Leslie Salt Co. v. Froehlke

• Decision Date: 09 December 1974
• Docket Number: No. 73 2294 WTS.,73 2294 WTS.
• Citation: 403 F. Supp. 1292
• Court: U.S. District Court — Northern District of California
• Parties: LESLIE SALT CO., a Delaware Corporation, Plaintiff, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants.

403 F. Supp. 1292

LESLIE SALT CO., a Delaware Corporation, Plaintiff, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants.

No. 73 2294 WTS.

United States District Court, N. D. California.

December 9, 1974.

Edgar B. Washburn, Landels, Ripley & Diamond, San Francisco, Cal., for plaintiff.

John D. Hoffman, Sierra Club Legal Defense Fund, Inc. San Francisco, Cal., for third party defendants.

David E. Golay, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This is an action for declaratory and injunctive relief, brought by the Leslie Salt Co., an owner of certain property along the San Mateo, Santa Clara and Alameda County shorelines of San Francisco Bay, against the Secretary of the Army; the Chief of Engineers, United States Army Corps of Engineers; and the District Engineer of the Corps, San Francisco District, South Pacific Region (hereinafter the Corps) for a declaratory judgment that the Corps' assertion of jurisdiction shoreward beyond the mean high water (MHW) line is unlawful and unconstitutional and that plaintiff's property above the MHW line does not constitute "navigable waters of the United States," and for a permanent injunction restraining the Corps from requiring permit applications pursuant to the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq.) for work being done on plaintiff's land above the MHW line.

The action is now before the Court on the Corps' motion for summary judgment upon a record consisting of the complaint, including certain exhibits attached thereto and incorporated by reference; also certain matters outside the pleading.¹

The complaint alleges, in substance and effect, that plaintiff owns approximately 35,000 acres of shoreline property in question; that all this property was originally marshland and was originally conveyed by the United States of America to the State of California by virtue of the Arkansas Swamp Act of 1850 (43 U.S.C. §§ 982, 983); that the property was subsequently patented by the State to plaintiff's predecessors in interest; that the property has been reclaimed for agricultural, salt production and other purposes and that the daily performance of new work behind diked areas is essential to the operation of plaintiff's salt production business; that the land on which said activities are being conducted lies landward beyond the MHW line to which the Corps asserts jurisdiction; that the Corps has published two Public Notices (No. 71-22—June 11, 1971, and No. 71-22(a) —January 18, 1972) and has amended a Regulation (33 CFR 209.260—September, 1972) redefining and extending the Corps' regulatory jurisdiction over "navigable waters of the United States" and has in effect unlawfully asserted Corps jurisdiction under the Rivers and Harbors Act of 1899, supra, along the Pacific Coast beyond the MHW line and up to the "mean higher high water line" (MHHW); that the Corps has informed plaintiff and its lessees orally and in writing that the Corps claims regulatory jurisdiction and requires permits for work in all areas bayward of the MHHW line.

In order to understand the contentions of the parties and the issues in this case it is necessary to explain at the very outset the meaning of these two terms, i. e., "mean high water" (MHW) and "mean higher high water" (MHHW): Each day (more precisely, within every 24.8 hours) both coasts of the United States experience two high tides, one of which rises to a relatively higher shoreward level than the other. The mean high water (MHW) line is the average of both high tides over a period of 19 years; the mean higher high water (MHHW) line is the average of only the higher of the two high tides for the same period of time. Tide and Current Glossary, U.S. Department of Commerce, U.S. Coast and Geodetic Survey, Special Pub. No. 228 (1949)).

In support of its motion for summary judgment defendants contend:

(1) That there is no "justiciable issue," no "actual controversy," before the Court; that there has been no "final agency action," and that plaintiff has failed to exhaust available administrative remedies.

(2) That the Corps has, as a matter of law, jurisdiction under the Rivers and Harbors Act of 1899 which deals with obstructions to navigation, including discharge of refuse, and also under Section 404 (33 U.S.C. § 1344) of the Federal Water Pollution Control Act (hereinafter FWPCA) to require permits for discharge of dredged or fill materials into areas beyond the MHW line and up to the MHHW line on the Pacific Coast.

