United States v. Crow, Pope and Land Enterprises, Inc., No. 72-2381.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | GODBOLD, DYER and CLARK, Circuit |
| Citation | 474 F.2d 200 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. CROW, POPE AND LAND ENTERPRISES, INC., Defendant-Appellee. |
| Docket Number | No. 72-2381. |
| Decision Date | 08 March 1973 |
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...
To continue reading
Request your trial
-
Minnehaha Creek Watershed Dist. v. Hoffman, No. 78-1448
...75 L.Ed. 844) * * * (1931); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 31-36 (N.D.Ga.1972), appeal dismissed, 474 F.2d 200 (5th Cir. Id. at 1167. Other courts which have recently considered this question have similarly concluded that entirely intrastate bodies Pag......
-
Loving v. Alexander, Civ. A. No. 79-0254.
...F.2d 594, 596 (2d Cir. 1965); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 34 (N.D.Ga.1972), appeal dismissed, 474 F.2d 200 (5th Cir. 1973). In addition, Appalachian Power reaffirmed that a finding of navigability is inextricably bound with use or susceptibility for......
-
Samaad v. City of Dallas, Nos. 90-1099
...(citing Schexnaydre v. Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir.1976) (per curiam); United States v. Crow, Pope & Land Enters., 474 F.2d 200, 202 (5th Cir.1973)); Spiegel, 843 F.2d at 44 n. 6; Yorkville Nat'l Bank v. Bassak (In re Bassak), 705 F.2d 234, 237 (7th Cir.1983); Meat Cutter......
-
Wood v. Holiday Inns, Inc., No. 74-1753
...for Resource Management, Inc., 154 U.S.App.D.C. 341, 475 F.2d 925 (1973); United States v. Crow, Pope and Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); Aetna Insurance Co. v. Newton, 398 F.2d 729 (3rd Cir. 1968). The district court having certified that 'there is no just reason for ......
-
Minnehaha Creek Watershed Dist. v. Hoffman, No. 78-1448
...75 L.Ed. 844) * * * (1931); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 31-36 (N.D.Ga.1972), appeal dismissed, 474 F.2d 200 (5th Cir. Id. at 1167. Other courts which have recently considered this question have similarly concluded that entirely intrastate bodies Pag......
-
Loving v. Alexander, Civ. A. No. 79-0254.
...F.2d 594, 596 (2d Cir. 1965); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 34 (N.D.Ga.1972), appeal dismissed, 474 F.2d 200 (5th Cir. 1973). In addition, Appalachian Power reaffirmed that a finding of navigability is inextricably bound with use or susceptibility for......
-
Samaad v. City of Dallas, Nos. 90-1099
...(citing Schexnaydre v. Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir.1976) (per curiam); United States v. Crow, Pope & Land Enters., 474 F.2d 200, 202 (5th Cir.1973)); Spiegel, 843 F.2d at 44 n. 6; Yorkville Nat'l Bank v. Bassak (In re Bassak), 705 F.2d 234, 237 (7th Cir.1983); Meat Cutter......
-
U.S. v. Rohm & Haas Co., No. 73-1727
...halted by injunction and no reason appears why lesser steps may not be taken. See United States v. Crow, Pope & Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); United States v. Kennebec Log Driving Co., 491 F.2d 562, 565 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L......