United States v. Smith, 2:18-cv-03920

Background

Defendant Gordon Smith, a member of the Shinnecock Nation, owns a residential allotment at 5 East Creek Way, Southampton, within Shinnecock territory.
EPA inspected the Property (June 30, 2016) and documented ~0.1 acre of fill (concrete, rebar, bricks, gravel, landscaping debris) placed in tidal wetlands adjacent to Heady Creek/Shinnecock Bay.
No Section 404 permit from the Army Corps was obtained; contractors (e.g., Valdespino) acknowledged dumping material; EPA found wetland hydrology, hydric soils, and hydrophytic vegetation.
Smith failed to respond to an EPA RFI (Mar. 1, 2017) and ignored an EPA Administrative Compliance Order (May 3, 2017); tribal cease‑and‑desist efforts also failed; Smith erected a fence and continued activity according to tribal reports.
The Government sought a preliminary injunction and limited expedited discovery; Magistrate Judge Tomlinson recommended granting both remedies, rejecting Smith’s sovereignty-based jurisdictional objection.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith discharged pollutants into waters of the United States without a §404 permit	Smith deposited construction/demolition and landscaping fill into tidal wetlands adjacent to navigable waters; no permit obtained	Smith contends tribal sovereignty/self‑governance precludes federal authority and says materials were for shoreline protection since the 1980s	Court found all elements met: person, point‑source discharge of pollutants, wetlands/waters of the U.S., and no permit — violation of CWA §301 established
Whether a preliminary injunction should issue (likelihood of recurrence / irreparable harm)	Statutory enforcement presumes harm; Smith ignored RFI/ACO/tribal orders, continued activity, and obstructed observation — likely to recur	Smith claimed protective/necessity rationale and sovereignty; offered no compliance or permit application	Court found reasonable likelihood of recurrence and recommended a preliminary injunction enjoining further placement of fill into waters of the U.S.
Whether limited expedited discovery (compel updated RFI responses) is appropriate	Expedited responses are necessary to determine ongoing/continued discharges and are reasonable and not burdensome	Defendant did not persuasively oppose on the record	Court recommended granting limited expedited discovery compelling updated RFI responses
Whether tribal sovereignty bars enforcement / deprives court of jurisdiction	Government: CWA applies to persons discharging into waters of the U.S.; court has enforcement authority	Smith: Shinnecock sovereignty and reserved rights preclude federal regulation of tribal waters/property	Court rejected sovereignty claim as insufficient to overcome evidence that CWA applies to the complained conduct

Key Cases Cited

Arthur Guinness & Sons PLC v. Sterling Publ’g Co., 732 F.2d 1095 (2d Cir. 1984) (purpose of preliminary injunction is to preserve the status quo pending final adjudication)
Moore v. Consolidated Edison Co. of New York, 409 F.3d 506 (2d Cir. 2005) (standard for preliminary injunction: irreparable harm plus likelihood of success or serious questions/balance of hardships)
No Spray Coalition, Inc. v. City of New York, 252 F.3d 148 (2d Cir. 2001) (preliminary injunction standard discussion)
City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115 (2d Cir. 2010) (statutory enforcement by government can dispense with showing irreparable harm)
United States v. Diapulse Corp. of America, 457 F.2d 25 (2d Cir. 1972) (government need only show statutory violation and reasonable likelihood of recurrence for injunctive relief)
United States v. Brace, 41 F.3d 117 (3d Cir. 1994) (elements required to establish CWA wetlands violation)
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983) (use of mechanized equipment to place fill in wetlands constitutes point‑source discharge)
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (wetlands adjacent to navigable waters fall within CWA §404 jurisdiction)
Rapanos v. United States, 547 U.S. 715 (2006) (Supreme Court plurality and concurrence articulated tests for when adjacent wetlands are covered by the CWA)
Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010) (preliminary injunction standards)