Loving v. Alexander

• Decision Date: 30 September 1982
• Docket Number: Civ. A. No. 79-0254.
• Parties: Robert J. and Bettie H. LOVING, et al., Plaintiffs, v. Clifford ALEXANDER, Secretary, Department of the Army, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

548 F. Supp. 1079

Robert J. and Bettie H. LOVING, et al., Plaintiffs, v. Clifford ALEXANDER, Secretary, Department of the Army, et al., Defendants.

Civ. A. No. 79-0254.

United States District Court, W. D. Virginia.

September 30, 1982.

COPYRIGHT MATERIAL OMITTED

William T. Wilson, Covington, Va., William B. Poff, Law Offices, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for plaintiffs.

Jean B. Weld, Asst. U. S. Atty., Roanoke, Va., Richard W. Smith, Timberlake, Smith, Thomas & Moses, Staunton, Va., for defendants.

OPINION

TURK, Chief Judge.

This action is brought by approximately sixty-seven riparian owners along a segment of the Jackson River in Alleghany County, Virginia, against the Secretary of the Department of Army, the United States Corps of Engineers, and three officers of the Department of Army. Plaintiffs seek a judgment declaring that the Jackson River is nonnavigable from the mouth of Dunlap Creek at Covington to the base of the Gathright Dam (hereafter the "Jackson River Segment"), and an injunction barring the federal defendants from allowing public access in the Jackson River Segment; or alternatively, compensation for a "taking" by the United States. As the federal defendants have asserted regulatory jurisdiction over the Jackson River pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401, et seq., this court has jurisdiction under 28 U.S.C. § 1331. And as the defendant's determination of navigability is an agency action, plaintiffs have stated a cause of action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706¹.

In 1946, Congress authorized construction of the Gathright Dam on the Jackson River, Virginia, for purposes of flood control, water quality control, and recreation. The United States Army Corps of Engineers (hereafter "Corps") began to acquire land for the project in 1967. A large portion of this land was formerly part of the T. M. Gathright Wildlife Management Area. Actual construction of the dam was started in 1968. An action for injunctive and declaratory relief, on environmental grounds, against the Gathright Dam project was rejected by this court in Cape Henry Bird Club v. Laird, 359 F.Supp. 404 (W.D.Va. 1973) (C. J. Dalton), aff'd, 484 F.2d 453 (4th Cir. 1973).

Prior to the construction of the dam, the Virginia Commission of Game and Inland Fisheries (hereafter "Game Commission") had stocked and maintained over eleven miles of the Jackson River flowing through the Wildlife Management Area as a "put-and-take" trout fishery. The impoundment of the Jackson River by the dam resulted in the loss of much of the "put-and-take" trout fishery. Because mitigation under the Fish and Wildlife Coordination Act of 1958 for the loss of this fishery was not authorized by the dam project legislation, the Corps and Game Commission contemplated that a nineteen mile stretch of the Jackson River below the dam would be used for a trout fishery. In 1971, the Game Commission agreed to develop and maintain the proposed downstream trout fishery, provided that the Jackson River was found to be a navigable water of the United States. As part of this agreement, the Corps purchased, at a cost of approximately $50,000, six downstream access points for future licensing to the Commission.

Although the Corps had made a preliminary determination in its first and supplemental Environmental Impact Statements that the Jackson was a navigable river, it subsequently commissioned a study of the navigability of the Jackson River by John W. Knapp of the Virginia Military Institute Research Laboratories, Inc. On February 23, 1978, the Corps issued a "Determination of Navigability — Jackson River, Virginia" under the authority of 33 C.F.R. 329.14(b).²

This determination was based on the study prepared by Knapp and states that, under the standards set out in 33 C.F.R. §§ 329.1 et seq.,³ the Jackson River is a navigable water of the United States from its mouth to its confluence with Back Creek at river mile 55 for the purposes of exercising Corps regulatory jurisdiction. This action arises out of the Corps' determination that the Jackson River is a navigable water of the United States.

In October 1979, plaintiffs filed suit challenging the Corps' determination of navigability insofar as it applies to the Jackson River Segment, and the plan to allow public access for fishing and other recreational uses in the Jackson River Segment. The complaint states that each plaintiff owns real property which borders and includes portions of the Jackson River from the base of the Gathright Dam to the mouth of Dunlap Creek and that plaintiffs seek to protect their property from being "taken" without just compensation by the Corps. Although the complaint contains seven counts, in essence the plaintiff's allege that the Corps' determination of navigability is not in accordance with law because the Jackson River Segment is nonnavigable.

