St. Andrews Park, Inc. v. U.S. Dept. of Army Corps of Engineers

• Decision Date: 27 January 2004
• Docket Number: No. 02-14256-CIV.,02-14256-CIV.
• Citation: 314 F.Supp.2d 1238
• Court: U.S. District Court — Southern District of Florida
• Parties: ST. ANDREWS PARK, INC. and United Management Services the parent of Horizon Community Church, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, Defendant.

314 F.Supp.2d 1238

ST. ANDREWS PARK, INC. and United Management Services the parent of Horizon Community Church, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, Defendant.

No. 02-14256-CIV.

United States District Court, S.D. Florida.

January 27, 2004.

COPYRIGHT MATERIAL OMITTED

D. Kent Safriet, Frank E. Matthews, Hopping Green & Sams, P.A., Tallahassee, FL, for Plaintiffs St. Andrews Park, Inc. and United Management Services.

Martha Mann, Thomas L. Sansonetti, U.S. Department of Justice, Washington, DC, Steven R. Petri, Marilynn K. Lindsey, United States Attorney's Office, Fort Lauderdale, FL, Lloyd D. Pike, Office of General Counsel, United States Department of Army Corps of Engineers, Jacksonville, FL, for Defendant United States Department of the Army Corps of Engineers.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT III

COHN, District Judge.

THIS CAUSE came before the Court on Defendant's Motion to Dismiss Count III [DE # 27]. The Court has carefully considered the motion and pleadings, including oral argument on the matter, and is otherwise fully advised in the premises.

I. BACKGROUND

The Plaintiffs St. Andrews Park, Inc. and United Management Services, the parent of Horizon Community Church, Inc., are the owners of a parcel of property known as the St. Andrews Park Site which consists of approximately 149 acres located in the City of Port St. Lucie, Florida. (Second Amended Complaint ¶¶ 6 & 11). In 1980, a prior owner of the St. Andrews Park Site sought regulatory approvals for the development of the Site. (Second Amended Complaint ¶ 12). The CORPS responded in a letter dated November 12, 1980 that portions of the Site sought to be developed were not subject to the CORPS' jurisdiction. (Second Amended Complaint ¶ 13 & Ex. 1). Subsequently, on February 10, 1995, the CORPS completed a jurisdictional determination in which it asserted jurisdiction over the wetlands on the St. Andrews Park Site. (Second Amended Complaint ¶ 14 & Ex. 2). On February 9, 2000, St. Andrews Park, Inc. submitted a joint application to the United States Department of the Army Corps of Engineers ("CORPS") and the Florida Department of Environmental Protection for the residential development of St. Andrews Park, with a dredge and fill plan having been developed in reliance on the CORPS' jurisdictional determination then in effect. (Second Amended Complaint ¶ 16).

On January 9, 2001, the United States Supreme Court issued its opinion in Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ("SWANCC"), holding that the CORPS' rule extending the definition of "navigable waters" under the Clean Water Act, 33 U.S.C. § 1344, ("CWA") to include intrastate waters used as habitat by migratory birds exceeded the CORPS' authority.

On November 7, 2001 and December 11, 2002, St. Andrews Park, Inc. provided the CORPS with reports demonstrating hydrological isolation for portions of the St. Andrews Park Site. (Second Amended Complaint ¶ 18). In March 2002, Plaintiffs requested that the CORPS issue a jurisdictional determination either finding wetlands on the Site to be isolated, or, in the alternative, confirming the CORPS' prior assertion of jurisdiction over the property to allow Plaintiffs to exercise their right to appeal. (Second Amended Complaint ¶ 19).

In response, in a June 18, 2002, letter, the CORPS advised Plaintiffs that:

By letters dated April 26 and May 29, 2001, (copies enclosed) the U.S. Army Corps of Engineers issued a preliminary jurisdictional determination (JD) for the St. Andrews Park site. This determination which was based on the previous JD from 1995, indicated some of the onsite wetlands were jurisdictional "adjacent" wetlands and that a field visit would be needed to issue a final jurisdictional determination.

At the request of Paradise St. Andrews, Limited, the Corps conducted field visits on November 13, 2001, and February 5, 2002, to the proposed Publix project site in order to finalize a JD for that portion of the St. Andrews Park site. During the site visits, the Corps looked at the berm alongside the C-106 Canal and determined that the wetlands within the Horizon Community Church site are jurisdictional "adjacent" wetlands. The Corps, however, has not conducted a field visit to verify the approximate upland/wetland boundary for purposes of determining the jurisdictional line according to the 1987 Wetland Delineation Manual. In addition a field visit is necessary to verify the upland/wetland boundary for the remaining portions of the St. Andrews Park site.

