Bayou Des Familles Dev. v. US Corps of Engineers, Civ. A. No. 79-4324.

• Decision Date: 20 April 1982
• Docket Number: Civ. A. No. 79-4324.
• Citation: 541 F. Supp. 1025
• Parties: BAYOU DES FAMILLES DEVELOPMENT CORPORATION, Plaintiff, v. UNITED STATES CORPS OF ENGINEERS, United States Department of the Interior, and United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

541 F. Supp. 1025

BAYOU DES FAMILLES DEVELOPMENT CORPORATION, Plaintiff, v. UNITED STATES CORPS OF ENGINEERS, United States Department of the Interior, and United States of America, Defendants.

Civ. A. No. 79-4324.

United States District Court, E. D. Louisiana.

April 20, 1982.

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Moise S. Steeg, Jr., Robert M. Steeg, Carl J. Schumacher, Jr., New Orleans, La., for plaintiff.

Elizabeth Stein, Dept. of Justice, Washington, D. C., William F. Baity, Asst. U. S. Atty., New Orleans, La., for defendants.

CASSIBRY, District Judge:

Plaintiff seeks declaratory and injunctive relief from actions by the federal government which have prevented plaintiff from developing its property. Trial in this matter was held before the court without a jury in October 1981. After considering the pleadings, the voluminous administrative record, the testimony of the witnesses, the documents in evidence, and the law applicable to this case, the court finds in favor of the federal defendants on all claims.

FACTS

Plaintiff Bayou des Familles Development Corporation ("BDF") was formed in August 1972 as a real estate investment venture by several persons who planned to develop and sell approximately 2,000 acres of land located on the West Bank of the Mississippi River in Jefferson Parish, about halfway between New Orleans and Barataria, Louisiana. Much of the property is cypress-tupelo gum swamp and marsh. BDF's development plan called for the excavation of a canal and construction of a levee and pumping station to drain the area. Portions of the property were to be filled for streets and construction of residences and other structures. The plan called for the blocking of Kenta Canal, a man-made waterway which extends into the subject property and connects at its southerly end with Bayou Barataria, a segment of the Gulf Intracoastal Waterway. The development plan also called for the blocking of Bayou Boeuf, a natural waterway that connects through the Bayou Segnette Waterway to the Gulf Intracoastal Waterway. Both Kenta Canal and Bayou Boeuf have direct hydraulic connections to the Gulf of Mexico and are subject to tidal influence.

The U. S. Army Corps of Engineers ("the Corps") has been involved in discussions concerning the possible construction of a hurricane protection levee in the vicinity of plaintiff's property since 1969. BDF designed its levee to follow the contour of one of the several alternative levee lines proposed by the Corps in 1972 for the West Bank flood control and hurricane protection project.

The federal laws authorizing construction of flood control projects require local assurances of cooperation, hold harmless agreements, and often require some local funding. 33 U.S.C. §§ 701c, 701f. While consultation with appropriate local authorities is important, the sole authority and responsibility for preparing a report recommending a specific project to Congress for approval and funding rests with the Corps. 33 U.S.C. § 701a-1.

BDF obtained the necessary permits from Jefferson Parish for construction of its levee and pumping station. In July 1973, BDF entered into a contract for the construction of a pumping station and sewage treatment plant. On August 16, 1973, BDF entered into a contract for the construction of a levee. The plans for the levee included the digging of a canal to the west of the levee line for fill and transportation of materials and equipment. Construction of the levee and canal system began in August 1973.

On August 21, 1973, Raymond Condon, Director of the Department of Drainage and Sewerage for Jefferson Parish, wrote a letter to Roy Farmer, an employee of the Corps of Engineers Planning Division, which referred to the BDF levee. The letter forwarded information about the specifications of the BDF levee pursuant to a request from the Federal Insurance Administration, Department of Housing and Urban Development. Mr. Farmer advised him that such a levee would meet certain Corps hurricane protection requirements.

The Planning Division of the Corps' New Orleans District ("NOD") has no authority over permitting or regulatory functions. That authority rests with the Permit and Statistics Branch, Operations Division, NOD, which first became aware of BDF's unauthorized dredge and fill work when review was requested of a report dated October 9, 1973. That report was being forwarded to the office of the Chief Engineer by the Planning Division and concerned reevaluation of base flood elevations for the Harvey Drainage Area in Jefferson Parish.

