U.S. v. Mango

Decision Date05 March 1998
Docket NumberNo. 96-CR-327.,96-CR-327.
Citation997 F.Supp. 264
PartiesUNITED STATES OF AMERICA v. Louise MANGO, Kenneth Austin, Kevin Dominske, and Phenix Environmental, Inc., Defendants.
CourtU.S. District Court — Northern District of New York

Thomas J. Maroney, United States Attorney for the Northern District of New York, Syracuse, NY, of counsel: Craig A. Benedict, Edward R. Broton, Asst. U.S. Attorneys.

Miller, Cassidy, Larroca, and Lewin, L.L.P., Washington, D.C., for Defendants Louise Mango and Phenix Environmental, Inc., of counsel: R. Stan Mortenson, Jay L. Alexander, James R. Heavner, Jody Manier Kris.

Lynn Law Office, Syracuse, NY, for Defendants Louise Mango and Phenix Environmental, Inc., of counsel: Thomas F. Shannon.

Sidley & Austin, Washington, D.C., for Defendant Kenneth Austin, of counsel: John N. Gallo, Bradford A. Berenson, Stephen B. Kinnaird, Eric S. Mattson.

Hiscock & Barclay, L.L.P., Syracuse, NY, for Defendant Kenneth Austin, of counsel: Robert A. Barrer.

Stillman & Friedman, New York, NY, for Defendant Kevin Dominske Michael Grudberg, of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

INTRODUCTION

Presently before the court are four motions which defendants have filed. Each of these motions seeks to dismiss certain counts of the Indictment. The first motion seeks to dismiss Counts 2-31 for unlawful delegation of permitting authority. The second seeks to dismiss Counts 14-19. The third seeks to dismiss Counts 2-13 and 26-31 for lack of authority to enforce criminally the provisions of Appendices C and D to the Final Environmental Impact Statement ("FEIS"). Finally, the fourth motion seeks to dismiss Counts 2-13 and 20-31 as beyond the substantive regulatory authority of the Corps of Engineers under § 404 of the Clean Water Act, 33 U.S.C. § 1344 ("CWA"). The government opposes these motions in their entirety.

On January 22 and 23, 1998, the court heard oral argument in support of, and in opposition to, these motions and reserved decision. The following constitutes the court's resolution of these motions.

I. Motion to Dismiss Counts 2-31 of the Indictment for Unlawful Delegation of Permitting Authority
A. Introduction

Defendants move to dismiss Counts 2-31 of the Indictment on the grounds that the Permit issued to Iroquois ("Iroquois Permit") was issued by a District Engineer who lacked statutory authority under the CWA to issue such permits.1 The government opposes this motion, asserting that the Secretary of the Army promulgated regulations in compliance with the Administrative Procedures Act ("APA") which authorized the Chief of Engineers to delegate to the District Engineers his statutory authority to issue or deny § 404 permits for the discharge of dredged or fill material into the navigable waters of the United States at specified disposal sites.

B. Analysis

Resolution of this motion turns on the issue of whether in enacting § 404 of the CWA Congress intended to permit the Chief of Engineers to subdelegate his statutory authority to issue permits for the discharge of dredged or fill material into the navigable waters of the United States to his District Engineers. Defendants contend that § 404 unambiguously and specifically provides for the Secretary of the Army ("the Secretary") to delegate his authority to issue § 404 permits only to the Chief of Engineers and that, therefore, no further delegation is permitted. To the contrary, the government argues that because § 404 does not specifically proscribe subdelegation of the Secretary's authority to issue § 404 permits, Congress intended that the Chief of Engineers could subdelegate this authority to his District Engineers.

Pursuant to the familiar two-step analysis in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), a court called upon to review an agency's construction of a statute it administers is confronted with two questions. "First, always, is the question whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. As the Court stated in Chevron, "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781 (footnote omitted).

If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, ... Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 843, 104 S.Ct. at 2781-82 (footnote omitted).

With the Chevron test as a guide, the court will address the parties' arguments with respect to the meaning of § 404. As the court is required to do, it will begin its inquiry with the language of the statute itself.

There are two paragraphs of § 404 that are relevant to the court's determination of whom Congress authorized to issue § 404 permits. First, § 404(a) specifically grants the authority to issue permits for the discharge of dredged or fill material to the Secretary. 33 U.S.C. § 1344(a) ("The Secretary may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites."). Second, § 404(d) defines the term "Secretary" to mean "[t]he Secretary of the Army, acting through the Chief of Engineers." 33 U.S.C. § 1344(d). Based upon this language, defendants argue that Congress expressly vested the authority to issue § 404 permits in the Secretary of the Army or his statutorily-identified delegee, the Chief of Engineers. It therefore follows, according to defendants, that because § 1319(c) punishes violations of "[a]ny requirement ... in a permit issued under section 1344 of this title by the Secretary of the Army ...", 33 U.S.C. § 1319(c)(2)(A) (1986 & 1997 Supp.) (emphasis added), they may not be punished for violating a requirement of the Iroquois Permit which was issued by the New York District Engineer, rather than the Chief of Engineers.

The government readily concedes that the Iroquois Permit was issued by the New York District Engineer.2 However, it argues that this fact does not preclude the criminal prosecution of defendants for allegedly violating this permit because the Chief of Engineers and his necessary representatives are authorized to issue such permits on behalf of the Secretary pursuant to regulations which the Corps promulgated in strict compliance with the APA. See 33 C.F.R. § 325.8(a) ("Except as otherwise provided in this regulation, the Secretary of the Army, ..., has authorized the Chief of Engineers and his authorized representatives to issue or deny permits ... for the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act; ..."); 33 C.F.R. § 325.8(b) ("District Engineers are authorized to issue or deny permits in accordance with these regulations pursuant to ... section 404 of the Clean Water Act; ...").

