715 F.2d 897 (5th Cir. 1983), 79-2653, Avoyelles Sportsmen's League, Inc. v. Marsh

Docket Nº:79-2653, 82-3231.
Citation:715 F.2d 897
Party Name:The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al., Plaintiffs-Appellees Cross-Appellants, v. John O. MARSH, Jr., Secretary of the Army, etc., et al., Defendants, Elder Realty Company, Inc., Defendant-Appellant Cross-Appellee. The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al., Plaintiffs-Appellees, v. John O. MARSH, Jr., Secretary of the Army, etc., et al
Case Date:September 26, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 897

715 F.2d 897 (5th Cir. 1983)

The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al.,

Plaintiffs-Appellees Cross-Appellants,

v.

John O. MARSH, Jr., Secretary of the Army, etc., et al., Defendants,

Elder Realty Company, Inc., Defendant-Appellant Cross-Appellee.

The AVOYELLES SPORTSMEN'S LEAGUE, INC., et al., Plaintiffs-Appellees,

v.

John O. MARSH, Jr., Secretary of the Army, etc., et al.,

Defendants-Appellants,

Elder Realty Company, Inc., Defendant-Appellant,

George Bartmess, et al., Intervenors-Appellants,

Louisiana Department of Agriculture, Movant-Appellant.

Nos. 79-2653, 82-3231.

United States Court of Appeals, Fifth Circuit

September 26, 1983

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Charles K. Reasonover, New Orleans, La., for Elder Development, Inc., Joe Elder.

Edwin R. Woodman, Jr., Baton Rouge, La., for La. Dept. of Natural Resources.

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

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Joseph E. LeBlanc, Jr., New Orleans, La., for Landowners Ass'n, Inc.

Dupuy & Didier, Marc Dupuy, Jr., Marksville, La., for Bartmess, et al.

D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., Edward J. Shawaker, Atty., Dept. of Justice, Land & Natural Resources, Washington, D.C., for John O. Marsh, et al.

Gene W. Lafitte, New Orleans, La., for amicus curiae Chamber Legal Center.

Robert S. Leake, Winston W. Riddick, Sr., Baton Rouge, La., for La. Dept. of Agr.

Gaharan & Wilson, Donald R. Wilson, Jena, La., for Avoyelles, Pointe Basse & Ira Marcott.

Bram D.E. Canter, Asst. Gen. Counsel, Dept. of Environmental Regulation, Tallahassee, Fla., for amicus curiae State of Fla., Dept. of Environmental Regulation.

Appeals from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This is an appeal from a district court judgment that enjoined the private defendants 1 from any additional clearing, except by permit under 33 U.S.C. § 1344 (Supp. V 1981), of certain lands determined by the district court to be wetlands. The federal defendants 2 contend that the district court should have reviewed the Environmental Protection Agency's ("EPA") final wetlands determination (attached as an appendix to this opinion) on the basis of the administrative record, and that the court erred in adopting its own wetlands determination instead of reviewing the agency's determination under the arbitrary and capricious standard. The federal defendants also dispute the district court's conclusion that the mere removal of vegetation from wetlands constitutes a discharge of a pollutant under section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a) (1976). 3 The private defendants contest the validity of the district court's determination that approximately ninety percent of their land is a wetland, as well as the court's conclusion that their landclearing activities fall under the CWA's prohibition on the discharge of pollutants into waters of the United States.

For the reasons set forth below, to the extent that the district court's decision that ninety percent of the Lake Long Tract is a wetland is inconsistent with the EPA's determination, the decision of the district court is reversed. The court's determination that the private defendants' actual

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landclearing activities require permits is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND.

This case concerns an approximately 20,000 acre tract of land (the "Lake Long Tract") in Avoyelles Parish, Louisiana. The tract lies within the Bayou Natchitoches basin, an area of approximately 140,000 acres, which, along with the Ouachita, Black and Tensas river basins, makes up the Red River backwater area. The Bayou Natchitoches basin is subject to flooding during the spring months, and it experiences an average rainfall of sixty inches per year.

Much of the basin had been cleared of forest before the private defendants began their landclearing activities, but 80,000 acres were still forested. The Lake Long Tract made up a quarter of this forested area. The topography of the tract itself is uneven, resulting in some areas with permanent water impoundments and other drier areas that support a variety of plant species.

