U.S. v. Southern Inv. Co., s. 87-2664E
| Decision Date | 25 May 1989 |
| Docket Number | Nos. 87-2664E,88-1129EA,s. 87-2664E |
| Citation | 876 F.2d 606 |
| Parties | , 19 Envtl. L. Rep. 21,276 UNITED STATES of America, Appellee, v. SOUTHERN INVESTMENT COMPANY, Appellant. SOUTHERN INVESTMENT COMPANY, Cross-Appellee, v. UNITED STATES of America, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles Nestrud, Little Rock, Ark., for appellant.
Blake A. Watson, Washington, D.C., for appellee.
Before McMILLIAN and BEAM, Circuit Judges, and HARPER, * Senior District Judge.
Appellant/cross-appellee is Southern Investment Company (hereinafter Southern Investment). Appellee/cross-appellant is the United States acting through the Army Corps of Engineers (hereinafter the Corps). The Corps brought this enforcement action against Southern Investment under the Rivers and Harbors Act, 33 U.S.C. Sec. 403 (hereinafter RHA), the Refuse Act, 33 U.S.C. Sec. 407, and the Clean Water Act, 33 U.S.C. Sec. 1311, 1344 (hereinafter CWA) to require the removal of fill and refuse placed in a backwater channel of the Arkansas River in the City of Little Rock, Pulaski County, Arkansas.
The United States District Court for the Eastern District of Arkansas found that Southern Investment had deposited fill and refuse materials in navigable waters of the United States, The district court issued an injunction ordering Southern Investment to implement remedial measures regarding the fill and refuse, and prohibiting Southern Investment from further engaging in filling activities and disposing refuse on the subject property. The district court gave Southern Investment the option of implementing an alternative remedy (which will be discussed later). Southern Investment appeals the judgment of the district court. The Corps has filed a cross-appeal pertaining to findings the district court made regarding the grandfathering of certain fill, and to the alternative remedy offered by the district court to Southern Investment.
The following facts give rise to this appeal and cross-appeal. Southern Investment is a real estate investment company in Little Rock, Arkansas. In the early 1950's, it acquired twenty acres of Arkansas Riverfront property. Southern Investment testified that it was holding the land for future development.
During the 1960's, the Corps began working on the David D. Terry Lock and Dam (hereinafter the dam project). An artificial, permanent pool was created upstream of the dam as a result of the construction of the dam. This pool was at elevation 231 feet mean sea level (msl). The dam project subjected certain lands adjacent to the Arkansas River to potential flooding. Consequently, the Corps sought to acquire those lands so affected by the potential flooding, a portion of which included the riverfront property owned by Southern Investment. In anticipation of the condemnation proceedings, the Corps had an ordinary high water line (hereinafter OHWL) survey completed. Under the RHA, the Refuse Act, and the CWA, waters below the OHWL are declared waters of the United States and are subject to regulatory jurisdiction by the Corps. In 1975, the CWA expanded the Corps' jurisdictional authority to include wetlands. The Corps concluded that the OHWL for Southern Investment's land was 233.1 msl. The Corps sought a flowage easement for river lands between 234 msl and 233.1 msl, an area which partially represented additional wave wash damage.
Southern Investment was reluctant to give up its property. An agreement was reached with the Corps whereby Southern Investment would construct two dams. These dams were to be located on the east and west ends of the backwater channel situated on the subject property. This backwater channel exists parallel to the Arkansas River. The dams would purportedly sever the backwater channel from the Arkansas River. This would eliminate the possibility of flooding of the backwater channel caused by the dam project and the resultant discharging of pollutants from the backwater channel into the Arkansas River. The Corps thus agreed, on the basis of Southern Investment's construction of these two dams, not to include that property in their plans to acquire a flowage easement. The dam that Southern Investment constructed on the east end of the backwater channel washed away within a matter of a few weeks following its completion. There currently is a connection with the Arkansas River through the east end of the channel.
The district court found that between 1966 and 1980, Southern Investment deposited fill material on the bank or adjacent to the bank of the backwater channel, and deposited refuse in the backwater channel. The district court further found that the backwater channel was below the OHWL and was connected to the Arkansas River as early as the year 1966. Southern Investment testified that it filled the low lying areas of its property as part of its development plans. Southern Investment further testified that it had understood that the Corps approved of the plan to continue filling the property and eventually develop it as an industrial park. During the mid to late 1970's, the general population began to use the site as an unofficial "dumping ground." Southern Investment did not authorize this dumping and would periodically attempt to clean the area because of unsightliness.
In 1981, the Corps visited the subject property. They sent a cease and desist letter to Southern Investment ordering the removal of unauthorized fill and refuse. Southern Investment cleaned up most of the refuse, but did not remove the fill that had been deposited in the channel. The Corps inspected the site in July, 1982, again in July, 1986, and then filed this suit in November, 1986.
The district court enjoined Southern Investment from further depositing refuse or fill materials on the subject property, and ordered Southern Investment to remove the fill material in an area 175 feet east of the dam that was placed on the west end of the backwater channel for a distance extending 250 to 300 feet. The district court afforded Southern Investment an alternative remedy of constructing a ditch along the northern boundary of the backwater channel in order to allow free drainage from the wetlands to the northern boundary of the channel, and constructing a retaining wall above the OHWL to secure the fill and refuse material, thereby preventing the flowage of such material into the Arkansas River and the backwater channel. The final part of the alternative remedy would call for Southern Investment to level the embankment at the OHWL by removing the boulders, concrete blocks, sheet metal and wire coils in an effort to improve the physical appearance of the subject property. The district court further found that the west dam and the area of fill extending 175 feet east of the west dam were erected and filled prior to 1968, were grandfathered, and were, therefore, exempt from the Corps' jurisdiction which became effective after that date.
