769 F.2d 182 (4th Cir. 1985), 84-1766, United States v. Tull

Docket Nº:84-1766.
Citation:769 F.2d 182
Party Name:Envtl. UNITED STATES of America, Appellee, v. Edward Lunn TULL, Appellant.
Case Date:July 30, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 182

769 F.2d 182 (4th Cir. 1985)

Envtl.

UNITED STATES of America, Appellee,

v.

Edward Lunn TULL, Appellant.

No. 84-1766.

United States Court of Appeals, Fourth Circuit

July 30, 1985

Argued Feb. 7, 1985.

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Richard R. Nageotte, Woodbridge, Va. (Nageotte, Borinsky & Zelnick, Woodbridge, Va., on brief), for appellant.

Claire L. McGuire, Dept. of Justice, Washington, D.C. (F. Henry Habicht II, Asst. Atty. Gen., Washington, D.C., Elsie L. Munsell, U.S. Atty., Alexandria, Va., John F. Kane, Asst. U.S. Atty., Norfolk, Va., Diane L. Donley, Martin W. Matzen, Dept. of Justice, Washington, D.C., on brief), for appellee.

Before WINTER, Chief Judge, SNEEDEN, Circuit Judge, and WARRINER, United States District Judge for the Eastern District of Virginia, sitting by designation.

HARRISON L. WINTER, Chief Judge:

Defendant Tull, a real estate developer, placed fill on "wetlands" without a permit at several locations on the island of Chincoteague, Virginia. The government sued, alleging that this filling violated both the Clean Water Act, 1 33 U.S.C. Sec. 1251 et seq., and the Rivers and Harbors Appropriation Act, 33 U.S.C. Sec. 401 et seq. The district court 615 F.Supp. 610, found Tull had violated both Acts, fined him, and ordered various other remedies. Tull appeals, and we affirm.

I.

We begin our discussion by summarizing the statutory and factual background of this dispute. We then treat those of appellant's arguments that merit discussion.

Statutory Background

The Clean Water Act aims "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). To accomplish this purpose, the Act prohibits the discharge without a permit of dredged or fill material into "navigable waters" of the United States. 33 U.S.C. Secs. 1311, 1344. The Act authorizes the Secretary of the Army to issue the permits required for such discharges. The Secretary has in turn delegated this authority to the Corps of Engineers. 33 C.F.R. Sec. 325.8 (1984). The Corps evaluates permit applications under guidelines developed by the Environmental Protection Agency in conjunction with the Secretary of the Army. 33 U.S.C. Sec. 1344(b).

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The reach of the Clean Water Act extends beyond discharges into waters actually supporting navigation. "Navigable waters" are defined as "the waters of the United States, including the territorial seas." 33 U.S.C. Sec. 1362(7). During the legislative proceedings culminating in the enactment of that section, the Conference Committee explained the legislative intent in defining this term:

The Conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.

S.Conf.Rep. No. 1236, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3776, 3822.

Included in the areas subject to Corps regulation under the Clean Water Act are "wetlands" adjacent to other "waters" of the United States. 33 C.F.R. Sec. 323.2(a)(1)-(7) (1984). "Wetlands" are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted to life in saturated soil conditions." The administrative definition further provides that wetlands "generally include swamps, marshes, bogs and similar areas." 33 C.F.R. Sec. 323.2(c) (1984).

The Rivers and Harbors Act, which defendant Tull was also found to have violated, prohibits placing fill in navigable waters without the authorization of the Secretary of the Army. 33 U.S.C. Sec. 403. This Act defined "navigable waters" at the time of Tull's alleged violation as waters that "have been used in the past, are now used, or are susceptible to use" for interstate commerce, and waters subject to the ebb and flow of the tide. 33 C.F.R. Sec. 209.260(k)(2) (1975), superseded by 33 C.F.R. Sec. 329.4 (1984) (similar definition).

Factual Background

The government sued Tull in July of 1981 for dumping fill at three locations in violation of the Clean Water Act:

(1) Ocean Breeze Mobile Homes Sites;

(2) Mire Pond Properties

(3) Eel Creek.

The government later amended its complaint to allege that by placing fill in Fowling Gut Extended, a manmade waterway on the Ocean Breeze property, Tull also violated the Rivers and Harbors Act.

