Opinion
No. 80-3397. Summary Calendar.
April 9, 1981.
Vance E. Ellefson, New Orleans, La., for defendant-appellant.
Hattie M. Broussard, Asst. U.S. Atty., Stanley Millan, U.S. Army Corps of Engineers, New Orleans, La., James W. Moorman, Dirk D. Snel, A. Donald Mileur, U.S. Dept. of Justice, Land Natural Resources Division, Main Justice, Appellate Section, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, POLITZ and TATE, Circuit Judges.
On February 28, 1980, the District Court entered an injunction ordering Appellant/DeFelice to remove the sand and other fill materials which he had placed in the Cheniere Traverse Canal. His actions constituted an attempt to restore access to his property. The Court found DeFelice's actions violated provisions of the 1899 Rivers and Harbors Act (RHA) and Federal Water Pollution Control Act (FWPCA) which require the authorization of the United States Corps of Engineers (Corps) prior to any construction or polluting in any of the "navigable waters of the United States." Our review of the facts, applicable statutes and code regulations, require us to affirm the District Court's actions.
I. Up The Proverbial Creek Without A Permit
The present controversy arises out of a purchase of property by the DeFelice family in Plaquemines Parish, Louisiana in 1944. Because the land was accessible only through the property owned by Citrus Lands of Louisiana, the purchase agreement included a right of access through Citrus Lands' property to a shell-surfaced roadway atop a dam which crossed a manmade drainage canal — commonly known as the Cheniere Traverse Canal (West Canal). Eventually, the right of access lands were sold to a private individual in 1959 by Citrus Lands Inc. When the DeFelices refused to sell their property to this same individual, a gate was placed across the right-of-way which left the property inaccessible except by water. At about this same time, unknown persons started cutting away at the dam across the canal until it was completely destroyed by late 1965 or early 1966.
Maps dated as far back as 1903 and aerial photos taken by the Corps as early as 1958, show the presence of the dam across the canal.
DeFelice's attempts at negotiations with the adjacent landowners to remove the gate proved fruitless. Suit was filed in 1974 which resulted in the decision of DeFeliceLand Corp. v. Citrus Land of La., 330 So.2d 631 (La.App. 4th Cir. 1976), granting the DeFelice family right of access to and egress from the property at the point it had previously exercised under the original agreement. Pursuant to this judgment, an order was entered by the District Court for a survey to establish the metes and bounds of the original right-of-way. In July 1977, in recognition of this legally established right of passage, DeFelice began to reconstruct the dam by placing sand and other fill materials in the canal. On July 17, 1977, an investigator of the Corps appeared at the proposed dam site and ordered the work stopped. After several unsuccessful attempts to serve a cease and desist order, one was sent by certified mail to DeFelice alleging that he was in violation of §§ 9, 10 of the 1899 (RHA), 33 U.S.C.A. §§ 401, 403, and §§ 301(a), 404(a) of the (FWPCA), 33 U.S.C.A. §§ 1311(a), 1344(a), for failing to obtain respectively dam construction and pollutant discharge permits.
The record fixes the actual construction site at Woodpark Campsite approximately 1.2 miles southeasterly from Myrtle Creek, Louisiana and immediately southwesterly from Louisiana Highway 23 in Plaquemines Parish, Louisiana.
The record reflects that by July 19, 1977, the canal which is approximately 40 feet in width at this point, had already been completely filled up to ground level on each bank and was completely blocking the waterway.
Section 9 of the 1899 RHA, 33 U.S.C.A. § 401 provides:
It shall not be lawful to construct or Commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of the Army. Section 10 of the 1899 RHA, 33 U.S.C.A.
§ 403 provides:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; . . . and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Secretary of the Army prior to beginning the same.
Section 301(a) of the FWPCA, 86 Stat. 844, 33 U.S.C.A. § 1311(a) provides:
Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.
33 U.S.C.A. § 1362(6) provides:
The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.
Section 309(d) of the FWPCA, 86 Stat. 860, 33 U.S.C.A. § 1319(d), provides:
Any person who violates section 301, 302, 306, 307, or 308 of this Act, or any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act by the Administrator, or by a State, and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $10,000 per day of such violation.
Section 404(a) of the FWPCA, 86 Stat. 884, 33 U.S.C.A. § 1344(a), provides:
The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity of public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
See Appendix I.
