Salt Pond Associates v. US ARMY CORPS OF ENG.

Decision Date19 February 1993
Docket NumberCiv. A. No. 92-597-LON.
Citation815 F. Supp. 766
CourtU.S. District Court — District of Delaware


F. Michael Parkowski (argued), Jeremy W. Homer, and Jonathan Eisenberg, of Parkowski, Noble & Guerke, Dover, DE, for plaintiff.

Mary M. McDonough, U.S. Attorney's Office, Wilmington, DE, Robert E. Lefevre (argued), U.S. Dept. of Justice, Washington, DC, Barry Gale, U.S. Army Corps of Engineers, Philadelphia, PA, of counsel, for defendants.


LONGOBARDI, Chief Judge.


This dispute stems from Plaintiff's efforts to develop a piece of land for resale as waterfront lots. On November 29, 1988, the Plaintiff paid 5.5 million dollars for property located along the Town of Bethany Beach known as the Salt Pond property. Docket Item ("D.I.") 3 at 4. In an effort to ensure that any and all federal, environmental wetlands requirements were being satisfied under the Clean Water Act (hereinafter "CWA") and other environmental protection laws,1 the Plaintiff ("Salt Pond") apparently engaged in extensive consultation with the United States Army Corp of Engineers ("the Government"),2 as well as their own environmental experts.3Id. at 6-8. However, despite efforts by both sides to protect the "developing" interests of Salt Pond and the "environmental" interests that the Government is legally required to protect, irreconcilable disputes have arisen between the parties. These disputes, leading to Plaintiff's request to this Court for relief, center around the breadth of the Government's regulatory jurisdiction under the circumstances presented by this case as well as the allegedly adverse impact this land development will have on the environment.

On January 25, 1989, the Plaintiff submitted to the Government a wetlands delineation report requesting verification by the Government of its proposed section 404 wetlands delineation. Id. at 5.4 On April 4, 1991, after Plaintiff had spent over two years towards the development of the property, the Government informed the Plaintiff that a twelve acre area of the total land was in fact under the jurisdictional control of the Government. Id. On August 12, 1991, during an on-site inspection by the Government's investigators, the Government determined that ten ponds (hereinafter "the ponds") had been excavated in wetlands by the Plaintiff and that the Plaintiff had engaged in regulated land clearing in wetlands. D.I. 10 at 9.

On October 5, 1991, the Government issued a Cease and Desist letter which required the Plaintiff to discontinue any and all development of the land because of numerous environmental violations discovered during the latest on-site investigation by the Government. Id.5 As a follow-up to that order, the Government directed the Plaintiff to apply for an "after-the-fact" permit6 for work already undertaken and work still to be undertaken in connection with the development of the Salt Pond property. Id. at 10.7

After significant correspondence regarding the appropriate procedural mechanisms, Salt Pond submitted to this after-the-fact permit process under full reservation of its rights in the hope that any and all environmental violations could be remedied so that the development of the land could proceed to completion. D.I. 3 at 11. Plaintiff further implored the Government to sever from the permit application consideration of Plaintiff's application for a water and sewer utility crossing permit (hereinafter "the Loop Canal permit") pleading that the issuance of this permit under Section 10 of the Rivers and Harbors Act (hereinafter "RHA")8 was completely unrelated to matters pertaining to section 404 wetlands jurisdiction and the excavation of the ponds. Id. at 12.9 The Government responded by informing the Plaintiff that its request for the Loop Canal permit would only be processed in conjunction with the required "after-the-fact" permit. Id. at 13-14.10

After giving public notice of Salt Pond's permit application on March 25, 1992, and receiving extensive commentary on the project from environmental agencies and individual environmentalists,11 the Government ultimately denied Salt Pond's application on September 24, 1992, finding the project in its entirety "contrary to the general public interest." D.I. 11, Attachment D at 19.12 The Government offered the Plaintiff an opportunity to receive an alternative permit which would include the Loop Canal permit if Salt Pond satisfied 31 "special conditions." Id. at 19-24.13 The Government indicated that if this alternative permit was not accepted by the Plaintiff, then Plaintiff would have 60 days in which to initiate action for environmental restoration including the complete restoration of the excavated ponds. Id., Attachment B at 1-2. Additionally, subsequent efforts by Salt Pond to have the Loop Canal permit determination severed from the denial of the after-the-fact permit decision were once again rejected by the Government. D.I. 3 at 14 (citing the record).14

It is the Government's "conditional" grant of the Loop Canal permit which is at the heart of the present dispute. Particularly significant are those special conditions associated with the Plaintiff's filling in or otherwise restoring the ponds and the fact that the Loop Canal permit decision was linked to and dependent upon the pond restoration conditions. Specifically, the Plaintiff posits that the Government's environmental findings fail to establish a "sufficient causal connection between the alleged violations and the mandated corrective action." D.I. 3 at 12.15

Plaintiff contends that the Government has no section 404 jurisdiction over the excavation of these ponds because excavation is an unregulated activity for which no Government permit is required and, that by conditioning the grant of the after-the-fact permit, including the Loop Canal permit request, upon these pond restoration conditions, the Government is attempting to improperly regulate the excavation of these ponds through some sort of "back-door" approach to the permit application process. D.I. 3 at 16-25. It is the Plaintiff's ultimate position that any and all conditions relating to the restoration or filling of the excavated ponds are improper and that the withholding of the Loop Canal permit pending the restoration of the ponds is an improper use of the Government's authority.


The Plaintiff has filed a motion for a preliminary injunction setting forth various demands for relief (hereinafter "Plaintiff's Motion"). D.I. 2. Specifically, the Plaintiff seeks (1) a suspension of the order that they be required to fill in the ponds and/or the affirmative deletion by this Court of any pond restoration conditions in any permit application, (2) a declaration from this Court directing the Government to issue Salt Pond the necessary Loop Canal permit and (3) an injunction preventing the Government from taking any enforcement action for the alleged environmental violations. Id.

Defendant opposes the motion and counters in a motion to dismiss (hereinafter "Defendant's Motion"), D.I. 9, that the Court is without proper jurisdiction to grant any of this relief sought by the Plaintiff. Specifically, the Government asserts that Salt Pond's demands that (1) this Court delete all the special conditions requiring restoration of the ponds to wetlands and (2) order the Government to issue the Loop Canal permit are beyond the scope of relief this Court may grant to the Plaintiff. D.I. 10 at 20-23. Additionally, the Government contends that Plaintiff's request for an injunction prohibiting the Government from taking any enforcement action is barred as impermissible "pre-enforcement" judicial review.16 Lastly, the Government argues that even if the Court finds that it has jurisdiction to entertain Plaintiff's demands for relief, the Plaintiff has not satisfied its burdens under the appropriate standards upon which a preliminary injunction may be granted. D.I. 10 at 23-40.

The Government brought its motion on the pleadings pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). However, since this Opinion is based on matters outside of the pleadings (e.g., affidavits), it is more appropriately determined as a motion by the Government for summary judgment pursuant to the Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(c).17 As a result, the Court will treat the Government's motion as one for summary judgment.


Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Materiality is determined by the substantive law that governs the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this inquiry, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A dispute is "genuine" only if a reasonable jury could return a verdict for the nonmoving party. Id. Following a determination that no genuine dispute of material facts exists, the moving party must demonstrate that it is entitled to judgment as a matter of law.

Once the moving party has made and supported its motion, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Any doubts as to the existence of genuine issues of fact will be resolved against the moving party and all inferences to be drawn from the material it submits will be viewed in the...

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