Avoyelles Sportsmen's League v. Alexander, Civ. A. No. 78-1428.

• Decision Date: 09 June 1979
• Docket Number: Civ. A. No. 78-1428.
• Citation: 473 F. Supp. 525
• Parties: The AVOYELLES SPORTSMEN'S LEAGUE, the Point Basse Hunting Club, Inc., the Avoyelles Bass Runners, and the Environmental Defense Fund, Inc., National Wildlife Federation, Inc. v. Clifford L. ALEXANDER, Secretary of the Army, John W. Morris, Chief of Engineers, Colonel Robert H. Moellering, Vicksburg District Engineer, Douglas M. Costle, Administrator of the U. S. Environmental Protection Agency, Adlene Harrison, Regional Administrator of the U. S. Environmental Protection Agency, Elder Realty Company, Inc., Albert Prevot, and H. P. Lambright, Bayou Lafourche, Inc., and Lake Ophelia, Inc.
• Court: U.S. District Court — Western District of Louisiana

473 F. Supp. 525

The AVOYELLES SPORTSMEN'S LEAGUE, the Point Basse Hunting Club, Inc., the Avoyelles Bass Runners, and the Environmental Defense Fund, Inc., National Wildlife Federation, Inc. v. Clifford L. ALEXANDER, Secretary of the Army, John W. Morris, Chief of Engineers, Colonel Robert H. Moellering, Vicksburg District Engineer, Douglas M. Costle, Administrator of the U. S. Environmental Protection Agency, Adlene Harrison, Regional Administrator of the U. S. Environmental Protection Agency, Elder Realty Company, Inc., Albert Prevot, and H. P. Lambright, Bayou Lafourche, Inc., and Lake Ophelia, Inc.

Civ. A. No. 78-1428.

United States District Court, W. D. Louisiana, Alexandria Division.

June 9, 1979.

COPYRIGHT MATERIAL OMITTED

Donald R. Wilson, Marksville, La., James B. Tripp, New York City, Michael Osborne, New Orleans, La., F. Walter Conrad, Houston, Tex., for plaintiffs.

William D. Brown, Monroe, La., David B. Beers, Nancy C. Shea, Richard S. Wasserstrom, Washington, D. C., for amici curiae.

Frances Allen, Shreveport, La., Charles K. Reasonover, New Orleans, La., Louis D. Curet, Baton Rouge, La., Dan E. Melichar, Alexandria, La., Joseph S. Cage, Shreveport, La., for defendants.

OPINION

NAUMAN S. SCOTT, Chief Judge.

Plaintiffs¹ brought this declaratory and injunctive action alleging that land-clearing operations being carried on by the private defendants² have and will: alter and modify the course, condition and capacity of the navigable waters of the United States in violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 403; result in the discharge of dredged and fill material into the waters of the United States in violation of § 404 of the Federal Water Pollution Control Act (hereinafter FWPCA), 33 U.S. C.A. § 1344; result in the discharge of pollutants into the waters of the United States in violation of § 402 of the FWPCA, 33 U.S.C.A. § 1342; and violate Louisiana State law under Louisiana Civil Code arts. 667 and 857. The plaintiffs requested that we compel the federal defendants³ to regulate the land-clearing activities and enjoin the landclearing activities until the extent of the federal defendants' jurisdiction has been determined and permits applied for under 33 U.S.C.A. §§ 403, 1342 and 1344.

The land subject to this proceeding and being cleared is an approximately 20,000 acre tract (hereinafter referred to as the Lake Long Tract) situated in Avoyelles Parish, Louisiana between the Grassy Lake State Management Area and the Spring Bayou State Management Area. It lies within the Bayou Natchitoches basin which, along with the Ouachita, Black and Tensas river basins, makes up the Red River backwater area. The Bayou Natchitoches basin itself is an area comprised of approximately 140,000 acres. Much of this basin has been cleared of forest but before the private defendants' land clearing operations commenced, approximately 80,000 acres of this area still was forested. Consequently, prior to the commencement of the private defendants' land-clearing operations, the Lake Long tract represented one-quarter of the remaining forested acreage in the Bayou Natchitoches basin.

The Bayou Natchitoches basin serves as a major overflow or backwater area for the Red River. Backwater flooding occurs in the Bayou Natchitoches basin when the Red River rises to a point where its waters cannot flow downstream efficiently and instead flow west into Bayou Natchitoches, then into Bayou Jeansonne, over the Lake Long tract and further westward into the Spring Bayou State Management area. Generally, during the recession of backwater floods, the flood waters on the Lake Long tract drain in an easterly direction back into the Red River.

