United States v. Sweeney

• Court: District Court, E.D. California
• Decided: December 9, 2022
• Docket: 2:17-cv-00112
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | United States of America, No. 2:17-cv-00112-KJM-KJN 12 Plaintiff, ORDER 13 v. John Donnelly Sweeney and Point Buckler 15 | Club, LLC 16 Defendants. 17 18 Following a bench trial, this court found defendants John Donnelly Sweeney and Point 19 | Buckler Club, LLC (PBC) had violated, and at the time remained in violation of, 33 U.S.C. 20 | §§ 1311 and 1344 of the Clean Water Act (CWA). Prior Order (Sept. 1, 2020) at 95-96, ECF No. 21 | 180. The court declined at the time to address remedies, reserving this question for a second 22 | phase of the proceedings. Following briefing from both parties, the court held a hearing on the 23 | remedial phase. Hr’g Mins. (Sept. 30, 2021), ECF No. 207. The court has reviewed the briefing, 24 | the record in this matter, and relevant legal authorities, and good cause appearing now orders 25 | defendants to develop a restoration plan to rehabilitate Point Buckler Island’s tidal channels and 26 | marsh wetlands, as explained below. 27 | JI

1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The court set forth its factual findings extensively in its prior order. The court 3 summarizes relevant portions of those findings only as necessary here. 4 Point Buckler Island is a part of the Suisun March, the “largest contiguous brackish water 5 marsh remaining on the west coast of North America.” Prior Order ¶ 1. The island is “located in 6 a heavily utilized fish migratory corridor.” Id. ¶ 11. It falls within the “critical habitat” of the 7 endangered Sacramento River Winter-Run Chinook Salmon, the “threatened Delta Smelt,” and 8 the Longfin Smelt protected by California’s Endangered Species Act. Id. ¶¶ 12, 15. 9 “Prior to and through the year 2011, almost all of Point Buckler Island supported and 10 functioned as a tidal channel and tidal marsh wetlands system.” Id. ¶ 19. In other words, “tidal 11 water flowed into and out of the island’s channels every day, supporting the island’s tidal marsh.” 12 Id. ¶ 20. The tidal marshes on the island were composed of “organic soils developed over 13 thousands of years” and the island itself was “dominated by native vegetation commonly found in 14 fresh and brackish water” such as “tule, bulrush, cattail, and reed.” Id. ¶¶ 21–22. As a result, the 15 island “performed ecologically important chemical, physical and biological functions, including 16 filtering pollutants, providing habitat and migratory shelter for fish, and producing and exporting 17 coarse organic matter for the estuarine aquatic food chain.” Id. ¶ 23. “[T]idal marsh within the 18 Suisun Marsh performs important functions such as water quality enhancement, flood attenuation 19 and carbon sequestration.” Id. ¶ 17. 20 At some point before 1958, the island’s prior owner built a levee around its perimeter. Id. 21 ¶ 25. Over time, the levee eroded; 1985 was the last time the levee was repaired to maintain 22 managed, nontidal wetland conditions. Id. ¶¶ 25–27. The island thus returned “naturally to tidal 23 marsh.” Id. ¶ 28. In 2011, Point Buckler Island supported approximately 9,500 linear feet, or 24 slightly less than two miles, of naturally formed and man-made tidal channels, which carried 25 water into, throughout, and out of the tidal marsh. Id. ¶ 37. 26 That same year, Mr. Sweeney purchased Point Buckler Island for approximately 27 $150,000. Id. ¶ 44. Over the next few years, he “made relatively minor alterations to the island’s 28 tidal waters and wetlands.” Id. ¶ 60. He also began acquiring equipment, including a large 1 landing craft, a small landing craft, an excavator, a dump truck, a crane, a small utility vehicle 2 and two work boats. Id. ¶ 62. Starting in 2014, Mr. Sweeney began to construct a new levee, id. 3 ¶ 68, and by the end of the year, the new levee spanned over 4,700 feet “around the general 4 perimeter of the island[,]” id. ¶ 71. In that same year, Mr. Sweeney transferred ownership of 5 Point Buckler Island to PBC, and PBC issued a promissory note in return, reflecting in part the 6 cost of the earthmoving equipment and the levee construction. Id. ¶¶ 81–82. For the next few 7 years, Mr. Sweeney continued to use machinery to excavate and deposit soil around the island. 8 Id. ¶¶ 88–98. 9 In January 2017, the United States commenced this action alleging Mr. Sweeney and PBC 10 violated and remained in violation of the CWA based on their unauthorized “construction of a 11 levee, placement of structures, and other activities that added pollutants, consisting of dredged or 12 fill material, from point sources, namely mechanized equipment, to waters of the United States.” 13 Id. at § I.A. 14 Following a lengthy bench trial, the court concluded Mr. Sweeney violated and remained 15 in violation of the Clean Water Act by constructing a non-exempt and unpermitted levee on Point 16 Buckler Island, destroying 30 acres of tidal channels. Id. at § VII.1. The court found 17 Mr. Sweeney and PBC responsible for “fill material [that] blocked tidal exchange” into the 18 island. Id. ¶ 105. The court further found Mr. Sweeney’s illegal construction and other activities 19 rendered the island’s soil and water acidic and saline, id. ¶¶ 122, 126, threatened multiple fish 20 species, id. ¶¶ 109–113, blocked exportation of food sources previously produced in the tidal 21 marshlands, id. ¶ 114, “harmed aquatic habitat” and “water quality,” id. ¶¶ 109, 125, and 22 decimated the native vegetation in the area, including tules, bulrushes, and cattails, id. ¶¶ 116– 23 120. In sum, the court found defendants’ conduct “caused harm to the chemical, physical and 24 biological functioning of Point Buckler Island’s pre-existing tidal channels and marsh wetlands, 25 and that harm is ongoing.” Id. ¶ 130. In addition to finding Mr. Sweeney liable, the court found 26 defendant PBC jointly and severally liable for violating the CWA based on “actions by 27 [Mr.] Sweeney” after PBC purchased the island. Id. at § VII.2. 28 ///// 1 The court entered judgment in favor of the United States on defendants’ liability but 2 “decline[d] to make a finding on the appropriate remedy” until “a second phase of the 3 proceedings.” Id. at 95. “Appropriate relief for defendants’ Clean Water Act violations [would] 4 be provided through the remedy to be ordered following a second phase of proceedings . . . , with 5 [a]remedy designed to protect the waters of the United States on and surrounding Point Buckler 6 Island from further unpermitted, non-exempt discharges of pollutants.” Id. at § VII.3. 7 The parties have fully briefed their dispute regarding the appropriate remedies. Remedy 8 Br., ECF No. 189; Response, ECF No. 198; Reply, ECF No. 202; Sur-Reply, ECF No. 203. At a 9 hearing in September 2021, this court heard oral arguments. Hr’g Mins.; Hr’g Tr., ECF No. 209. 10 Andrew Doyle appeared for the United States, with Brett Moffatt and Hubert Lee monitoring the 11 hearing. Lawrence Bazel represented Point Buckler Club and Mr. Sweeney. The court then took 12 the matter under submission. Hr’g Tr. at 28:12–13. 13 II. JURISDICTION 14 Defendants argue this court lacks subject matter jurisdiction because the United States’ 15 harm cannot be redressed. Resp. at 32–34. The court concludes now, as before, that it has 16 jurisdiction over this action. See Prior Order at 11–12 (“ . . . the United States’ [sic] still has 17 standing, because the United States also seeks a prohibitory injunction and declaratory relief that 18 is unrelated to defendants’ ability to pay for implementation of a restoration plan, and would 19 prevent further violations of the CWA.”); see also 33 U.S.C. § 1319(b) (authorizing “a civil 20 action for appropriate relief, including a permanent or temporary injunction”); 28 U.S.C. § 1345 21 (giving U.S. district courts “original jurisdiction over all civil actions, suits or proceedings 22 commenced by the United States, or by any agency or officer thereof expressly authorized to sue 23 by Act of Congress”); Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179, 1187–90 (9th Cir. 24 2016) (discussing executive branch standing under Article III of the U.S. Constitution). 25 III. LEGAL STANDARD 26 The objective of the Clean Water Act is “to restore and maintain the chemical, physical, 27 and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To remedy violations, the 28 Act authorizes “a civil action for appropriate relief, including a permanent or temporary 1 injunction” and provides the court “shall have jurisdiction to restrain such violation and to require 2 compliance.” 33 U.S.C. § 1319(b). The court may “order that relief it considers necessary to 3 secure prompt compliance with the Act.” United States v. Akers, 785 F.2d 814, 823 (9th Cir. 4 1986) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982)). 5 There are “numerous precedents for restoration” as a remedy. United States v. Larkins, 6 657 F. Supp. 76, 86 n.25 (W.D. Ky. 1987) (collecting cases), aff’d, 852 F.2d 189 (6th Cir. 1988). 7 Courts have the “authority to issue such restorative orders so as to effectuate the stated goals of 8 the Clean Water Act ‘to maintain the chemical, physical, and biological integrity of the Nation’s 9 waters.’” United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164 (1st Cir. 1987) 10 (quoting 33 U.S.C. § 1251(a)). “[R]ehabilitation of disturbed wetlands is the CWA’s ‘preferred 11 remedy.’” United States v. Brace, No. 17-0006, 2020 WL 956460, at *2 (W.D. Penn. Feb. 27, 12 2020) (quoting United States v. Bedford, No. 07-0491, 2009 WL 1491224, at *14 (E.D. Va. 13 May 22, 2009)), aff’d, 1 F.4th 137 (3d Cir. 2021). As a result, “courts frequently order 14 restoration of damaged or destroyed wetlands as injunctive relief.” United States v. Smith, 15 No. 12-0498, 2014 WL 3687223, at *5 (S.D. Ala. July 24, 2014) (citing United States v. Deaton, 16 332 F.3d 698, 714 (4th Cir. 2003); Cumberland Farms, 826 F.2d at 1164–65). 17 “The district court has considerable discretion to fashion appropriate injunctive relief, 18 particularly where the public interest is involved.” Akers, 785 F.2d at 823 (citing Va. Ry. Co. v. 19 Sys. Fed’n No. 40, etc., 300 U.S. 515, 552 (1937)). “In evaluating remediation or restoration 20 proposals, courts . . . consider[] three factors: (1) whether the proposal ‘would confer maximum 21 environmental benefits,’ (2) whether it is ‘achievable as a practical matter,’ and (3) whether it 22 bears ‘an equitable relationship to the degree and kind of wrong it is intended to remedy.’” 23 Deaton, 332 F.3d at 714 (quoting Cumberland Farms, 826 F.2d at 1164); see also Amoco Prod. 24 Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 545 (1987) (“Environmental injury, by its nature, 25 can seldom be adequately remedied by money damages and is often permanent or at least of long 26 duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will 27 usually favor the issuance of an injunction to protect the environment.”). 