On October 10, 1973, the District Engineer wrote to Mr. Condon that the levee planned for the Bayou des Familles area might be constructed, in part, in wetlands that were navigable waters of the United States, and requested Mr. Condon to furnish the name of the developer or contractor who was constructing the levee. On October 18, 1973, Mr. Condon advised the Corps to contact Wilson Abraham. A certified letter was sent the same day to Mr. Abraham, one of the BDF investors and developers, advising that work on the levee should cease immediately pending a determination as to whether a permit was required.

On October 20, 1973, a letter from the District Engineer was forwarded to BDF advising that its levee construction might require a permit based on the definition of navigable waterways published in the Federal Register on September 9, 1972, and that BDF should supply necessary information for use in determining whether a permit was in fact needed. Moise Steeg replied by letter dated November 8, 1973, requesting that all future correspondence be directed to him as legal counsel for BDF. Also on November 8, Mr. Abraham wrote to the engineering firm of Harris and Varisco, consulting engineer for the levee project, to comment on progress of the levee. He noted that the levee had sunk in many spots, and that the work was not proceeding as expeditiously as the contractor had committed to the previous month.

In January 1974 the Corps issued a cease and desist order to BDF, having heard nothing further from Mr. Steeg. The Corps informed BDF that it had determined that federal permits were required for construction of the levee and canal, including the closures of Bayou Boeuf and Kenta Canal, based on an on-site inspection of the property by the Corps. The levee was approximately 90% complete at that time.

On March 8, 1974, the District Engineer wrote to BDF to direct it to submit a permit application for dredging and filling already done and for work necessary to complete the project. BDF was advised that an Environmental Impact Statement ("EIS") would have to be prepared before final action could be taken on the permit, due to the potential environmental impact of the proposed project. 42 U.S.C. § 4332(2)(C). On April 4, 1974, BDF suggested to the Corps that by modifying its plans in such a way as not to block Bayou Boeuf, it could avoid Corps jurisdiction entirely. BDF also requested a temporary permit to complete the work already begun. The Corps advised Mr. Steeg that it had no authority to issue a temporary permit. Information before the Corps indicated that Bayou Boeuf had already been blocked.

In February 1975 the United States filed an enforcement action against BDF for violations of Section 10 of the Rivers and Harbors Appropriations Act of 1899 ("RHA"), 33 U.S.C. § 403. United States of America v. Bayou des Familles Development Corporation, No. 75-536 (E.D.La.). The proceeding was resolved through entry of a final judgment that required BDF to pay a civil penalty of $25,000 and to submit an after-the-fact application to the Corps within 60 days for all work already done within the "project area which was done below the elevation of mean high tide." The "project area" was defined as those areas within the project which were under the ownership of BDF on October 17, 1974. The elevation of mean high tide for purposes of the order was specified to be 1.5 feet above mean sea level.

On April 7, 1975, BDF submitted an after-the-fact application for the construction of a levee to enclose approximately 2,000 acres. The Corps issued a public notice of the proposed project on April 28, 1975, including its determination that an EIS was required as part of the permit review process.

A draft EIS was submitted to the Corps, and revised in accordance with the Corps' comments. A public meeting on the draft EIS and proposed project was held on October 23, 1975. Numerous persons, several federal agencies and one state agency expressed objections to the project; some comments in support of the project were also given. The Corps received many letters in opposition to the project after the meeting as well. No responses to the public comments were sent to the Corps by BDF, although ample opportunity for response was provided.

The Corps' deliberations on plaintiff's permit application were influenced by the potential creation of the Jean Lafitte National Historical Park ("the park") in the vicinity of the subject property. Study of the feasibility of such a park had been funded by a specific congressional appropriation in August 1972. P.L. 92-369. On November 10, 1978, the park was established by act of Congress. 16 U.S.C. § 230. The park boundaries encompass part of BDF's property and extend over the levee built by BDF.

The provisions establishing the park call for the designation of a "core area" of approximately 8,000 acres and a "park protection zone" of 12,000 acres to serve as a buffer area between the core area and adjacent developments. P.L. 95-625, 16 U.S.C. § 230a(b). The Secretary of the Interior is authorized to acquire property within the core area, while uses in the park protection zone are to be regulated by local authorities pursuant to guidelines developed by the Secretary of the Interior in consultation with State and local authorities within six months of the enactment of the...