In addition to the trial memoranda submitted by the parties, the Virginia Farm Bureau Federation filed an amicus curiae brief in support of the plaintiffs' position, and the National Wildlife Federation-Virginia Wildlife Federation and Trout Unlimited filed two amicus curiae briefs in support of the defendants' position. The court has received evidence during three days of hearings, along with several depositions and reports. Defendants presented two expert witnesses, Harold J. Wiberg and John W. Knapp, who studied the Jackson River and concluded that it is navigable. William R. Walker, defendants' expert, came to the opposite conclusion. These experts' reports were submitted as exhibits.

In large part, each expert's opinion was based upon testimony found in three state court trial transcripts.⁴ The state court trial transcripts were also introduced as exhibits in this action, and the testimony of the witnesses at the state trials is admissible under Federal Rule of Evidence 804(b)(1). The relevant facts derived from all the evidence presented by the parties in this action are as follows:

The Jackson River originates in Highland County, Virginia, and flows approximately 95 miles downstream through Bath and Alleghany Counties, Virginia. It joins the Cowpasture River near Iron Gate in Alleghany County, and together these rivers form the James River.⁵ Below Covington, Virginia, the river flows to the east. At Covington, it turns abruptly to the north and skirts the Alleghany Front. The entire river falls about 21 feet per mile and the average flow is 486 cubic feet per second ("cfs") with a seven day, ten year low flow of 0.158 cfs. The total length of the river contains natural obstructions, such as falls and riffles, as well as artificial obstructions such as two dams and various bridges.

The Jackson River Segment is relatively narrow, crooked, rocky and shallow. It falls from 9 to 12 feet per mile and has an average flow at the Falling Springs Station, which is near the midpoint of the disputed segment, of 491 cfs. The water depth ranges from about ten inches to 6 feet and it is approximately 40 to 100 feet wide.

Historically, the lower part of the Jackson River below Dunlap Creek at Covington was regularly used for bateaux transportation of iron, flour and other commercial produce from the late 18th century until the Civil War period. Within the Jackson River Segment, railroad cross ties were floated down the river from Falling Spring, (which is below the present site of the Gathright Dam), to Covington in 1884. In 1895, E. N. Williams and G. A. McCallister helped A. D. Kincaid float about 60 walnut logs down the Jackson from around Back Creek, (which is above the present site of the Gathright Dam), to Greaver's Mill.

In the fall of 1902, a lumber company called Sipes and Alexander attempted to float 3,000 to 4,000 board feet of logs down the river from Back Creek to its mill at Covington. Although Sipes and Alexander made two drives in an attempt to get these logs to their boom and mill in Covington, they were largely unsuccessful because the water level was either too low, (causing the logs to get stuck in the riverbed), or too high, (causing the logs to run off the river banks onto the farmlands adjoining the river). Many of these logs remained in the river at the time of the second Revercomb trial.

In early 1903, Alexander, one of the principals in Sipes and Alexander, formed the Jackson River Lumber Company. This company made many improvements in the Jackson River to assist in its log floating operations, such as constructing cribbings to prevent logs from going out onto land and blasting river rocks to prevent logs from snagging and forming jams. The Jackson Lumber Company made two drives in the spring of 1903 when the water level was sufficiently high to float logs. Nevertheless, Jackson Lumber Company was able to get only 10% of its logs from Back Creek to within three or four miles of its boom in Covington. This was due at least in part to Revercomb's refusal to let the company's men onto his land in order for them to push logs which had run aground back into the river. All in all, Sipes and Alexander and Jackson Lumber Company together attempted to drive 8,000 or 9,000 logs from Back Creek to Covington during approximately four drives from fall of 1902 to spring of 1903.

In 1903, Jackson Lumber Company was close to bankruptcy because it had spent too much on cutting logs which it could not mill because of the failure of its drives down the river. Nevertheless, Jackson Lumber Company continued to float its logs down the river until Revercomb obtained an injunction prohibiting it from floating logs past his property in the same year.

Nearly bankrupt and enjoined from floating logs down the Jackson, Jackson Lumber Company sold its timber that was still in the water to Hot Springs Lumber and Manufacturing Company and ceased all operations in 1903 or 1904. Ice on the river then caused the old Jackson Lumber Company boom to break, but about 400 or...