1 IV. ANALYSIS 2 A. Availability of Relief 3 Before considering what remedies are appropriate in this case, the court addresses the 4 parties’ threshold disputes, including whether the court has already denied the relief the 5 government seeks. 6 Neither party raised the possibility that relief had been foreclosed when the parties 7 stipulated to a briefing schedule on remedies. Now, however, defendants contend the court has 8 effectively entered judgment against the government on its request for remedies. See Resp. at 7 9 (“At the end of trial, plaintiff United States . . . rested, and in its Order the Court found that the 10 Government had not proved its case on [remedies1].”). Defendants therefore argue the court 11 should consider no further evidence and impose no remedy. Resp. at 7; Sur-Reply at 13–14. 12 Defendants’ position rests on an inadvertent ambiguity in the court’s previous order, 13 which the court now corrects on its own motion. See Fed. R. Civ. P. 60(a) (“The court may 14 correct a clerical mistake or a mistake arising from oversight or omission whenever one is found 15 in a judgment, order, or other part of the record. The court may do so on motion or on its own, 16 with or without notice . . . .”); see also Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294, 1297 (9th 17 Cir. 2014) (explaining Rule 60(a) is properly invoked to correct “blunders in execution” that 18 prevented an order or judgment from achieving “what the court originally intended to do” 19 (citations, quotation marks, and emphasis omitted)). 20 The court’s previous order bifurcated this action into two phases, a liability phase and a 21 remedies phase, as other district courts have done in similar cases. Prior Order at 96; see, e.g., 22 Brace, 2020 WL 956460, at *1 (addressing “remedy stage” of matter); Leslie Salt Co. v. United 23 States, 820 F. Supp. 478, 483–84 (N.D. Cal. 1992) (same), aff’d, 55 F.3d 1388 (9th Cir. 1995). 24 The court did not intend for its previous order to award or preclude remedies to any party or to 25 close the case. It intended only to find Mr. Sweeney and PBC jointly and severally liable for 26 violations of the CWA. See Prior Order at 95–96. To the extent the prior order suggests 1 See Sur-Reply at 13–14 (correcting an erroneous reference to “liability”). 1 otherwise, the court clarifies it has not previously found or held that the United States is entitled 2 to no remedy for defendants’ CWA violations. 3 B. Proffered Evidence 4 The parties disagree whether further evidence is admissible or necessary at this stage. The 5 government understood the court’s previous order as inviting evidentiary proffers. Remedy Br. at 6 5–6; Hr’g Tr. at 5:13–23. Accordingly, the government filed declarations about Point Buckler 7 Island’s current conditions from three experts who testified at trial. See Siegel Decl., ECF No. 8 190; Baye Decl., ECF No. 191; Herbold Decl., ECF No. 198. Defendants object to these 9 declarations, arguing they are inadmissible post-trial evidence. Resp. at 14–15. 10 As explained in the remainder of this order, the trial record suffices to determine what 11 remedies are appropriate. No party requested an evidentiary hearing. See Hr’g Tr. at 8:22–9:4. 12 The court need not and does not consider the government’s post-trial evidence. The court orders 13 the appropriate remedies based solely on the trial record and the post-trial briefing. 14 C. Defendants’ Objections to Expert Opinions 15 Defendants also reiterate their objections to the government’s expert testimony admitted 16 at trial under Rule 702. Resp. at 19–23. The court overruled the objections at trial, see Trial Tr. 17 at 36:4–37:17, 549:5–17, ECF No. 168, and confirms the overruling here. The United States 18 tendered Dr. Stuart Siegel as an expert in six related fields: functional assessment of natural and 19 restored tidal channel and marsh systems; harm resulting from human or natural events to the 20 functions of tidal channel and marsh systems; restoration design, planning, and construction of 21 tidal channel and marsh systems; analysis of reach of tides; interpreting aerial photographs in 22 support of first four fields; and overseeing the technical work of others in support of foregoing 23 work. See id. at 36:4–37:17. Dr. Siegel’s qualifications in these six fields are supported by his 24 curriculum vitae, his declaration, his expert reports and his testimony at trial. See id.; see also 25 Siegel Direct Expert Testimony, ECF No. 132; USA Ex. 452. 26 Defendants also object to the government’s experts’ testimony regarding restoration, 27 including on the basis that no testimony shows how “each new channel, pond, and breach” in the 28 government’s proposed plan has “a rigorous, objectively verifiable reason.” Resp. at 22. The 1 court overrules these objections. Extensive trial testimony explains the experts’ conclusions, see 2 Trial Tr. at 100:2–105:3, 118:15–132:13, 446:5–455:8, 582:11–587:15, and the proposed plan is 3 supported by extensive scientific research, see generally USA Ex. 2; Original Restoration Plan, 4 Siegel Direct Expert Testimony, ECF No. 132.2 Dr. Siegel has designed “four restoration 5 projects now in Suisun Marsh itself.” Trial Tr. at 128:10–11. Moreover, as explained below in 6 discussing the plan’s maximum environmental benefits, each action in the proposed restoration 7 plan is supported by the record, including by expert testimony. Lastly, defendants claim a “side- 8 by-side comparison” of the government’s original restoration plan proposed at trial and the 9 revised plan proffered with the government’s remedy brief shows inconsistencies. Resp. at 22. 10 The court does not reach this argument because it does not rely on or consider the government’s 11 proffered evidence, including the revised restoration plan. 12 D. Remedies 13 The United States seeks injunctive relief ordering defendants to restore the tidal channel 14 and tidal marsh wetlands ecosystem of Point Buckler Island. Remedy Br. at 12–15. The 15 government requests mandatory and prohibitory injunctions to effect restoration, compliance- 16 assurance provisions, as well as a civil penalty award held in abeyance pending defendants’ 17 satisfaction of the mandatory injunction. Id. The government also seeks four types of declaratory 18 relief: two related to these injunctions, a third for the civil penalty held in abeyance, and a fourth 19 regarding an injunction to effectuate compensatory mitigation, which would be held in abeyance. 20 Id. at 11–12. 21 Specifically, the United States’ proposed relief would take the form of a mandatory 22 injunction requiring defendants to retain a qualified consultant to develop an “acceptable 23 restoration plan” and, with the consultant’s guidance, to monitor, maintain and manage the 24 restored island for a period of time. Id. at 2. As an example of a “substantive guide,” the United 25 States proposes a restoration plan developed by Dr. Siegel.3 Id. at 2; Original Restoration Plan; 2 The original restoration plan begins on page 80. 3 The court accepted Dr. Siegel as an expert in “restoration design, planning and construction of tidal channels and marsh systems” in its prior order. Prior Order at 4. 1 USA Exs. 1, 2; see also Revised Restoration Plan at 2, Dr. Stuart Siegel Decl., ECF No. 190-1.4 2 The United States also seeks a prohibitory injunction to enjoin defendants from “engaging in any 3 further earthmoving activities” without advance approval from federal regulators. Id. at 3. In its 4 reply, the United States clarifies it has no objection to defendants’ conducting “recreational 5 activities that could not . . . interfere with restoration” such as hunting, hiking, walking, and 6 kiteboarding. Reply at 33. It is unclear whether the government requests a permanent prohibitory 7 injunction or one that would instead last for the ten-year monitoring and maintenance period. 8 Defendants object to the proposed restoration plan on multiple grounds. First, they object 9 generally to the government’s proposal as improperly broad. Resp. at 36–41. Similarly, they 10 contend the island will return to its previous state by natural processes. Id. Second, they contend 11 the court should issue no injunction because the government has not shown its proposal would 12 “confer maximum environmental benefits.” Id. at 48–50. Third, they argue the plan is not 13 “achievable as a practical matter.” Id. at 23–34. Fourth, they contend the plan does not “bear an 14 equitable relationship to the degree and kind of wrong it is intended to remedy.” Deaton, 332 15 F.3d at 714; see Resp. at 34–48. They propose the court instead allow natural processes to restore 16 the tidal marshlands or allow them to operate the island as a “duck club,” i.e., a membership- 17 based, for-profit entity for hunting ducks. See Trial Tr. 888:19–889:9 (“ . . . people kept the clubs 18 for private use for the rich people from San Francisco . . . .”), 985:8–24 (“ . . . we could still 19 manage it as a duck club and sell memberships[.]”); Resp. at 51–57. Fifth, they advance broader 20 arguments against injunctive relief, including under the Eighth and Thirteenth Amendments. Resp. 21 at 10–12, 28–30. Sixth, defendants object to the proposed prohibitory injunction, civil 22 ///// 4 The court notes the existence of the revised restoration plan, which was drafted in light of the post-trial conditions on Point Buckler Island, observed in October 2020. Specifically, the plan makes changes taking account of (1) natural levee breaches, which have re-introduced tidal activity, (2) soil decomposition and lost old root structure, affecting the use of regular earth- moving equipment, and (3) an increase in the quantity of invasive plants. Because the court does not admit the government’s proffered evidence, it does not consider the merits of the revised restoration plan in evaluating the appropriate remedy. At the same time, the court passes no judgment on the revised plan, which the parties may use as a template consistent with the 1 penalty and declaratory relief. Id. at 57–60. Lastly, they argue PBC should not be enjoined, but 2 rather Mr. Sweeney only. Id. at 15–18. The court takes each argument in turn. 3 1. Purposes and the Necessity of an Injunction 4 The court concludes restoration is an appropriate goal, and an injunction is necessary to 5 achieve it. Defendants committed “very serious” violations of the CWA when they constructed a 6 “nearly mile-long levee on Point Buckler Island [which] resulted in the loss of approximately 30 7 acres of tidal channels and marsh and their chemical, physical, and biological functioning.” Prior 8 Order at 96. District courts have the “authority to issue such restorative orders so as to effectuate 9 the stated goals of the Clean Water Act,” and as noted above other courts have found restoration 10 is the “preferred remedy.” Cumberland Farms, 826 F.2d at 1164 (citation omitted). Here, an 11 injunction requiring defendants to restore Point Buckler Island and remedy their CWA violations 12 is appropriate. 