Avoyelles Sportsmen's League, Inc. v. Alexander, Civ. A. No. 78-1428.

• Decision Date: 12 March 1981
• Docket Number: Civ. A. No. 78-1428.
• Citation: 511 F. Supp. 278
• Parties: The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al. v. Clifford L. ALEXANDER et al.
• Court: U.S. District Court — Western District of Louisiana

511 F. Supp. 278

The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al. v. Clifford L. ALEXANDER et al.

Civ. A. No. 78-1428.

United States District Court, W. D. Louisiana, Alexandria Division.

March 12, 1981.

COPYRIGHT MATERIAL OMITTED

Donald R. Wilson, Gaharan, Richey & Wilson, Jena, La., for all plaintiffs.

James B. Tripp, New York City, for Environmental Defense Fund.

Michael Osborne, Smith & Osborne, New Orleans, La., for Environmental Defense Fund and National Wildlife Fed.

F. Walter Conrad, Houston, Tex., for intervenors Ophelia Lake & Bayou Lafourche, and for defendants, Lambright & Prevot.

William D. Brown, Monroe, La., David B. Beers and Nancy C. Shea, Richard S. Wasserstrom, Nat'l Forest Products Assn., Washington, D. C., for amicus curiae — American Paper Institute, the National Forest Products Assn., and the Louisiana Forestry Assn.

Frances O. Allen, Shreveport, La., for all government defendants.

Charles K. Reasonover, Deutsch, Kerrigan & Stiles, New Orleans, La., for defendant Elder Realty Co.

Louis D. Curet, D'Amico & Curet, Baton Rouge, La., for amicus curiae — Louisiana Farm Bureau Federation, Inc.

Dan E. Melichar, Gravel, Robertson & Brady, Alexandria, La., for defendant H. P. Lambright.

Edwin R. Woodman, Baton Rouge, La., for intervenor Department of Natural Resources.

Joseph E. LeBlanc, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for intervenors Louisiana Landowners Assn.

Fred R. Disheroon and Nancy L. Long, Dept. of Justice, Catherine A. Winer, U. S. Environmental Protection Agency, Washington, D. C., for all federal defendants.

OPINION

NAUMAN S. SCOTT, Chief Judge.

Plaintiffs¹ brought this declaratory and injunctive action alleging that land-clearing operations being carried on by the private defendants² have and will: alter and modify the course, condition and capacity of the navigable waters of the United States in violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 403; result in the discharge of dredged and fill material into the waters of the United States in violation of § 404 of the Clean Water Act (hereinafter CWA), 33 U.S.C.A. § 1344; result in the discharge of pollutants into the waters of the United States in violation of § 402 of the CWA, 33 U.S.C.A. § 1342; and violate Louisiana State law under Louisiana Civil Code arts. 667 and 857. The plaintiffs requested that we compel the federal defendants³ to regulate the land-clearing activities and enjoin the land-clearing activities until the extent of the federal defendants' jurisdiction has been determined and permits applied for under 33 U.S.C.A. §§ 403, 1342 and 1344.

The land subject to this proceeding and being cleared is an approximately 20,000 acre tract (hereinafter referred to as the Lake Long Tract) situated in Avoyelles Parish, Louisiana between the Grassy Lake State Management Area and the Spring Bayou State Management Area. It lies within the Bayou Natchitoches basin which, along with the Ouachita, Black and Tensas river basins, makes up the Red River backwater area. The Bayou Natchitoches basin itself is an area comprised of approximately 140,000 acres. Much of this basin has been cleared of forest but before the private defendants' land-clearing operations commenced, approximately 80,000 acres of this area still was forested. Consequently, prior to the commencement of the private defendants' land-clearing operations, the Lake Long tract represented one-quarter of the remaining forested acreage in the Bayou Natchitoches basin.

The clearing of the Lake Long tract began in June of 1978. Sometime prior to that loggers had harvested much of the commercially valuable hardwoods with chainsaws. Thereafter, the private defendants took various steps to remove all the remaining trees and vegetation from the tract so that it could be put to agricultural use and specifically into soybean production.

On November 7, 1978 we granted a temporary restraining order whereby the private defendants were prohibited from engaging in any further land-clearing activity. More specifically, they were prohibited from conducting ditch excavation, altering the surface of the land, logging, except by chainsaw, destroying vegetation, plowing, discing, or discharging any biologic material or pollutants onto the land. They were permitted to clean up debris already on the ground.

On January 17, 1979 it was ordered that the federal defendants prepare a final wetland determination within sixty days. The private defendants were permitted to engage in normal cultivation, plowing and seeding without obtaining a permit on the land already cleared, approximately 10,000 acres. The private defendants were ordered to and agreed under protest, to apply for permits under § 404 for any ditching, levee construction and drainage work construction on the land already cleared. As to the uncleared land, the prohibitions of the temporary restraining order remained unchanged.