The Corps subsequently initiated litigation against DeFelice seeking an injunction and order to remove the material which he had placed in the canal. DeFelice counterclaimed for the value of the property taken from him by the Corps' actions. Testimony from surrounding residents whose access to other canals leading to the Gulf of Mexico had been blocked by the DeFelice's dam, led the District Court to find that the materials placed in the canal had reduced the depth of the water and impaired navigation. The Court entered an injunction on February 28, 1980, and ordered DeFelice to remove this material in an amount sufficient to restore the depth of the water and the contour of the canal adjacent to the dam site to its pre-1977 condition.
The Court ordered separate trials for DeFelice's counterclaim for $100,000 against the Government's alleged "taking" of the property. That suit is still pending.
The statutory authority for the injunction is found in 33 U.S.C.A. § 406, and 33 U.S.C.A. § 1319(d), ( see n. 4, supra):
Every person and every corporation that shall violate any of the provisions of sections 401, 403, and 404 of this title or any rule or regulation made by the Secretary of the Army in pursuance of the provisions of section 404 of this title shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney General of the United States.
DeFelice seeks a review of this judgment alleging that the District Court erred (i) in finding that the Corps had jurisdiction over the replacement of the dam in a private canal based upon the alleged "navigability" of the canal, and (ii) in accepting the Corps' interpretation of the phrase "currently serviceable" as used in the regulations.
The Ebb And Flow Of "Navigability" — Corps' Jurisdiction?
The principal question on appeal is whether the District Court correctly found that the Corps had jurisdiction by operation of law from the time the canal became capable of navigation under § 10 of the (RHA), 33 U.S.C.A. § 403. ( See n. 4, supra). The focal point then becomes the correct standard for determining "navigability" and ultimately Corps' jurisdiction. The Court below held that the mere capability of navigability in commercial use and/or the fact that the canal was subject to the ebb and flow of the tide was sufficient to establish Corps' jurisdiction even over a private and artificial canal. That finding was not clearly erroneous.
DeFelice conceded at trial that the canal is subject to the FWPCA, therefore a discussion of the jurisdictional scope of the FWPCA would not be dispositive of this case.
The Corps has adopted the following general definitions of "navigable waters of the United States":
§ 329.3 General policies.
Precise definitions of "navigable waters" or "navigability" are ultimately dependent on judicial interpretation, and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this regulation are in close conformance with the tests used by the Federal Courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers.
§ 329.4 General definition.
Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.
§ 329.5 General scope of determination.
The several factors which must be examined when making a determination whether a waterbody is a navigable water of the United States are discussed in detail below. Generally, the following conditions must be satisfied:
(a) Past, present, or potential presence of interstate or foreign commerce;
(b) Physical capabilities for use by commerce as in subparagraph (a) above; and
(c) Defined geographic limits of the waterbody.
§ 329.8 Improved or natural conditions of the waterbody.
Determinations are not limited to the natural or original condition of the water-body. Navigability may also be found where artifical [sic] aids have been or may be used to make the waterbody sutiable [sic] for use in navigation.
(a) Existing improvements: artifical [sic] waterbodies. (1) An artifical [sic] channel may often constitute a navigable water of the United States, even though it has been privately developed and maintained, or passes through private property. The test is generally as developed above, that is, whether the waterbody is capable of use to transport interstate commerce. Canals which connect two navigable waters of the United States and which are used for commerce clearly fall within the test, and themselves become navigable. A canal open to navigable waters of the United States on only one end is itself navigable where it in fact supports interstate commerce. A canal or other artifical [sic] waterbody that is subject to ebb and flow of the tide is also a navigable water of the United States.
(2) The artificial waterbody may be a major portion of a river or harbor area or merely a minor backwash, slip, or turning area. (See § 329.12(b).)
(3) Private ownership of the lands underlying the waterbody, or of the lands through which it runs, does not preclude a finding of navigability. Ownership does become a controlling factor if a privately constructed and operated canal is not used to transport interstate commerce nor used by the public; it is then not considered to be a navigable water of the United States. However, a private waterbody, even though not itself navigable, may so affect the navigable capacity of nearby waters as to nevertheless be subject to certain regulatory authorities.
