Jones Creek Investors, LLC et al v. Columbia County, Georgia et al
Filing
204
ORDER granting the 189 Notice of Filing of Consent Decree. Accordingly, Plaintiff JCI's claims against Defendants Kimlandco, LLC; Southern Site Design, Inc.; and Robert F. Mullins are DISMISSED WITH PREJUDICE. The Clerkis instructed to enter the Consent Decree (Doc. 189-1). Signed by Chief Judge Lisa G. Wood on 1/15/2013. (ca)
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JONES CREEK INVESTORS, LLC; and
SAVANNAH RIVERKEEPER, INC.,
Plaintiffs,
vs.
COLUMBIA COUNTY, GEORGIA;
CSX TRANSPORTATION, INC.;
MARSHALL SQUARE, LLC, fYd/b/a
NBR Investments LLC;
D.C. LAWRENCE COMMERCIAL
REAL ESTATE, LLC;
DONALD LAWRENCE;
JOSEPH H. MARSHALL, III;
ALLEN DANIEL MARSHALL;
KIMLANDCO, LLC;
SOUTHERN SITE DESIGN, INC.;
ROBERT F. MULLINS;
BRUCE LYONS;
JONES CREEK PARTNERS, LLC; and
MARSHALL SQUARE OWNER'S
ASSOCIATION, INC.,
Defendants.
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CV 111-174
ORDER
Presently before the Court is a Consent Decree filed
jointly by Plaintiff Jones Creek Investors, LLC ("Plaintiff
JCI") and Defendants Kimlandco, LLC; Southern Site Design, Inc.;
and Robert F. Mullins ("Krystal River Defendants") seeking to
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Dismiss Plaintiff JCI's claims against the Krystal River
Defendants. See Dkt. No. 189-1. Upon due consideration, the
parties' Consent Decree is GRANTED.
I. BACKGROUND
In this action, Plaintiffs seek damages and injunctive
relief for violations of the Clean Water Act ("CWA"), 33 U.S.C.
§ 1365, and for violations of various other federal and state
law claims. See Dkt. No. 92. Specifically, Plaintiff JCI
brought this action under the provisions of the citizen suit
provision of the CWA. 33 U.S.C. § 1365 (a) (1). Plaintiff JCI's
claims are predicated upon the Krystal River Defendants' landdisturbing and/or development activities at the Krystal River
Site in Evans, Georgia and upon the alleged discharge of
sediment, soils, debris, and other pollutants from that site.
On November 13, 2012, Plaintiff JCI and the Krystal River
Defendants moved for approval and entry of the Consent Decree
that is the subject of this Order. See Dkt. No. 189.
A. CONSENT DECREE
The proposed Consent Decree provides for payment by the
Krystal River Defendants to Plaintiff JCI for damages,
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remediation and restoration costs, and attorney's fees and
expenses. See Dkt. No. 189-1, at 6. The proposed decree
acknowledges that the payment is a compromise and that Plaintiff
JCI is not fully compensated through the parties' settlement.
Id. at 7. The proposed decree does not provide for civil
penalties available under the CWA. Id.
The proposed Consent Decree states that, as a result of the
instant lawsuit, the Krystal River Defendants brought the
Krystal River Site into compliance with the CWA and various
other state environmental laws. Id. The proposed decree
requires the Krystal River Defendants to provide notice and
plans to Plaintiff JCI for review prior to commencement of any
land-disturbing or development activities involving one or more
acres at the Krystal River Site. Id.
B. UNITED STATES' REVIEW
Pursuant to 33 U.S.C. § 1365(c) (3), the parties' forwarded
their proposed Consent Decree to the United States Department of
Justice ("DOJ") and the United States Environmental Protection
Agency ("EPA"). The DOJ and EPA had forty-five (45) days to
review and comment upon the parties' proposed Consent Decree.
See 33 U.S.C. § 1365(c) (3) . On December 21, 2012, the DOJ
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stated that it had no objections to the Court's entry of the
Consent Decree. See Dkt. No. 197. The EPA did not comment or
object within the allotted review period.
C. MARSHALL SQUARE DEFENDANTS' OBJECTIONS
On December 27, 2012, Defendants Marshall Square, LLC; D.C.
Lawrence Commercial Real Estate, LLC; Donald Lawrence; Joseph H.