13 Defendants argue no injunction is needed because restoration “will soon happen 14 naturally.” Resp. at 44. The evidentiary record does not support this conclusion at this point, but 15 this order does not necessarily preclude defendants from ultimately showing no action is 16 necessary because data show natural processes will achieve the goals of the restoration plan, as 17 the government recognizes is possible at least in part. See Original Restoration Plan at 103 (“If, 18 when, and as conditions on the ground change (e.g., native tule, bulrush, and cattail tidal marsh 19 plants unexpectedly reappear and expand without the need for replanting), restorations actions 20 can and should be fine-tuned.”); Hr’g Tr. at 7:4–11 (“[I]f the Court were to enter the proposed 21 judgment that we had proffered at the time of trial, defendants then would have the opportunity to 22 submit their opening restoration proposal to the United States. And we encourage them to take 23 account of on-the-ground facts at that time.”). 24 Defendants also claim the proposed restoration plan would create “a new island that never 25 existed,” and would create channels, ponds, and breaches that were not there before. Resp. at 36, 26 41. They contend the government seeks “enhancement,” not restoration. Sur-Reply at 20. In 27 reply, the United States argues its proposed plan aims to restore the tidal channels and marsh 28 functions, rather than “simply re-engineer[] Point Buckler Island to how it looked in 2011” before 1 defendants’ CWA violations. Reply at 12. Based on the record, the court finds the plan 2 appropriately focuses on restoring the island’s tidal channels and marsh wetlands ecosystem. As 3 the United States points out, the injunction’s goal is to restore hydrology through daily channel 4 and periodic overbank tidal action, replace invasive species with native tidal marsh wetlands 5 vegetation, rebuild the soil’s lost structural integrity, and reestablish breaches and channels for 6 fish movement and exportation of fish food. Id. 7 Defendants have cited no evidence to show it is feasible to restore the island to its 8 physical form circa 2011. More importantly, they have not pointed to evidence to show re- 9 creating the island’s prior physical form would restore its tidal marsh wetlands. See Hr’g Tr. at 10 10:16–18. Nor does the evidence suggest re-creating the island’s prior physical form would 11 confer maximum environmental benefits in the sense that matters here. In fact, as explained in 12 greater depth in the next section, defendants’ own expert witness, Dr. Peter Baye,5 agreed the 13 government’s proposed plan provides the best way to restore the island’s tidal channels and 14 marsh wetlands. Dr. Siegel’s explanation of the proposed plan at trial supports this conclusion. 15 He explained that seeking to restore the island to its 2011 condition might be more expensive than 16 otherwise needed because doing so would require an additional 1,000 feet of channel excavation 17 and more earthwork. See Trial Tr. at 130:15–132:7. As he testified, the proposed plan aims “to 18 achieve a length of channel that is the minimum necessary to accomplish that same amount of 19 [tidal] exchange,” id. at 130:20–21, and to breach the levee to re-create “hydrologic exchange 20 without moving as much levee as nature had done to the old levee,” id. at 132:12–13. 21 The record demonstrates affirmatively that if a restoration plan focused solely on 22 returning the island to its prior physical form, it would not restore the tidal marsh wetlands. High 23 soil salinity and acidity currently prevent native marsh plants from thriving on the island, and so 24 interior regrading, flooding and recirculation must be implemented before replanting. See 5 The United States tendered, and the court accepted, Dr. Baye as an expert in: (1) identification of wetlands vegetation, including in tidal environments where human activities have impacted the vegetation; (2) wetlands impact assessment, including harm resulting from human disturbances of wetlands, including tidal marsh wetlands; and (3) restoration and management of coastal wetlands, including tidal channel and marsh ecosystems in the Suisun Marsh. Prior Order at 5–6 (citing Trial Tr. at 404:24–406:7). 1 Original Restoration Plan at 91; Trial Tr. at 120:1–122:5. As the court found in its prior order, 2 “[t]he soils no longer support tules, bulrushes and cattails, . . . which require low salinity and 3 year-round soil saturation.” Prior Order ¶ 123. Further, simply breaching the levee would not 4 restore the tidal marsh and wetlands either. The tidal marsh ecology is sensitive to the 5 relationship between marsh ground surface elevation and the elevation range of the tides. See 6 Original Restoration Plan at 94; Trial Tr. at 123:24–126:18. As a result, it is necessary to manage 7 the island’s interior as a diked perennial wetland before breaching the levee. Id. Indeed, quickly 8 returning the island to how it looked before defendants’ CWA violations might further degrade 9 the island. Defendants’ emphasis on physical form over function would thus frustrate restoration 10 and miscomprehends the purpose of the government’s requested injunction. The mandatory 11 injunction would not require defendants to enhance Point Buckler Island; it requires them to 12 restore the island’s tidal channels and marsh wetlands. 13 The government’s proposed plan is comprised of eight restoration steps. At trial, 14 Dr. Siegel described the steps and the reasoning behind them: 15 (1) Preparing the island’s soils for planting, see id. at 101:17–102:22; 16 (2) Controlling weeds, see id. at 102:22–105:3; 17 (3) Reestablishing and creating tidal channels, expanding and creating ponds, and 18 filling part of defendants’ newly-excavated borrow ditch so as to divert tidal 19 waters to the reestablished or new channels, see id. at 119:1–121:9, 304:17–25, 20 305:1–306:15, 307:15-20; 21 (4) Flooding and circulating water to reduce the salinity of the soils, and lower the 22 acidity of the soils closer to a neutral value, see id. at 121:10–122:5; 23 (5) Installing native tidal marsh wetlands plants through seedlings or sod, see id. 24 at 122:8–123:21; 25 (6) Managing water levels until plants are established, see id. at 123:24–124:21; 26 (7) Lowering and breaching the levee, and depositing the removed soil into the 27 defendants’ borrow ditch, see id. at 124:22–126:18; and 1 (8) Monitoring, maintaining, and adaptively managing the island according to 2 performance criteria for ten years, see id. at 126:19–127:15. 3 Although each step is aimed at restoring the island’s disturbed wetlands, this order’s injunction 4 does not require defendants to implement the government’s proposed plan. Instead, the plan will 5 serve as a substantive guide, establishing goals and showing defendants how to restore the island 6 based on its pre-trial conditions. Now, taking into account the island’s current conditions, 7 defendants will have the opportunity to present a restoration plan to the government. See Original 8 Restoration Plan at 104; Hr’g Tr. at 7:4–11. This flexibility emphasizes the focus on function, 9 rather than form, because it ensures restoration will be tailored to the island’s current state. 10 In sum, the government has shown that the restoration called for by the CWA must focus 11 on the functions of tidal channels and tidal marsh wetlands, not simply appearances and 12 topographical considerations. See Original Restoration Plan at 98–102; see also Hr’g Tr. at 13 11:20–25 (citing 33 U.S.C. § 1251(a)). 14 2. Maximum Environmental Benefits 15 After careful review of the trial record and the parties’ remedies briefs, the court expressly 16 finds the government’s proposed restoration plan would confer “maximum environmental 17 benefits.” Deaton, 332 F.3d at 714 (quoting Cumberland Farms, 826 F.2d at 1164). The plan 18 would restore Point Buckler Island’s tidal channels and tidal marsh wetlands ecosystem, which 19 was disturbed by defendants’ CWA violations. 20 The restoration plan’s structure maximizes environmental benefits. See Original 21 Restoration Plan at 80–103. The plan has three phases. First, defendants would prepare, 22 rehydrate and revegetate the island. Id. at 80. Second, defendants would manage the interior as a 23 diked perennial wetland until a minimum amount of vegetation is re-established. Id. at 84. 24 Lastly, defendants would breach the levee and control the weeds. Id. at 85. These phases are 25 further broken down into specific steps: (1) “prepare the island interior” to remove impediments 26 to tidal marsh growth, (2) “control weeds” to advance the native marsh revegetation, (3) “conduct 27 interior earthwork” to restore “interior geomorphic . . . features,” (4) remediate acidic and saline 28 soils, (5) revegetate the island to ensure “recovery of native wetland plants,” (6) manage “diked 1 perennial marsh” to ensure re-establishment of “planted native marsh vegetation,” (7) lower the 2 perimeter and breach levee to reconnect Point Buckler Island to the tides, and (8) “control weeds” 3 to ensure invasive wetland weeds do not re-emerge. Id. at 80–85. 4 These actions will remedy the specific harms caused by defendants’ violations of the 5 CWA, which the court detailed in its previous order. “[N]early 30 acres of Point Buckler Island 6 no longer function as a tidal channel and marsh ecosystem.” Prior Order ¶ 108. “[D]efendants 7 harmed aquatic habitat.” Id. ¶ 109. Their “new levee blocked virtually all access by fish.” Id. 8 ¶ 110. It also “blocked exportation of food sources produced in the tidal marsh wetlands to the 9 tidal water bodies” surrounding the island. Id. ¶ 114. “The once-dominant native fresh and 10 brackish water tidal marsh wetlands vegetation, including tules, bulrushes, and cattails, has either 11 completely died or been reduced to very sparse, stunted shoots.” Id. ¶ 117. “Almost the entirety 12 of the below-ground roots and shoots of the wetland plants have died and lost their potential for 13 regrowth from buds at any time of year.” Id. ¶ 118. “[T]he island’s soil has become extremely 14 acidic and saline.” Id. ¶ 122. As a result, “[t]he soils no longer support tules, bulrushes, and 15 cattails, . . . which require low salinity and year-round soil saturation . . . .” Id. ¶ 123. “[T]he 16 levee also harmed water quality.” Id. ¶ 125. Because of the new levee, “Point Buckler Island’s 17 waters contained extensive algae, [and] were stagnant, and bright green in color . . . .” Id. ¶ 127. 