U.S. v. Riverside Bayview Homes, Inc.
| Citation | 729 F.2d 391 |
| Decision Date | 08 June 1984 |
| Docket Number | 81-1498,Nos. 81-1405,s. 81-1405 |
| Parties | , 21 ERC 1528, 14 Envtl. L. Rep. 20,365, 14 Envtl. L. Rep. 20,617 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. RIVERSIDE BAYVIEW HOMES, INC., a Michigan corporation, and Allied Aggregate Transportation Company, a Michigan corporation, Defendants-Appellants, Cross- Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Richard R. Gienapp, argued, Detroit, Mich., for defendants-appellants, cross-appellees.
Richard A. Rossman, U.S. Atty., Detroit, Mich., Hayward L. Draper, Asst. U.S. Atty., Detroit, Mich., Thomas H. Pacheco, Anne S. Almy, U.S. Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., Ellen J. Durkee, argued, Melvyn B. Kalt, Deputy Dist. Counsel, U.S. Army Corps of Engineers, Detroit, Mich., for plaintiff-appellee, cross-appellant.
Before MERRITT and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.
This is an environmental case concerning "wetlands" and the jurisdiction of the United States Army Corps of Engineers over them. The government claims that defendants, Riverside Bayview Homes, Inc., and Allied Aggregate Transportation Company, violated section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1311(a) (1976), and regulations concerning "wetlands" purportedly issued under that Act. The claimed violation occurred when the defendants deposited fill material on Riverside's land, which the government asserts is a "wetland," without obtaining a permit from the Corps of Engineers as required by the Act. Judge Cornelia Kennedy, sitting as a District Judge, issued a permanent injunction prohibiting further filling on a large portion of Riverside's property and a declaratory judgment holding one of the Corps regulations unconstitutional. Both parties then appealed.
On the first appeal, 615 F.2d 1363 (6th Cir.1980), this Court remanded the case for further proceedings in the District Court in light of a new regulation promulgated by the Corps. That regulation, found at 33 C.F.R. Sec. 323.2(c) (1983), specifically altered the definition of "wetlands" relied upon by Judge Kennedy in the original District Court proceeding. We conclude that the District Court on remand erred in interpreting the new definition of wetlands to include defendant's property and in continuing the permanent injunction under the new regulation. We also vacate as moot the declaratory judgment issued by the District Court in the first proceeding.
Riverside owns approximately eighty acres of undeveloped land north of Detroit in Harrison Township, Michigan, which it had planned to develop for housing. It is located in a suburban area approximately a mile west of Lake St. Clair and south of South River Road, roughly paralleling the Clinton River. Its southern boundary is separated from the man-made Savan Drain by two ten-acre parcels. Its western boundary is formed by Jefferson Avenue, a heavily travelled road. 1
Riverside's property comprises one sixty-acre parcel and a partially adjoining twenty-acre parcel. The sixty acres running along Jefferson Avenue were actively farmed in the past. In 1916, the sixty-acre tract was platted as a subdivision, and storm drains and fire hydrants were installed. The remaining twenty-acre parcel was neither platted nor improved. In the early and mid-1950's, some efforts were made by the owner to develop the platted subdivision. In 1960, the newly-formed Riverside Corporation bought the property. According to Riverside, its efforts to develop the property along with the surrounding area during the 1960's were stymied by an adjacent property owner who blocked an effort to reroute a street dissecting the property, and by a local zoning ordinance which forced it to fill the property to a specific elevation.
In 1973, unprecedented high water levels on the Great Lakes, including Lake St. Clair, located a mile east of the Riverside land, prompted emergency action by Harrison Township and the Corps of Engineers to protect area homes and businesses from water damage. Emergency measures included building a semicircular dike which dissected the twenty-acre parcel and extended southeast across the sixty-acre tract, and filling a ditch along Jefferson Avenue with dirt, thereby destroying the drainage on the western border of the property.