Deferring consideration of the issues of "actual controversy," "final agency action" and "available administrative remedies," we will first consider the pending case on the merits since, if our ruling on the merits is in favor of defendants and adverse to plaintiff, it may not be necessary to pass upon those issues.²

Insofar as the motion for summary judgment is based on the Corps' assertion of its jurisdiction beyond the MHW line, plaintiff contends that neither the Rivers and Harbors Act of 1899 nor the FWPCA authorizes the extension of the Corps' Pacific Coast regulatory jurisdiction beyond the MHW line; that any such extension of the Corps' regulatory jurisdiction beyond the MHW line would be unconstitutional; that in any event, even if the FWPCA extends the Corps' jurisdiction beyond the MHW line, a factual issue remains as to whether plaintiff's property is within "the waters of the United States" as that term is used in the FWPCA; also, that since plaintiff's land was originally conveyed by the United States to the State of California as swamp and overflowed land under the Arkansas Swamp Act of 1850, it is subject to federal regulatory jurisdiction no further shoreward than the MHW line under a holding in Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1900); also that the Corps has surrendered its jurisdiction over areas of plaintiff's property beyond the MHW line by failing to timely assert such jurisdiction.

The regulatory jurisdiction of the Army Corps of Engineers was established in 1899 by the Rivers and Harbors Act of that year, authorizing (33 U.S.C. §§ 401, 403, 404, 407) the Corps to exercise regulatory control over specified activities in "any navigable water of the United States." The Congress did not then define "navigable waters," but the "mean of the high water" (MHW) has been established by case law as the extent of the Corps' jurisdiction over tidal waters under the Rivers and Harbors Act of 1899. United States v. Stoeco Homes, Inc., 6 ERC 1757, 1765-1766 (3d Cir. March 14, 1974); United States v. Cannon, 363 F.Supp. 1045 (D.C.Del.1973); United States v. Lewis, 355 F.Supp. 1132 (S.D.Ga.1973).

However, in 1948, the Congress enacted the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 466 et seq.) and in this Act, by amendment of 1972 (33 U.S.C. Sec. 1251 et seq., see Section 1362(7)), the Congress for the first time defined "navigable waters," for the purposes of the Act as "waters of the United States, including the territorial seas."

The FWPCA, as amended, establishes a comprehensive program of water pollution research and control in order to "restore and maintain the chemical, physical, and biologial integrity of the Nation's waters" and, among other things, declares as a national goal, the elimination of the discharge of pollutants into navigable waters by the year 1985 (33 U.S.C. § 1251(a)); subject to certain limited exceptions, the FWPCA makes unlawful "the discharge of any pollutant by any person" (33 U.S.C. § 1311(a)); the term "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source," and the term "pollutant" is defined to include such materials as dredged spoil rock, sand, and industrial and agricultural waste (33 U.S. C. §§ 1362(12)(A) and 1362(6)).

The FWPCA is administered by the Environmental Protection Agency (EPA) through its Administrator (33 U.S.C. § 1251(d)) who ordinarily issues permits under 33 U.S.C. § 1342. There is, however, a special provision (33 U.S. C. § 1344), whereunder the Secretary of the Army, acting through the Corps of Engineers, is empowered to issue permits after notice and opportunity for public hearings, "for the discharge of dredged or fill material into navigable waters at specified disposal sites;" navigable waters are defined (33 U.S.C. § 1362(7)) as "the waters of the United States, including the territorial seas." Discharge of pollutants pursuant to such a permit from the Corps is one of the limited exceptions to 33 U.S.C. § 1311, which makes such discharge otherwise unlawful.

Under 33 U.S.C. § 1319(a)(3), whenever, on the basis of any information available to him the EPA Administrator finds that any person is in violation of 33 U.S.C. § 1311, he shall issue orders for compliance with 33 U.S.C. § 1311 or shall commence civil actions for appropriate relief; 33 U.S.C. § 1319 also provides both civil and criminal penalties for violation of 33 U.S.C. § 1311. (See 33 U.S.C. §§ 1319(c) and 1319(d)).

The Army Corps of Engineers, acting expressly under 33 U.S.C. § 1344 of the FWPCA, has adopted a Regulation, 33 C.F.R. 209.120, April 3, 1974, (See 39 F.R. 65, p. 12118)) defining the term "navigable waters of the United States" as "those waters of the United States which are subject to the ebb and flow of the tide" expressly referring, however, to Corps Regulation 33 C.F.R. 209.260 for a more complete definition.

Corps Regulation 33 C.F.R. 209.260(k)(1)(ii), adopted September 16, 1972, provides that the regulatory jurisdiction of the Corps in coastal areas extends to the MHW line except on the Pacific Coast where it extends to the MHHW line.

Plaintiff does not contend that its activities are of a kind which would not be subject to the Corps' regulatory jurisdiction under the Rivers and Harbors Act of 1899 and/or the FWPCA if the activities were being conducted in an area...