United States v. Crow, Pope and Land Enterprises, Inc.

• Decision Date: 08 March 1973
• Docket Number: No. 72-2381.,72-2381.
• Citation: 474 F.2d 200
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. CROW, POPE AND LAND ENTERPRISES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 200 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. CROW, POPE AND LAND ENTERPRISES, INC., Defendant-Appellee.

No. 72-2381.

United States Court of Appeals, Fifth Circuit.

February 14, 1973.

As Amended March 8, 1973.

John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Kent Frizzell, Asst. Atty. Gen., Carl Strass, Atty., Raymond N. Zagone, Edmund B. Clark, Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Moreton Rolleston, Jr., Atlanta, Ga., for defendant-appellee.

Before GODBOLD, DYER and CLARK, Circuit Judges.

DYER, Circuit Judge:

This is an appeal from the district court's decision, 340 F.Supp. 25, that the "Chattahoochee River between Peachtree Creek and Buford Dam is not a navigable water of the United States within the meaning of 33 U.S.C.A. §§ 403 and 407, and, therefore, the defendant . . is not subject to the provisions of those statutes." We dismiss the appeal for want of jurisdiction.

The United States seeks to permanently enjoin Crow, Pope and Land Enterprises (CPLE) from polluting the Chattahoochee. Allegedly, pollutants are being dumped into the river as a result of CPLE's expansion of an apartment complex known as Riverbend, which is located along the west bank at mile 306 of the Chattahoochee in Cobb County, Georgia. The Government argues that the river is a navigable water of the United States, that CPLE's Riverbend construction on the floodplain of the Chattahoochee violates 33 U.S.C.A. § 403, and that as a result of the excavation and grading at the construction site CPLE is illegally depositing and discharging refuse into a navigable water in violation of 33 U.S.C.A. § 407. Moreover, the United States contends that an injunction should issue even if the Chattahoochee is not navigable between Peachtree Creek (mile 300) and Buford Dam (mile 348); for, notwithstanding its non-navigability, that segment of the river is a tributary of a navigable water and, therefore, the defendant's conduct is still violative of § 407. It is undisputed that downstream from Peachtree Creek portions of the Chattahoochee are navigable.

At the hearing for a preliminary injunction, the parties stipulated that that single hearing "would constitute the final hearing on the issue of navigability"; CPLE entered into a consent order with the Government requiring the defendant to take certain affirmative measures to prevent further pollution of the Chattahoochee during the pendency of the suit; and both of the parties and the district court agreed to postpone consideration of the tributary issue. As a result of this agreement, neither of the parties submitted any evidence nor did either present legal argument on the Government's tributary contention. Even though the parties had not yet had an opportunity to try this issue and despite the fact that the record was completely barren of any evidence on the question, the district court nevertheless entered an order not only determining that the stretch of the Chattahoochee in question was non-navigable, but also rejecting as without merit the Government's tributary theory. Strangely, the court based its conclusion that CPLE was not liable under the tributary provisions of § 407 on the fact that there had been no showing that "what the defendant is depositing in the subject section of the river will either float or be washed downstream to a navigable portion of the river. . . ."

Obviously, there had been no such proof because the court had, on the basis of the parties' stipulation, agreed that it would reserve adjudication of this question for a later hearing to be held after it had concluded taking evidence on the navigability issue. Such a hearing on the tributary question was not held, and thus the court's conclusion of law was impermissibly based on a total absence of evidence....