597 F.2d 617 (8th Cir. 1979), 78-1448, Minnehaha Creek Watershed Dist. v. Hoffman

Docket Nº:78-1448.
Citation:597 F.2d 617
Party Name:MINNEHAHA CREEK WATERSHED DISTRICT, a Political Subdivision of the State of Minnesota, Lake Minnetonka Conservation District, a Public Corporation and Political Subdivision of the State of Minnesota, Lake Minnetonka Association, a Minnesota Nonprofit Corporation, Thomas P. Lowe and William Bradley VanNest, Appellees, and The State of Minnesota, Dep
Case Date:April 23, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 617

597 F.2d 617 (8th Cir. 1979)

MINNEHAHA CREEK WATERSHED DISTRICT, a Political Subdivision

of the State of Minnesota, Lake Minnetonka Conservation

District, a Public Corporation and Political Subdivision of

the State of Minnesota, Lake Minnetonka Association, a

Minnesota Nonprofit Corporation, Thomas P. Lowe and William

Bradley VanNest, Appellees,

and

The State of Minnesota, Department of Natural Resources,

Plaintiff-Intervenor- Appellee,

v.

Martin R. HOFFMAN, Individually and as Secretary, Department

of the Army, Corps of Engineers, Department of the Army,

Lieutenant General William C. Gribble, Individually and as

Chief of Engineers, Department of the Army, and Colonel

Forrest T. Gay, Individually and as District Engineer, Corps

of Engineers, Department of the Army, Appellants.

No. 78-1448.

United States Court of Appeals, Eighth Circuit

April 23, 1979

Submitted Dec. 13, 1978.

Page 618

[Copyrighted Material Omitted]

Page 619

Maryann Walsh, Atty., Dept. of Justice, Washington, D. C., for appellants; James W. Moorman, Asst. Atty. Gen., Dirk D. Snel, Atty., Dept. of Justice, Washington, D. C., on brief.

Raymond A. Haik, Popham, Haik, Schnobrich, Kaufman & Doty, Ltd., Minneapolis, Minn., for Minnehaha Creek Watershed Dist., State of Minnesota Dept. of Natural Resources; Larry D. Espel, Popham, Haik, Schnobrich, Kaufman & Doty, Ltd., Minneapolis, Minn., and Warren Spannaus, Atty. Gen., Philip J. Olfelt, Asst. Atty. Gen., St. Paul, Minn., on brief.

Philip J. Olfelt, Asst. Atty. Gen., St. Paul, Minn., for State of Minnesota.

Charles L. LeFevere, LeFevere, Lefler, Pearson, O'Brien & Drawz, Minneapolis, Minn., for appellee, Lake Minnetonka Conservation Dist.; Glenn E. Purdue, Minneapolis, Minn., on brief.

Allen I. Olson, Atty. Gen., and Murray G. Sagsveen, Asst. Atty. Gen., State of N. D., Bismarck, N. D., filed brief amicus curiae.

Before HEANEY and McMILLIAN, Circuit Judges, and TALBOT SMITH, Senior District Judge. [*]

HEANEY, Circuit Judge.

The United States Army Corps of Engineers and various officials of the Corps appeal from the judgment of the District Court which permanently enjoined the Corps from asserting regulatory jurisdiction over the waters of Lake Minnetonka in Hennepin County, Minnesota, under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Minnehaha Cr. Watershed Dist. v. Hoffman, 449 F.Supp. 876 (D.Minn.1978). The District Court also permanently enjoined the Corps from asserting regulatory jurisdiction over the placement of riprap and the construction of dams in Lake Minnetonka under the Federal Water Pollution Control Act (F.W.P.C.A.), 33 U.S.C. § 1251 Et seq. 1 Id. We affirm in part and reverse in part.

The facts in this case are not in dispute, and we essentially adopt the findings of fact as set forth in the District Court's opinion. Id. at 879-881.

Lake Minnetonka is a natural lake, navigable in fact, lying entirely within Hennepin County, Minnesota. The total surface area of the lake is approximately 22.5 square miles. The lake's depth averages forty feet, although there are isolated spots with depths up to one hundred feet. No permanent tributaries empty into Lake Minnetonka. The lake's single outlet is Minnehaha Creek, which flows eastward from Gray's Bay for approximately 20-22 miles, until it empties into the Mississippi River.