Even a cursory reading of § 404 establishes that this statute clearly authorizes only the Secretary acting through the Chief of Engineers to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. However, it is also clear that this statute does not explicitly proscribe the subdelegation of this authority by the Chief of Engineers to his District Engineers.

In support of their argument that the Chief of Engineers may not subdelegate his § 404 permitting authority, given Congress' explicit designation of the Chief of Engineers as the Secretary's delegee, defendants rely upon the Supreme Court's decisions in Cudahy Packing Co. of Louisiana v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895 (1942), and United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), as well as the recent decisions of the Second and District of Columbia Circuits. See United States v. Workman, 110 F.3d 915 (2d Cir.1997); Halverson v. Slater, 129 F.3d 180 (D.C.Cir.1997).3

The issue in Cudahy Packing was whether under the Fair Labor Standards Act ("FLSA"), the Administrator of the Wage and Hour Division of the Department of Labor had the authority to delegate his statutory power to sign and issue subpoenas duces tecum. The FLSA itself did not define the Administrator's power to issue subpoenas nor did it specifically authorize him to delegate this power to others. However, § 9 of the FLSA gave the Administrator "[a]ll the powers with respect to subpoenas which are conferred upon the Federal Trade Commission, [by the Federal Trade Commission Act] and no more." Id. at 360, 62 S.Ct. at 653. The Trade Commission Act permitted, inter alia, the Commission to require the production of documents by subpoena and provided that any member of the Commission could sign the subpoenas. See id.

In Cudahy Packing, the Administrator argued that § 4(c) of the FLSA gave him the authority to delegate to regional directors the signing and issuance of subpoenas. Id. at 360, 62 S.Ct. at 653. Section 4(c) provided that "[t]he principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place." See id. The Court rejected this argument, stating that "[a] construction of the [FLSA] which would thus permit the Administrator to delegate all his duties, including those involving administrative judgment and discretion which the [FLSA] has in terms given only to him, can hardly be accepted unless plainly required by its words." Id. at 361, 62 S.Ct. at 654. The Court went on to explain that "[t]he words of ... section [4], read in their statutory setting, make it...

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3 cases
  • USA v. Mango, Austin,et al
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 1, 1998
    ...through thirty-one of the indictment. The district court granted defendants' motion on alternative grounds. See United States v. Mango, 997 F. Supp. 264, 299 (N.D.N.Y. 1998). The court first dismissed counts two through thirty-one because the CWA forbids delegation of permit issuing authori......
  • Johnson v. U.S. Army Corps of Engineers, 98-1328 MJD/AJB.
    • United States
    • U.S. District Court — District of Minnesota
    • June 1, 1998
    ...Engineer is invalid. In support of this assertion, Plaintiffs rely on a recent United States District Court opinion, United States v. Mango, 997 F.Supp. 264 (N.D.N.Y.1998). In Mango, the court determined that Congress did not provide the Secretary of the Army the authority to promulgate reg......
  • Iroquois Gas Transmission System, L.P. v. F.E.R.C.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 21, 1998
    ...regulation the line between permissible and impermissible conduct is often drawn in (muddy) water. Compare United States v. Mango, 997 F.Supp. 264, 285 (N.D.N.Y.1998) (holding that CWA authorized Army Corps of Engineers to regulate Iroquois's "backfilling of trenches excavated in waterways ......
3 books & journal articles
  • Fault lines in the Clean Water Act: criminal enforcement, continuing violations, and mental state.
    • United States
    • Environmental Law Vol. 33 No. 1, January 2003
    • January 1, 2003
    ...F.3d at 571-72; Cooper, 173 F.3d at 1205; United States v. Weitzenhoff, 35 F.3d 1275, 1282-89 (9th Cir. 1993); United States v. Mango, 997 F. Supp. 264, 277-94 (N.D.N.Y. 1998), rev'd, 199 F.3d 85, 88-93 (2d Cir. 1999) (see both (7) Marathon Dev., 867 F.2d at 98-101 (discussing nationwide pe......
  • CHAPTER 1 A CLEAN WATER ACT PRIMER FOR THE MINING INDUSTRY
    • United States
    • FNREL - Special Institute Water Quality & Wetlands Regulation and Management in the Development of Natural Resources (FNREL)
    • Invalid date
    ...v. Deaton, 209 F.3d 331, 335-36 (4th Cir. 2000) (determining that sidecasting falls under § 404); see also United States v. Mango, 997 F. Supp. 264, 285 (N.D.N.Y. 1998),affirmed in part, reversed in part on other grounds, 199 F.3d 85 (2d Cir. 1999); and Iroquois Gas Transmission Sys. v. FER......
  • CHAPTER 2 NEW DEVELOPMENTS IN THE DEFINITION OF DISCHARGE AND FILL MATERIAL
    • United States
    • FNREL - Special Institute Water Quality & Wetlands Regulation and Management in the Development of Natural Resources (FNREL)
    • Invalid date
    ...F.3d 331 (4th Cir. 2000), (discusses release of pollutants in determining side casting to be jurisdictional). 4. United States v. Mango, 997 F.Supp. 264 (N.D.N.Y. 1998), affirmed in part, reversed in part on other grounds, 199 F.3d 85, (2nd Cir. 1999). 5. Iroquois Gas Transmission System v.......

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