United States v. Joseph G. Moretti, Inc., 75-1175.

• Decision Date: 24 March 1976
• Docket Number: No. 75-1175.,75-1175.
• Citation: 526 F.2d 1306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. JOSEPH G. MORETTI, INC., and Joseph G. Moretti, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 1306

UNITED STATES of America, Plaintiff-Appellee, v. JOSEPH G. MORETTI, INC., and Joseph G. Moretti, Jr., Defendants-Appellants.

No. 75-1175.

United States Court of Appeals, Fifth Circuit.

February 17, 1976.

Rehearing Denied March 24, 1976.

Kenneth L. Ryskamp, Duane Anderson, Robyn Greene, Miami, Fla., for defendants-appellants.

Robert W. Rust, U.S. Atty., David F. McIntosh, Asst. U.S. Atty., Miami, Fla., Wallace H. Johnson, Carl Strass, Eva R. Datz, Charles E. Biblowit, Asst. Attys. Gen., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before BELL, AINSWORTH and DYER, Circuit Judges.

DYER, Circuit Judge:

The parties to this appeal were previously before us in United States v. Joseph G. Moretti, Inc., 5 Cir. 1973, 478 F.2d 418 ("Moretti I"). The litigation derives from the dredging and filling of Florida Bay by Moretti in 1970, in the course of excavating canals for a mobile home project on land Moretti owned at Hammer Point on Key Largo, one of the Florida Keys. Initially the district court found that Moretti's filling of navigable waters (Florida Bay), involving 400,000 cubic yards of earth, was in violation of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 403,¹ because Moretti had not secured a permit for the construction work from the Army Corps of Engineers. The court enjoined Moretti from conducting further dredge and fill work, and ordered it to undo that dredge and fill work already completed. S.D.Fla., 1971, 331 F.Supp. 151.²

Moretti appealed to this Court arguing that it had not violated the Corps permit requirement because the water involved was not "navigable water," and even if Florida Bay was "navigable water" the fill placed in it did not create an obstruction within the meaning of Section 403; and finally that the district court had no authority under the Act to order the removal of land fill as a "structure." This Court rejected each of these contentions finding that the district court did have jurisdiction under the Act to impose "the stringent mandatory injunction of restoration," 478 F.2d at 431, on a factual record that amply justified it. In that decision we detailed the facts of Moretti's construction work and concluded, in agreement with the district court, "that Moretti violated the Act flagrantly and ... that mandatory affirmative relief requiring a burdensome performance is statutorily and equitably appropriate on these facts." 478 F.2d 418, 421.

Despite this finding that Moretti had violated the Act, this Court held that Moretti must be given the opportunity to pursue his after-the-fact permit application under procedures specifically authorized by the Corps regulations.³

After remand Moretti sought administrative approval of his after-the-fact permit application. It was ultimately denied by the Chief of the Corps of Engineers. Moretti then sought review of that administrative action in the district court. It upheld the Corps' denial of the permit. S.D.Fla.1974, 387 F.Supp. 1404. In his appeal from that judgment, consolidated with this appeal, we have this day affirmed the judgment of the district court. Moretti, Inc. v. Hoffman, 5 Cir. 1976, 526 F.2d 1311.

After the Corps denied Moretti's permit application, the district court had revised and expanded its original restoration order to require not only that the filled area in Florida Bay bayward of the pre-existing mean high tide line be restored to its original condition, but that all canals in Parcel B (an area which had not been conveyed to individual owners) be completely filled both bayward and landward of the MHTL. The district court also expanded its original order by requiring as to Parcel A (an area which had been conveyed to individual owners) that Moretti fill four upland canals to a depth of 10 feet below mean sea level at their mouths, sloping gradually upward to a depth of 8 feet below mean sea level at their upland ends.

Moretti does not take issue with the original order requiring restoration bayward of the MHTL but he challenges the jurisdiction of the Corps under Section 403 to require a permit, and the jurisdiction of the district court under Section 406 to enter a mandatory injunction requiring the filling of upland canals above MHTL. The fulcrum of this argument is Moretti I, in which the Court said that the Corps had no regulatory power landward of MHTL, and thus the district court could not injunctively order reconstruction of upland topography, 478 F.2d at 429. Moretti further argues that all the individual owners of land adjacent to the dredged canals should have been joined as indispensable parties under Rule 19, F.R.Civ.P. Joseph G. Moretti, Jr., individually, contends that it was error for the district court to impose personal liability on him for the costs of compliance with the affirmative injunction.

Moretti strenuously contends that this Court has already resolved the question of Corps jurisdiction over canals above MHTL in the negative. The argument is that the district court now has required it to do more than it was required to do under the original restoration order which did not affect activities shoreward of the MHTL. As we have this day explicated in United States v. Sexton Cove, 5 Cir. 1976, 526 F.2d 1293, the Corps may under certain circumstances exercise jurisdiction over dredging and filling operations above MHTL under Section 403 of the Rivers and Harbors Act. Prerequisite for such jurisdiction are factual circumstances showing some effect upon navigable waters, some alteration or modification of either course, location, condition or capacity of those waters. These statutory terms are broad and undefined. So long as activities fall within this generous scope, those activities are subject to the jurisdiction of the Corps.

Under the original restoration order, the district court specified only reconstruction of topography that had originally been below the MHTL. The district court at that time directed that the fill Moretti had dumped into Florida Bay be removed. Along with this specific requirement, the district court in the original injunction properly issued its general order requiring Moretti "to restore the navigable capacity of Florida Bay to its original condition as that bay existed at Hammer Point prior to the defendants' development operations." Such a requirement is consistent with the Act's authorization, 33 U.S.C.A. § 406, of injunctive enforcement of removal of any violation of Section 10. The canals dredged above MHTL simply were not in issue at that non-final stage of the litigation. By the initial order Moretti was required to file with the district court a formal plan showing in detail how the restoration to the original condition was to be effectuated. Thus, when the case was before us for review previously, the so-called "final" restoration order was not in fact final in the sense that it had not yet been fully formulated with specifics. The details of how the Bay's original condition could be restored had not been determined.

We view the district court's original order of restoration as merely the first step in enforcing the statutory mandate that any obstruction resulting from unauthorized dredging and filling operations must be "removed" or undone. That order cannot be confused and now erected as a barrier to effectuation of the concomitant principle articulated in that same order. In Moretti I in disposing of Moretti's jurisdictional challenge to its dredging in the Bay, we acknowledged that "just what bearing MHTL has at this, not the enforcement, stage is not easy to say." Moretti I, supra, 478 F.2d at 429. The only issue before the Court then was jurisdiction over activities below MHTL. Only now, after the case has indeed proceeded through all...