Buttrey v. U.S., No. 81-3234

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, POLITZ and RANDALL; RANDALL
Citation690 F.2d 1170
Parties, 13 Envtl. L. Rep. 20,085 John BUTTREY and John Buttrey Developments, Inc., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
Decision Date08 November 1982
Docket NumberNo. 81-3234

Page 1170

690 F.2d 1170
18 ERC 1241, 13 Envtl. L. Rep. 20,085
John BUTTREY and John Buttrey Developments, Inc.,
Plaintiffs-Appellants,
v.
UNITED STATES of America, et al., Defendants-Appellees.
No. 81-3234.
United States Court of Appeals,
Fifth Circuit.
Nov. 8, 1982.

Page 1172

Deutsch, Kerrigan & Stiles, Charles K. Reasonover, Pamela Pryor Mehle, New Orleans, La., for plaintiffs-appellants.

Kay Richman, Anne S. Almy, Appellate Section, U. S. Dept. of Justice, Land & Natural Resources Div., Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

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

RANDALL, Circuit Judge:

This is an appeal from a district court judgment rejecting the claim of plaintiffs-appellants John Buttrey and John Buttrey Developments, Inc. that the United States Army Corps of Engineers had improperly denied Buttrey's application for a dredge and fill permit under section 404 of the Clean Water Act. 33 U.S.C. § 1344 (Supp. IV 1980). We conclude that the procedures afforded Buttrey in the determination of his permit application violated neither his statutory nor his constitutional rights and that the determination itself was neither arbitrary nor capricious. We therefore affirm the decision of the district court.

I. THE FACTS AND PROCEEDINGS BELOW.

John Buttrey is a land developer who builds residential homes. In November, 1978, he applied to the Mobile, Alabama, district office of the Corps of Engineers for a permit to channelize a half-mile long portion of a small, slow running stream known as Gum Bayou. The bayou passes near Slidell, Louisiana, before flowing into the West Pearl River. Buttrey accompanied his application with a letter from the Louisiana Stream Control Commission, stating that, having examined a drawing submitted by Buttrey, it was "of the opinion that water quality standards of the State of Louisiana will not be violated provided turbidity during dredging in public waters is kept to a practicable minimum." He also included comments from the St. Tammany Parish Mosquito Abatement District No. 2. The District stated that Buttrey's project would help eliminate potential mosquito breeding areas, provided only that adequate drainage was achieved as per the proposal to avoid the possibility of creating any new breeding sites.

The Corps of Engineers issued a formal public notice of the proposed dredge and fill operation on February 2, 1979. This notice was distributed to all known interested persons to assist in developing facts on which a decision could be based. In the ensuing months, the Corps received numerous comments opposing the issuance of the permit:

Page 1173

letters came from the Fish and Wildlife Service of the United States Department of the Interior, the United States Environmental Protection Agency and the National Marine Fisheries Service of the United States Department of Commerce, and from numerous private organizations and individuals. The comments all tended to raise the same objections. The proposed project, they claimed, would destroy natural drainage and sewage treatment capacity, replace a habitat and nursery ground for wildlife with residential homes, perhaps irrevocably damage an aesthetically pleasing wetland area, and, finally, increase the risk of flooding, both downstream and in Buttrey's neighboring Magnolia Forest housing development.

The Corps forwarded copies of all of the comments to Buttrey for review and response. Buttrey requested and received a six-month extension of time for filing his answer. On September 28, 1979, he submitted: (1) a memorandum of law supporting the permit request; (2) an environmental analysis with comments prepared by Dr. Alfred Smalley, Professor of Biology at Tulane University; (3) an engineering discussion with comments prepared by Ivan Borgen, a consulting engineer; (4) a letter supporting the application submitted by the Magnolia Forest Homeowners Association; (5) three other letters, also supporting the application, from downstream property owners; and (6) an aerial photograph of the area. With respect to "any objection which the Corps may feel to be of such a nature as to warrant denial of the permit," Buttrey requested: (1) that he be notified of the specific objection involved, and that he be permitted to provide the Corps a full and detailed response; (2) that he be granted a conference with the Corps in order to resolve any outstanding objections that could not be resolved on the basis of the material furnished; and (3) that, should there exist any objection that might preclude issuance of the permit, he be granted an adversary hearing, and an opportunity to cross-examine witnesses. The responsible official, District Engineer Col. Ryan, responded that Corps regulations precluded the possibility of a full adversary hearing, but that he would be happy to meet with Buttrey informally. Reserving his right to demand a full hearing, Buttrey accepted the invitation, and met with Col. Ryan on February 8, 1980.

