United States v. Lee Wood Contracting, Inc., Civ. No. 80-10045.

• Decision Date: 05 November 1981
• Docket Number: Civ. No. 80-10045.
• Citation: 529 F. Supp. 119
• Parties: UNITED STATES of America, Plaintiff, v. LEE WOOD CONTRACTING, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

529 F. Supp. 119

UNITED STATES of America, Plaintiff, v. LEE WOOD CONTRACTING, INC., et al., Defendants.

Civ. No. 80-10045.

United States District Court, E. D. Michigan, N. D.

November 5, 1981.

Michael J. Hluchaniuk, Asst. U. S. Atty., E. D. Mich., Bay City, Mich., Ellen S. Ritteman, Asst. U. S. Atty., Melvyn B. Kalt, U. S. Army Corps of Engineers, Detroit, Mich., for plaintiff.

James Scott Wood, Bay City, Mich., for defendants Lee Wood Contracting, Inc., Leland Wood, Marvin Wood, Melvin Wood and Bernard Wood.

Milton E. Higgs, Bay City, Mich., for above-named defendants and defendant Jerome Wood.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

This action was brought by the United States Government seeking injunctive relief and the imposition of civil penalties against the defendant corporation and its officers for placing fill materials into waters of the United States without first seeking a permit from the United States Army Corps of Engineers.

The Court referred this matter to United States Magistrate Harvey D. Walker as Special Master to conduct a trial and to issue findings of fact, conclusions of law and a recommendation of judgment. The Magistrate presided over a two-day trial and on May 11, 1981, issued his Memorandum Opinion and Recommendation (hereinafter "report"), to which timely objections were filed by the government. The filing of timely objections requires this Court to "make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Walters, 638 F.2d 947 (C.A.6, 1981); Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352 (C.A.5, 1980).

In making its de novo review this Court has reviewed the transcript of the trial in this matter, Hill v. The Duriron Co. Inc., 656 F.2d 1208, 1215 (1981), carefully examined the exhibits which were admitted into evidence at the trial, and reviewed all pleadings and documents on file with the Court.

Review of Magistrate's Report

The narrow issue before the Magistrate was whether the area where the defendants placed the fill material constituted an "adjacent wetland" to "navigable waters of the United States" within the meaning of 33 CFR 323.2. The Magistrate concluded that the area was "wetland," 33 CFR 323.2(c), but that it was not "adjacent" to navigable waters of the United States. 33 CFR 323.2(d). In light of this conclusion the Magistrate made the following recommendation:

Because the filled area is not an adjacent wetland under 33 CFR 323.2(a)(3) and not an area whose degradation affects interstate commerce under 33 CFR 323.2(a)(5), the area is not subject to Army Corps of Engineers' regulations. Therefore, the Court respectfully recommends to the United States District Court that an order enter dismissing the Government's complaint based upon a finding of no cause of action.

For the reasons expressed below the Court must REJECT this recommendation.

The Court accepts the Magistrate's findings of fact with one important clarification. The evidence clearly shows that there is a DIRECT water connection between the Terry Drain and the Quanicassee River. (Exhibits 3a, 3b, 9, and 13). The Magistrate's finding no. 5 alludes to this fact without expressly making such a finding. Since it is relevant to a determination of adjacency, the Court will clarify that there is indeed a direct water connection.

There is abundant evidence in the record to support the Magistrate's conclusion that the filled area constitutes a "wetland" within the meaning of 33 CFR 323.2(c). The Court therefore adopts this conclusion.

The Court, however, finds insufficient evidence to support the conclusion that the fill site is not "adjacent" to navigable waters of the United States within the meaning of 33 CFR 323.2(d). This regulation defines "adjacent" as meaning "bordering, contiguous, or neighboring..." In accordance with this definition, a wetland may be found "adjacent" to a navigable waterway if it is either bordering, contiguous or neighboring. The presence of the conjunction "or" reveals that Congress intended these as alternative sub-definitions which, if satisfied, may constitute adjacency within the regulatory scheme.

The Magistrate appears not to have fully considered each alternative in reaching his conclusion. Rather, his analysis was limited to concluding that the wetland area was not "contiguous" to a navigable water, the Quanicassee River. United States v. Riverside Bayview Homes Inc., No. 77-70041 (E.D.Mich., decided February 24, 1977). This Court finds ample evidence and legal basis to conclude that the wetland area is "neighboring" to the Quanicassee River and therefore a "water of the United States" within the jurisdiction of the Army Corps of Engineers.

