.”

As the felony information describes, when it was in full production, MPC manufactured diammonium phosphate fertilizers from phosphate rock which it received by ship and rail and from sulphur which was piped to its facility from a neighboring oil refinery.  In its production of fertilizer, MPC generated a variety of pollutants and hazardous wastes.  MPC has been regulated under a number of environmental statutes that govern the production, storage and release of a variety of air and water pollutants as well as hazardous wastes.  In the manufacturing process, strong acids and ammonia were produced.  If improperly discharged, acids and ammonia can be highly toxic to fish and to other forms of marine life.  MPC was obligated to comply with permits issued by the Mississippi Department of Environmental Quality (MDEQ) under the authority of the Environmental Protection Agency (EPA) as prescribed by the Clean Water Act.  These permits regulated the storage and discharge of MPC’s stormwater and wastewater, prescribing the circumstances under which they could be discharged into Bayou Casotte and limiting the concentration and quantity of the pollutants they could contain.

As detailed in the felony information, since January 2000, MPC has been cited by MDEQ in numerous notices for hundreds of violations of its Clean Water Act permit for discharging wastewater exceeding its pollutant limits.  MPC was also cited for its failure to maintain adequate wastewater storage capacity, its discharge of untreated wastewater from its sulfuric acid plant directly through MPC’s main outfall, its combined release of untreated and undertreated stormwater and process wastewater from other outfalls, and its failure to implement required remedial measures to prevent the pollutant discharges and environmental harm it has caused for decades.

An April 2005 discharge resulted in the release of more than 17 million gallons of highly acidic wastewater into waterways adjacent to its facility, including Bayou Casotte, Tillman Creek and Bangs Lake of the Grand Bay National Estuarine Research Reserve.  These waters are some of the most productive nurseries for aquatic species on the Gulf Coast.  MPC’s massive discharge of pollutants resulted in the death of thousands of fish and other forms of marine life as well as the destruction of marsh grass, trees and shrubs. In the years following this environmental catastrophe, in spite of MDEQ’s orders and MPC’s remedial proposals, MPC never implemented the measures necessary to prevent the release of pollutants from its facility and the discharge of an even larger torrent of wastewater destroying even more marine life.

U.S. Attorney Davis praised the efforts of EPA’s Criminal Investigation Division, for its diligent work in the investigation of this matter.  Senior Trial Attorney Jeremy F. Korzenik of the Department of Justice’s Environmental Crimes Section and Assistant U.S. Attorney Gaines Cleveland are the prosecutors in charge of the case.

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Apr 022015

A Montana man will be sentenced May 12, approximately a year after he shot and killed three three grizzly bears. A magistrate judge found Dan Calvert Wallen guilty on three counts of taking a federally threatened species (U.S. v. Wallen, MJ-14-45-M-JCL, D. Mont.). Court documents: Information and Findings of Fact and Conclusions of Law

Feb 112015

Here is the press release, issued today (Wed., Feb. 11) Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE Wednesday, February 11, 2015 Presidential Task Force Releases Implementation Plan for the National Strategy for Combating Wildlife Trafficking Recognizing that wildlife trafficking is an urgent conservation and national security threat, the Departments of Justice, State […]

Jan 152015

Below, find two recent news releases from the Department of Justice. For more enforcement items, please see www.eswr.com/enforcement Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE                                                                                           Monday, January 14, 2015 Auction House and Company’s President Plead Guilty to Wildlife Smuggling Conspiracy Elite Estate […]

Jan 162014
ESA enforcement update: Whooping cranes, red wolf

A reward of $7,200 has been offered for information on the November shooting of a whooping crane in Kentucky. The crane was rescued but had to be euthanized. Its mate was found dead five miles away Dec. 13. Investigators believe the incidents are related. According to the Fish and Wildlife Service news release: “On November […]

Apr 192013
Daily Digest (April 19, 2013): Asian elephant shot, loggerhead sea turtle egg snatcher sentenced, DOI budget proposed

Catching up on the Fish and Wildlife Service: The service’s main page features the following news releases: FWS is investigating the shooting of an Asian elephant traveling with Ringling Brothers and Barnum and Bailey Circus in Tupelo, Miss. “The incident occurred in the early morning of April 9, 2013, outside the Bancorp South Arena,” the […]

Aug 082012
Naples, Fla., man fined, confined for killing Florida panther

Scroll down for the article as prepared for the next issue of Endangered Species & Wetlands Report (ESWR.com) A Naples, Fla., man received 60 days of home confinement and three years’ probation, and will have to pay fines totaling $10,000, including a community service payment of $5,000, for killing an endangered Florida panther. (Judgment) (Plea […]