U.S. v. Boccanfuso

• Decision Date: 09 August 1989
• Docket Number: No. 902,D,902
• Citation: 882 F.2d 666
• Parties: , 19 Envtl. L. Rep. 21,388 UNITED STATES of America, Appellant, v. Joseph A. BOCCANFUSO, Appellee. ocket 88-6256.
• Court: U.S. Court of Appeals — Second Circuit

Page 666

882 F.2d 666

30 ERC 1292, 19 Envtl. L. Rep. 21,388

UNITED STATES of America, Appellant, v. Joseph A. BOCCANFUSO, Appellee.

No. 902, Docket 88-6256.

United States Court of Appeals Second Circuit.

Argued April 28, 1989.

Decided Aug. 9, 1989.

Michael P. Healy, Dept. of Justice (Jacques B. Gelin, Scott A. Schachter, Dept. of Justice, Donald A. Carr, Acting Asst. Atty. Gen., Land & Natural Resources Div., Washington, D.C., Stanley A. Twardy, Jr., U.S. Atty., D.Conn., New Haven, Conn., Jeremiah Donovan, Asst. U.S. Atty., Old Saybrook, Conn., of counsel), for appellant.

Richard A. Fuchs, Koskoff, Koskoff & Bieder, P.C., Bridgeport, Conn. (Michael P. Koskoff, Vincent M. Musto, Bridgeport, Conn., of counsel), for appellee.

Before OAKES, Chief Judge, and TIMBERS and MESKILL, Circuit Judges.

OAKES, Chief Judge:

This appeal involves the question whether the Government is estopped from asserting a claim against a landowner for a violation of the Clean Water Act, 33 U.S.C. Secs. 1251 et seq. (1982 & Supp. V 1987) ("the Act"). The landowner, Joseph Boccanfuso, placed fill and constructed a seawall in waters of the United States without a section 404 permit, see id. Sec. 1344, from the Army Corps of Engineers ("the Corps"). See id. Sec. 1311(a). The United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, held that although the seawall and fill violated the Act, the Government was estopped from asserting a claim against Boccanfuso. United States v. Boccanfuso, 695 F.Supp. 693, 695 (D.Conn.1988). The district court found that the combination of an oral misstatement of the Corps' jurisdiction by a Corps official and the Corps' failure timely to process Boccanfuso's application for a section 404 permit amounted to sufficient affirmative misconduct by the Corps for the Government to be estopped. We reverse and remand.

Boccanfuso owns three pieces of property at 80, 84, and 88 Harbor Road ("Areas # 3, # 2 and # 1," respectively), abutting the Saugatuck River in Westport, Connecticut. Although at various times all three areas have been the subject of extensive A brief description of the jurisdiction of the Corps may help to explain Boccanfuso's claimed confusion. The Corps asserts that Boccanfuso violated the Clean Water Act. Under that act, the Corps' jurisdiction extends inland to the "high tide line," 33 C.F.R. Sec. 328.4(b) (1988), which the district court noted is often referred to as the "extreme high tide." A potential source of confusion for Boccanfuso is that the Rivers and Harbors Act of 1899, 33 U.S.C. Secs. 401 et seq., gives the Corps jurisdiction up to the "mean (average) high water" line, which is the average point reached by high tides over 18.6 years, see 33 C.F.R. Sec. 329.12(a)(2) (1988). The Corps' jurisdiction under the Clean Water Act is greater than its jurisdiction under the Rivers and Harbors Act; there was testimony that on Boccanfuso's property, the high tide line was about a foot higher than the mean high water line, or, according to Boccanfuso's brief on appeal, ten to fifteen feet further inland. The structures that Boccanfuso built in Area # 2 were landward of the mean high water line, so they were within the Corps' Clean Water Act jurisdiction, but not its Rivers and Harbors Act jurisdiction. Boccanfuso's stance at trial was that he was unaware of the Corps' more extensive Clean Water Act jurisdiction.

dealings between the Corps and Boccanfuso, only Area # 2 is at issue on this appeal.

In 1981, during a routine inspection, Brian Valiton, a Corps inspector, discovered that Boccanfuso had placed fill below the extreme high water mark in Area # 1 and was mending jetties in that area. In a letter dated June 16, 1981, the Corps ordered Boccanfuso to cease and desist

any work seaward of the mean high water line in tidal waters or the ordinary high water line in non-tidal waters or the placing of any fill material seaward of the extreme high tide line and in all waters of the United States and their adjacent wetlands unless expressly authorized to do so by a Corps of Engineers permit.

