Parkview Corp. v. DEPARTMENT OF ARMY, ETC.
| Decision Date | 28 May 1980 |
| Docket Number | No. 78-C-530.,78-C-530. |
| Citation | 490 F. Supp. 1278 |
| Parties | PARKVIEW CORPORATION, Plaintiff, v. The DEPARTMENT OF the ARMY, CORPS OF ENGINEERS, CHICAGO DISTRICT, Lawrence F. Coffill, Acting District Engineer, Chicago District, and The City of Neenah, a Municipal Corporation, and The United States of America, Intervening Defendant, and Environmental Protection Agency, Intervening Defendant, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
Howard T. Healy, DiRenzo & Bomier, Neenah, Wis., for plaintiff.
Joan F. Kessler, U. S. Atty. by Charles H. Bohl, Milwaukee, Wis., for U. S. Dept. of Army & U. S.
Elizabeth Stein, Pollution Control Section, Dept. of Justice, Washington, D. C., for Environmental Protection.
James B. Gunz, City Atty., Neenah, Wis., for City of Neenah.
DECISION and ORDER
This action is before me on the motion of the defendants, Department of the Army Corps of Engineers (COE), the acting Chicago district engineer for the Corps, the United States and the Environmental Protection Agency (all hereinafter referred to as "the federal defendants"), for dismissal or summary judgment as to the plaintiff's amended complaint and on the United States' motion for summary judgment as to its cross-complaint against the city of Neenah. The city has indicated by a letter to the court from the city attorney, dated April 29, 1980, that it does not oppose any of the federal defendants' motions. For the reasons which follow, the federal defendants' motions for summary judgment will be granted both as to the plaintiff's complaint and as to the United States' cross-complaint.
Since 1968, the plaintiff corporation has owned land in the Lake Edge Park Plat adjacent to Lake Winnebago located in the city of Neenah, Wisconsin. The city has installed sewer and water lines and other improvements to lots in the Lake Edge Park Plat, and the plaintiff has developed and sold homes in the area since 1968.
In April, 1977, the plaintiff requested that the city install sewer, storm and water mains and other improvements to the remaining lots in the plat. The city's contractor began making the requested improvements in the summer of 1977. In September, 1977, the Wisconsin Department of Natural Resources and the COE ordered the city to stop making the improvements because some of the construction involved the placing of fill in a "wetland area" in violation of state and federal law.
Thereafter, the city removed some of the fill and other materials complained of, and the Wisconsin Department of Natural Resources upon a subsequent inspection found that there no longer was any fill located below the "ordinary high water mark" of Lake Winnebago in violation of the Wisconsin statutes and department regulations.
However, the COE in October, 1977, and March, 1978, determined that the fill and other improvements constructed by the city in the platted roadways of Glenayre and Skyview Drives were placed in a wetland area in violation of federal law. The roadways in question were made to provide access to the several lots owned by the plaintiff, and the sewer and water lines and other improvements provided utility services to the lots.
In March, 1978, the COE ordered the city to remove the improvements. In July, 1978, the city common council voted to comply with the COE's order, and the city advertised for and received bids from contractors for removal of the fill and improvements. Thereafter, the plaintiff commenced this action to forestall the planned removal operations.
On September 13, 1978, I granted the plaintiff's motion for a preliminary injunction enjoining the defendants from removing fill materials on Glenayre and Skyview Drives. 455 F.Supp. 1350. My decision was based on two points. First, on the record before me at that time, I was uncertain as to whether the COE had the authority to act as it had. Second, I stated that "the plaintiff has raised a substantial question as to whether the two roadways in question are located within a wetlands area as defined by the COE's own regulations." 455 F.Supp. at 1352.
On April 18, 1979, the second of these issues was resolved adversely to the plaintiff, when I granted the federal defendants' motion for partial summary judgment. 469 F.Supp. 217. I found correct the COE's determination that the discharge of fill material into a wetland by the city violated the 1972 amendments to the Federal Water Pollution Control Act. 33 U.S.C. § 1251 et seq.