18 Taken together, “[d]efendants’ actions have caused harm to the chemical, physical and biological 19 functioning of Point Buckler Island’s pre-existing tidal channels and marsh wetlands, and that 20 harm is ongoing.” Id. ¶ 130. “If the harm defendants have caused to Point Buckler Island’s soil, 21 vegetation, tidal marshland, fish habitat and fish species, as well as the areas surrounding the 22 Island, is not mitigated, the Island’s native vegetation is likely to be lost permanently and the 23 Island is likely to subside significantly.” Id. ¶ 131. 24 The government’s proposed plan is supported by the trial record. At trial, Dr. Siegel 25 explained the plan’s purpose, see Trial Tr., at 100:15–23; 264:13–15; 326:1–8, and described the 26 reasoning behind each step of the plan, as detailed in the prior section. 27 These actions, taken together, are geared to maximize environmental benefits by remedying the 28 harms caused by defendants’ CWA violations impairing the soil, vegetation, water quality and 1 tidal flow. As Dr. Siegel testified, the plan distills “technical analysis . . . to stop the harm that 2 has been going on and . . . to begin the process to reverse that harm.” Id. at 100:21–22. 3 Some parts of the plan are not fully detailed at this time. But because the plan is adaptable 4 to conditions on the ground, it may require “a few adjustments,” as Dr. Siegel testified. Id. at 5 123:20. The less detailed, general provisions previously gave the court pause, but upon further 6 review of the record and the parties’ briefs, and considering the parties’ arguments at hearing, the 7 court concludes that flexibility is an advantage. It allows the plan to conform to conditions at the 8 time of implementation, which will take place in the future now. See Original Restoration Plan at 9 104; Hr’g Tr. at 7:4–11. 10 The plan is supported by more than just Dr. Siegel’s testimony. It is also supported by the 11 trial testimony of the government’s other experts, as well as defendants’ expert, as noted. 12 Dr. Baye’s testimony confirms the government’s restoration plan maximizes environmental 13 benefits by restoring the island’s soil and vegetation. Dr. Baye testified the plan’s steps are 14 necessary to restore the tidal channels and marsh wetlands ecosystem. Trial Tr. at 446:20– 15 448:24. He explained how controlling the weeds is a necessary initial step “to give the less 16 competitive seedlings and juvenile starts of tules, cattails, and other native dominant vegetation 17 an opportunity to establish and spread.” Id. at 447:2–4. He further testified the current soil 18 conditions are “some of the most extreme acid sulphate” he has observed, so it is “necessary to 19 flush out the salts and allow the acids to either convert back to other biogeochemical forms or be 20 buffered by sea salts,” so that “native vegetation” can grow. Id. at 447:13–22. Addressing the 21 proposed revegetating of the interior plain and managing it, he noted the load of active 22 revegetation was chosen because of the decline of the “founder population of surviving tule, 23 cattail, and bulrush.” Id. at 448:8–9. Because this decline requires more active vegetation to 24 offset it, Dr. Baye explained the need to manage the interior like a diked wetland prior to 25 breaching the levee “to stabilize and buffer the acids and to enhance the flooding and draining, 26 flushing of salts . . . and the establishment of new vegetation.” Id. at 448:21–24. 27 ///// 28 ///// 1 In addition, Dr. Bruce Herbold’s testimony supports the conclusion the restoration plan 2 will maximize environmental benefits by improving tidal flow and restoring fish populations.6 3 He explained young salmonids use tidal channels on Point Buckler for daytime refuge, and so 4 reestablishing tidal connection would offer spaces for “feeding and hiding from predators.” Id. at 5 582:25. Dr. Herbold also testified that connecting the island’s exterior to its interior channels 6 would benefit longfin smelt by reestablishing tidal connection and offering many acres of 7 “suitable spawning habitat.” Id. at 583:9–10. This tidal connection would also benefit delta 8 smelt, Dr. Herbold explained, because tidal flow would wash food from the interior to the 9 exterior, id. at 583:19–25, in the form of “coarse organic matter (detrital),” Siegel Direct Expert 10 Testimony. Moreover, the proposed tidal marsh pools would benefit fish species in and around 11 the island because these pools are “excellent little hot pots for producing food.” Trial Tr. at 12 584:17–18. 13 The government’s proposed plan is also efficient. The defense’s own expert, Dr. Terry 14 Huffman,7 admitted on cross-examination that the plan is the quickest way to restore the island. 15 Id. at 726:12–15 (“Q. . . . You are of the opinion, are you not, that the government’s proposed 16 restoration plan is efficient in terms of restoring the island the quickest? A. Yes.”). In turn, he 17 acknowledged a quicker restoration is more beneficial to the environment. See id. at 727:7–10 18 (“Q. Okay. So, with [the objective of restoring it to a tidal channel and marsh system], let me 19 just ask you again, you acknowledge that it’s more beneficial to the environment to do it quicker? 20 A. Yes.”). A quicker restoration would also result in less temporal loss of waters and wetlands. 21 See id. at 727:17–20 (“Q. You would agree, Dr. Huffman, would you not, that the quicker you 6 The United States tendered, and the court accepted, Dr. Herbold as an expert in: (1) fish species and their biology, ecology, habitats and movements in tidal water bodies and tidal marshes, including those surrounding and in proximity to Point Buckler Island; (2) protected fish species and their designated critical habitat in the San Francisco Estuary and encompassing Point Buckler Island; and (3) water sampling and assessment of the water sampling results as they relate to ability of tidal marsh and disturbed marsh to support fish. Prior Order at 6 (citing Trial Tr. 548:17–549:17). 7 Defendants tendered, and the court accepted, Dr. Huffman as an expert in three limited areas of opinion only regarding land use, tidal debris and restoration. Prior Order at 6 (citing Trial Tr. at 704:1–705:16). 1 restore, the less temporal loss of waters and wetlands? A. The quicker you restore, yes.”). In 2 short, even one of the defense’s expert witnesses agreed at trial that the plan maximizes 3 environmental benefit if the objective is to restore the island’s tidal channels and marsh wetlands 4 ecosystem. 5 Defendants argue the government’s plan would not confer maximum environmental 6 benefits and say that a duck club instead would offer greater environmental benefits. Resp. at 19, 7 48–49; see Def. Initial Post-Trial Submission (DIPS) at 26–32, ECF No. 172. As evidence for a 8 duck club’s conferring maximum environmental benefits, defendants point to a “chapter in a book 9 edited by Dr. Peter Moyle, a highly esteemed fish scientist . . . ,” as well as the Suisun Marsh 10 Protection Plan prepared by California environmental agencies to explain how duck clubs are 11 “vital” for waterfowl. DIPS at 26–32. Defendants also put forward exhibits admitted by 12 stipulation. Resp. at 55–56 (citing Def. Exs. 2164 and 2169). 13 One of the exhibits is a blog post by Drs. Durand and Moyle, who collected and evaluated 14 data from another tidal restoration project. See Def. Ex. 2169. In a few pages, the doctors 15 concluded the restoration project was sub-optimal. See id. They did not discuss duck clubs. In 16 the other exhibit, Dr. Durand explains he had been examining regions of the San Joaquin River 17 Delta, including Suisun Marsh, to compare other, preexisting restoration sites with duck clubs and 18 other restoration projects. Def. Ex. 2164. He contrasted a duck club named “Luco Pond” with a 19 restoration site called “Blacklock” and found the duck club is “dominated by native species.” Id. 20 However, he also concluded he did not know “how to calibrate it [and] . . . d[id not] know how to 21 adjust it or how to tweak it to maximize it.” Id. 22 Defendants’ arguments and exhibits do not rebut the government’s extensive evidence, 23 which is more thorough, particularized to Point Buckler Island and tested over nine days of trial. 24 A few studies contrasting some duck clubs do not show this proposed restoration plan would be 25 inferior to a duck club. Further, defendants’ argument suffers from a more fundamental flaw. 26 The court’s prior order found defendants violated and remain in violation of the CWA for 27 disturbing tidal channels and abutting wetlands on Point Buckler Island. Prior Order at 95–96. 28 To remedy this harm, a plan must restore those tidal channels and marsh wetlands. 1 Creating a duck club would not restore the tidal channels and the marsh wetlands. To the 2 contrary, as Mr. Sweeney testified, it would further degrade the island’s native vegetation, 3 channels, and marsh. Mr. Sweeney explained creating a duck club would require adding a second 4 or third tide gate, see Trial Tr. at 977:21–23, further disturbing the tidal flows. 8 He would aim to 5 eliminate all tidal activity on the island. See id. at 986:3–5 (“[L]evees provide you with water 6 control. And so if you’re tidal, it’s not the preferred habitat for ducks.”). In addition, on cross- 7 examination, Dr. Herbold confirmed duck clubs are not tidal marsh wetlands and clarified duck 8 clubs do not provide the fish-related benefits of tidal channels and marshland. See id. at 656:3– 9 657:1. Nor would a duck club restore the island’s vegetation. Mr. Sweeney explained creating a 10 duck club would mean “get[ting] rid of all the tules and the cattails,” id. at 978:16–17, further 11 eliminating the native vegetation, see id. at 814:14–18 (“A. . . . on [duck] clubs that you can’t get 12 on top of because they’re too wet, they typically aerial spray [with pesticides] the property one 13 year, and then the next year you go out with drip torches that are a mixture of diesel and kerosene, 14 and you back-burn the property until there is no vegetation left.”). In short, a duck club would 15 not remedy the harm caused by defendants’ CWA violations, and therefore, such a use would not 16 maximize environmental benefits given the other options available. Rather, creation of a duck 17 club would exacerbate the harm caused by the CWA violations, inhibiting any remaining tidal 18 flows and eradicating any remaining native vegetation. 19 In contrast, the government’s proposed restoration plan is designed to restore and 20 rehabilitate the tidal channels and marsh wetlands on Point Buckler Island. See Restoration Plan 21 Explanation, USA Ex. 2; Siegel Direct Expert Testimony at 3–4. As a result, the court finds the 22 government’s proposed restoration plan satisfies the first factor. 