740 F.2d 799 (10th Cir. 1984), 81-1528, State of Utah By and Through Div. of Parks and Recreation v. Marsh

Docket Nº:81-1528.
Citation:740 F.2d 799
Party Name:STATE OF UTAH, By and Through its DIVISION OF PARKS AND RECREATION, Plaintiff- Appellant, v. John O. MARSH, Secretary of the Army; et al., Defendants-Appellees.
Case Date:August 03, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 799

740 F.2d 799 (10th Cir. 1984)


RECREATION, Plaintiff- Appellant,


John O. MARSH, Secretary of the Army; et al., Defendants-Appellees.

No. 81-1528.

United States Court of Appeals, Tenth Circuit

August 3, 1984

Page 800

Dallin W. Jensen, Asst. Atty. Gen. of the State of Utah, Salt Lake City, Utah (David L. Wilkinson, Atty. Gen., Richard L. Dewsnup and Michael M. Quealy, Asst. Attys. Gen., Salt Lake City, Utah, were on brief), for plaintiff-appellant.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C. (Brent D. Ward, U.S. Atty., Salt Lake City, Utah, and Carol E. Dinkins, Asst. Atty. Gen., Dirk D. Snel and Fred R. Disheroon, Attys., Dept. of Justice, Washington, D.C., were also on brief), for defendants-appellees.

Before SETH, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

The question before us is whether Congress is empowered under the Commerce Clause of the United States Constitution to regulate the discharge of dredged or fill material into Utah Lake, when the waters of the lake are not capable of bearing interstate navigation but are otherwise used to sustain and foster interstate commerce. The trial court granted summary judgment in favor of the federal defendants, and plaintiff, the State of Utah, appeals. We affirm.


The facts of this case are not in dispute. Utah Lake is the largest freshwater lake in the State of Utah, with a surface area of approximately 150 square miles. Originally a natural lake, it has been developed into a storage reservoir through the construction of a dam at the point where the Jordan River, the outlet stream, leaves the lake. It is also referred to as the "hub" of the Bonneville Unit of the Central Utah Project, a plan to collect, develop, and divert water in the Bonneville and Uinta Basins of central Utah for municipal, industrial, agricultural, and recreational purposes. 1 Water flows into the lake from tributary streams in the Upper Jordan River Basin, ground water from underground basins, precipitation on the lake proper, and some return flow from irrigation imports from the Colorado River and the Weber River drainage. Although more than half of this water is lost through evaporation, about 200,000 acre-feet of it is delivered down the Jordan River to irrigation canals and to

Page 801

industry. Part of it spills or is waste water running down the Jordan River to the Great Salt Lake. II R. 5-12, 17, 35; Defendants' Exhibit 1, at 151, 181.

The State of Utah, through its Division of Parks and Recreation, owns and operates Utah Lake State Park, located on the east shore of Utah Lake. The park facilities include a marina and a recreational boat harbor. In the winter of 1978-1979, the Division of Parks and Recreation installed several new concrete boat launching ramps, and in doing so placed a small cofferdam across the mouth of the boat harbor. After the boat ramps were constructed, the cofferdam was removed, and the dam material was deposited on the other side of the harbor as a base for an extension of a parking lot. I R. 4; Appellant's Brief 2-3.

In April 1979, the Division of Parks and Recreation received a letter from the District Engineer of the Army Corps of Engineers stating that the placement and subsequent removal of the cofferdam constituted a violation of the Clean Water Act, 33 U.S.C. Sec. 1344, in that the State had failed to obtain a permit for the placement of fill material in Utah Lake, a body of water over which the Corps claimed jurisdiction as "waters of the United States." I R. 4-5.

In May 1979, the State of Utah commenced this action against the Secretary of the Army, the Chief of Engineers, and subordinate federal officers. The complaint alleged, in substance, that Utah Lake is a navigable body of water located entirely within Utah, with no navigable tributary or outlet extending beyond the borders of the State of Utah, and that as such Utah Lake "is beyond the constitutional reach of the regulatory authority of Congress." I R. 2. The complaint further asserted that the Corps of Engineers was claiming regulatory jurisdiction over the lake, when the Corps notified the State that a permit should have been obtained prior to removing an unpermitted cofferdam in Utah Lake and placing the removed material below the lake's ordinary high water elevation. The complaint requested the district court to enter a judgment declaring that the Corps has no lawful regulatory authority or jurisdiction in, on, or around Utah Lake and, in addition, to enter an order enjoining defendants from interfering with the State's operations and activities in, on, and around Utah Lake.

The federal defendants filed an answer denying that the Corps of Engineers lacked regulatory authority over Utah Lake. I R. 7. Thereafter, both sides filed motions for summary judgment, but were unable to agree on a stipulation of relevant facts. Id. at 13-14, 19, 26, 31. Accordingly, the district court issued an order requiring an evidentiary hearing and stating that under United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir.1979), the relevant factual issue to be determined at such hearing was whether Utah Lake affected interstate commerce. I R. 31-32.

At the evidentiary hearing the Corps was the only party to produce testimony, and none of its evidence was rebutted by...

To continue reading