We are considering three different environmental statutes in this case:
(1) Section 301(a) of the CWA, 33 U.S.C. Sec. 1311(a), prohibits the discharge after October 18, 1972, of any pollutant into waters of the United States, except in compliance with, inter alia, a permit issued by the Secretary of the Army pursuant to Section 404 of the CWA, 33 U.S.C. Sec. 1344. Prior to July 25, 1975, the Corps' jurisdiction under the CWA was limited to property located below the OHWL. After that date, the Corps' jurisdiction under this statute was expanded to include wetlands.
(2) Section 10 of the RHA, 33 U.S.C. Sec. 403, prohibits after December 18, 1968, any work which alters or modifies the course, condition or capacity of a navigable water, unless a prior permit has been obtained from the Secretary of the Army.
(3) The Refuse Act, 33 U.S.C. Sec. 407, prohibits any person to deposit, or cause, suffer, or procure to be deposited any material, on the bank of any navigable water or tributary of a navigable water, that is liable to be washed into that navigable water by storm, flood or otherwise. The Corps' jurisdiction under both the RHA and the Refuse Act is limited to property located below the OHWL. Under the RHA, all fill deposited below the OHWL prior to December 18, 1968, is grandfathered. Under the CWA, all fill deposited below the OHWL prior to October 18, 1972, is grandfathered; fill deposited after July 25, 1975 that is above the OHWL but on wetlands is subject to the Corps' jurisdiction.
Southern Investment challenges the district court's holding that the OHWL extends to the subject property, that the subject property is a wetland, that certain portions of the deposited fill were not grandfathered, that the Corps properly exercised its jurisdictional authority, and that the Corps should not be estopped from alleging that Southern Investment violated the three statutes in question. Several of these issues are related to one another and will be addressed accordingly.
The district court found that the backwater channel was below the OHWL and was connected to the Arkansas River as early as 1966. Under the RHA, the CWA, and the Refuse Act, waters below the OHWL are waters of the United States for the purposes of the Corps' regulatory jurisdiction. See 33 U.S.C. Sec. 403; 33 U.S.C. Sec. 1362(7); and 33 U.S.C. Sec. 407. We are concerned here with the OHWL determination that was made after the year 1968, because in that year the Corps first assumed regulatory jurisdiction over waters below the OHWL. The standard of review that this Court must utilize in deciding this question is the clearly erroneous standard because the location of the OHWL is a question of fact. Fed.R.Civ.P. 52(a); United States v. Cameron, 466 F.Supp. 1099, 1112 (M.D.Fla.1978); see United States v. Sunset Cove, Inc., 514 F.2d 1089, 1090 (9th Cir.1975), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1...
To continue reading
Request your trial
-
Center for Bio. Div. V. Marina Point Dev.
...because it is doubtful that Marina Point's own land was itself wetlands at all. See, e.g., 33 C.F.R. § 330.3; United States v. S. Inv. Co., 876 F.2d 606, 613 (8th Cir.1989). The Corps did not (and does not) think so. Marina Point could hardly have guessed at what the Center was speaking 12.......
-
Center for Biological Div. V. Marina Point Dev.
...because it is doubtful that Marina Point's own land was itself wetlands at all. See, e.g., 33 C.F.R. § 330.3; United States v. S. Inv. Co., 876 F.2d 606, 613 (8th Cir.1989). The Corps did not (and does not) think so. Marina Point could hardly have guessed at what the Center was speaking 12.......
-
Leslie Salt Co. v. U.S.
...and thereby attempt to expand its own jurisdiction. 7 limiting Fort Pierre to these specific facts. See United States v. Southern Inv. Co., 876 F.2d 606, 612 (8th Cir.1989). The fact that third parties, including the government, are responsible for flooding Leslie's land is irrelevant. The ......
-
Cont'l Cas. Co. v. Hoffman
... ... Point to be persuasive for finding an ambiguity in the policy before us. As an initial matter, in neither case was the policy language at issue ... ...
-
Environmental crimes.
...reasonable under the circumstances, and that this justified belief in the lawfulness of its actions). (341.) United States v. S. Inv. Co., 876 F.2d 606, 614 (8th Cir. 1989) (holding in order to raise affirmative defense of estoppel, government must have taken "affirmative steps in bad faith......
-
Environmental crimes.
...reasonable under the circumstances, and that this justified belief in the lawfulness of its actions). (333.) United States v. S. Inv. Co., 876 F.2d 606, 614 (8th Cir. 1989) (holding in order to raise affirmative defense of estoppel, government must have taken "affirmative steps in bad faith......
-
Environmental crimes.
...reasonable under the circumstances, and that this justified belief in the lawfulness of its actions). (338.) United States v. S. Inv. Co., 876 F.2d 606, 614 (8th Cir. 1989) (holding in order to raise affirmative defense of estoppel, government must have taken "affirmative steps in bad faith......
-
CHAPTER 3 Waters of the United States (How Many Drops Does It Take)
...F.2d 354, 360 (9th Cir. 1990), cert. denied, 111 S. Ct. 1089 (1990). [202] 896 F.2d at 358. See also United States v. Southern Inv. Co., 876 F.2d 606 (8th Cir. 1989). [203] 243 F.3d 526, 533 (9th Cir. 2001) (finding that the canals received waters from natural streams and diverted water to ......