Following my decision, the plaintiff filed an amended complaint which alleged three related causes of action. In its first cause of action, the plaintiff claims that the defendants' actions have deprived the plaintiff of valuable property rights without due process of law. The second cause of action alleges that the COE exceeded its authority in ordering the city to remove the fill. Finally, the plaintiff alleges that in ordering the fill removed the COE acted arbitrarily and capriciously, purportedly ignoring the public benefits which resulted from the fill operation. In its amended complaint, the plaintiff seeks permanent injunctive relief and $250,000 in monetary damages.
Before reaching the merits of the plaintiff's allegations, I must first consider two motions of the federal defendants which question the court's jurisdiction in this case.
First, the federal defendants contend that this action should be dismissed because jurisdiction rests exclusively in the court of claims. 28 U.S.C. § 1331(a), the general federal-question statute, provides this court with jurisdiction to review the decisions and actions of federal agencies. Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-08 n.6, 98 S.Ct. 2002, 2005, 56 L.Ed.2d 570 (1978). However, § 1331(a) does not waive the federal defendants' right to sovereign immunity with regard to claims for monetary damages. Treho v. United States, 464 F.Supp. 113 (D.Nev. 1978). Moreover, under 28 U.S.C. §§ 1346 and 1491, monetary claims against the United States in excess of $10,000 are exclusively within the jurisdiction of the United States court of claims. Polos v. United States, 556 F.2d 903 (8th Cir. 1977); Crawford v. Cushman, 531 F.2d 1114, 1126 n.17 (2d Cir. 1976). Accordingly, the plaintiff's claim for monetary relief against the federal defendants must be dismissed. However, I see no reason to dismiss any of the plaintiff's substantive allegations nor its claim for injunctive relief on this ground since § 1331(a) provides this court with jurisdiction over such claims.
Second, the federal defendants argue that the instant case should be dismissed because the plaintiff failed to exhaust its administrative remedies. Specifically, the federal defendants contend that the plaintiff should have sought a permit for the discharge of fill material as provided by 33 U.S.C. § 1344.
In support of this contention, the federal defendants cite the case of United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979). In Byrd, the district court enjoined the defendant from placing any fill on wetlands on his property without obtaining a permit from the COE. In the court of appeals, the defendant argued that the requirement that he obtain a permit was tantamount to a taking of his property without compensation and, therefore, an illegal expropriation in violation of the Fifth Amendment. The court of appeals rejected the defendant's argument, holding that he "must exhaust his administrative remedies before he can raise this particular objection." 609 F.2d at 1211. The theory underlying the court's holding was that if the defendant applied for a permit and received one, no taking would have occurred; if the COE denied a permit application, a record which could be judicially reviewed would have been developed.
The instant case is distinguishable from Byrd in two pertinent respects. First, the plaintiff here does not claim that there has been a taking without compensation, but rather claims that the COE made a decision which it was not authorized to make and which was made arbitrarily and without due process. Second, at the time this suit was filed, resort to the COE for a permit would have been futile. In a letter to the director of community development for the city of Neenah, dated June 2, 1978, the COE's Chicago district engineer stated:
"Since your proposal is environmentally unacceptable it is most probable that an after-the-fact permit would not be granted for the work."
The law does not require parties to exhaust administrative remedies prior to judicial review if resort to such remedies would be futile. See e. g., Levers v. Anderson, 326 U.S. 219, 66 S.Ct. 72, 90 L.Ed. 26 (1945). In light of the statement from the COE, I find that the plaintiff need not have further pursued the administrative process prior to seeking judicial review in this case.
My disposition of the federal defendants' motions for summary judgment can best be understood with the statutory and regulatory framework governing this case in mind.
The Federal Water Pollution Control Act (FWPCA) makes the discharge into the waters of the United States of any "pollutant", including dredged spoil, rock, sand and cellar dirt, by any person, unlawful, unless permits or other approvals have been obtained. 33 U.S.C. §§ 1311(a), 1362(6) and (7). Under § 404 of the FWPCA amendments of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1344, the Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits for the discharge of dredge and fill materials into navigable waters and wetlands under certain conditions and after certain procedures have been followed.
Section 404(b) of the FWPCA, 33 U.S.C. § 1344(b), calls for the promulgation by the Environmental Protection Agency, in consultation with the COE, of guidelines specifying the factors to be considered by the COE in...
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