Letter from Robert J. Desista to Joseph Boccanfuso (June 16, 1981), quoted in Boccanfuso, 695 F.Supp. at 695. The Corps directed Boccanfuso to submit an after-the-fact application for Area # 1. To comply with the Corps' mandate, Boccanfuso hired a marine architect, Ed Campbell, to draft the necessary drawings for the application. In February 1982, Campbell submitted plans for the pre-existing structures in Area # 1 and for planned improvements to Area # 2. The Corps returned Campbell's plans for revision, requesting, inter alia, identification of the extreme high tide line. Following the resubmission of Boccanfuso's plans in November 1982 and a public notice in February 1983, the Corps denied Boccanfuso a section 404 permit because there was a less damaging alternative: developing above the high tide line.

Meanwhile, from June 1981 through June 1984, Boccanfuso sought to convince the Corps that fill Area # 1 had been constructed prior to 1968 and was therefore grandfathered under a then-existing nationwide permit. As part of this endeavor, Boccanfuso met in June 1984 at his home on Harbor Road with Marita Yoder of the Corps and Sally Bolster, a representative from the late Congressman Stewart McKinney's office. Yoder told Boccanfuso that the Corps' jurisdiction extended only to the mean high water mark and that he could place riprap (large stones) in front of an old seawall in Area # 2, and Boccanfuso later did so.

Apparently in the wake of the havoc wreaked along the Saugatuck shoreline by Hurricane Gloria in 1985, Boccanfuso asked Campbell to prepare drawings for two new seawalls in Areas # 2 and # 3. The proposed seawall in Area # 2 was to be situated in the same area as the one that the Corps had rejected in 1983, although it would lie a few feet landward. On February 3, 1986, Campbell submitted the plans with a cover letter requesting that the Corps respond within ten days if the proposed seawalls came within its jurisdiction. According to Campbell's letter, the proposed seawalls were to be built above the mean high tide line. No formal application form accompanied the plans. The Corps did not respond directly to Campbell's written request. Campbell did receive a general A Corps of Engineers permit is required for all work beyond mean high water in navigable waters of the United States under Section 10 of the River and Harbor Act of 1899. * * * Permits are also required under Section 404 of the Clean Water Act for those activities involving the discharge of dredged or fill material in all waters of the United States, including not only navigable waters of the United States, but also inland rivers, lakes and streams and their adjacent wetlands.

mailing from the Corps on April 4, 1986, advising him of its jurisdiction, but the letter did not tell which water line determines Clean Water Act jurisdiction:

Letter from Richard Roach to Edward Campbell (Apr. 4, 1986).

Boccanfuso testified that he telephoned a Corps official named Chris Lindsay, who sent Boccanfuso on April 10, 1986, a pamphlet with the highlighted statement: "The best way to avoid a need for a permit is to select a site that is above the high tide line and avoids wetlands." At a meeting of the Westport Planning and Zoning Commission on April 17, 1986, an urban planner told Campbell that a Corps official had informed the planner that the Corps' jurisdiction under the Act extended to "mean tide," which was one foot above the mean high water line mentioned in the April 4 general mailing. Boccanfuso, nevertheless, constructed the seawall in Area # 2 in August 1986.

Shortly thereafter, Valiton, the Corps inspector, examined Boccanfuso's newly constructed seawall in Area # 2 and advised him that it appeared to be within the Corps' jurisdiction, i.e., below the extreme high tide line. On September 10, 1986, the Corps wrote to Campbell, advising him that the Corps' jurisdiction extended to the extreme high tide line and that Boccanfuso had placed fill seaward of that line in Area # 2. However, a copy of the letter was never sent to Boccanfuso and, surprisingly, Campbell apparently never mentioned it to him. In November 1986, Boccanfuso constructed his seawall in Area # 3.

The district court found that Boccanfuso's construction of the seawalls in Areas # 2 and # 3 violated the Act. However, the court held that the Government was estopped from enforcing the Act with regard to Area # 2 because of the misleading statements of Marita Yoder and the Corps' failure timely to process Boccanfuso's application. The district court found that these two events together constituted affirmative misconduct by the Corps so that estoppel applied. However, with regard to Area # 3, the district court found that the Government was not estopped and ordered Boccanfuso to file an after-the-fact permit and pay a fine of $2,000. That holding was not appealed.

DISCUSSION

On appeal, the Government argues that it should not be estopped from asserting claims against Boccanfuso for violations of the Act because: (1) his reliance on an oral misstatement by a Corps official was not reasonable in light of the numerous correct oral and written representations that the Corps made to Boccanfuso and Campbell as to its jurisdiction; and (2) the Corps' conduct, i.e., Yoder's statements and the failure timely to process Boccanfuso's section 404 application, did not amount to affirmative misconduct. We accept both of these arguments.

The principle of equitable estoppel is not applied to the Government on the same terms as it is to private citizens. See Heckler v. Community Health Servs., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685 (1981) (per curiam); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973); Federal Crop Ins. Corp. v. Merrill, ...