23 3. Achievable as a Practical Matter 24 After further review of the trial record and the remedy briefs, the court finds the 25 government has carried its burden in demonstrating the restoration plan is “achievable as a 8 Although it is true that tide gates might allow water to flow into the interior of the island, as Dr. Siegel explained, the movement of water alone “does not equate to restoration of function,” see id. at 311:6–7, nor does it create tidal flow, see id. at 314:17–20. 1 practical matter.” Deaton, 332 F.3d at 714 (quoting Cumberland, 826 F.2d at 1164). The 2 restoration plan is likely to be both time- and resource-intensive. However, even the defense’s 3 expert witness, Dr. Huffman, testified the plan is “feasible.” Trial Tr. at 724:9–22 (“Q. . . . what 4 you mean by feasible is that the plan can be implemented and should be successful if proper 5 monitoring and maintenance occurs over time? A. Based on that plan, yes.”). There is no 6 evidence in the record showing the plan could not be implemented. 7 Defendants’ primary objection to the achievability of the plan is their “inability to pay.” 8 Resp. at 23. The record does not support that claim. First, defendants state “John Sweeney has 9 no money” in their brief, see id. at 26; however, the evidentiary record suggests the opposite. 10 Defendants put forward no evidence showing Mr. Sweeney is unable to pay. That omission is 11 decisive. See United States v. Bailey, 571 F.3d 791, 805 (8th Cir. 2009) (“Bailey argues that there 12 is no evidence in the record that he had the means to restore the wetland, but . . . [if] Bailey had 13 wished to contest this factor, he should have submitted evidence to the district court.”). The 14 government also refuted defendants’ inability-to-pay claim at trial. Mr. Daniel Leistra-Jones 15 testified9 that, based on an income and expense analysis and a balance sheet analysis, see Trial Tr. 16 1157:12–21, “Mr. Sweeney individually can pay approximately $864,000 for the financial 17 obligations of a judgment in this matter without experiencing undue financial hardship,” id. at 18 1110:17–20. Defendants’ criticisms of this conclusion are unsupported by evidence, except for 19 brief remarks by Mr. Sweeney. See id. at 983:25–984:6 (“[Q. C]an you afford to pay either [$2-3 20 million] or whatever you think the government’s restoration plan might cost? A. At this time, I 21 cannot, now that we’ve gone to court. . . . [A]t this point I can no longer do anything out there.”). 22 Those brief self-serving statements do not rebut the government’s expert testimony presented at 23 trial. 24 ///// 25 ///// 9 The United States tendered, and the court accepted, Mr. Leistra-Jones as an expert in financial analysis and assessing an individual’s and a company’s ability to meet the financial requirements of a judgment. Prior Order at 7 (citing Trial Tr. at 1106:15–1110:8). 1 Second, defendants’ proposal to create a duck club contradicts their claims of financial 2 frailty. See Resp. at 51 (requesting order “to operate Point Buckler Island as a duck club”). 3 Creating and operating a duck club would take significant resources, and defendants admit as 4 much. They would need to: (1) install one or two gates, (2) maintain the levees, (3) excavate as 5 necessary, and (4) operate and maintain the lounge, deck, dock, helipads and facilities needed to 6 attract duck club members. Id. at 51. Anticipating this line of reasoning, defendants raise two 7 counterarguments, but neither is persuasive. First, they speculate they could “potentially” raise 8 money for a duck club, whereas it would not be possible to raise money to restore the island’s 9 tidal channels and marsh wetlands. Id. at 56. Second, they characterize the costs of a duck club 10 as “low.” Id. Nothing in the record supports either claim. They also provide no further 11 information on these points in their briefing. They do not provide information on income that 12 could be generated if the island were converted to a duck club. Defendants’ request for an 13 injunction ordering them to operate a for-profit business on the island, which would require long- 14 term capital investments, implies defendants are not as penniless as they claim. 15 Third, defendants rely on a cost estimate for the restoration plan submitted by the 16 government during the second phase of these proceedings. As discussed above, the court does 17 not accept the government’s proffered evidence and therefore does not consider this estimate nor 18 defendants’ related arguments. 19 Fourth, even if Mr. Sweeney has less than $864,000 to spend on the proposed restoration 20 plan, the plan would not be unachievable. Courts have considered both a plan’s costs and its 21 flexibility when assessing whether it is achievable as a practical matter. Brace, 2020 WL 956460, 22 at *3 (citing United States v. Ciampitti, 615 F. Supp. 116, 123–24 (D.N.J. 1984)). Because 23 defendants own some machinery capable of doing earthwork—the most expensive part of 24 restoration—and other restoration actions, they could reduce their costs by undertaking the work 25 themselves or allowing others to use the equipment they do own to avoid the cost of renting 26 equipment.10 See Trial Tr. 129:3–4. Therefore, even without precise information about “the 10 Mr. Sweeney did make a passing statement that he “sold the equipment” during his 1 financial resources of defendants and an estimate of the cost of the restoration plan,” the plan is 2 achievable because of its “indefiniteness.” Ciampitti, 615 F. Supp. at 124–25 (“Defendants, so 3 long as they are faithful to the goals of the plan, will have considerable independence and will be 4 able to do what they feel is desirable to minimize the cost of restoration.”). 5 Moreover, the plan is achievable as a practical matter in part because it is a substantive 6 guide, not a definitive roadmap. When courts order defendants to restore wetlands and 7 marshlands after finding CWA violations, they sometimes give defendants an opportunity to 8 present a restoration plan, using the government’s proposed plan as a guide, instead of issuing an 9 injunction requiring defendants to follow the government’s plan to the letter. See, e.g., Brace, 10 2020 WL 956460, at *2; United States v. Van Leuzen, 816 F. Supp. 1171, 1184 (S.D. Tex. 1993). 11 The court adopts this approach here. Considering the duration of time since the trial, this 12 approach ensures restoration will be achievable as a practical matter. Current conditions on the 13 island may allow for less restoration work or for less expensive methods of restoration. 14 Defendants contend the island is returning to its natural tidal channels and marshlands ecosystem, 15 which if true would further reduce costs. Mr. Sweeney’s current finances may have changed over 16 the past several years, which in turn might inform the methods used to optimally restore the 17 island. In addition, the government points out that technical changes to the plan could result in 18 reducing costs, for example using agitation dredging or hydraulic displacement, instead of 19 traditional interior excavation work. Reply at 19. In short, the court’s providing for defendants’ 20 ability to reduce costs by proposing or agreeing to a less-expensive yet as-effective plan 21 undercuts their argument they cannot afford to restore Point Buckler Island. 22 In sum, the government’s proposed plan is achievable as a practical matter. The plan’s 23 flexibility confirms its feasibility: using the government’s plan as a substantive guide, taking into 24 account Point Buckler Island’s current conditions, less costly and more efficient ways to achieve 25 the plan’s goals are within the realm of possibility. and no evidence shows Mr. Sweeney sold all his equipment and would thus be unable to undertake some of the work himself or allow others to use whatever equipment he owns. 1 4. Equitable Relationship to Harms 2 Fourth, the restoration plan bears “an equitable relationship to the degree and kind of 3 wrong it is intended to remedy.” Deaton, 332 F.3d at 714 (quoting Cumberland, 826 F.2d at 4 1164). Here, “the conceptual plan bears an equitable relationship to the harm caused . . . [as its] 5 main thrust is to reverse the damage done” by defendants. Brace, , 2020 WL 956460, at *1. As 6 noted above, defendants committed “very serious” violations of the CWA when they constructed 7 a “nearly mile-long levee on Point Buckler Island [which] resulted in the loss of approximately 30 8 acres of tidal channels and marsh and their chemical, physical, and biological functioning.” 9 Order at 96. Defendants’ CWA violations destroyed habitats of endangered fish, devastated 10 native vegetation, tampered with soil acidity and altered waters of the United States. Ordering 11 defendants to restore the tidal marshlands is equitable. 12 Moreover, “[i]ntentional conduct on the part of a defendant eviscerates any equitable 13 arguments against restoration[,]” Smith, 2014 WL 3687223, at *6 (collecting cases), and the 14 construction of the levee was undisputedly intentional. See also United States v. Cundiff, 15 555 F.3d 200, 216 (6th Cir. 2009) (affirming restoration order in which district court found 16 “intentional, flagrant, egregious, and openly defiant” violations of CWA “militate[d] against any 17 equitable considerations”). Restoration is thus equitable given the harms of degrading Point 18 Buckler Island. 19 The defense’s equitable arguments misstate the court’s prior order and attempt to re- 20 litigate defendants’ liability. See Resp. 34–47. Defendants claim the plan is unsupported by the 21 record because it does not seek to restore the island’s tidal channels and marsh wetlands. As 22 discussed at length in the prior section, the court finds otherwise. The plan and each of its 23 restoration actions are supported by the record. As Mr. Siegel explained on cross-examination, 24 “[t]he purpose of the restoration plan is restore the preexisting tidal marsh and tidal channel 25 system functions that existed prior to Mr. Sweeney’s work.” Trial Tr. at 326:1–3. The defense’s 26 repeated arguments that restoration is not needed, that channels are not needed to restore pre- 27 existing tidal functions, and that Mr. Sweeney is not responsible for the weeds and loss of native 28 vegetation, see Resp. 34–47, are unsupported by the record and fail to accept the court’s prior 1 findings. The court has found defendants liable for disturbing and degrading Point Buckler 2 Island’s tidal channels and marshlands ecosystem. See, e.g., Prior Order ¶ 131 (“If the harm 3 defendants have caused to Point Buckler Island’s soil, vegetation, tidal marshland, fish habitat 4 and fish species, as well as the areas surrounding the Island, is not mitigated, the Island’s native 5 vegetation is likely to be lost permanently and the Island is likely to subside significantly.”), § VII 6 (“The court enters judgment in favor of plaintiff United States of American and against 7 defendants John Donnelly Sweeney and Point Buckler Club, LLC, jointly and severally . . . .”). 