In furtherance of its development plans, Riverside contracted with Allied Aggregate Transportation Company in the fall of 1976 to have dirt fill hauled to the property. It was unclear whether or not the land would be subject to the Corps' regulatory jurisdiction. Accordingly, a Riverside stockholder met with Corps personnel to discuss whether a permit must be obtained in order to proceed with filling the land. Riverside submitted an incomplete application for a permit in November, 1976.
Before the permit application had been acted on by the Corps, Riverside began placing fill on the property north of the dike. On December 22, 1976, Riverside was ordered by the Corps to cease and desist from further filling. When Riverside continued to fill, the Corps asked the United States Attorney to bring this enforcement proceeding.
On January 7, 1977, the District Court entered a temporary restraining order prohibiting Riverside and Allied from engaging in further filling, pending a full evidentiary hearing. After that hearing, which encompassed seven days of testimony, Judge Kennedy issued an opinion granting the government's motion for a preliminary injunction. Judge Kennedy also held unconstitutional a Corps regulation requiring the processing of an application for a permit to be postponed once the United States Attorney has begun enforcement proceedings. On June 20, 1979, the District Judge issued the court's final judgment holding a large portion of Riverside's land to be a wetland subject to Corps regulation under the Federal Water Pollution Control Act. Judge Kennedy permanently enjoined further filling on that portion of the property until the Corps issues a permit to Riverside. At the same time, she issued an order holding defendants in contempt of court because they had continued to fill the property. The defendants were ordered to remove the fill, which they have apparently done. Since that time, Riverside's application for a Corps permit has been processed and denied.
The Federal Water Pollution Control Act was enacted to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a) (1976). The Act declares that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." Id. Sec. 1251(a)(1). Section 301 of the Act states that, except as permitted under certain exceptions, "the discharge of any pollutant by any person shall be unlawful." Id. Sec. 1311(a). One of the express exceptions to this rule is contained in section 404, 33 U.S.C. Sec. 1344, which authorizes the Corps to issue permits for the disposal of dredged or fill materials into "navigable waters."
The Act contemplates that applications for section 404 permits are to be evaluated by the Corps under regulations developed jointly by the Environmental Protection Agency and the Corps. See id. Sec. 1344(b); 40 C.F.R. Sec. 230 (1983). These regulations are supposed to identify the factors to be used in determining whether filling will have an adverse impact on water quality. A person who fills or otherwise discharges pollutants into "navigable waters" without a permit subjects himself to civil or criminal penalties. See 33 U.S.C. Sec. 1344(h)(1)(G) ().
The "navigable waters" which the Federal Water Pollution Control Act was meant to protect are defined in the Act as "the waters of the United States, including the Territorial seas." 2 Id. Sec. 1362(7). The Act does not mention or define "wetlands." The Corps and the EPA, however, developed regulations pursuant to the Act covering areas denominated as "wetlands" as well as the congressionally specified "navigable waters." These regulations, including the permit procedures noted above, seek to prohibit tampering with wetlands without the express permission of the agencies.
At the time that this action was initially brought, the Corps regulation defined wetlands and provided that a permit must be obtained for filling of
Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other [sic] navigable waters and that support freshwater vegetation. "Freshwater wetlands" means those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.
33 C.F.R. Sec. 209.120(d)(2)(i)(h) (1976) (emphasis added).
The question before the District Court in the initial proceeding was whether the Riverside land possessed the characteristics set forth in the above definition and thus should be classified as a wetland subject to the Corps' regulatory jurisdiction. Judge Kennedy found that the land was contiguous to a navigable water, Black Creek, which is a tributary of Lake St. Clair. Furthermore, she found that because of the type of soil found on the land, the unfilled Riverside property was "characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." These two aspects of the wetlands definition having been satisfied, the District Court focused on the question of whether the land was "periodically inundated."
Judge Kennedy's resolution of this issue was based on what she admitted...
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