Marshall, III; and Marshall Square Property Owners Association
("Marshall Square Defendants") filed an objection to the
proposed Consent Decree. See Dkt. No. 198. The Marshall Square
Defendants' objections were that (1) they have interests
affected by the decree and their consent to the proposed decree
was not obtained, (2) the proposed decree is not in the public
interest, (3) the proposed decree is not fair or reasonable, and
(4) the Court lacks subject matter jurisdiction to enter the
decree. Id. Should the Court enter the decree, the Marshall
Square Defendants asked the Court to place the settlement funds
into escrow pending final resolution of the suit. Id.
III. DISCUSSION
The Court must ensure that the parties' proposed Consent
Decree is not "unlawful, unreasonable, or inequitable." United
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States v. Hialeah, 140 F.3d 968, 973 (11th Cir. 1998) (citing
United States v. City of Alexandria, 614 F.2d 1358, 1361 (5th
Cir. 1980)). Because the instant action seeks to enforce the
CWA and various state environmental statutes, the Court must
ensure that the proposed decree is consistent with the public
objectives sought to be attained by those Acts. United States
v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981)
(citing Metro. Hous. Dev. Corp. v. Village of Arlington Heights,
616 F.2d 1006, 1014 (7th Cir. 1980))
The Court has no evidence that the proposed decree is
unlawful. Moreover, the Court has been presented no evidence
that the consenting parties had anything other than an arm's
length, good-faith, settlement negotiation. Moreover, the
proposed decree requires the Krystal River Defendants to bear
the cost of the harm for which they are legally responsible.
Although the proposed decree recognizes that Plaintiff JCI is
not fully compensated for the harm that the Krystal River
Defendants caused, such a result is common in settlement
negotiations.
Critically, the suit caused the Krystal River Defendants to
come into compliance with environmental legislation. The
proposed Consent Decree also allows continued monitoring of any
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development activities by the Krystal River Defendants at the
Krystal River Site. Such an outcome is wholly consistent with
the goals of environmental legislation. Moreover, cooperation
and voluntary compliance are the preferred means of achieving
the goals of environmental legislation. See id. at 441
("Voluntary compliance frequently contributes significantly
toward ultimate achievement of statutory goals." (citing
Patterson v. Newspaper & Mail Deliverers' Union, 514 F.2d 767,
771 (2d Cir. 1975))) . In fact, "willing compliance [is] more
readily generated by consent decrees than [are] mandates imposed
at the end of bitter and protracted litigation." Id. at 442
(citing Metro. Hous. Dev. Corp., 616 F.2d at 1014).
The Marshall Square Defendants suggest that they are
entitled to object to the proposed Consent Decree. Moreover,
the Marshall Square Defendants argue that the Court must deny
entry of the proposed decree because they object to it. See
Dkt. No. 198, at 4.
As a preliminary matter, the Marshall Square Defendants
lack standing to object to the proposed Consent Decree. The
proposed decree is a "hybrid decree" in that only some parties
consented to it. See City of Miami, 664 F.2d at 442. "Insofar
as the decree does not affect the nonconsenting party and its
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members, or contains provisions to which they do not object,"
the Court may approve the decree. Id. Here, entry of the
proposed decree does not affect the legal rights of the Marshall
Square Defendants. The claims brought by Plaintiffs arise from
each defendant's own actions. Moreover, there is no right of
contribution among the defendants. Finally, Georgia law permits
apportionment of liability among all responsible parties,
including settling defendants. See O.C.G.A. § 51-12-33.
Accordingly, the Marshall Square Defendants lack standing to
object to the proposed Consent Decree. Consequently, their
objection to the Decree's terms does not prevent entry of the
decree.
Moreover, the Marshall Square Defendants' objections lack
merit. Specifically, as noted above, the Court finds that the
Consent Decree is lawful, fair, reasonable, and consistent with
the purposes of the environmental legislation at the heart of
the instant suit. Finally, the Court finds no reason to require
Plaintiff JCI to place the settlement proceeds in escrow.
IV. CONCLUSION
Upon due consideration, the Court finds that the parties'
Consent Decree is fair, reasonable, consistent with applicable
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law, and in the public interest. Therefore, the parties'
Consent Decree is GRANTED.
Accordingly, Plaintiff JCI's claims
against Defendants Kimlandco, LLC; Southern Site Design, Inc.;
and Robert F. Mullins are DISMISSED WITH PREJUDICE.
The Clerk
of Court is instructed to enter the Consent Decree (Dkt. No.
189-1)
SO ORDERED, this 15th day of January, 2013.
L SA GODBEY 400D, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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