USA v. Serra

Filing 126

OPINION AND ORDER, Motions terminated: 114 MOTION to dismiss motion requesting order to show cause and sanctions as to USA filed by Domingo Serra, 121 MOTION to dismiss as to USA filed by Carmen Iris Colon-Santiago. Signed by US Magistrate Judge Camille L. Velez-Rive on 1/8/13.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
CIVIL NO. 87-840 (CVR)

v.
DOMINGO SERRA AND CARMEN
IRIS COLON,
Defendants.

OPINION AND ORDER
Defendants Domingo Serra and Carmen Iris Colón (hereafter “defendants”) are
pending a hearing before this Magistrate Judge on an order to show cause to be held upon
the United States’ request for contempt. The request for contempt is predicated on
allegations defendants have knowingly violated the terms of a stipulation and consent
judgment reached by all the parties on July 6, 1988. At such time, defendants were married
to each other and were the owners of a property identified as Lot 15 that was adjacent to
the beach.1 The purpose of the stipulation was to prohibit defendants from discharging any
dredged or fill material into navigable waters of the United States or adjacent wetland
without first obtaining a permit under the relevant provisions of the Clean Water Act.2 Title
33, United States Code, Section 1344.
Defendant Serra recently filed a Motion of Dismissal regarding the United States’
Motion Requesting Order to Show Cause (Docket No. 86) and as a consequence the hearing

1

2

Docket No. 118, Exhibit 1, Stipulation for Consent Judgment.

The stipulation provides that, upon violation of the agreement, contempt proceedings could be commenced
for imposition of penalties and/or incarceration of defendants until full compliance. The Court retained jurisdiction for
purposes of enforcing, interpreting or modifying the requirements of the stipulation. Docket No. 118, Exhibit 1, ¶¶ i, p.

United States v. Domingo Serra, et al
Civil No. 87-0840 (CVR)
Opinion and Order
Page No. 2

to show cause scheduled for January 17, 2013, and the penalties that may result. (Docket
No. 114). The United States has filed its opposition. (Docket No. 118). The Court referred
these motions to this Magistrate Judge. Then, the parties consented to proceed before a
Magistrate Judge for all further proceedings (Docket No. 120) and this case was assigned
to the undersigned.3
Defendant Serra submits the 1988 consent decree between the parties referred to a
plot of land identified as Parcel/Lot 15.4 However, the request for contempt recently filed
by the government at Docket No. 86 refers to observations by an officer from the U.S. Army
Corps of Engineer on April 19, 2012, that defendants caused discharge of materials at the
plot of land and adjacent wetlands Punta Las Picuas sector in Río Grande, Puerto Rico,
specifically parcel number 13. A sworn statement by José A. Cedeño-Maldonado was
submitted as to observations while he was standing on the paved road directly in front of
Lot 13 for he could not have access and he observed the filled material was placed in the
area. Defendant Serra’s grounds to dismiss present the sworn statement does not indicate
the fill material observed was located in the wetland or discharged in the wetland and as
such, the request for contempt lacks any real evidence to sustain the allegations.
Additionally, defendant Serra submits the stipulation clearly covered Parcel 15 and not
Parcel 13 as attested to by the affiant. (Docket No. 86, Exhibit 3, Declaration of José A.
Cedeño-Maldonado). To further substantiate his position, defendant Serra avers the same
3

The show cause hearing was re-scheduled for February 26, 2013 at 9:00 a.m at the request of counsel for
defendants. (Docket Nos. 124 and 125).
4

Co-defendant Carmen Iris Colón-Santiago’s Motion to Dismiss incorporated by reference all arguments raised
by defendant Serra. (Docket No. 121).