The numerous exhibits showing an aerial perspective of the area in question reveal the close proximity of the fill area to the Quanicassee River and Lake Huron. Moreover, the testimony of Robert Tucker and Hal Harrington on this issue provides additional support. The Court finds logic and guidance in the responses of witness Robert Tucker of the Army Corps of Engineers to questions put to him by counsel for the defendants:

Q. What does neighboring mean to you?

A. In a reasonable proximity.

Q. Okay. Does the Corps of Engineers have any standards or guidelines by which they define neighboring?

A. Not in terms of distance.

Q. Distance?

A. No.

Q. Do they have any standards at all by which they define neighboring?

A. Not that I am aware of.

. . . . .

Q. Assuming that the Terry Drain waters are not waters of the United States, then this land is not adjacent or contiguous to the Quanicassee River, is it?

A. It is still considered to be adjacent to the Quanicassee River.

Q. You consider it within the scope of neighboring, do you not?

A. Yes, I do and adjacent, and with the presence of the breach in the dyke, contiguous.

Q. How do you define the word contiguous?

A. In this particular case there is a direct surface water connection.

(Transcript at 111-113).

Based on all the evidence, the Court agrees that the wetland area is "neighboring" and, given the direct water connection, "contiguous" to the Quanicassee River.

Merely because a parcel of land lies between the wetlands and the river does not alter this conclusion. The regulation itself, 33 CFR 323.2(d), states that wetlands may be separated from other waters of the United States by "man-made dikes or barriers, natural river berms, beach dunes and the like..." In addition, the Preamble to the regulations, 42 Federal Register 37129 (July 19, 1977) states that:

The term adjacent would include wetlands that directly connect to other waters of the United States, or that are in reasonable proximity to these waters but physically separated from them by man-made dikes or barriers, natural river berms, beach dunes, and similar obstructions.

Finally, even defendants' own dictionary definition of "neighboring," used in their reply to the government's objections, defines it as "being immediately adjoining or relatively near..." Applying this common sense definition is in keeping with the intention of Congress that waters subject to the regulatory control of the United States be given "the broadest possible constitutional interpretation." United States v. Weisman, 489 F.Supp. 1331, 1337-1338 (M.D. Fla., 1980).

Based on the foregoing, the Court concludes that the area where the defendants placed the fill material is an "adjacent wetland" to "navigable waters of the United States", 33 CFR 323.2, and therefore within the jurisdiction, and subject to the permit procedure, of the United States Army Corps of Engineers. 33 U.S.C. § 1344. The defendants therefore acted illegally in not first seeking a permit from the Corps prior to dumping the fill material in this area.

Having reached this conclusion the Court need not address the government's objections regarding whether the Terry Drain is a "water of the United States" or whether the degradation of the wetlands affects interstate commerce.

Judgment

Accordingly, IT IS HEREBY ORDERED AND ADJUDGED that the defendants are permanently enjoined from depositing fill or other pollutants into the Quanicassee River or its adjacent wetlands, or in any other waters of the United States, without first obtaining a valid permit from the United States Army Corps of Engineers under the provisions of the Clean Water Act, 33 U.S.C. § 1251 et seq.

IT IS FURTHER ORDERED AND ADJUDGED that if so notified to do so by the Army Corps of Engineers, that the defendants, within ninety (90) days of such written notice, remove the unauthorized fill material and return the area in question to its former condition.

Finally, given defendant's previous knowledge that this area was arguably within the jurisdiction of the United States Army Corps of Engineers by virtue of the Stipulation and Order of Dismissal in the matter of United States v. Lee Wood Contracting, Inc., No. 79-71106 (E.D.Mich., April 30, 1979), IT IS FURTHERED ORDERED AND ADJUDGED that the defendants pay to the United States Government a civil penalty in the amount of One Thousand ($1,000.00) Dollars.

IT IS SO ORDERED.

APPENDIX

MEMORANDUM OPINION AND RECOMMENDATION

In this action the United States of America is seeking injunctive relief and the imposition of civil penalties against the Defendant Corporation and its officers for placing fill materials into a water of the United States without a permit. The Defendants contend that the filled area is not a water of the United States and thus not within the regulatory jurisdiction of the United States Army Corps of Engineers.

FINDINGS OF FACT

1. On March 6, 1980, bricks and other debris were placed on the property of Jerome Wood and in the ditch running along the highway right-of-way at 9383 Bay City Forestville Road (M-25),...