33 CFR § 329.4, 329.8(a)(1) (1979).
The Supreme Court recently quoted this definition with obvious approval in Kaiser Aetna v. United States, 444 U.S. 164, 172 n. 6, 100 S.Ct. 383, 388 n. 6, 62 L.Ed.2d 332, 341 n. 6 (1979). DeFelice, however, rejects the above definition of "navigability" and the District Court's apparent reliance on it to sustain Corps' jurisdiction. Instead, he maintains that the canal waters are not "navigable waters of the United States" because the canal in question is a (i) private and artificial canal and (ii) there was no factual finding to support a conclusion that the canal was a part of a "continuous waterway sustaining interstate commerce." DeFelice suggests that the correct standard of "navigability" should be a two-step finding of (i) navigability in fact and (ii) connection with a continuous waterway system — neither of which was met here. Moreover, he complains that jurisdiction should not rest on the result of an illegal act — the wrongful removal of the dam — which ultimately rendered the canal navigable in fact.
Neither the record nor case law supports DeFelice's idea that the Corps lacks jurisdiction because the canal was artificial and are privately owned. See, e. g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (private waterway may come within term "navigable waters of the United States if joining existing interstate commerce waterway)"; United States v. Saxton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976) (private canals above the mean high line opening into navigable waterway subject to Corps' jurisdiction); United States v. Joseph G. Moretti, Inc., 526 F.2d 1306 (5th Cir. 1976) (dredging of private canal upstream subject to Corps' jurisdiction where navigable waters were affected downstream).
There is no evidence in the record for us to assume that the DeFelice family or anyone else actually owned the canal.
Applying DeFelice's suggested standard for the moment, we find that the record does conclusively demonstrate that Cheniere Traverse Canal is (i) tidal — a fact stipulated to by both parties, (ii) navigable in fact — has in the past, does presently or is capable of supporting transportation in interstate or foreign commerce, and (iii) connected with a continuous interstate waterway. Several witnesses who had leased campsites along the canal beginning in the early 1960s testified that their 28-30 foot Lafayette Skiff type shrimping vessels were too large to safely maneuver in other nearby water routes except in the connecting canals of Cheniere Traverse, Timbers and Wilkinson. In addition, the same testimony with the aid of United States Geological Survey Maps unmistakably demonstrates that these connecting canals flow into the Gulf of Mexico and thus form a part of a continuous interstate waterway system.
In addition, we observe for clarity sake that there is no requirement that a body of water sustain actual commerce in order to meet the test of navigability in fact. Weizmann v. Dist. Eng., U.S. Army Corps of Engineers, 526 F.2d 1302, 1305 (5th Cir. 1976). E. g., United States v. Diamond, 512 F.2d 157, 160 (5th Cir.), cert. denied, 423 U.S. 928, 96 S.Ct. 275, 46 L.Ed.2d 255 (1975). Rather, judicial interpretation recognizes that "mere capability of commercial use of a body of water suffices even if such commerce could be made possible with artificial aid." United States v. Appalachian Power Co., 311 U.S. 377, 407, 61 S.Ct. 291, 299, 85 L.Ed. 243, 252 (1940). This idea was recognized as early as 1921 in Economy Light and Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921).
[A] river having the actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it is not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions . . . The act in terms applies to "any . . . navigable river, or other navigable body of water of the United States"; and, without doing violence to its manifest purpose, we cannot limit its prohibition to such navigable waters as were, at the time of its passage, or now are, actually open to use . . .
The record reflects the following geographical description:
The canal is connected to Barataria Bay and the Gulf of Mexico which are tidal waterbodies and commercial waterways, by way of Wilkinson Canal, a waterway that runs in a north-south direction between Bayou Barataria and Myrtle Grove, Louisiana. The Wilkinson Canal runs through Plaquemines Parish wetlands, lakes, and bayous, with part of its course utilizing sections of bayous, particularly Bayou Dupont. This waterway is approximately 12.5 miles in length. The Timber Canal, which runs in an easterly-westerly direction connects with and crosses the Wilkinson Canal about three-quarters (0.75) of a mile south of Louisiana Highway 23 at Myrtle Grove, Louisiana. The Timber Canal connects with the canal, known locally as the Cheniere Traverse Canal or West Canal, approximately one and two tenths (1.2) of a mile easterly from the Wilkinson Canal. The site of the unauthorized canal closure in the Cheniere Traverse (or West) Canal is about two hundred (200) feet east of the Canal's junction with the Timber Canal.