The parties remained unable to resolve their differences. On April 2, 1980, the Corps issued an "Environmental Assessment" and an "Evaluation of the Effects of the Discharge of Dredged or Fill Material Into Waters of the U. S. Using the Section 404(b) Guidelines," and denied Buttrey's permit application. After extensively reviewing the Corps' evaluation process, Col. Ryan made the following "evaluation and findings":

Based upon review of the application, conducting an environmental assessment, preparation of a 404(b) evaluation, and consideration of all comments by other agencies and the public, and after weighing all known factors involved in the proposed action, I find in concurrence with national policy, statutes and administrative directives, when the total adverse effects of the proposal are weighed against the benefit to the using public, the public interest would best be served by denial of the requested permit.

The Corps noted particularly that "the environmental effects associated with implementation of the proposal are significant and adverse."

One month later, having exhausted the procedures provided by the Corps of Engineers, Buttrey filed with the United States District Court for the Eastern District of Louisiana an action for damages and declaratory and injunctive relief. Buttrey's complaint asserted: (1) that the Corps had no jurisdiction over the project; (2) that even assuming the Corps had jurisdiction, its own regulations exempted the proposed project from regulation under section 404; and (3) that, as applied in this case, the Clean Water Act and the regulations thereunder were unconstitutional. After a hearing on August 21, 1980, and upon consideration of the Corps' motion for a protective order and Buttrey's memorandum in opposition, the

Page 1174

district court authorized the production of certain documents and the taking of depositions from Col. Ryan and Donald Conlon (Chief of the Regulatory Functions Branch). Both Buttrey and the Corps submitted motions for summary judgment and memoranda in support of their motions, and, following a hearing on the cross-motions, both parties submitted post-hearing memoranda "on the issue of whether an adjudicatory hearing is required when ... the jurisdiction of the Corps ... is challenged." On April 1, 1981, the district court issued its opinion denying Buttrey's motion for summary judgment and granting summary judgment for the Corps. The district court held:

(1) where the Corps' regulatory jurisdiction over a proposed "dredge and fill" project is challenged, an adjudicatory hearing is not required for the purpose of determining the propriety of the jurisdictional claim;

(2) the Corps has jurisdiction to require permit issuance for the project in question;

(3) the procedures employed by the Corps in the processing of plaintiffs' permit were not unconstitutional;

(4) on the basis of the administrative record, the permit was properly denied; and

(5) plaintiff's claim for damages, allegedly due to either an unconstitutional taking of property without compensation or, alternatively, for the delay plaintiff has incurred as a result of the Corps' permitting process, is denied.

Judgment was entered accordingly, and Buttrey now appeals.

On appeal, Buttrey contends that he was denied his constitutional and statutory rights because the Corps refused to grant him a trial-type hearing, that the administrative record was incomplete, that the procedures employed by the Corps in determining that it had jurisdiction were improper, and that the permit was arbitrarily and capriciously denied.

II. WHAT KIND OF HEARING?

Buttrey's claim that he was wrongfully denied a full trial-type hearing is both statutory and constitutional. The statutory claim is based on a reading of the Administrative Procedure Act, 5 U.S.C. § 554(a) (1976), together with section 404(a) of what is now called the Clean Water Act, 33 U.S.C. § 1344(a) (Supp. IV 1980). The constitutional claim is based on the due process clause. Because the statutory argument is the more straightforward, we shall address it first.

A. The Administrative Procedure Act.

The formal trial-type hearing procedures that Buttrey wants are set out in sections 7 and 8 of the Administrative Procedure Act, 5 U.S.C. §§ 556-557 (1976), and are triggered by language at the beginning of section 5: "This section applies ... in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing ...." 5 U.S.C. § 554(a) (1976). Since in the present case the Corps has acted under the authority of section 404 of the Clean Water Act, the determinative issue is whether section 404 "require(s)" disputes to be "determined on the record after opportunity for an agency hearing." Buttrey claims that it does, and the government claims that it does not. We agree with the...

