Buttrey v. United States

• Decision Date: 28 September 1983
• Docket Number: Civ. A. No. 81-263.
• Citation: 573 F. Supp. 283
• Parties: John BUTTREY, et al. v. UNITED STATES of America, et al.
• Court: U.S. District Court — Eastern District of Louisiana

573 F. Supp. 283

John BUTTREY, et al. v. UNITED STATES of America, et al.

Civ. A. No. 81-263.

United States District Court, E.D. Louisiana.

September 28, 1983.

Deutsch, Kerrigan & Stiles, Charles K. Reasonover, Pamela Pryor Mehle, Howard J. Ettinger, New Orleans, La., for plaintiffs.

Nancy S. Bryson, William L. Want, Pollution Control Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Joseph A. Gonzales, U.S. Army Corps of Engineers, Mobile, Ala., for defendants.

OPINION

ARCENEAUX, District Judge.

This matter arises out of a long-standing dispute, apparently heavily infected with animosity, between residential developer John Buttrey and John Buttrey Developments, Inc. (hereinafter collectively referred to as "Buttrey") and the United States Army Corps of Engineers (hereinafter "the Corps") over various projects undertaken in connection with the development of the Magnolia Forest subdivision near Slidell, Louisiana.¹ Mr. Buttrey's 1978 application for a dredge and fill permit for the channelization of a portion of Gum Bayou, which borders the subdivision, resulted in a prior lawsuit. Buttrey v. United States, No. 80-1617 (E.D.La. March 31, 1981) (hereinafter "Buttrey I"). The Fifth Circuit Court of Appeals recently affirmed this Court's decision in that matter, holding that the Corps had jurisdiction to require the permit, that the Corps's procedures in processing the permit application were not constitutionally infirm, and that the permit was properly denied on the basis of the administrative record. Buttrey v. United States, 690 F.2d 1170 (5th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983).

The instant suit concerns two cease and desist orders, one concerning a sewage treatment plant constructed without obtaining a dredge and fill permit, and the other concerning the excavation of a pond without a permit. Buttrey filed a complaint for declaratory and injunctive relief on January 21, 1981, which challenged the constitutionality of (1) the Congressional grant of jurisdiction over civilian activities to the Corps; (2) the Corps's jurisdiction over the sewage treatment plant; (3) the Corps's jurisdiction over the pond excavation; (4) the legality of the Corps's inspection of Buttrey's property and surveillance of his activities; and, (5) the Corps's refusal to allow Buttrey access to its files on those matters. Buttrey moved for summary judgment on the first four counts of the complaint, and the Corps countered with a motion for summary judgment on the first count and for dismissal of the remaining counts. Buttrey's motion for summary judgment was denied. The Court granted the Corps's motion for summary judgment on the constitutionality of the Corps's jurisdiction over civilians, which decision was affirmed on interlocutory appeal. See, Buttrey v. United States, 690 F.2d 1186 (5th Cir.1982). The Court also granted the Corps's motion to dismiss Count 5 of the complaint as moot, the Corps having turned over its files to Buttrey after the institution of this suit.

The Court denied the motion to dismiss Counts 2 through 4, but, following the procedure used in Avoyelles Sportsmen's League v. Alexander, 511 F.Supp. 278, 281 (W.D.La.1981), rev'd on other grounds, sub. nom. Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir.1983), reserved its jurisdiction over the remaining counts and ordered the Corps to conduct administrative proceedings on the issue of its jurisdiction over the two projects in question. See also, United States v. Moretti, 478 F.2d 418, 432 (5th Cir.1973). Buttrey voluntarily dismissed the surveillance count, leaving only the issue of the two cease and desist orders.

On June 28, 1982, nine months after being ordered to do so, the Corps filed its jurisdictional findings with the Court, finding jurisdiction over the sewage treatment plant under Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (hereinafter "Clean Water Act"), and over the pond under Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (hereinafter "Rivers and Harbors Act"). Buttrey filed for review of the findings; this was had on September 15, 1982 and taken under submission. After reviewing the briefs, the record, and the applicable law, the Court now rules on the motion for review.