In reaching its decision the District Court relied on United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974) which holds that once the artificial canals are connected to tidal water bodies, it and all its inland artificial tributaries become "navigable waters of the United States" by operation of law. Stoeco, 498 F.2d at 611. This Court has followed that concept in the case of United States v. Saxton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976), where Corps' jurisdiction was upheld over five canals connecting to Black Water Sound which was a tidal water body. In urging this Court to adopt the two-step test for "navigability", DeFelice has apparently confused the requirements of "navigable waters of the United States" for tidal coastal waters, with the requirements for nontidal inland waters. We make this assumption because of the cases which DeFelice relies on in support of this proposition. These cases are inapplicable because they deal with landlocked, non-tidal water bodies where the Courts have generally required a connection with other interstate waterways unless the waterway is in fact navigated regularly by vessels in commerce. As previously established Cheniere Traverse Canal is not landlocked, and is tidal. Tidal waters by their very nature form a continuous water body with interstate waterways. Requiring tidal water bodies to meet the test for non-tidal, navigable in fact water bodies (which coincidentally they do here anyway) is really to eliminate the ebb and flow test. The law is to the contrary because even shallow tidal areas, like sloughs or marshes below the elevation of a mean high water line, are subject to regulation under the 1899 RHA. Stoeco Homes, 498 F.2d at 597.
The Court in Minnehaha Creek Watershed Dist. v. Hoffmann, 597 F.2d 617 (8th Cir. 1978) found that there was no RHA jurisdiction over a non-tidal inland lake located entirely within one state, Minnesota, and with only one outlet to the Mississippi River which had been continuously dammed since 1852. The Court based its holding upon the lack of an interstate waterway connection. Similarly, in National Wild life Federation v. Alexander, 613 F.2d 1054 (D.C. Cir. 1979), the court held that a historical navigable, non-tidal, landlocked lake located in North Dakota was not subject to § 10 of RHA.
The inapplicability of these two cases ( see n. 13, supra) is further highlighted by DeFelice's reliance on the cases of The Daniel Ball, 77 U.S. (10 Wall) 557, 19 L.Ed. 999 (1870), and The Genesee Chief, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851) which dealt with expanding admiralty jurisdiction beyond coastal tide waters to the inland non-tidal rivers of the United States. These cases did not reject the tidal theory over coastal waters. Rather, the court chose not to apply it because that would have unduly limited jurisdiction over inland waters.
There are numerous cases holding that ebb and flow of the tide is a valid test of navigability of tidal waters for the Corps' jurisdiction under RHA. See Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Stoeco Homes, Inc., 498 F.2d 597 (3rd Cir. 1974); Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978); Tatum v. Blackstone, 319 F.2d 397 (5th Cir. 1963); United States v. Saxton Co. Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).
We conclude that the District Court applied the correct standard of "navigability" in this case and that Cheniere Traverse Canal by 1965 or 1966 became navigable by operation of law, because (i) it was subject to ebb and flow and (ii) navigable in fact because it was an arm in the flow of interstate commerce to the Gulf of Mexico.
The Supreme Court recently conceded in Kaiser Aetna, that precedent does not disclose a single test or standard for navigability, but instead recognizes several distinct tests, (i) ebb and flow, (ii) connection with a continuous interstate waterway, (iii) navigable capacity, and (iv) navigable in fact. 444 U.S. at 170-172, 100 S.Ct. at 387-389, 62 L.Ed.2d at 340-41.
Having illustrated that Corps jurisdiction occurred by operation of law, we find no merit in DeFelice's argument that jurisdiction was improperly created due to an unauthorized or illegal act. Besides, DeFelice presented no evidence at trial pertaining to this issue and on appeal has failed to cite any law to support his position.
