641 F.2d 1169 (5th Cir. 1981), 80-3397, United States v. DeFelice

Docket Nº:80-3397
Citation:641 F.2d 1169
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Savare DeFELICE, Defendant-Appellant.
Case Date:April 09, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1169

641 F.2d 1169 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Savare DeFELICE, Defendant-Appellant.

No. 80-3397

Unit A

United States Court of Appeals, Fifth Circuit

April 9, 1981

Page 1170

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.

JOHN R. BROWN, Circuit Judge:

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 man-made drainage canal commonly known as the Cheniere Traverse Canal (West Canal). 1 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.

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 DeFelice

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Land 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. 2 On July 17, 1977, an investigator of the Corps appeared at the proposed dam site and ordered the work stopped. 3 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, 4 and §§ 301(a), 404(a) of the (FWPCA), 33 U.S.C.A. §§ 1311(a), 1344(a) 5, for failing to obtain respectively dam construction and pollutant discharge permits. 6

The Corps subsequently initiated litigation against DeFelice seeking an injunction and order to remove the material which he

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had placed in the canal. DeFelice counterclaimed for the value of the property taken from him by the Corps' actions. 7 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. 8

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) 9. 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.

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

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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 waterbody. 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 10 nor...

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