United States v. Domingo Serra, et al
Civil No. 87-0840 (CVR)
Opinion and Order
Page No. 3

situation arose when back in February 4, 2004, the U. S. Army Corps of Engineer issued a
cease and desist order as to said Parcel 13 but when objected to by defendants, the U.S.
Army Corps of Engineer never proceeded with the order or pursued a remedy with the
Court. Defendant considers that any violation claimed as to Parcel 13 must be pursued in
a new case and not as part of the 1988 stipulation.
The United States opposed defendant’s motion to dismiss as to only covering
activities at Parcel 15 and not as to adjacent Parcel 13. It attests that defendant Serra
informed officer José Cedeño-Maldonado that he was placing the fill on Parcel 13. The
government also claims the stipulation should not be so restrictively construed.
To the contrary, the United States indicates the prohibition to discharge any dredge
or fill material into the navigable waters cannot grant impunity to discharge from any
location of defendant’s property except Parcel 15. Paragraph I(f) therein provides that:
I (f):

Defendants are prohibited from the discharge of any dredged or fill
material into navigable waters of the United States or adjacent
wetlands without first obtaining a permit pursuant to Section 10 of the
Rivers and Harbors Act of 1899, 33 U.S.C. 1403 and the Clean Water
Act, 33 U.S.C. §1344.

The United States further submits defendants were well aware of a need for the U.S.
Corps of Engineers to grant them a permit since they visited same during October and
November of 2012 and were so advised by Ms. Carmen Gisela Román, Corps Regulatory
Project Manager for the north east coast of Puerto Rico and the need of a Clean Water Act
Section 404 permit. There was also a second visit by defendant Serra and he was advised
as to the need for a permit for the placement of fill on their property. Defendant Serra was
therein advised as to fill activities not only in Parcels 15 and 13, but also as to Parcels 23 and

United States v. Domingo Serra, et al
Civil No. 87-0840 (CVR)
Opinion and Order
Page No. 4

25 and was issued a Cease and Desist Order for activities as to Parcel 13. (Docket No. 118,
Exhibit 4).5 The United States also raised submission as to the interpretation of the maps
and photos of the area were also discussed in regards to adjacent property indicators of
wetlands and where fill may have been placed.
Sanctions in civil contempt proceedings are employed to coerce the defendant into
compliance or where appropriate, to compensate the harmed party for losses sustained. In
re Power Recovery Systems, Inc., 950 F.2d 978 (1st Cir. 1991) (citing to Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498 (1911).
Due process may entitle the parties to discovery and an evidentiary hearing to the
extent necessary to resolve relevant factual disputes, which are present in the instant case.
Thus, the present issues are more akin for evidentiary adjudication at the time of the
hearing already scheduled.6 Still, since the contempt is limited to whether defendants’
conduct violated or not the stipulation and the judgment thereunder entered in this case,
the parties can reasonably expect litigation as to the order to show cause not to encompass
a new and independent civil action. To prove civil contempt it must be shown that
defendant had notice of the order, which was clear and unambiguous, had the ability to
comply with the order and violated same. Hawkins v. Department of Health & Human
Servs. of New Hampshire, 665 F.3d 25 (1st Cir. 2012) (citing United States v. Saccoccia, 433

5

Co-defendant Colón-Santiago has briefly attempted to argue the law of the case doctrine would not allow the
original injunction to be extended to another plot of land.
6

Similarly the government’s contention that it is seeking to have this matter placed at rest provided it gains
authorization to access parcel 13, which has already been denied by defendant, need not be resolved. Defendants have
acknowledged standing to deny access to the property for defendants are to be afforded certain procedural protection once
the government initiated proceedings of contempt.

United States v. Domingo Serra, et al
Civil No. 87-0840 (CVR)
Opinion and Order
Page No. 5

F.3d 19, 27 (1st Cir. 2005).7 In civil contempt a less than full adversary hearing comports
due process. In re Grand Jury Proceedings, 795 F.2d 226 (1st Cir. 1986).
In view of the foregoing, the Motions to Dismiss are DENIED.8 (Docket No. 114,
121). The scheduling of the order to show hearing remains as set at Docket No. 125.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of January of 2013.
S/ CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE

7

A complainant must prove contempt by clear and convincing evidence. AMF Inc. v. Jewett, 711 F.2d 1096 (1st

Cir. 1983) (citing Burke v. Guiney, 700 F.2d 767, 769 (1st Cir. 1983)).
8

The show cause hearing set for January 17, 2013 at 9:00 am remains as previously set.