United States v. Joseph G. Moretti, Inc.

423 F. Supp. 1197, 9 ERC 1731, 7 Envtl. L. Rep. (Envtl. Law Inst.) 20284, 9 ERC (BNA) 1731, 1976 U.S. Dist. LEXIS 12194
CourtDistrict Court, S.D. Florida
DecidedNovember 19, 1976
Docket71-1176-Civ-WM
StatusPublished
Cited by1 cases

This text of 423 F. Supp. 1197 (United States v. Joseph G. Moretti, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph G. Moretti, Inc., 423 F. Supp. 1197, 9 ERC 1731, 7 Envtl. L. Rep. (Envtl. Law Inst.) 20284, 9 ERC (BNA) 1731, 1976 U.S. Dist. LEXIS 12194 (S.D. Fla. 1976).

Opinion

MEMORANDUM OPINION

MEHRTENS, District Judge.

I. THE CAUSE OF ACTION

THIS CAUSE (hereinafter, Moretti II) came before the Court on remand from the Fifth Circuit, 526 F.2d 1806 (1976), for an evidentiary hearing on the manner of restoration to be performed by Moretti, Inc., affording defendant Moretti, Inc. an opportunity to present its objections to the feasibility and environmental advisability of the remedial restoration order to be undertaken. Id. at 1310.

II. FINDINGS OF FACT

Prior to this evidentiary hearing, the parties had conferred, deposed each other’s witnesses, and exchanged environmental reports.

Dr. Arnold Banner, an exceptionally well-qualified marine biologist for the U.S. Fish and Wildlife Service, presented a comprehensive evaluation of environmental effects from the defendant corporation’s 84-acre Hammer Point development and a suggested plan of restoration. Dr. Banner’s study confirmed and quantified the Court’s previous findings set forth in United States v. Joseph G. Moretti, Inc., 331 F.Supp. 151, 156 (SD Fla.1971) and summarized by Chief Judge Brown and Circuit Judges Goldberg and Morgan thusly:

3. Without a doubt the Judge was moved because of ecological not navigational factors. He found that the adverse ecological consequences of the dredging and filling operation included the destruction of habitats of a large number of wading birds (including roseate spoonbills, reddish egrets and herons), removal of peat from the bottom of the bay deleteriously affecting the ability of the shallow water to support marine life, elimination of mangroves which play an important role in the ecology of the area, and significant injury to sport fishing in the area.

United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 421, note 3 (5th Cir. 1973) (hereinafter, Moretti I).

Dr. Banner quantified part of the defendant corporation’s environmental destruction at Hammer Point as a loss of 100 pounds of fish per acre per year; i. e., a loss of 8,400 pounds of fish each year. (There has been a loss of 50,400 pounds of fish during the six years this cause has been in litigation; i. e., 8,400 pounds of fish/year X 6 years). It was not possible to quantify the yearly loss of plant or animal organisms because of the periodic reduction of dissolved oxygen in the Hammer Point canals below the minimum Federal and State standards to lethal levels, nor was it possible to quantify the total loss of Hammer Point’s aesthetics such *1199 as the presence of wading and shore birds previously found in the area (United States v. Joseph G. Moretti, Inc., 331 F.Supp. 151, 156; Moretti I at 421, note 3), although aesthetics is certainly a factor to be considered in its own right and in the general public interest of a tourist-oriented economy such as the Florida Keys. Moretti I at 423. Without fish and wildlife, the Florida Keys obviously would have little or no attraction.

The defendant corporation’s witnesses corroborated Dr. Banner’s findings that live juvenile marine organisms were only found in numbers among the seagrasses along the horizontal ledge at -3' MSL to -4' MSL in the Hammer Point canals; that seagrasses grew well on the horizontal surfaces located at -3' MSL to -4' MSL along the canal ledge mentioned above and also at -6' MSL to -10' MSL on the bottom of the shallow east-west canal which transits the end of the long peninsula; defendant’s ecologist, Dr. Rich, also measured lethal levels of dissolved oxygen in the Parcel “A” canals.

