United States v. Cannon, Civ. A. No. 4454.

• Citation: 363 F. Supp. 1045
• Decision Date: 21 September 1973
• Docket Number: Civ. A. No. 4454.
• Parties: UNITED STATES of America, Plaintiff, v. Clifton CANNON et al., Defendants.
• Court: U.S. District Court — District of Delaware

363 F. Supp. 1045

UNITED STATES of America, Plaintiff, v. Clifton CANNON et al., Defendants.

Civ. A. No. 4454.

United States District Court, D. Delaware.

September 21, 1973.

Bruce L. Thall, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Robert W. Tunnell, of Tunnell & Raysor, Georgetown, Del., for defendants.

MEMORANDUM OPINION

STAPLETON, District Judge:

The government here seeks to enjoin a "development project" of defendants that is alleged to violate the Rivers and Harbors Act of 1899. The case is presently before the Court on cross-motions for summary judgment and on defendants' "motion to dismiss." Jurisdiction is sound. 28 U.S.C. § 1345.

Mr. and Mrs. Clifton Cannon are the owners of a 179 acre tract located adjacent to the southern portion of Little Assawoman Bay, Sussex County, Delaware. A portion of this tract appears on a 1972 quadrangle map prepared by the U.S. Geological Survey as a thin peninsula extending from a point of land called Drum Point northward into Little Assawoman Bay and terminating at a point called "Point of Ridge." The map shows a dirt road on the peninsula extending approximately 9/10ths of the way to Point of Ridge. Some 500 feet north of Point of Ridge is an island, "Point of Cedars Island," which is apparently not owned by the Cannons.

The complaint in this action alleged that the Cannons, with the assistance of the third defendant, a contractor, were engaged in a "development project." According to the government, this "project consists of the filling of the tidal marsh between Drum Point and Point of Cedars, the filling of additional tidal marsh adjacent thereto, and the filling of subaqueous land between Point of Ridge and Point of Cedars so that a continuous land mass is created." In addition, the complaint charged that "dredging, filling, bulkheading and other activities" were then being conducted on this site. Allegedly these activities violated Sections 10 and 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., since no permit had been issued by the Secretary of the Army or the Army Corps of Engineers authorizing them.¹ The complaint sought temporary and permanent injunctive orders barring further work on the project and requiring restoration of the "tidal wetlands" to a condition "as near as possible" to the previous natural state.

Shortly after the commencement of the action, a temporary restraining order was entered without opposition from the defendants. On February 9, 1973 the defendants served requests for admissions of fact. Among other things, this document asked for an admission that "the filling which did occur in marsh areas of this project has always been in a marsh area above the ordinary high water mark." The government filed a denial of the requested admission on March 21, 1973, ten days beyond the thirty day period provided by Rule 36.

I. THE GOVERNMENT'S VERSION OF THE FACTS.

The government has submitted a number of affidavits of state and federal employees who viewed the premises on several inspection trips. These affidavits tend to indicate that on May 12, 1972 dump trucks and a front end loader were dumping gravel on the property and spreading it in such a way as to make a road "along the narrow point of land towards a small island at the northerly end the point of land referred to" as Point of Ridge. "This activity was taking place in the area between the small island and the mainland with water on all sides of the road being constructed, except the side that was attached to the mainland." According to these affidavits, by May 24, 1972 the road had been extended to the small island. In August of 1972 dump trucks were observed dumping "fill . . . onto the marshland."

Gerald Taylor, a biologist employed by the Bureau of Sport Fisheries and Wildlife, states that there was no road going across the tidal marsh area involved in this suit in 1968. Mr. Taylor further states that:

Although dirt may have been dumped by defendants on a hill above the mean high water mark, dirt was in the main deposited in tidal marsh, much of which was below mean high water. I know this because of characteristic vegetation growing on the marsh in which dirt was dumped.

* * * * * *

It is your affiant's opinion that extensive destruction of these valuable tidal marshes is the result of numerous dredging, filling, and bulkheading operations, like Point of Ridge which, if taken together, result in considerable adverse impact upon the environment. In addition, each such operation causes considerable destruction both of the entire marsh area in which the project is developed and the surrounding and adjacent marsh area. Unless such projects are stopped soon, tidal marshes will be irretrievably lost. . . .