8 Defendants also argue the proposed restoration plan would be inequitable because it 9 would arbitrarily force them to take actions they could undo immediately, such as “re-excavate 10 the borrow ditch after complying with an order to fill it in,” and “cutting down and carrying off 11 the very weeds that the Government wants this Court to order Sweeney to nurture.” Resp. 45, 46. 12 This argument rests on the incorrect assumption that the injunctions the court enters and approves 13 here require simply that defendants comply with other generally applicable laws. These 14 directives require more, however. They also establish a decade-long monitoring and maintenance 15 period, see Original Restoration Plan at 97, intended to protect the island’s tidal channels and 16 marsh wetlands ecosystem, see id. at 98–103. This order also includes a prohibitory injunction 17 forbidding actions that would prevent the island’s required restoration, as discussed further 18 below. 19 In sum, the proposed plan bears an equitable relationship to the degree and kind of wrong 20 it is intended to remedy. 21 5. Other Defense Arguments 22 Defendants make several additional arguments against a restoration injunction. Many are 23 very weak, if not verging on the frivolous.11 This order does not and need not address these 24 arguments in full. Cf. Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936, 939 n.8 (4th Cir. 1980) 25 ///// 11 Exercising its discretion with restraint, the court merely notes at this time that some of defendants’ arguments contradict the record or binding precedent and raise questions about whether Federal Rule of Civil Procedure 11 has been adhered to faithfully. 1 (“An argument to which sub silentio treatment is accorded may be simply deemed not to have 2 required specific reference.”). 3 First, defendants claim the restoration injunction would contravene the Thirteenth 4 Amendment because such an injunction would compel them to perform involuntary manual labor. 5 Resp. at 29; Sur-Reply at 35. “The Thirteenth Amendment to the U.S. Constitution enshrines the 6 principle that people may not be bought and sold as commodities.” Coyote Pub., Inc. v. Miller, 7 598 F.3d 592, 603 (9th Cir. 2010). The Amendment does not protect people from being ordered 8 to remedy the harms they have caused due to their unlawful action. Defendants here are not 9 being forced to perform manual labor. It is an option they can choose, if they want to reduce 10 costs. Defendants do not point to any precedent applying the Thirteenth Amendment to a 11 mandatory injunction related to a CWA violation, and the court is aware of none. 12 Second, defendants argue the injunction would violate the Eighth Amendment because it 13 would effectively impose an excessive fine. An injunction is not a fine. See Kim v. United 14 States, 121 F.3d 1269, 1276 (9th Cir. 1997) (“[A]n excessive fine prohibited by the Eighth 15 Amendment . . . [is a] cash or in kind payment directly imposed by, and payable to, the 16 government.”); see also Fed. Trade Comm’n v. Credit Bureau Ctr., LLC, 937 F.3d 764, 770 (7th 17 Cir. 2019) (“Because an injunction isn’t a fine, the permanent injunction doesn’t implicate the 18 Excessive Fines Clause.”). 19 Third, defendants argue the proposed remedy violates the Due Process Clause because 20 Mr. Sweeney “lacks the ability to comply with the order.” Resp. at 28. Defendants claim, in 21 transparent overreach, Mr. Sweeney could not pay “even one dollar” toward restoration, nor 22 could PBC. Id. But, as discussed above, defendants have not asked for an evidentiary hearing on 23 Mr. Sweeney’s current financial status, nor have they put forward evidence of his financial status. 24 The only relevant evidence is the opinion of the government’s financial expert, Mr. Leistra-Jones, 25 who concluded “Mr. Sweeney individually can pay approximately $864,000 for the financial 26 obligations of a judgment in this matter without experiencing undue financial hardship.” Trial Tr. 27 at 1110:17–20. As discussed above, the government proposes ordering defendants to submit a 28 restoration plan using the government’s plan as a substantive guide; Mr. Sweeney puts forward no 1 evidence that he cannot submit such a plan. The proposed plan, as a result, cannot violate the 2 Due Process Clause because there is no evidence Mr. Sweeney cannot comply with it. 3 6. Prohibitory Injunction 4 The government requests a prohibitory injunction to prevent defendants from engaging in 5 further earthmoving activities on Point Buckler Island, with exceptions for certain locations and 6 activities. Remedy Br. at 3. Under the CWA, this court has “jurisdiction to restrain [violations of 7 the CWA] and to require compliance.” 33 U.S.C. § 1319(b). District courts exercise equitable 8 discretion in ordering relief that will achieve compliance with the CWA. Cumberland Farms, 9 826 F.2d at 1164; see also Weinberger, 456 U.S. at 318–20. 10 The court construes the request for a prohibitory injunction to be a part of the 11 government’s broader request for a restoration order to remedy defendants’ CWA violations. In 12 that context, the court finds a prohibitory injunction is appropriate here because, at the time the 13 court issued the order finding liability, defendants remained in violation of the CWA, see Prior 14 Order at 95; enjoining defendants from further harmful action will help restore Point Buckler 15 Island’s tidal channels and marsh wetlands ecosystem. The prohibitory injunction is necessary to 16 achieve compliance with the CWA in the face of defendants’ persistent position that they should 17 be allowed to engage in activities that the record shows will interfere with restoration or 18 otherwise further disturb the island’s tidal channels and wetlands. See Prior Order at 96 19 (declaring appropriate relief includes a remedy “designed to protect . . . [against] further 20 unpermitted, non-exempt discharges of pollutants”). 21 The government does not specify whether its proposed prohibitive injunction would be 22 permanent or temporary. The court declines to enter a permanent injunction at this time. 23 “[B]efore the Court could enter such an order, the Government would have to show the likelihood 24 of a future CWA violation by [defendants].” Smith, 2014 WL 3687223, at *4 (emphasis in 25 original) (collecting cases). As the government has offered no evidence regarding potential future 26 violations, the court issues a prohibitory injunction that will terminate at the same time as the 27 mandatory injunction, as provided for at the end of this order. But this order does not preclude a 28 prospective motion to impose a prohibitory injunction, if justified in light of future developments. 1 Defendants object to the requested prohibitory injunction for three reasons. First, they 2 claim it only would require them to follow the law, not enjoin unlawful conduct. Resp. at 58; see 3 Perez v. Ohio Bell Tel. Co., 655 F. App’x 404, 411 (6th Cir. 2016) (unpublished) (“Most of the 4 circuits that have addressed [injunctions that compel nothing more than obedience to existing 5 law] have adopted a rule against them.”) (collecting cases). This claim is erroneous because, as 6 the government points out, see Reply at 24–25, the requested prohibitory injunction is broader 7 than the CWA. The injunction prevents defendants from engaging in any earthwork or other on- 8 the-ground activity on Point Buckler Island, with certain location and activity exemptions, as well 9 as a procedure for obtaining authorization. Because this prohibitory injunction is broader than the 10 CWA, it does not run afoul of Rule 65(d). In addition, as defendants acknowledge, see Resp. at 11 58, the Ninth Circuit has not adopted a rule against so-called “obey the law injunctions,” F.T.C. v. 12 EDebitPay, LLC, 695 F.3d 938, 944 (9th Cir. 2012) (citing United States v. Miller, 588 F.2d 13 1256, 1261 (9th Cir. 1978), cert. denied, 440 U.S. 947 (1979)). The requested prohibitory 14 injunction is not an obey-the-law injunction, and even if it were, that aspect of its provisions 15 would not render it improper. 16 Second, defendants are concerned the prohibitory injunction is, essentially, too vague 17 because it applies to any earthwork or other on-the-ground activity. This concern is unavailing. 18 Defendants are prohibited from engaging in any activity on the island’s grounds, unless it is 19 outside the prohibited area or comprises a minimally intrusive recreational activity, for example, 20 hunting, hiking, walking, launching kiteboards from the Island’s dock and shoreline, and 21 spreading out sails on the ground to allow them to dry. Defendants thus have clear notice about 22 what they may and may not do. If any ambiguity arises, or if defendants are uncertain whether an 23 activity is proscribed, then they need only ask. In light of defendants’ serious and intentional 24 CWA violations, a result in part of their not seeking approval before disturbing the island’s tidal 25 wetlands, the prohibitory injunction prevents defendants from interfering with restoration; it is not 26 vague. 27 Lastly, defendants argue the injunction improperly delegates the court’s authority by 28 authorizing the government to approve activities that otherwise would violate the injunction. 1 Here as well defendants are incorrect. The injunction does not authorize the government to 2 excuse violations or modify the terms of the injunction. The court does not delegate its authority, 3 but instead is creating an opportunity for the parties to resolve disputes about implementation of 4 court orders informally. The court retains jurisdiction to decide unresolved disputes and enforce 5 the court’s orders and judgments. 6 7. Civil Penalty 7 Under the CWA, a person found in violation of section 1311, among other provisions, 8 “shall be subject to a civil penalty not to exceed $25,000 per day for each violation.” 33 U.S.C. 9 § 1319(d). Both Mr. Sweeney and PBC violated section 1311. Prior Order at 95. The 10 government requests the civil penalty claim be held “in abeyance pending restoration.” Reply at 11 33. 12 The Ninth Circuit has held that civil penalties are “mandatory” under the CWA. Leslie 13 Salt Co. v. United States, 55 F.3d 1388, 1396–97 (9th Cir. 1995); see also Nat. Res. Def. Council 14 v. Sw. Marine, Inc., 236 F.3d 985, 1001–02 (9th Cir. 2000). As the Circuit has explained, if 15 Congress intended for civil penalties to be discretionary, then it would have said a civil penalty 16 may be imposed on violators, not that violators shall be subject to a civil penalty. Leslie Salt Co., 17 55 F.3d at 1397. To determine the amount of a civil penalty, district courts must consider (1) the 18 seriousness of the violation, (2) any economic benefit received from the violation, (3) any history 19 of violations, (4) any good-faith efforts to comply with applicable requirements, (5) the economic 20 impact of the penalty on the violator, and (6) “such other matters as justice may require.” 