More than half of the tract, i. e., everything at or below 45.8 feet MSL, is subject to the average annual flood.⁴ Virtually all of the tract, i. e., everything at or below 49.6 feet MSL is subject to the average bi-annual flood.

The clearing of the Lake Long Tract began in June of 1978. Sometime prior to that loggers had harvested much of the commercially valuable hardwoods with chainsaws. Thereafter, the private defendants took various steps to remove all the remaining trees and vegetation from the tract so that it could be put to agricultural use and specifically into soybean production.

Initially, bulldozers outfitted with shearing blades cut the timber and vegetation at or just above ground level. The shearing blades were v-shaped, had a serrated edge and flat bottom and were approximately 18-20 feet in length. The blades were adjusted to be free floating so that they would ride along the top surface of the ground. Occasionally, however, the blades would gouge the surface of the ground. Although the blades were adjusted to ride on the ground's surface, they did scrape the leaf litter and humus that overlaid the soil as they moved from tree to tree.

After the shearing was completed in a section, bulldozers outfitted with rake blades pushed the felled trees into wind rows. The upper portion of the raking blade was solid whereas the lower portion had tines that permitted soil to pass through the openings. The raking blades were also outfitted so that they generally operated on top of the soil. However, in the process of windrowing the trees and debris, soil and leaf litter was also scraped into the windrows.⁵ It is not clear whether the blades themselves or the broom-like action of the trees and brush that they were pushing actually scraped the soil and the overlying leaf litter. In any event the photographic evidence clearly demonstrated that soil and leaf litter was piled up during the windrowing process—this movement filled in low areas and along with the discing which followed, had a levelling effect on the surface of the land.

The trees and other vegetation that had been windrowed were then burned. The remaining ashes were later disced into and across the tract. Some of the felled trees and other debris would not burn. This material was buried in four or five pits, each approximately 50 feet long and 6 feet deep that had been dug with backhoes by the private defendants.

Tractors pulling chunk rakes would go over the areas that had been sheared and windrowed and rake together any remaining debris. Basically, the chunk rakes were sets of tines that were outfitted on cultivators that had had their blades removed. The chunk rakes gathered the small debris into piles where it was presumably burned. These ashes were also disced into the soil.

After the shearing, windrowing and chunk raking the land was disced to prepare it for soybean cultivation. A disc is a bowl-shaped blade that cuts into the ground and fluffs the soil up. The disc's used on this tract were 24 inches in diameter and would cut into the ground approximately 9 inches. During discing, some soil would ride in front of the disc and would be redeposited in other areas of the tract, resulting in substantial displacement and redepositing of the soil itself.

Defendants also dug a drainage ditch that was approximately three-quarters of a mile long. The earth excavated from the ditch was piled alongside the ditch and was to be spread over the adjacent area. Construction of at least four or five miles of additional ditches were contemplated for soybean cultivation.

On November 7, 1978 we granted a temporary restraining order whereby the private defendants were prohibited from engaging in any further landclearing activity. More specifically, they were prohibited from conducting ditch excavation, altering the surface of the land, logging, except by chainsaw, destroying vegetation, plowing, discing, or discharging any biologic material or pollutants onto the land. They were permitted to clean up debris already on the ground.

On January 17, 1979 it was ordered that the federal defendants prepare a final wetland determination within sixty days. The private defendants were permitted to engage in normal cultivation, plowing and seeding without obtaining a permit on the land already cleared, approximately 10,000 acres. The private defendants were ordered to and agreed under protest, to apply for permits under § 404 for any ditching, levee construction and drainage work construction on the land already cleared. As to the uncleared land, the prohibitions of the temporary restraining order remained unchanged.

On March 26, 1979 the federal defendants filed their final wetland determination which designated certain portions of the tract, including substantial portions of the cleared lands, to be wetlands. Thereafter the private defendants filed objections to this determination.

The wetland determination also contained a statement concerning what activities of the private defendants were subject to the permit requirements of § 404.

"A section 404 permit is not required for the shearing of trees where no earth (other than de minimis) is moved in the process and the trees are promptly removed through burning or other means. However, under the facts of this case as they are known to the government, a section 404 permit will be required for construction of drainage ditches in the wetland area delineated by the government in Exhibit I. While it is the government's understanding that the non-Federal defendants do not plan to build any dikes or levees in the waters of the United States, permits will be required if their plans change. Plowing, discing, and raking of the sort observed on the tract so far will not require a permit."

Both the plaintiffs and the private defendants objected to the Government's statement on the activities issue. Thereafter, it was decided to bifurcate the jurisdictional issue, i. e., what areas of the tract constitute wetlands, from the activities issue outlined in the statement attached to the government's determination. In accordance with this bifurcation it was agreed that the activities issue would be tried first. For the purposes of the trial on this issue it was stipulated,...