Rising Waters? — Dam Not "Currently Serviceable"
The second point which DeFelice challenges concerns the Corps' interpretation of the phrase "currently serviceable" in the regulation as it applies to an exemption to the permit requirements found in 33 CFR § 322.4(c). ( See Appendix I). The real question is can a dam which disappeared no later than 1966 be considered "currently serviceable" within the meaning of the 1977 regulation? We think not. Government witnesses testified that the Corps' interpretation of "currently serviceable" means that the structure was providing the service for which it was intended at the existing time. The Corps uses a rule of reasonableness as to how soon after a work or structure is torn out it must be replaced. A reasonable length of time is defined as a time period in which there could have been no real change in circumstances surrounding the structure. If an otherwise Corps regulated structure exists and performs a service, it may normally be maintained and repaired without individual § 10 or § 404 permits. If not, an individual permit is normally needed first, and any changed circumstance since the structure's last existence will be carefully weighed. This balanced approach is clearly reasonable. The record here indicates that there had been real changes in circumstances at the dam site. After the prior dam was removed, there was an influx of campers and fishermen who invested in campsites and boats for their pleasure as well as commercial fishing based on the navigability of the canal. Considering the facts (i) changed circumstances, and (ii) that prior to DeFelice's attempt to ever bring suit, the dam had not been in existence for at least nine years, the Court upheld the Corps' interpretation of its regulations as a reasonable one. The reasonable interpretation by an agency of its own regulations is allowed great deference. Udall v. Tallmann, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1955); Soliz v. Plunkett, 615 F.2d 272 (5th Cir. 1980); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260 (5th Cir. 1978); Bone v. Hibernia Bank, 493 F.2d 135 (5th Cir. 1974). The District Court's finding that this interpretation is reasonable is another way of saying it was not arbitrary, capricious or an abuse of discretion. We affirm this finding as well.
§ 209.120 Permits for activities in Navigable Waters or Ocean Waters.
33 U.S.C.A. 1344 seesupra33 U.S.C.A. § 1344
(e) Activities Requiring Authorizations. (1) Structures or work in navigable waters of the United States. Department of the Army authorizations are required under the River and Harbor Act of 1899 (See paragraph (b) of this section) for all structures or work in navigable waters of the United States except for bridges and causeways (see Appendix A), the placement of aids to navigation by the U.S. Coast Guards, structures constructed in artificial canals within principally residential developments where the canal has been connected to a navigable water of the United States (see paragraph (g)(11) of this section), and activities that were commenced or completed shoreward of established harbor lines before May 27, 1970 (see 33 CFR § 209.150) other than those activities involving the discharge of dredged or fill material in navigable waters after October 18, 1972.
(2) Discharges of dredged material or of fill material into navigable waters. (i) Except as provided in subparagraphs (2)(ii) and (iii) of this paragraph, Department of the Army permits will be required for the discharge of dredged material or of fill material into navigable waters in accordance with the following phased schedule:
(iii) Discharges of dredged or fill material in waters other than navigable waters of the United States that have been completed by the effective date of this regulation and discharges of dredged or fill material of less than 500 cubic yards into waters other than navigable waters of the United States that are part of an activity that was commenced before the publication of this regulation, that will be completed within six months of the publication of this regulation, and that involves a single and complete project and not a number of projects associated with complete development plans are hereby authorized for purposes of Section 404 of the Federal Water Pollution Control Act without further processing under this regulation: Provided, however, That the exemption of these types of activities from the requirements of this regulation shall not be construed as a waiver of the requirement to obtain a State water-quality certification under section 401 of the Federal Water Pollution Control Act or a certification of compliance with a State's approved coastal zone management program pursuant to section 307(c)(3) of the Coastal Zone Management Act in those cases where the discharge of dredged or fill material has not been completed by the date of this regulation: And further provided, That the procedures of this regulation shall apply to any activity involving the discharge of dredged or fill material commenced before the date of this regulation if the District Engineer determines that the interests of water quality as expressed in the guidelines (see 40 CFR Part 230) so require. The term "commenced" as used herein shall be satisfied if there has been, before the date of this regulation, some discharge of dredged or fill material into the navigable water as a part of the above activity or an entering into of a written contractual obligation to have the dredged or fill material discharged at a designated disposal site by a contractor.
42 Fed.Reg. 37122et seq.,
DeFelice's action in placing fill materials into the Cheniere Traverse Canal — a "navigable water of the United States" — without a permit, evoked the Corps' jurisdiction and constituted a clear violation of RHA and FWPCA. Because we find no applicable exemptions in this case to the permit requirements, we uphold the District Court in all of its findings and judgment.
AFFIRMED.