21 33 U.S.C. § 1319(d). “District courts retain broad discretion to set a penalty commensurate with 22 defendant’s culpability,” including a penalty of “only a nominal amount.” Leslie Salt Co., 23 55 F.3d at 1397. Although a penalty is mandatory, the CWA does not impose a deadline for 24 imposing or paying a penalty. 25 The court defers its decision on the amount of the civil penalty because determining it 26 now would risk unjust results. On the one hand, if the court imposed a large civil penalty due 27 immediately, it would frustrate the CWA’s purpose because it would likely reduce the funds 28 available for the restoration of Point Buckler Island. On the other hand, a nominal penalty 1 imposed now would be inappropriate because the defendants’ CWA violations were serious and 2 intentional. A nominal penalty could be appropriate if defendants studiously comply with the 3 injunction and have only limited ability to pay when the injunction expires. The court thus will 4 determine the amount of the civil penalty at the appropriate time, which may be upon a party’s 5 filing a motion seeking a determination. 6 8. Declaratory Relief 7 The government seeks four declarations: (1) a declaration that the appropriate relief 8 includes the mandatory injunction the court is issuing here, (2) a declaration that the appropriate 9 relief includes the prohibitory injunction also issued here, (3) a declaration that the appropriate 10 relief includes a mandatory injunction to effectuate compensatory mitigation for the loss of tidal 11 resources and functioning on Point Buckler Island, held in abeyance pending timely and complete 12 satisfaction of the restoration order, and (4) a declaration that the appropriate relief includes a 13 civil penalty award also held in abeyance until the timely and complete satisfaction of the 14 restoration order. Remedy Br. at 11–12. In response, defendants claim the first three declarations 15 relate only to past violations and thus are beyond the court’s jurisdiction to order declaratory 16 relief. Resp. at 59. 17 The Declaratory Judgment Act gives this court the power “to declare the rights and other 18 legal relations of any interested party seeking such declaration[.]” 28 U.S.C. § 2201. The Act 19 “confer[s] on federal courts unique and substantial discretion” to decide the scope of any such 20 declaration. Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). “Declaratory relief should be 21 denied when it will neither serve a useful purpose in clarifying and settling the legal relations in 22 issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced 23 by the parties.” United States v. State of Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) 24 (en banc) (per curiam) (collecting authorities). 25 The declaratory relief the government requests addresses only past violations. Because 26 defendants remained in violation of the CWA at the time the court issued the order finding 27 liability, the relief requested addresses ongoing violations. The court nevertheless declines to 28 award declaratory relief. The first, second and fourth declarations are redundant of the mandatory 1 and prohibitory injunctions and the civil penalty. Cf. Hollins v. Reconstrust, N.A., No. 11-945, 2 2011 WL 1743291 (C.D. Cal. May 6, 2011) (“[A] claim for declaratory relief is improper where, 3 as here, the claim merely replicates other substantive causes of action asserted in the pleading.”). 4 They will not clarify or settle the parties’ relationships or afford relief. The declarations would 5 not serve a useful purpose. These requests thus are denied. 6 The third declaration the government requests is for a mandatory injunction to effectuate 7 compensatory mitigation. Remedy Br. at 11–12. In the government’s prior briefing, it indicated 8 such an injunction would offset the temporal loss of waters of the United States. Cf. U.S. 9 Proposed Findings of Fact & Conclusions of Law at 150, ECF No. 176 (“Ordinarily, when there 10 will be at least a temporal loss of waters of the United States, as is the case here, courts will 11 consider an injunction requiring Defendants to effect compensatory mitigation commensurate 12 with that which could be required under a dredge-and-fill permit.”). The briefing currently before 13 the court does not address whether there will, in fact, be a temporal loss of waters of the United 14 States if defendants ultimately fully comply with the restoration order. Further, unlike the 15 mandatory and prohibitory injunctions, which form the order of restoration here and will 16 accomplish rehabilitation of Point Bucker Island’s tidal channels and marsh wetlands, the 17 government has not shown whether and how a mandatory injunction for compensatory mitigation 18 is supported by the record. The court declines to issue this form of declaratory relief at this time. 19 State of Washington, 759 F.2d at 1356 (“[T]he court may, after a full consideration of the merits, 20 exercise its discretion to refuse to grant declaratory relief because the state of the record is 21 inadequate to support the extent of relief sought.”). The government’s request for declaratory 22 relief is accordingly denied, without prejudice. 23 9. PBC’s Liability and Remedies 24 Defendants argue PBC should not be enjoined because it was not responsible for the levee 25 work which took place between February 2014 and November 2014. Resp. at 15–18; see Prior 26 Order at 50. Although it is true PBC did not build the levee, PBC nevertheless violated the CWA 27 and remains in violation of the CWA for actions taken by Mr. Sweeney after PBC’s purchase of 28 the island, including Mr. “Sweeney’s earthmoving activities [that] occurred in conjunction with 1 the creation of four small crescent basins (or ponds) interior of the new levee.” Prior Order at 96. 2 In other words, Mr. “Sweeney’s violations after [PBC] purchased the island in October 2014 are 3 [PBC’s] violations; [PBC’s] violations are Sweeney’s violations; for these post-October 27, 2014 4 violations, defendants are jointly and severally liable.” Id. at 51. 5 Neither party has suggested a way to bifurcate remedies or to appropriately limit PBC’s 6 exact liability or limit its remedial obligations. The government suggests an alternative form of 7 injunction for PBC focused on cooperation with an injunction placing primary responsibility with 8 Mr. Sweeney could be appropriate, although it does not offer parameters for the injunction, nor 9 explain the practical difference. See Reply at 32. The court declines to undertake a line-drawing 10 exercise. Because Mr. Sweeney and PBC are jointly and severally liable for violations of the 11 CWA after PBC took title to the island, they both are ordered to comply with the mandatory and 12 prohibitory injunctions. This order does not bar one defendant from seeking clarification or relief 13 related to the obligations of the other defendant, if that proves necessary in the future. 14 E. Appointment of a Special Master 15 Post-trial special masters may be appointed under Rule 53(a)(1)(C) to assist the court in 16 “framing and enforcing complex decrees” and similar matters. See, e.g., Wishtoyo Found. v. 17 United Water Conservation Dist., No. 16-3869, 2018 WL 7571315, at *5 (C.D. Cal. Dec. 1, 18 2018), aff’d, 795 F. App’x 541 (9th Cir. 2020) (appointing special master to monitor defendant’s 19 compliance with permanent injunction following its operation and maintenance of dam violating 20 Endangered Species Act). While special master appointments are rare, district courts have 21 discretion to appoint special masters to enforce judicial decrees in appropriate cases. See, e.g., 22 United States v. Suquamish Indian Tribe, 901 F.2d 772, 774–75 (9th Cir. 1990) (upholding 23 decision by district court to appoint special master to determine question of fishing rights); City of 24 Long Beach v. Monsanto Co., No. 16-3493, 2020 WL 7060140, at *5 (C.D. Cal. Nov. 25, 2020) 25 (appointing special master in case involving complex consent decree monitoring environmental 26 injunction). 27 Having carefully considered the matter, the court is prepared to appoint U.S. Magistrate 28 Judge Jeremy D. Peterson to serve as special master to oversee the mandatory and prohibitory 1 injunctions over PBC and Mr. Sweeney. In the court’s view, Magistrate Judge Peterson’s 2 professional background and tenure as a judge of this court support his identification as a well- 3 qualified Special Master. The parties will be provided an opportunity to (1) show cause why 4 Magistrate Judge Peterson should not be appointed as special master, and (2) submit a joint 5 proposal prescribing the special master’s role and duties for the court’s consideration. The court 6 anticipates adopting a formal dispute resolution process going forward. This process would 7 involve a determination by the Special Master in the first instance and an opportunity for a 8 limited appeal to this court. The parties may include a proposed process for dispute resolution, 9 including any limitations on appealing the Special Master’s decisions to this court. 10 V. CONCLUSION AND ORDER 11 A. Clarification 12 As discussed above, see supra section IV.A., the court on its own motion under Rule 60(a) 13 clarifies it has not reopened the case or evidentiary record, but rather has conducted this action in 14 two phases: (1) a liability phase, in which the parties developed an evidentiary record in a bench 15 trial, and in which the court entered a judgment in favor of the United States on defendants’ 16 liability, and (2) a remedies phase, in which the parties were permitted to present arguments on an 17 appropriate remedy, which the court has now considered. 18 B. Special Master and Dispute Resolution 19 The court plans to appoint U.S. Magistrate Judge Jeremy D. Peterson to serve as special 20 master for the mandatory and prohibitory injunctions over PBC and Mr. Sweeney. The parties 21 are directed to (1) show cause why Magistrate Judge Peterson should not be appointed as special 22 master, and (2) submit a joint proposal prescribing the special master’s role and duties for the 23 court’s consideration in the event the court appoints Judge Peterson as special master. 24 The parties must show cause no later than 14 days after the date of this order. They 25 must submit their joint proposal within 21 days of this order. 