(Second Amended Complaint, Ex. 3). On August 15, 2002, Plaintiffs filed an administrative appeal challenging the determination made by the CORPS in its June 18, 2002 letter. (Second Amended Complaint ¶ 23 & Ex. 4). On September 27, 2002, the CORPS notified the Plaintiffs that the appeal was accepted. (Second Amended Complaint ¶ 23 & Ex. 4). However, on December 19, 2002, the CORPS rejected the administrative appeal by letter advising Plaintiffs that the CORPS had not completed a final appealable jurisdictional determination:

We understand that your primary concern is the [CORPS'] determination of adjacency, and that you believe the wetlands on the property are isolated and not subject to [CORPS] jurisdiction. However, unless and until Jacksonville District personnel establish the boundaries of the wetlands in question in a field visit, there is no final appealable jurisdictional determination.

(Second Amended Complaint, Ex. 4).

On June 16, 2003, Plaintiffs filed their Second Amended Complaint adding Count III to their original Freedom of Information Act action filed against the CORPS with this Court on September 16, 2002.¹ Count III of Plaintiffs' Second Amended Complaint seeks declaratory and injunctive relief regarding whether the alleged wetlands are within the statutory jurisdiction of the CORPS pursuant to the CWA and interpreted by the Supreme Court's 2001 decision in SWANCC. Plaintiffs claim that any wetlands located on St. Andrews Park are not within the jurisdiction of the CORPS because they are not "waters of the United States" or "adjacent" to "waters of the United States." (Second Amended Complaint ¶¶ 55 & 56). Plaintiffs seek a declaratory judgment that the wetlands on their property are not within the jurisdiction of the CORPS and that the CORPS's actions attempting to regulate these wetlands are improper. They further seek an injunction prohibiting the CORPS from asserting jurisdiction over the St. Andrews Park Site and from interfering with Plaintiffs' development and use of the Site.

The CORPS argues that Plaintiffs have not withdrawn their Department of Army permit application for the St. Andrews Park project and the CORPS has not been able to render a final decision regarding the application, primarily because Plaintiffs have not allowed the CORPS on their property to perform a jurisdictional delineation to determine whether the planned development would destroy or adversely affect congressionally protected wetland and water resources. (CORPS' Motion to Dismiss [DE # 27] at 6). Similarly, the CORPS argues, because the CORPS has not been allowed on the property the United States has no knowledge whether unlawful activities that violate the CWA have occurred on the property and therefore has not initiated any action to enforce the CWA in relation to activities occurring on the property. (DE # 27 at 6).

II. DISCUSSION

The CORPS' Motion to Dismiss raises a 12(b)(1) facial attack on Plaintiffs' jurisdictional allegations.² Specifically, in their Second Amended Complaint, Plaintiffs allege that this Court has federal question jurisdiction over Count III pursuant to 28 U.S.C. § 2201, the Declaratory Judgment Act. (Second Amended Complaint ¶ 1). In their Response to Defendant's Motion to Dismiss, Plaintiffs further assert that this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Plaintiffs' Response to Defendant's Motion to Dismiss [DE # 31] at 5). But neither of these two federal statutes cited by Plaintiffs independently grant jurisdiction. See Banks v. Page, 768 F.Supp. 809, 811 (S.D.Fla.1991) ("It is well settled that neither the Declaratory Judgment Act nor the Federal Question statute independently confers jurisdiction") (citing Borden v. Katzman, 881 F.2d 1035 (11th Cir.1989) (Declaratory Judgment Act) and Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir.1984) (Federal Question statute))³; see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (the Declaratory Judgment Act merely creates a remedy and is not an independent basis for jurisdiction). Thus, jurisdiction must exist either by virtue of the CWA or the Administrative Procedures Act, 5 U.S.C. §§ 701-706, ("APA").⁴ See Banks, 768 F.Supp. at 811.

The Clean Water Act ("CWA") is a comprehensive statute designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a); see also 33 U.S.C. § 1344(a). Where the CORPS finds a violation of the CWA, the CORPS may issue "cease-and-desist" orders. See 33 C.F.R. § 326.3(c). The CORPS may also impose administrative penalties against those who violate the CWA or a permit issued under the CWA. See 33 U.S.C. § 1319(g).⁵ If the recipient of a CWA order fails to comply, the United States may bring a civil action in federal District Court under the CWA, seeking injunctive relief and monetary penalties. See U.S.C. § 1319(b); 33 C.F.R. § 326.5; see also Banks, 768 F.Supp. at 811; Inn of Daphne v. U.S., No. Civ. A 97-0796-BH-S, 1998 WL 34024732, at *3-4 (S.D.Ala. Aug. 26, 1998).

Here, where there has been no failure to comply with any CORPS order (no order having been issued), the CWA does not appear to provide an independent basis for this Court's jurisdiction. The CORPS has not performed a final...