Bankers Life & Cas. Co. v. VILLAGE OF NO. PALM B., FLA., 71-3519.

• Decision Date: 25 September 1972
• Docket Number: No. 71-3519.,71-3519.
• Citation: 469 F.2d 994
• Parties: BANKERS LIFE AND CASUALTY COMPANY, etc., Plaintiff-Appellee, v. The VILLAGE OF NORTH PALM BEACH, FLORIDA, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

469 F.2d 994 (1972)

BANKERS LIFE AND CASUALTY COMPANY, etc., Plaintiff-Appellee, v. The VILLAGE OF NORTH PALM BEACH, FLORIDA, etc., et al., Defendants-Appellants.

No. 71-3519.

United States Court of Appeals, Fifth Circuit.

August 14, 1972.

As Modified on Denial of Rehearing September 25, 1972.

Herbert D. Sikes, M. Stephen Turner, Tallahassee, Fla., for the State.

Herbert L. Gildan, West Palm Beach, Fla., for Village of North Palm Beach.

George R. Hyde, Atty., Dept. of Justice, Washington, D. C., Robert W. Rust, U. S. Atty., Kenneth G. Oertel, Asst. U. S. Atty., Miami, Fla., Kent Frizzell, Asst. Atty. Gen., Thomas L. Adams, Jr., Edmund B. Clark, Attys., U. S. Dept. of Justice, Washington, D. C., for federal appellants.

Ronald Sales, Evelyn R. Flack, Palm Beach, Fla., William T. Kirby, Chicago, Ill., for plaintiff-appellee.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

These appellants complain of the order of the trial court ordering the Army Corps of Engineers to issue a permit for dredge and fill operations by the appellee, Bankers Life and Casualty Company on submerged land in Lake Worth, Florida. The land in question is wholly enclosed within the Village of North Palm Beach. Bankers also owned approximately 288 acres of land within the municipal limits of the Village, which land is riparian to Lake Worth, a navigable water of the United States which opens into the Atlantic Ocean. The order which Bankers sought, and which was a subject of the trial court's order, was to permit Bankers to dredge and fill an additional approximately 194 acres of the submerged land adjacent to its property by utilizing material from the bed of Lake Worth.

The history of this effort by Bankers to turn part of the waters of Lake Worth into land may be summarized as follows. On April 17, 1957, Bankers paid the Florida State Board of Trustees of the Internal Improvement Trust Fund of Florida (the state agency which at that time could appropriately deal with the matter) the sum of $26,000 for the use of 2,500,000 cubic yards of fill. Much of the fill, approximately 1,116,170 cubic yards, was consumed in the filling of other lands by Bankers and is not part of the subject matter of this action.

On February 15, 1957, Bankers applied to the Corps of Engineers for a permit to fill the property, and this was granted on or about April 29, 1957. There was nothing in the Federal Statutes at the time that required the Corps of Engineers to consider conservation, and there is nothing in the record to indicate that any study of possible ecological effects was made at that time. The permit which was issued carried the following statement on its face.

"That this instrument does not give any property rights either in real estate or material, or any exclusive privileges."

It also stated that:

"If the structure or work herein authorized is not completed on or before the 31st day of December, 1960, this permit if not previously revoked or specifically extended, shall cease and be null and void."

At the request of Bankers, the Corps, in December, 1960, extended the permit to December 31, 1963.¹ The extension also contained the statement that if work authorized by the permit was not completed during the period of extension the permit would become null and void if not previously revoked or specifically extended. On December 16, 1963, the Trustees wrote the Corps a letter requesting that final consideration of Bankers' application for another permit extension be deferred pending Bankers' receipt of a local fill permit in accordance with Florida Statute Section 253.124, F.S.A. The Corps agreed to defer Bankers' permit extension and on December 27, 1963, informed Bankers that it would not be possible to grant an immediate extension at that time because of Corps policy when there was local objection.²

For several years no further action was taken as between Bankers and the Corps of Engineers. During this time various attempted settlements of disputes were negotiated between Bankers, the State of Florida and the Village of North Palm Beach concerning the title of the submerged lands sought to be filled. On December 6, 1968 and March 17, 1969, Bankers corresponded with the Village in an effort to obtain a local fill permit. In June, 1969, the Village informed Bankers that a permit would be granted; however, shortly thereafter on July 10, 1969, the Village undertook to rescind this action.