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39 practice notes
  • Water pollution control: Program regulations streamlining; Round Two,
    • United States
    • Federal Register May 15, 2000
    • May 15, 2000
    ...that failure to include a record requirement in section 402 resulted from drafting oversight, it is clear from Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982)(``Buttrey''), that, at least with respect to section 404, the absence of a record requirement was deliberate. In Buttrey, th......
  • Sierra Club v. Strock, No. 03 23427 CV.
    • United States
    • U.S. District Court — Southern District of Florida
    • July 13, 2007
    ...it is doubtful that the "public interest" review was intended to include consideration of private profit. In Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), a panel of the Fifth Circuit found that "$3 million or so in public jobs that the construction of [the applicant's proposed 4......
  • Water Works & Sewer Bd. v. U.S. Dept. of Army, No. CV 95-PT-2956-S.
    • United States
    • U.S. District Court — Northern District of Alabama
    • October 22, 1997
    ...of a hearing was not violative of the above-listed statutes. The Fifth Circuit Court of Appeals commented in Buttrey v. United States, 690 F.2d 1170, 1176 (5th Cir.1982), that a public hearing "`usually means a speechmaking hearing rather than a (trial-type) hearing with a determination on ......
  • Avoyelles Sportsmen's League, Inc. v. Marsh, Nos. 79-2653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 26, 1983
    ...agency's decision under the arbitrary and capricious standard on the basis of the administrative record. See Buttrey v. United States, 690 F.2d 1170, 1183-85 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983) (Corps' denial of permit reviewed on administrativ......
  • Request a trial to view additional results
33 cases
  • Sierra Club v. Strock, No. 03 23427 CV.
    • United States
    • U.S. District Court — Southern District of Florida
    • July 13, 2007
    ...it is doubtful that the "public interest" review was intended to include consideration of private profit. In Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), a panel of the Fifth Circuit found that "$3 million or so in public jobs that the construction of [the applicant's proposed 4......
  • Water Works & Sewer Bd. v. U.S. Dept. of Army, No. CV 95-PT-2956-S.
    • United States
    • U.S. District Court — Northern District of Alabama
    • October 22, 1997
    ...of a hearing was not violative of the above-listed statutes. The Fifth Circuit Court of Appeals commented in Buttrey v. United States, 690 F.2d 1170, 1176 (5th Cir.1982), that a public hearing "`usually means a speechmaking hearing rather than a (trial-type) hearing with a determination on ......
  • Avoyelles Sportsmen's League, Inc. v. Marsh, Nos. 79-2653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 26, 1983
    ...agency's decision under the arbitrary and capricious standard on the basis of the administrative record. See Buttrey v. United States, 690 F.2d 1170, 1183-85 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983) (Corps' denial of permit reviewed on administrativ......
  • Town of Norfolk v. U.S. Army Corps of Engineers, No. 91-2215
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 4, 1992
    ...review for the Section 404 permitting process under the Administrative Procedures Act is "highly deferential"); Buttrey v. United States, 690 F.2d 1170 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983) ("[Courts] look only to the administrative record in orde......
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5 books & journal articles
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands Deskbook Part I. Clean Water Act §404 Programs
    • November 11, 2009
    ...was not arbitrary or capricious. 172 163. 33 C.F.R. §§325.2(a)(4), 327.4(a). 164. Id . §327.4(b) (2008). See Buttrey v. United States, 690 F.2d 1170, 1176, 13 ELR 20085 (5th Cir. 1982). 165. 817 F.2d 1070, 1073-74, 17 ELR 20657 (3d Cir. 1987). 166. 33 C.F.R. §327.4. See Hough v. Marsh, 557 ......
  • List of Case Citations
    • United States
    • Wetlands Deskbook Appendices
    • November 11, 2009
    ...v. United States, 573 F. Supp. 283, 14 ELR 20152 (E.D. La. 1983) ......................................... 13 Buttrey v. United States, 690 F.2d 1170, 13 ELR 20085 (5th Cir. 1982) .................................. 79, 80, 84 Buxton v. U.S. Environmental Protection Agency, 961 F. Supp. 6, 2......
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...meeting with the Corps representatives). 231. 33 C.F.R. §§325.2(a)(4), 327.4(a). 232. Id. §327.4(b) (2008). See Burney v. United States, 690 F.2d 1170, 1176, 13 ELR 20085 (5th Cir. 1982). 233. 817 F.2d 1070, 1073–74, 17 ELR 20657 (3d Cir. 1987). 234. 33 C.F.R. §327.4. See Hough v. Marsh, 55......
  • List of Case Citations
    • United States
    • Wetlands deskbook. 4th edition Appendices
    • April 11, 2015
    ...Buttrey v. United States, 573 F. Supp. 283, 14 ELR 20152 (E.D. La. 1983) ...........................12 Buttrey v. United States, 690 F.2d 1170, 13 ELR 20085 (5th Cir. 1982) ..................... 102, 107 Buxton v. U.S. Envtl. Prot. Agency, 961 F. Supp. 6 (D.C. Cir. 1997) .........................
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