26 C. Civil Penalty 27 A civil penalty is mandatory for Mr. Sweeney and PBC because they violated section 28 1311. See 33 U.S.C. § 1319(d); Leslie Salt Co., 55 F.3d at 1397. The court defers its decision on 1 the amount of the civil penalty. At the appropriate time in the future, the court will conduct 2 further proceedings and order defendants to pay a civil penalty, which could range from a large 3 civil penalty to a nominal penalty, depending on defendants’ compliance with this order. 4 D. Mandatory Injunction 5 Defendants shall restore the tidal channel and tidal marsh wetlands ecosystem of Point 6 Buckler Island, consistent with the United States’ Restoration Plan for Point Buckler Island as a 7 substantial guide. See Original Restoration Plan; USA Exs. 1 & 2. The objective of this 8 injunctive relief is to recover the loss of approximately 30 acres of tidal channels and tidal marsh 9 underneath and interior of the unlawfully constructed levee on Point Buckler Island and the 10 chemical, physical, and biological functioning of those waters of the United States. 11 Within 30 days of this judgment, defendants shall, through professional(s) with the 12 requisite qualifications, propose to the United States a detailed submission including a 13 schedule and plan for implementing the United States’ Restoration Plan for Point Buckler Island, 14 taking into account the current state of the Island and how that may affect the plan. The United 15 States shall, within 30 days of service, provide defendants with its comments. If the United States 16 does not provide comments, defendants shall file their submission with the Special Master and 17 comply with it. If the United States provides comments, defendants shall: (i) within 14 days of 18 service, revise their submission consistent with those comments and file the revised submission 19 with the Court; and (ii) comply with the revised submission. 12 For modest extensions of time on 20 ///// 12 If defendants have objections to the United States’ comments, then defendants must communicate them in writing to the United States within seven days. If the parties are unable to resolve their dispute, defendants may within 14 days of service of the United States’ comments, file a motion before the Special Master articulating defendants’ objections and their bases. On any such motion, defendants shall bear the burden of persuading the Special Master that the United States’ comments are unreasonable in light of the court’s order and judgment, the evidence adduced at trial, or the objective of this injunctive relief. In that scenario, defendants shall file and comply with the schedule and plan that accords with the Special Master’s decision. Defendant’s filing of a motion does not automatically stay any obligation set forth in this order. The parties must either stipulate in writing to a stay, or defendants must specifically request a stay. Lastly, if defendants do not file a motion for review, then they will waive any such objections. 1 any of these deadlines, the parties may stipulate in writing or, if contested, seek and obtain leave 2 from the Special Master for good cause. 3 Within 30 days of filing of the controlling restoration action schedule and plan, as 4 provided for above, defendants shall, through professional(s) with the requisite qualifications, 5 propose in writing to the United States a detailed submission including a schedule and plan for 6 implementing the monitoring, performance criteria, and adaptive management tasks as described 7 in pages 9 through 13 of United States Exhibit 1. See USA Ex. 1 at 9–13; see also Original 8 Restoration Plan at 96–101. Defendants’ submission shall include a schedule for filing status 9 reports with the Special Master and the required content for those reports. The United States 10 shall, within 30 days of service, provide defendants with its comments. If the United States does 11 not provide comments, defendant shall file their submission with the Special Master and comply 12 with it. If the United States provides comments, defendants shall: (i) within 14 days of service, 13 revise the submission consistent with those comments and file the revised submission with the 14 Special Master; and (ii) comply with the revised submission. For modest extensions of time on 15 any of these deadlines, the parties may stipulate in writing or, if contested, seek and obtain leave 16 from the Special Master for good cause.13 17 E. Prohibitory Injunction 18 Except for activities required to be undertaken by the mandatory injunction set forth in 19 this Order, and except for minimally intrusive recreational activities such as hunting, hiking, 20 walking, launching kiteboards, and spreading out kiteboarding sails on the ground to allow them 13 If defendants have objections to the United States’ comments, then defendants must communicate them in writing to the United States within seven days. If the parties are unable to resolve their dispute, defendants may within 14 days of service of the United States’ comments, file a motion before the Special Master articulating defendants’ objections and their bases. On any such motion, defendants shall bear the burden of persuading the Special Master that the United States’ comments are unreasonable in light of the court’s order and judgment, the evidence adduced at trial, or the objective of this injunctive relief. In that scenario, defendants shall file and comply with the schedule and plan that accords with the Special Master’s decision. Defendant’s filing of a motion does not automatically stay any obligation set forth in this order. The parties must either stipulate in writing to a stay, or defendants must specifically request a stay. Lastly, if defendants do not file a motion for review, then they will waive any such objections. 1 to dry, defendants are enjoined from engaging in any earthwork, excavation, grading, or other on- 2 the-ground disturbance activity in any area of Point Buckler Island (except for an area located on 3 the Island’s eastern edge and comprising approximately 0.31 acre as shown in the figure admitted 4 into evidence as USA Ex. 359 at 4, an area which does not consist of waters of the United States) 5 or to the tidal waters surrounding Point Buckler Island unless, before initiating any such activity, 6 defendants: (1) provide complete information about the proposed activity to the person(s) 7 identified as contacts by the government for Region 9 of the United States Environmental 8 Protection Agency (EPA) and the San Francisco District of the United States Army Corps of 9 Engineers (Corps) in writing, with a copy to the U.S. Department of Justice, Environmental and 10 Natural Resources Division, on any communications; (2) obtain verification from EPA that the 11 proposed activity is consistent with restoring Point Buckler Island to a functioning tidal marsh 12 ecosystem; and (3) obtain from the Corps an individual permit, a verification of the applicability 13 of a nationwide, general, or regional permit, or a determination that no permit is required for the 14 proposed activity under Section 404 of the CWA, 33 U.S.C. § 1344. If defendants request and 15 are denied verification of such an activity, then defendants may file a motion before the Special 16 Master articulating defendants’ objections and explaining why the proposed activity is consistent 17 with restoring Point Buckler Island to a functioning tidal marsh ecosystem. The objective of this 18 injunctive relief is to protect the waters of the United States on and surrounding Point Buckler 19 Island from further unpermitted, non-exempt discharges of pollutants. 20 F. Compliance-Assurance for Mandatory and Prohibitory Injunctions 21 To ensure defendants comply with the terms of the injunctions above, and to facilitate the 22 government’s responsibility in monitoring the implementation of the injunctions, the court also 23 orders the following: 24 First, any representative of the United States, including any contractor, consultant, or 25 other person the United States believes would be of assistance, shall have the right to access Point 26 Buckler Island, at all reasonable times, with reasonable advance notice, in order to assess 27 compliance with this order. 28 ///// 1 Second, within thirty (30) days of this order, defendants shall record a true and complete 2 copy of this order with the recorder’s office for Solano County, California, linking such record 3 with Assessor Parcel Number 0090-020-010, and file proof of compliance with this court within 4 seven (7) days of recording. 5 Third, absent the approval of the Special Master in the first instance, subject to appeal to 6 the presiding District Judge, no transfer of ownership or control of Point Buckler Island, of any 7 portion of Point Buckler Island, including any less-than-fee-simple interest in Point Buckler 8 Island or a portion thereof (such as an easement or lease), shall relieve defendants of their 9 obligation to comply with all aspects of this judgment. As a condition of any such transfer, 10 defendants shall reserve all rights necessary to comply with all aspects of this judgment. Prior to 11 any such transfer, defendants shall provide a true and complete copy of this judgment to the 12 intended transferee, obtain the intended transferee’s written acknowledgement thereof, and file 13 proof of compliance with the Special Master. 14 G. Termination 15 The injunctive relief provided for in this order is not at this time permanent. If the 16 restoration actions have been successful, and all performance criteria have been met for ten (10) 17 consecutive years, then the management actions and prohibitions will terminate. If the parties 18 agree all termination criteria have been met, defendants may file an unopposed notice of 19 termination of the mandatory and prohibitory injunctions. However, if the parties are unable to 20 agree all termination criteria have been met, then defendant may file a motion before the Special 21 Master articulating their position and bases. On any such motion, defendants bear the burden to 22 show the termination criteria have been met by a preponderance of the evidence. 23 Alternatively, if the government determines temporary injunctive relief is insufficient to 24 maintain the island’s tidal channels and marsh wetlands ecosystem, then it may file a motion 25 before the Special Master in the first instance seeking to make the injunction(s) permanent. On 26 any such motion, the government bears the burden to show permanent injunctive relief is 27 necessary and supported by evidence, including showing a risk of future CWA violations. 1 H. Retention of Jurisdiction 2 The court retains jurisdiction to resolve disputes and enforce the court’s orders and 3 judgments resolving this matter. 4 This order resolves ECF No. 189. 5 IT IS SO ORDERED. 6 DATED: December 8, 2022. 7 8