By letter dated July 10, 1969, the same date as the meeting of the Village Council rescinding the action of June, Bankers addressed a letter to the Corps of Engineers stating that a permit had been received by letter from the Village of North Palm Beach and stating that "in as much as there were no other objections to the extension of the permit, as stated in your letter of December 27, 1963, to us, I trust this removes the final obstacle and you will grant the extension requested promptly."

The Corps of Engineers, obviously not desiring to resolve any underlying disputes as to whether the requirements referred to in the original request to the Corps from the Trustees had all been met, responded by letter of July 18, stating "it will still be necessary, however, that the written approval of the Trustees of the Internal Improvement Fund be furnished before further action can be taken on your application."

The status of the matter thus was that the state agency had requested that the application be held up in December, 1963. The Corps of Engineers had held it up, indicating that once the matters referred to in the state's letter were cleared it would be the purpose of the Corps of Engineers to proceed with an issuance of the extension. However, it was not until more than five years later that Bankers undertook to inform the Corps that it considered the conditions previously existing to have now been satisfied. The Corps of Engineers, quite appropriately, we think, deferred its action until it obtained a "go ahead" from the Trustees, the state body which had originally requested the deferment of the issuing of the permit.

Subsequently, Bankers instituted this suit requesting the district court to compel the district engineer, the Secretary of the Army and the United States to renew the permit or to issue a new permit.

The theory on which the plaintiffs' case was based was that the Corps of Engineers would have issued an extension of its permit but for the intervention of the Trustees; that the Trustees' request to the Corps to withhold the extension "pending granting of local fill permit in accordance with Section 253.124, Florida Statutes, 1957," was a gratuitous interference by the Trustees in a matter in which, under existing Florida law, it had no power to act.³

The trial court accepted this theory. It held that the 1957 Act prohibiting the acquisition of submerged lands by dredge and fill methods was not applicable to Bankers and that neither the Trustees nor the Village had any authority to interfere with its continued operation so long as the Corps of Engineers kept its permit in effect. The trial court issued its mandatory injunction directing that the Corps of Engineers grant the permit without reference to the position either of the Village or the Trustees, and without any consideration of the effect on either the ecology or the Village or state interests that, during the period of inactivity by Bankers, had come much to the fore both in state and federal legislation relating to submerged lands. Cf. Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199. The court also decreed that Bankers be permitted to dredge and fill without permit from either Village or Trustees, and that, upon completion of such activity, title should be quieted in Bankers as to the lands thus created, all under the savings clause of the 1957 statute.

We have little difficulty in disposing of the government's appeal. The trial court clearly erred in enjoining the Secretary of the Army and the Corps of Engineers "to issue immediately to plaintiff, Bankers Life and Casualty Company, a good and sufficient extension of its permit to bulkhead and fill the submerged lands surrounding its real property, in accordance with all of the terms and conditions of the plaintiff's permit which expired on December 31, 1963, the term of the permit to be for three years from the date the permit is issued."

For the purpose of discussion of the government's appeal, we will assume that the Trustees incorrectly construed the 1957 statute as requiring Bankers to obtain a permit from the Village of North Palm Beach before dredge and fill operations could be undertaken within the village limits.⁴ Nevertheless, no authority of any kind is cited to justify the court's decision that if the Trustees' objection to the extension of the Corps' permit was improperly based, the Secretary of the Army could be required by what is, in effect, mandamus, to issue a permit in light of all the ebbing and flowing of the tides of change with respect to the duty of the Secretary of the Army in dealing with requests for such permits, by the time Bankers got around to making an affirmative demand upon the Corps of Engineers for a renewal of the permit.

Bankers, so far as this record discloses, was content to take no legal action to test the correctness of the Trustees' position or the Village's position for more than five years after being notified that the Corps of Engineers would not renew so long as objection was filed by the state agency involved. That five-year period, plus the time that elapsed before the entry of the final judgment in this case, is the point of time to which we must look. See Zabel v. Tabb, supra, where, speaking of the National Environmental Policy Act of 1969, 42 U.S.C.A. §§ 4331-4347, this court said:

"This Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man\'s environment.

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