Judge Guts $3.6M Fine of Man Who Fixed Leaking Levee

FAIRFIELD, Calif. (CN) – A California judge on Wednesday overturned a $3.6 million fine against a San Francisco Bay Area business that repaired a broken levee, ruling the state didn’t give the owner a fair trial and built the massive fine on shaky evidence.

Solano County Superior Court Judge Harry Kinnicutt set aside two state water agencies’ fines against John Sweeney, the owner of a 39-acre island in the San Francisco Bay Delta estuary. The regulators accused Sweeney, who operates a duck hunting club and kite-surfing business on his tidal island, of illegally degrading wetlands when he fixed a leaky levee in 2014.

The San Francisco Bay Regional Water Board fined Sweeney $2.8 million, while the San Francisco Bay Conservation & Development Commission tacked on an additional $752,000 fine – the highest penalties the agencies had ever imposed.

In three 14-page orders, Kinnicutt said the water agencies rushed hearings against Sweeney, misread state environmental law and relied on faulty expert witnesses.

“The court finds that the [water board’s] consultants lack credibility, that their opinions on this issue should be given no weight,” Kinnicutt said.

The feud started in 2015, when the water board issued a cleanup and abatement order requiring Sweeney to restore Point Buckler Island in wake of the levee repairs. The water board soon lifted its order after Sweeney challenged it and was granted a stay in state court.

But the state agencies, which observed but didn’t make an effort to stop Sweeney’s levee repairs, continued to fight. By December 2016, they had issued the $3.6 million combined fine and accused Sweeney of polluting tidal wetlands and damaging fish habitat without a permit.

“The loss of tidal wetlands at the island are having a direct, negative impact on beneficial uses of waters and wetlands in the Suisun Marsh, which provides critical habitat to migratory birds and threatened and endangered species including migrating salmon and delta smelt,” the water board said in a May 2016 release.

Sweeney and his attorneys at Briscoe Ivester & Bazel of San Francisco countered that he didn’t need permits because the repairs were covered by a 1977 state law which protects over 150 duck clubs in Suisun Marsh. They also disagreed with the state’s conclusion that the island was inundated daily by the tide.

Kinnicutt blasted the state for flip-flopping regarding the tide.

“The [water board’s] consultants changed position and opined that the interior was rarely inundated by the tides. But they did not admit that they changed their opinion, they did not explain why their initial calculations had been wrong and they did not make any corrections to their calculations,” the ruling states.

Kinnicutt also ruled the water board didn’t present evidence that fish were actually harmed by the repairs or that they even used the small canals closed by the fixed levee. He said the water agencies’ actions showed an “appearance of vindictiveness.”

In a phone call, Sweeney said he just wanted to fix the island and improve his duck club and kite-surfing business. He says his legal expenses are north of $2 million and that he never violated environmental laws.

“The state made it a huge to-do; I’m glad the judge saw right through it,” Sweeney said.

Water board spokesman Tim Moran said its attorneys have yet to read Kinnicutt’s ruling and declined to comment after receiving a copy of a ruling from Courthouse News.

In addition, Sweeney was able to convince the court that he didn’t receive a fair trial when he appealed the development commission’s hefty fine, which cited 27 violations.

“Plaintiffs had only about two minutes before the enforcement committee to make their case on each violation,” the ruling states. “The court finds that these times were not sufficient for a fair trial in this case.”

 

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