According to the government, the Corps of Engineers sent a registered letter to Mr. Cannon on June 2, 1972 notifying him that the activity being conducted on the site in question was in violation of the Rivers and Harbors Act because he did not have a permit to fill the tidal marshland. On August 9, 1972 a permit application was received from Mr. Cannon. Due to its lack of detail the Corps wrote in response that more specific information would be needed before a decision on the application could be made. Accompanying the permit application was an appendix containing a rough sketch of the peninsula and notations indicating an intention to bulkhead the perimeter thereof. This appendix contained notations, "Proposed bulkhead 700LF in Little Assawoman Bay," and "Proposed bulkhead at high water line." The application is presently pending.

II. THE DEFENDANTS' VERSION OF THE FACTS.

An affidavit of Mrs. Cannon filed by the defendants reviews the history of the property and recounts its use by her father and grandfather for agricultural purposes. Mrs. Cannon speaks of two different dumping activities on the property. Dirt hauled in by dump truck was placed "in piles on a hill which is several feet above the high water mark." "Approximately twelve percent (12%) of the dirt was spread on lower ground. This lower ground was not flooded by the normal tide. It would occasionally be flooded by a storm."

Mrs. Cannon also speaks of the defendants having "dumped dirt into the water for a distance of approximately twenty feet (20') where the road, which had been used all . . . of her life had washed away." This washing had produced a situation where "the water came in upon the road on each tide for a depth of about three inches (3") deep." This area was filled "in order to preserve . . . the road and to preserve . . . the Cannon's access" to the land comprising the tip of Point of Ridge. Mrs. Cannon denied that any fill had been placed between Point of Ridge and Point of Cedars Island.

The defendants take the position, and the government apparently concedes, that there has thus far been no excavation and no bulkheading in the area in question.

III. THE EFFECT OF THE GOVERNMENT'S UNTIMELY RESPONSE TO REQUESTS FOR ADMISSIONS.

Under Rule 36(a) a "matter is admitted unless, within 30 days after service of the request, . . . the party to whom the request is directed serves" a written answer or objection upon the requesting party. Under Rule 36(b) "any matter admitted . . . is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Under this rule, the Court may permit withdrawal or amendment "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits."

The government here maintains that the Court should treat its late response as an amendment to the admissions made by operation of law upon the expiration of the thirty day period. The Court is satisfied that the presentation of the merits of this action will be subserved by treating the government's tardy response as an amendment and by thereby relieving the government of the previous admission by default. The Court is also satisfied that this course of action will not prejudice the defendants. Accordingly, the responses stated in the government's March 21, 1973 filing will hereafter be considered as the government's response to defendants' requests for admissions.

The defendants' "motion to dismiss" is based upon the argument that the federal government has no "regulatory jurisdiction" over the area described in the complaint. This argument is predicated on the assumption that the government must be held to its admission that the defendants' activities were limited to areas above the mean high water mark. Since the government has been relieved of this "admission by law," defendants' "motion to dismiss" must be denied.

IV. THE EXTENT OF REGULATION UNDER THE RIVERS AND HARBORS ACT.

The parties agree that Little Assawoman Bay is navigable in fact and, accordingly, is in law a "navigable water" of the United States as that term is used in the Rivers and Harbors Act. Even so, they disagree as to the territorial limits of federal regulation under that act.

The government maintains that "jurisdiction" under the Act clearly extends to the mean high water mark of a navigable body of water. It goes further, however, and asserts that this jurisdiction extends to all portions of a "tidal marsh" adjacent to navigable water, including those portions which are not inundated at mean high tide.² Finally, the government says that jurisdiction under the Act extends to any area beyond the limits of navigable water where activities like filling, excavating and bulkheading would "affect areas which are considered to be navigable waters."

The defendants, on the other hand, maintain that regulation under the Act clearly does not extend beyond mean high tide. They go further, however, and insist that even those marsh areas which are covered by waters of a navigable bay at mean high tide are not...