The evidence at a 15-day bench trial showed that Tull began placing fill on the Ocean Breeze property in 1975, on the Mire Pond properties in 1978, and on the Eel Creek property sometime after December of 1980. Tull filled in Fowling Gut Extended, a body of water described as a canal or ditch, beginning in 1976. Tull never applied for a permit to place fill at any of these locations.

Tull did not deny that he had placed fill at the locations alleged, nor did he claim that he had ever applied for a permit. Rather, he argued that the properties filled did not contain wetlands within the meaning of the Clean Water Act, and that Fowling Gut Extended was not navigable within the meaning of the Rivers and Harbors Act. He further argued that the government was estopped from seeking equitable relief, and that the Clean Water Act as applied to him was unconstitutional.

On the issue of whether the filled properties contained wetlands, the government produced at trial extensive evidence, including 12 expert witnesses, to establish that the areas filled by Tull included "wetlands" within the jurisdiction of the Corps of Engineers. Buried soil analysis showed the presence of peat, which develops only in a wetlands system. Vegetation analysis showed the presence of "obligate" wetlands species, which require saturated soil conditions. Expert testimony established tidal influence and some degree of inundation.

Dr. Donna Ware, a court-appointed expert, agreed with the conclusions of the government witnesses, finding wetlands existed on the properties in question. Mr. Ronald Beebe, a civil engineer testifying

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for Tull, disagreed. His opinion that certain filled areas were not within Corps jurisdiction, however, was based not on the regulatory definition of wetlands, but on the fact that the developed sections lay above the high-water mark. The district court supplemented the extensive expert testimony by conducting a viewing of the filled areas.

The evidence on Fowling Gut Extended showed that the federal government had spent $30,000 in 1963 for construction of a drainage ditch to control mosquito breeding. One witness testified that boats could travel up this ditch or canal, at least for a short time, and that it was subject to the ebb and flow of the tide.

The district court concluded there was "substantial, credible evidence" that Tull had filled areas "typically tidal, marsh or bog in character" on all the properties in question. It found that Fowling Gut Extended "was navigable in fact and was utilized by boat traffic subsequent to 1963 and prior to the time when [Tull] filled in this waterway without applying for or obtaining any permit from the Army Corps of Engineers." Concluding that Tull had violated both Acts, the district court assessed fines of $75,000 for the filling at Ocean Breeze, Mire Pond, and Eel Creek, and ordered Tull to restore areas on all three properties to wetlands. For filling Fowling Gut Extended, Tull was ordered either to pay a $250,000 fine or to restore the canal "to its former navigable condition."

II.

Whether the Clean Water Act or its Application Here is

Unconstitutional 2

A. The Commerce Clause

Tull argues that the regulation of his property under the Clean Water Act goes beyond the proper reach of the commerce clause. The Seventh Circuit rejected this argument in United States v. Byrd, 609 F.2d 1204, 1210 (7 Cir.1979). It found that regulating wetlands was justified by the negative effect that destruction of wetlands could have on the "biological, chemical, and physical integrity of the [navigable] lakes they adjoin." Id. at 1210. The Supreme Court has cited this discussion in Byrd with approval, noting "we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution...." Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 282, 101 S.Ct. 2352, 2363, 69 L.Ed.2d 1 (1981). We follow these authorities and reject defendant's argument.

Tull concedes that there is precedent rejecting his commerce clause argument. He urges, however, that the government already litigated this issue against him and lost, in United States v. Tull, No. 75-319-N slip op. (E.D.Va. November 12, 1975). We disagree. Collateral estoppel precludes the government from relitigating "the same issue already litigated against the same party in another case involving virtually identical facts." United States v. Stauffer Chemical Co., 464 U.S. 165, ----, 104 S.Ct. 575, 578, 78 L.Ed.2d 388, 392 (1984). The earlier case against Tull, however, did not present a virtually identical situation, nor was the commerce clause issue squarely presented.

In the earlier case, Tull introduced fill without a permit into an area behind a bulkhead. The district court found that the area was "high and dry most of the time," and "would probably see a little flooding for only two or three hours per

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month." It lay above the mean high water line, and the district court found it "could not even be said to be 'periodically' flooded" within the meaning of the regulation then defining Corps jurisdiction. See 40 Fed.Reg. 31,320 (1975). 3 The...

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