To determine that the Corps acted within the scope of its jurisdiction, the Court need only find "that the Corps `could reasonably have believed' that the factual predicate necessary to its assertion of authority existed". Buttrey I, 690 F.2d at 1185-86, citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). At that point, the factual findings that form the basis of the Corps's decision become reviewable under the "arbitrary and capricious" standard. Id., at 1186.

Under this standard of review, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment". Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). We also bear in mind, as the Supreme Court has emphasized, that "although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. A court is not empowered to substitute its judgment for that of the agency". Id.

Buttrey I, 690 F.2d at 1183-84. The Court is confined to the administrative record in making this determination. Id., at 1184. Based on the administrative record, the Court finds that the Corps abused its discretion in finding jurisdiction over the sewage treatment plant and the pond under the applicable regulations.²

I — THE SEWAGE TREATMENT PLANT

On May 5, 1980, three days after suit was filed in Buttrey I, the Corps issued the following cease and desist order:

The work that you have performed in connection with the placement of fill and dredged material into the wetlands adjacent to Gum Bayou, during the construction of a sewage treatment plant and excavation of drainage ditches, in the Magnolia Forest Subdivision Sections 19 and 30, T. 8S., R. 15E., Slidell, St. Tammany Parish, LA is regulated by the Federal permitting authority of this office.

Initiating the work without first obtaining a permit is in violation of Section 404 of the Clean Water Act of 1977 (33 USC 1344). In essence, Section 404 prohibits the discharge of dredged or fill material into "waters of the United States" unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army pursuant to a permit. "Waters of the United States", as defined administratively, include all coastal and fresh water wetlands both above and below the mean high or ordinary high water line or those adjacent to other navigable waters of the United States and their system of tributaries

....

You are hereby directed to cease and desist all activities of this nature immediately and to notify this office in writing within 10 days of receipt of this letter as to why the work was commenced without a permit.

(R., Doc. 9, Exh. A). The Corps's regulations define "wetlands" 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 for life in saturated soil conditions. Wetlands generally include swamps, marshes, and bogs and similar areas.

33 C.F.R. § 323.2(c) (1982).

This Court has already found that the vicinity of Gum Bayou is a wetland and this point is not seriously disputed. See, Buttrey I, 690 F.2d at 1185. It is also undisputed that the sewage treatment plant was constructed some time after September 1, 1976, but that the site was filled between July 25, 1975 and September 1, 1976. Buttrey has never applied for a permit. The plant is located on Gum Bayou, a small, slow-running stream that converges with the West Pearl River about two miles downstream from the plant. At the point where the sewage treatment plant is located, the Bayou runs roughly parallel to the river and the distance between them is about two miles in a direct line. The Magnolia Forest subdivision is situated between the plant and the river. (See Buttrey Exhs. 4, 13a; Corps Exh. 3c). The issue before the Court is whether the plant is located in a wetland adjacent to the West Pearl River or whether it is situated in a wetland adjacent to a tributary of the West Pearl River (Gum Bayou).

Section 404 of the Clean Water Act requires Department of the Army permits, issued by the Secretary of the Army acting through the Corps, for the discharge of dredge and fill materials into "navigable waters". 33 U.S.C. § 1344(a) and (c). Navigable waters are defined as "the waters of the United States, including the territorial seas". 33 U.S.C. § 1362(7). After the passage of the Clean Water Act, however, the Corps continued to limit its regulatory jurisdiction to waters over which it had traditionally asserted jurisdiction under the Rivers and Harbors Act. In Natural Resources Defense Council, Inc. v. Callaway, the court found that the Corps had acted in derogation of its authority by continuing to use the limited definition of navigability, and ordered it to publish new regulations "clearly recognizing the full regulatory mandate of the Water Act". 392 F.Supp. 685, 686 (D.D.C.1975). In response, the Corps promulgated regulations which phased in the expansion of its jurisdiction:

§ 323.3 Discharges requiring permits.

(a) General. Department of the Army permits will be required for the discharge of dredged or fill material into waters of the United States. Certain discharges specified in §§ 323.4-1, 323.4-2 and 323.4-3 are permitted by this regulation. If a discharge of dredged or fill material is not permitted by this regulation, an individual or general Section 404 permit will be

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