The Government’s remedial restoration plan as set forth in “Restoration Sketch Plan # 2A by Dr. Banner, 11 October 1976,” would require the defendant corporation to:

1. Shallow the north-south canals in (inhabited) Parcel “A” to an average depth of -7' MSL; i. e., -8' MSL at the mouths sloping upward to -6' MSL at the dead-ends.

2. Shallow the perimeter and the entrance channels in Parcel “A” to -8' MSL.

3. Shallow the perimeter and the east-west canals in (uninhabited) Parcel “B” which have the advantage of a mixing caused by the prevailing winds to an average depth of -8' MSL.

4. Certain shallow portions of two of the Parcel “B” canals and the shallow east-west canal which transits the end of the long peninsula in Parcel “A”, presently containing seagrasses, would remain undisturbed.

5. The land fill in Parcel “B” seaward of the original Mean High Tide Line (as previously agreed upon by the parties and accepted by the Court) would be removed and a mangrove fringe would then be planted along the original Mean High Tide Line and also along the length of the southern bank of the southernmost canal in Parcel “B”.

Opposing ecologist, Dr. Rich, while initially taking the position that the loss of approximately 84 acres of habitat at Hammer Point was “trivial” compared to his estimated 1,300 square miles contained in Florida Bay, eventually agreed with Dr. Banner’s proposed restoration plan (attached hereto) with two exceptions: (1) Dr. Rich would reduce the Parcel “A” canal depths to -8' MSL at the dead-end sloping to -10' MSL at the mouth in lieu of Dr. Banner’s -6' MSL to -8' MSL. As Dr. Rich’s depth measurements were not taken vertically but admittedly were taken with a horizontal component over the canal ledges, the more favorable conditions which Dr. Rich believed to be at -8' MSL to -10' MSL were actually at considerably shallower vertical depths, such as the -6' MSL to -8' MSL depths proposed by Dr. Banner for restoration of the Parcel “A” canals; (2) Dr. Rich opposed removing the unoccupied land fill below the pre-existing MHTL in Parcel “B” on economic grounds. As Dr. Rich admitted that he had not made himself aware of the finances involved, but his opinion was based entirely on “What Joe (Joseph G. Moretti, Jr.) told me,” Dr. Rich’s uncorroborated second exception is without merit.

Mr. Pierce Maxwell Higgs, civil engineer, architect, and cost estimator for the U. S. Corps of Engineers testified that in his opinion the cost of the Government’s proposed restoration plan to the defendant corporation would be $454,000 (if performed by the Government, $603,000). Mr. Higgs’ estimate was based upon the average depth of the canals which he personally sounded and computed to be -16' MSL. Mr. Joseph G. Moretti, Jr. disputed Mr. Higgs’ average -16' MSL depths but Mr. Moretti, Jr. had neither taken personal soundings nor had soundings been taken for him, except perhaps the obviously inaccurate and excessive “depths” used in Dr. Rich’s ecological re *1200 port. In any event, the defendant corporation and Mr. Moretti, Jr. had previously stipulated that the Court’s prior restoration order of December 20, 1974, would cost the defendant corporation almost exactly $1,000,000.00, while Mr. Moretti, Jr. stated at his deposition the day prior to the instant trial that the defendant construction corporation could probably complete the Government’s presently proposed restoration plan at less than Mr. Higgs’ estimate of $454,000.

At the trial, Mr.

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Related

United States v. Joseph G. Moretti, Inc
592 F.2d 1189 (Fifth Circuit, 1979)

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423 F. Supp. 1197, 9 ERC 1731, 7 Envtl. L. Rep. (Envtl. Law Inst.) 20284, 9 ERC (BNA) 1731, 1976 U.S. Dist. LEXIS 12194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-g-moretti-inc-flsd-1976.