U.S. v. Boyden

• Decision Date: 10 January 1983
• Docket Number: No. 81-4553,81-4553
• Citation: 696 F.2d 685
• Parties: , 12 Fed. R. Evid. Serv. 561 UNITED STATES of America, Plaintiff-Appellant, v. Robert E. BOYDEN and Jean Boyden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 685

696 F.2d 685

18 ERC 2028, 12 Fed. R. Evid. Serv. 561

UNITED STATES of America, Plaintiff-Appellant, v. Robert E. BOYDEN and Jean Boyden, Defendants-Appellees.

No. 81-4553.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 1982.

Decided Jan. 10, 1983.

Martin W. Matzen, Washington, D.C., for plaintiff-appellant.

Steven J. Howell, Oroville, Cal., argued, Martin W. Matzen, Washington, D.C., on brief, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, Senior Circuit Judge, KASHIWA ^* and WALLACE, Circuit Judges.

KASHIWA, Circuit Judge:

This case, on appeal from the United States District Court for the Northern District of California, raises the issue whether the houseboats built by the appellees may be considered structures subject to the provisions of Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. Sec. 403. Jurisdiction of this court is governed by 28 U.S.C. Sec. 1291.

Appellees, Robert and Jean Boyden, own two waterfront lots on Bethel Island in California. In 1976, the Army Corps of Engineers first observed construction of a floating residence on the Boydens' property and advised the Boydens that no Section 10 permit had been issued for that construction as required by regulation. The Corps requested that the construction cease. Nevertheless, the Boydens continued construction of the houseboat which was completed in 1977. In November, 1977, the Corps advised the Boydens that the presence of the houseboat in a navigable waterway of the United States was not in the public interest and requested its removal.

The houseboat built by the Boydens was constructed with the intent of either renting it or moving into it. It was designed to meet all the definitions of a boat. The houseboat was constructed from a platform deck floated by two pontoons on which a structure for living quarters was built. The design included mountings for two outboard type motors, was outfitted with all coast guard required safety equipment, registered as a vessel and taxed by the state of California as a houseboat. A second houseboat, essentially the same, was built in April, 1978. Both houseboats were moored to the Boydens' docks by tie lines and supplied with electrical, telephone, fresh water and sewerage hookups which could be disconnected without the use of tools. A pair of outboard motors totalling 50 horsepower were owned by the Boydens and could be used to power and steer the houseboats. The boats had been taken out into the slough prior to March, 1979 once and twice respectively.

The parties brought cross motions for summary judgment at the district court. The district court granted summary judgment in the Boydens' favor. It held that the houseboats built by the Boydens were vessels under 1 U.S.C. Sec. 3 and therefore were not structures under 33 U.S.C. Sec. 403. The district court stated that 33 C.F.R. Sec. 322.2(b) (1981), the regulation promulgated by the Army Corps of Engineers to implement Sec. 403, did not require the court to find that the houseboats were structures within the meaning of Sec. 403. It held there were no factual issues in dispute that would preclude its grant of summary judgment.

I

Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. Sec. 403 (hereinafter Section 10) provides:

Sec. 403. Obstructions of navigable waters generally; wharves; piers, etc.; excavations and filling in

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

The district court held that the Boydens' houseboats met the definition of a vessel provided by 1 U.S.C. Sec. 3 ¹ and therefore could not be structures under Section 10 of the Rivers and Harbors Act. We respectfully disagree. The fact that the houseboats may qualify as vessels under one section of the United States Code does not mean they may not also be considered structures under a separate section. It is necessary to look to the purpose and intent of a statute when deciding what its terms mean. District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973). 1 U.S.C. Sec. 3 and Section 10 should not be construed together or viewed as overlapping in the absence of such Congressional intent. See United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

The purpose of Section 10 is to prevent obstruction of the navigable capacity of the United States' waterways. Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426 (1929). Section 10 has three separate clauses. The first forbids the creation of obstructions to the navigable capacity of any waters of the United States. The second and third clauses are legislative enumerations of specific structures and activities that can only be built with the Corps' authorization.

In other words, the building activities mentioned in clauses 2 and 3 are presumed to be obstructions to navigable capacity. Under the statute the Secretary of the Army determines whether these obstructions are reasonable. * * * When one undertakes any of the activities described in clause 2 or by his activities brings about any of the results specified in clause 3, he violates Section 10 if he has not first sought and obtained a permit from the Corps of Engineers. [Emphasis in original.]

Sierra Club v. Andrus, 610 F.2d 581, 594-95 (9th Cir.1979), rev'd on other grounds sub nom. California v. Sierra Club, 451 U.S. 287 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). Thus to fall within the prohibition of clause 2, it need only be shown that the subject in question is one of those enumerated in Section 10.

In accord with its statutory mandate, the Army Corps of Engineers has interpreted and enforced clause 2 of Section 10. Clause 2's legislative enumeration of specific structures includes the phrase "other structures." The Corps has properly promulgated 33 C.F.R. Sec. 322.2(b) (1981) to define structure. It states:

(b) The term "structure" shall include, without limitation, any pier, wharf, dolphin, weir, boom, breakwater, bulkhead, revetment, jetty, permanent mooring structure, power transmission lines, permanently moored floating vessels, piling, aids to navigation, or any other permanent or semi-permanent obstacle or obstruction.

It is a well accepted principle of law that agency interpretations are to be given great deference. EPA v. National Crushed Stone Association, 449 U.S. 64, 83, 101 S.Ct. 295, 306-07, 66 L.Ed.2d 268 (1980); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d...