On March 26, 1979 the federal defendants filed their final wetland determination which designated certain portions of the tract, including substantial portions of the cleared lands, to be wetlands. Thereafter the private defendants filed objections to this determination.

The wetland determination also contained a statement concerning what activities of the private defendants were subject to the permit requirements of § 404, 33 U.S.C. § 1344. This was the subject of our judgment of June 9, 1979, The Avoyelles Sportsmen's League, et al. v. Alexander, et als., 473 F.Supp. 525 (W.D.La.1979). We must now consider the ultimate issue which was bifurcated and therefore not covered in our opinion of June 9, 1979: Was the Government's final wetland determination filed by the Federal defendants on March 26, 1979, correct so that the area designated therein as wetlands (shown in green on the survey attached thereto) is subject to the strictures of the CWA? Stated another way: Is the Lake Long tract included in "waters of the United States" and more particularly, does it constitute a "wetlands" within the meaning of the regulations promulgated by the Corps under the § 404 program?

FINDINGS OF FACT

1) The Lake Long Tract (approximately 20,000 acres) is located in the Bayou Natchitoches basin consisting of approximately 140,000 acres and along with the Ouachita, Black and Tensas River basins, makes up the Red River backwater area.

2) The Bayou Natchitoches basin serves as a major overflow or backwater area for Red River. When the Red River rises, its waters flow westward through bayous, principally Bayou Natchitoches and across the Lake Long tract. This back flooding occurs in the Spring of each year at varying times during the months of March, April, May and occasionally the first part of June. Three major backwater floods have occurred during the 1970s.

3) Rainfall in the Bayou Natchitoches basin averages almost 60 inches a year, the heaviest rainfall occurring during the months of December, January, February, March, April and May. Since the rainfall drains easterly across the Lake Long tract and into Bayou Natchitoches and the Red River, it adds to the waters on the Lake Long tract especially during times of backwater flooding which occurs during these same months.

4) The topography of the Lake Long tract is very uneven with swells and ridges which impede drainage and bring about the formation of standing water sloughs and permanent water impoundments such as Lake Long, Lake Ophelia, West Cut Lake, Mouillier a Yor, Mouillier Swamp, Lake Claire, Lac a Paul, Lac Byrondas Chats, Lac Volee, Lac Calebasse, Nichols Lake, Lac Barbue and Pointe Basse (Soils map — Gov. G). Sediment has formed ridges along the streams in the area and the ridges on each side of Lake Long divide the northern portion of that tract from the southern in terms of water movement. Drainage of the northern area eastward through Three Mile Bayou is intermittent and much poorer than the drainage on the south. The drainage on the south through Bayou Jeansonne to Bayou Natchitoches is somewhat better though impeded by the decreased channel size of Bayou Jeansonne. The type of soil on the tract is an additional drainage difficulty.

5) The Lake Long tract ranges in elevation from below 40 feet mean sea level (msl) to over 55 feet msl at the ridges. The one year frequency flood⁴ is estimated to be 45.8 feet (46 feet msl); the one to one and a half year frequency flood, 47 feet msl; the one and a half year frequency flood, 48 feet msl, and the two year frequency flood, 49.6 feet msl.

6) The minimal flood duration⁵ for elevations at or below 40 feet msl is 70%; this would inundate approximately 1323 acres on the Lake Long tract; for elevation 45 feet msl, 13% (approximately 10,188 acres); for elevation 50 feet msl, 4% (approximately 18,556 acres); and for elevation 55 feet msl, 1% (approximately 20,949 acres). These calculations do not include the duration of soil saturation which continues after surface flooding has subsided.

7) All the soils in the Lake Long tract are wetland soils with the possible exception of soils along the Red River and the Lake Long ridge, i. e. Roxanna, very fine sandy loam, gently undulating (61) and Norwood silty clay loam, occasionally flooded (52). The data on these soils was inadequate. There were substantial disputes regarding the wetlands character of the following soils:

(19) Dundee silty clay loam, occasionally flooded;

(53) Sharkey clay, overwash, occasionally flooded;

(54) Sharkey clay, overwash, gently undulating, occasionally flooded;

(55) Tensas silty clay, overwash, occasionally flooded;

(57) Tensas-Sharkey complex, overwash, undulating, occasionally flooded.

We find these to be wetland soils because:

(a) Moisture regime — aquic regime assuring that dissolved oxygen is virtually absent;

(b) Drainage classification — described alternatively as "somewhat poorly drained"; "poorly drained due to high water table to slow permeable layer...