Prior to settlement of the area surrounding the lake in the mid-19th century, Indians

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navigated the lake by canoe. In 1852, a dam and sawmill were constructed on Minnehaha Creek at Minnetonka Mills, a short distance from where Lake Minnetonka flows into Minnehaha Creek. After the construction of this dam, the lake's water level increased sufficiently to allow the navigation of steam-powered boats and the flotation of logs on the lake. Steamers were used for the carriage of passengers and mail across the lake until 1926. Grain and lumber were shipped or floated on the lake to distribution points, where they were then shipped by rail. Beginning in 1890 and continuing thereafter, Lake Minnetonka was a thriving resort area, with North American and foreign tourists using the lake as a means of transportation from one shore point to another.

Present use of Lake Minnetonka is primarily recreational, by both local residents and travelers from other states. Centers of urban population around the lake include the towns of Mound, Excelsior and Wayzata. Rail service to shoreline communities is provided by the Burlington Northern and the Chicago and Northwestern Railroads.

The flow of Minnehaha Creek, is intermittent; during a large part of the summer and fall, the flow is inadequate to permit the passage of any form of navigation. There is no history of navigation on the creek of either a private or a commercial nature. Navigation on that portion of the creek between Lake Minnetonka and Minnetonka Mills was rendered impossible by the construction of a dam at the source of the creek at Gray's Bay in 1897.

On May 16, 1916, the Army Corps of Engineers advised the Minneapolis Street Railway Company that construction of a bridge across an arm of Lake Minnetonka would require the Corps' approval. The Corps did not exercise active jurisdiction over the lake again until February 14, 1975, when it issued a "Determination of Navigability" which concluded that Lake Minnetonka and that portion of Minnehaha Creek above Minnetonka Mills are "navigable waters of the United States," and are, thus, subject to Corps' jurisdiction under the Rivers and Harbors Act. The Corps has since asserted its regulatory authority over the lake under both the Rivers and Harbors Act and under § 404 of the F.W.P.C.A.

The appellees 2 brought this action, seeking a declaratory judgment that Lake Minnetonka and Minnehaha Creek above Minnetonka Mills are not "navigable waters of the United States" within the meaning of the Rivers and Harbors Act. The appellees requested the entry of an order directing the Corps to withdraw the "Determination of Navigability" of February 14, 1975, and permanently enjoining the Corps from exercising regulatory jurisdiction over Lake Minnetonka or Minnehaha Creek under the Rivers and Harbors Act. The appellees also sought a declaratory judgment that 33 C.F.R. § 323.2(n), promulgated by the Corps, is invalid insofar as it attempts to extend the Corps' permitting program under § 404 of the F.W.P.C.A. over the placement of riprap and the construction of dams in navigable waters. They sought a permanent injunction against the Corps' assertion of regulatory jurisdiction pursuant to this regulation over the placement of riprap and the construction of dams in Lake Minnetonka and Minnehaha Creek.

Upon cross-motions for summary judgment, the District Court held for the appellees on both counts and granted all the relief requested. Applying the test set forth in The Daniel Ball v. United States, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871), the court held that although both Lake Minnetonka and Minnehaha Creek above

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Minnetonka Mills are navigable waters, since their capability of use for navigation is undisputed, they are not "navigable waters of the United States" as that phrase is used in the Rivers and Harbors Act because they are located entirely within one state and have no interstate waterway connection with other navigable waters. Minnehaha Cr. Watershed Dist. v. Hoffman, supra at 884. The court held that the Corps lacked jurisdiction over the placement of riprap and the construction of dams in the lake and in the creek since, in its view, such activities do not constitute the "discharge of (a) pollutant" under § 301 of the F.W.P.C.A., 33 U.S.C. § 1311. The court reasoned that although "pollutant," as defined in § 502(6) of the F.W.P.C.A., 33 U.S.C. § 1362(6), includes "rock, sand, (and) cellar dirt," and riprap and dams incidentally require rock or sand for construction, such activities are not within the purview of the Act because they do not significantly alter water quality. Id. at 886. We will consider these holdings Seriatim.

  1. Jurisdiction of the Corps of Engineers Under the Rivers

    and Harbors Act of 1899.

    In The Daniel Ball v. United States, supra, the United States Supreme Court set forth what was to become the foundational test for determining federal regulatory power over the coastal or inland waters of the United States. Waters subject to federal regulatory jurisdiction, or "navigable waters of the United States," were defined by the Court as follows:

    Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when the form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

    Id., 77 U.S. (10 Wall.) at 563.

    Although The Daniel Ball was a case brought in admiralty, 3 the Court did not base its decision on federal maritime or admiralty jurisdiction but rather on federal power over coastal and inland waterways under the Commerce Clause. The Court stated that since the river in question flowed into Lake Michigan, an interstate waterway, a public navigable waterway is formed which is "brought under the direct control of Congress in the exercise...

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