U.S. v. San Juan Bay Marina, No. 00-1759

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before Boudin, Stahl and Lynch; LYNCH
• Citation: 239 F.3d 400
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Plaintiff, Appellee, v. SAN JUAN BAY MARINA, SHOOTERS WATERFRONT RESTAURANT, AND EDUARDO FERRER, Defendants, Appellants. & Heard
• Decision Date: 12 January 2001
• Docket Number: No. 00-1759,No. 00-1760

Page 400

239 F.3d 400 (1st Cir. 2001) UNITED STATES OF AMERICA, Plaintiff, Appellee,
v.
SAN JUAN BAY MARINA, SHOOTERS WATERFRONT RESTAURANT, AND EDUARDO FERRER, Defendants, Appellants. No. 00-1759 & No. 00-1760 United States Court of Appeals For the First Circuit Heard January 12, 2001
Decided February 21, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

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Copyrighted Material Omitted

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Eduardo A. Vera Ramrez, with whom Ramirez Lavandero, Landron & Vera, L.L.P. was on brief, for appellant.

Camille Velez-Rive, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Miguel A. Fernandez, Assistant United States Attorney, were on brief, for appellee.

Before Boudin, Stahl and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

The San Juan Bay Marina has a number of commercial establishments located on piers in San Juan Harbor, including the Shooters Waterfront Cafe. Lacking the necessary permits from the Army Corps of Engineers, the Marina nonetheless built new piers and structures. These new constructions are located in the San Antonio Channel, part of the navigable waters of the United States, and so are subject to the Rivers and Harbors Act, 33 U.S.C. § 403 et seq. The United States brought an action against the Marina, the restaurant, and Eduardo Ferrer, the President of both companies, to compel defendants to remove these structures, in order to restore the waterways, and for a permanent injunction against future illegal construction. The district court, on cross motions, entered summary judgment for the United States and issued the injunctive relief.

On appeal, the Marina primarily points to the fact that it leases the original piers from an entity of the government of Puerto Rico, the Puerto Rico Industrial Company ("PRIDCO"), and surrounding areas from the Puerto Rico Port Authority ("PREPA"). As such, it argues, the case should have been dismissed because the government of Puerto Rico was an indispensable party to the case. It also says that under the lease any "improvements" made to the original property return to PRIDCO and that the United States cannot proceed with this action without ascertaining whether Puerto Rico would like to have these structures kept. In addition, it argues that the United States is required to consider the public interest in considering whether to grant a permit and has not done so. Finally, the Marina says there are genuine issues of material fact, precluding entry of summary judgment for the United States.

I.

We describe the facts established by the record. After being denied an earlier permit application, the Marina applied to the Corps, in April of 1992, to build an 80 by 40 foot platform adjacent to -- and to become part of -- the original structure. On May 18, 1992, the Corps issued a contingent permit, No. 199250101, for the construction. A contingent permit does not allow construction to start until the permit conditions are met. The permit was contingent on obtaining coastal zone

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certification or waiver from the Puerto Rico Planning Board and Puerto Rico Environmental Quality Board. Neither a certification nor a waiver was obtained. Despite this, the defendants went ahead and built a platform. The platform was roughly 97 by 57 feet, larger than that proposed in the application. The Corps issued a cease and desist order on July 5, 1995, after it had inspected the site.

In May of 1992, the Marina had filed for Nationwide Permit Number 3, to reconstruct an existing pier. This type of permit authorizes the reconstruction and rehabilitation of existing serviceable structures but does not permit deviation from the original footprint. See 33 C.F.R. § 330 et seq. (nationwide permit program). The Marina then converted the pier from a wooden structure to a reinforced concrete structure with additional piles. The problem is that the pier was also constructed to twice its original size, in violation of the permit conditions.

The Marina filed, on August 4, 1993, another permit application, No. 199350118, to construct a 40 by 44 foot expansion to the contingently authorized 80 by 40 foot platform. The Corps again issued a contingent permit, conditioned on receiving coastal zone certification from the Planning Board. On December 29, 1993, the Commonwealth denied approval. Indeed the Planning Board strongly objected to the proposed project. In February 1994, the permit was denied by the Corps. Defendants took no appeal from the permit denial. Nonetheless, defendants went ahead and constructed an addition of approximately 40 feet by 57 feet. The net result of the construction was the emergence of a continuous structure of roughly 137 by 57 feet, which houses a terrace bar, a swimming pool, a deck, and ticket offices for a tour boat.

Without any permit application at all defendants also added another structure, rhomboid in shape, of about 2800 square feet, for a "sushi bar." Indeed, the construction started after the Corps had issued its July 1995 cease and desist order to stop the other unauthorized work. The defendants also went ahead and built yet another pier, about 300 feet long by 5 feet wide, without a permit. The Corps issued an amended cease and desist order in September 1995 to take account of these later two violations.

On November 30, 1995, defendants filed another permit application, after the fact, to justify all of the unauthorized structures. Not surprisingly, the Corps denied the application, saying it could not accept an after-the-fact permit from someone who had been denied a permit and who would be subject to legal action. This suit was then brought.

II.

Our review of the entry of summary judgment is de novo. Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000). We review an award of injunctive relief ordering removal and restoration for abuse of discretion. United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988). A district court's determination that a party is not an indispensable party can rest on a determination under either Rule 19(a) or Rule 19(b) of the Federal Rules of Civil Procedure. We have previously found it unnecessary to determine whether the appropriate standard of review for Rule 19(a) decisions as to necessary joinder is de novo or for abuse of discretion. See Tell v. Trustees of Dartmouth Coll., 145 F.3d 417, 418-19 (1st Cir. 1998) (noting circuit split). Since the outcome again would be the same under either standard, we refrain from resolving this question. See id. at 418 (not resolving issue because not relevant to outcome). Rule 19(b) determinations as to indispensable parties are reviewed for abuse of discretion in this circuit. See Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 635 (1st Cir. 1989).

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This case is set in the legal framework of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401. For more than a century, it has been the law that no one may place obstructions into the navigable waters of this country without authorization from the Army Corps of Engineers. See United States v. Kennebec Log Driving Co., 491 F.2d 562, 565 (1st Cir. 1973); see also United States v. Estate of Luis Boothby, 16 F.3d 19, 21 (1st Cir. 1994). The term "obstruction" as used in this Act has a broad sweep. See Sanitary Dist. Co. of Chicago v. United States, 266 U.S. 405, 429 (1925) (terming the section "a broad expression of policy in unmistakable terms"), citing United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708 (1899) (giving the concept of obstruction in the predecessor act a broad sweep; not limiting it to "a prohibition of any obstruction to [ ] navigation," but instead construing the section to reach "any obstruction to the navigable capacity, and anything, wherever done or however done, . . . which tends to destroy the navigable capacity of one of the navigable waters of the United States"); see also United States v. Republic Steel Corp., 362 U.S. 482, 487-88 (1960) (noting "broad sweep" given to the term). The term has been construed to include even the deposit of certain refuse and waste materials, which violators may be ordered to remove. See id. at 485, 491-92 (district court had authority under the River and Harbor Act to issue injunctive restorative orders).

The key provision of the Act, for our purposes, is § 403:

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 Sates, 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.

33 U.S.C. § 403. Where navigable coastal waters, such as the San Antonio channel, are involved, the Corps requires that Coastal Zone Management Act certification be acquired. See 33 C.F.R. § 320.4(h). The Coastal Zone Management Act is a federal law administered by the National Oceanographic and Atmospheric Administration, which, in turn, has delegated some authority for administration to the...