The private defendants own the Lake Long Tract. They decided that the land could be put to agricultural use, specifically soybean production. Consequently, they began a program of large-scale deforestation in June of 1978. 4 Using bulldozers with shearing blades that "floated" along the ground, the defendants cut the timber and vegetation at or just above ground level. The trees were then raked into windrows, burned, and the stumps and ashes were disced into the ground by other machinery. The shearing and raking caused some leveling of the tract, and the defendants dug one drainage ditch.

On August 25, 1978, the Vicksburg District of the Army Corps of Engineers ordered defendant Prevot to halt his activities pending a wetlands determination by the Corps. Thereafter, Dr. Donald G. Rhodes, an expert consultant employed by the Corps, undertook a comprehensive vegetative mapping of the Lake Long Tract and determined that thirty-five percent of it was a wetland. In October, 1978, the Fish and Wildlife Service wrote a letter to the Corps stating that the Service believed that the entire tract was a wetland. After Dr. Rhodes had made his determination, the landowners resumed their activities on the portion of the tract that the Corps had not designated as a wetland.

On November 8, 1978, the plaintiffs 5 brought this citizens' suit 6 against a number of Corps and EPA officials, as well as against the private landowners. The plaintiffs claimed, inter alia, 7 that the landclearing

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activities would result in the discharge of dredged and fill material into the waters of the United States in violation of sections 301(a) and 404 of the CWA, 33 U.S.C. §§ 1311, 1344 (1976 & Supp. V 1981), 8 and also result in the discharge of pollutants into the waters of the United States in violation of section 402 of the CWA, 33 U.S.C. § 1342 (1976 & Supp. V 1981). 9 The plaintiffs requested a declaration that the tract was a wetland within the scope of the CWA, 10 that the private defendants could not engage in their landclearing activities without obtaining a permit from the EPA or the Corps, and that the federal defendants had failed to exercise their "mandatory duty" 11 to designate the tract a wetland and to order the private defendants to cease and desist from discharging pollutants and dredged materials. The plaintiffs also sought injunctive relief against the federal defendants to require them to exercise their jurisdiction over the property and to issue cease-and-desist orders until the private defendants obtained the requisite permits. The district court immediately issued a temporary restraining order, preventing the private defendants from engaging in landclearing activities pending the court's action on the plaintiffs' motion for a preliminary injunction.

On January 17, 1979, the district court granted the plaintiffs' motion for a preliminary injunction and ordered the federal defendants to prepare a final wetlands determination within sixty days. All of the private parties were to have the opportunity to participate in the administrative proceedings, and the federal defendants were to file a preliminary report within forty-five days. The court allowed the private defendants to engage in normal cultivation on the more than 10,000 acres that had been cleared, but ordered them to apply for a permit with respect to the area already designated by the government as a wetland and enjoined them for sixty days from engaging

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in landclearing activities on the remainder of the tract.

The parties complied with the court's preliminary order, and the EPA submitted its final wetlands determination on March 26, 1979. 12 After examining the vegetation, soil conditions, and hydrology of the tract, the EPA concluded that approximately eighty percent of the land was a wetland. In a brief final paragraph, the EPA also offered its views of the types of activities that would require a section 404 permit.

At the private defendants' request, the district court agreed to bifurcate the consideration of the two major issues in the case: (1) how much of the Lake Long Tract was a wetland, and (2) which activities required a section 404 permit. After extensive trials on both issues, the court decided that a section 404 permit was required for the landclearing activities and that over ninety percent of the Lake Long Tract was a wetland. 13 The court then enjoined the private defendants from engaging in any additional landclearing activities, without a section 404 permit, on the land that the court had determined to be a wetland, other than the land already cleared. The defendants timely appealed.

II. THE WETLANDS DETERMINATION.

The procedural posture of this case is, to say the least, unusual. Issues were raised by the parties at one stage of the litigation only to be forgotten or ignored by both the parties and the court at a later stage in the proceedings. Indeed, as in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 540, 98 S.Ct. 1197, 1210, 55 L.Ed.2d 460 (1978), the parties in this litigation have "changed positions as nimbly as if dancing a quadrille." 14 In deciding to give the federal defendants an opportunity to make a final wetlands determination, the district court recognized that the federal defendants bore the "primary responsibility" for the determination of which lands were wetlands:

But these matters often come up to a court in the nature of a review of a ruling made by a Governmental agency. In this...

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