United States v. Joseph G. Moretti, Inc.
| Decision Date | 15 May 1973 |
| Docket Number | No. 71-3137.,71-3137. |
| Citation | 478 F.2d 418 |
| 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 |
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John Robert Terry, Joseph A. McGowan, Miami, Fla., for defendants-appellants.
Robert W. Rust, U. S. Atty., Kenneth G. Oertel, George A. Kokus, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Before John R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
Proving again that legislative intent frequently comes to exceed even the wildest imagination of those responsible for enactment, it is ironic that as a product of a laissez-faire society, a 19th Century act is now once again the effective tool in this decade's awakening awareness of the importance of man's environment. The Rivers and Harbors Act of 18991—itself the product of congressional dissatisfaction with the consequences of the Supreme Court's Willamette Iron Bridge Co. v. Hatch, 1888, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629, holding that there was no federal common law prohibiting an obstruction to a navigable stream—was at once the source of jurisdiction and the substantive basis for the action of the District Court.
Applying § 10 of the Act2 which forbids the creation of obstructions in, or alteration of the features of the navigable waters of the United States without permission of the Secretary of the Army the Court ordered Joseph G. Moretti, Jr. to undo dredge and fill operations involving 400,000 cubic yards of earth, because of his failure to obtain the required permit, 331 F.Supp. 151. Despite the fact that Moretti violated the Act3 flagrantly and our settled conviction that mandatory affirmative relief requiring a burdensome performance is statutorily and equitably appropriate on these facts, we modify and remand for completion of administrative action which conceivably could have the effect of validating the work done, thus rendering the issues litigated moot.4
Moretti owns lands at Hammer Point on Key Largo, one of the Florida Keys curving fingerlike for 120 miles into the Gulf of Mexico off the southern tip of Florida. His property was located about 1 1/8 miles from Tavernier on the Florida Bay side of the Key. Tavernier lies to the south of Hammer Point. Hammer Point is in turn about 4½ miles southwest of Rock Harbor.
Like the developers in our far-reaching opinion of Zabel v. Tabb,5 he proposed to dredge and fill the land into a network of land fingers and canals for use as a mobile home park. Moretti, unlike his counterpart in Zabel, decided to forego the prerequisite imprimatur of the Corps of Engineers before making his proposed project a reality. Having purchased his land in 1969, Moretti had completed substantial work on his project when paid a fateful visit by two employees of the Environmental Protection Agency in December of 1970.
Lee Purkerson and John Hagen, the EPA employees, were not on official business at the time that they noticed the extensive work on the Moretti project. They took some pictures of the drag-line as it was removing soil from the underwater portion of the Bay bottom and adding it to the shoreline thereby moving the shoreline and Moretti's property bayward. They could also see where channels had been cut or deepened between the fingers. Moretti asked them what they were doing there, a question which they turned back at him. They asked him if he had a Corps of Engineering permit and he said he did not. These facts were reported to the Jacksonville office of the Corps of Engineers. On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army.
After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done.
In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 18996 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of Engineers—the eyes and ears, and sometimes hand of the Secretary —is headed by the Chief of Engineers who is charged by law7 with advising the Secretary of the Army of the propriety of issuing permits. The Corps itself is divided into 11 "divisions" which are in turn subdivided into 37 "districts." As will be seen later, authority to grant permits is in some cases delegated down to the level of the District Engineers.
The duties of the Secretary of the Army and the Corps of Engineers under the Act together with the administrative procedures which include the delegation of authority through the Corps are set out at 33 C.F.R. § 209.120 (1972).
The Secretary has authorized the Chief of the Corps, at the latter's option, to delegate authority to issue permits to District Offices of the Corps in any case in which the application for construction in navigable waters is "entirely routine and * * * involves no difference of opinion * * * nor any opposition or other considerations which should be decided by higher authority."8 The regulations specify that this grant is not a delegation of the Secretary's discretionary powers.9 By § 209.120(c)(1) (iii) the Chief of Engineers has exercised this authority and commissioned Division and District Engineers with power to grant permits in the name of the Secretary where the matter is routine.10
The Corps' general policy for issuing the permits require that it take into consideration and evaluate "all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest * * *."11 More specifically the Corps is required by its regulations, various statutes, executive orders and an accord between the Secretary of the Interior and the Secretary of the Army12 to consider all applicable data including the views of other federal agencies and the views and objections of state agencies before granting a permit.
The watchword of the Corps' relation with other federal agencies charged with protection of the environment is cooperation. Besides its duty to cooperate and collaborate the Corps is charged by executive order, as are all federal agencies, to improve water quality through prevention control and abatement13 of water pollution. In its attempt faithfully to carry out this responsibility the Corps has through formal regulations14 established a policy, in cases where dredging operations may cause pollution problems, of seeking the technical assistance of state and federal pollution control authorities and conditioning the granting of the permit on the establishment of controls which will insure that federal and state water pollution control standards are met. This policy, and other statutorily required policies are summarized in a "memorandum of understanding" between the Secretary of the Army and the Secretary of the Interior signed July 13, 1967.
The memorandum of understanding was drafted in recognition of the statutory responsibility15 of the Corps of Engineers and the Department of Interior to interrelate their activities in the area of water pollution control where damage to fish and wildlife is possible as well as in recognition of the agencies responsibilities under Executive Order No. 11288 as discussed above. The memorandum sets forth procedures—given life in the Corps of Engineers permit procedure, infra—for carrying out these policies.
These procedures provide that (i) upon receipt of an application for dredging or filing permits the District Engineer shall notify Regional Directors of the Federal Water Pollution Control Administration, Fish and Wildlife Service, National Park Service, and the appropriate state agencies. (ii) The Regional Directors would immediately make such studies and investigations as are necessary and inform the District Engineer whether the quality of the waters will be reduced in violation of applicable standards or the value of natural resources and related environment will be unreasonably impaired. (iii) The District Engineer will hold public hearings when response to a public notice indicates that all parties will not have an opportunity to be heard except at a public hearing. (iv) Besides weighing all factors in granting a permit the District Engineer shall, when advised by the Regional Directors that work proposed will impair water quality or related natural resources encourage the hopeful permittee to take steps to resolve the dispute at the district level and failing this shall refer the case to the Chief of Engineers —his counterpart the Regional Director submitting his views to his agencies "Washington headquarters"—for appropriate action. (v) Finally the Chief of Engineers and the Under Secretary of Interior shall consult and attempt to resolve any differences between their departments and failing this the case shall be submitted to the Secretary of the Army for decision after consultation with the Secretary of the Interior.16
The Corps regulation §§ 209.120(e), (f) and (g) govern the applications for permits and the handling of these applications with regard to public hearings and notices to other agencies of federal and state governments. The regulations place the duty of giving both public notice and notice to the other agencies mentioned...
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