United States v. Lewis
Decision Date | 12 March 1973 |
Docket Number | No. 2895.,2895. |
Citation | 355 F. Supp. 1132 |
Parties | UNITED STATES of America, Plaintiff, v. R. R. LEWIS, Defendant. |
Court | U.S. District Court — Southern District of Georgia |
COPYRIGHT MATERIAL OMITTED
R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., Savannah, Ga., for plaintiff.
Alphene W. Dowell, Savannah, Ga., for defendant.
ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
The history of American law during the last few years has been notable for growing public concern over protection of the environment and desire for improving it. Congress, state legislatures and the courts have reacted accordingly. People have become "aware of civilization's potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent-spring-like disturbance of nature's economy," says the Fifth Circuit in Zabel v. Tabb, 430 F.2d 199, 201, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808. That case involved the filling in of "eleven acres of tidelands in the beautiful Boca Ciega Bay in the St. Petersburg-Tampa, Florida area for use as a commercial mobile trailer park."
The present litigation involves the filling in of marshland for construction of a private causeway about one thousand feet long from high land on Wilmington Island to a navigable tidal creek. The controversy has evoked some of the emotionalism and rhetoric that environmental problems often produce. At the trial Dr. Frederick C. Marland of the Georgia State Department of Resources, supporting his testimony to the effect that marshlands are "the nursery of the sea," was moved to quote Sidney Lanier's lines about the flooding tide in the marshes of Glynn as seen through the eyes of a poet-naturalist.
Zabel v. Tabb settles several of the issues in this case. Why, then, does this Court go to pains to remap so well-marked a path knowing fully where it comes out? The Zabel decision is not well known beyond legal and ecological circles. The legal issues involved in it are new to this State. The lay mind does not readily grasp the concept that marshes adjacent to a navigable stream are themselves deemed to be navigable and subject to federal regulatory jurisdiction. This is the first environmental law case to come before the United States District Court for the Southern District of Georgia in which marshland has been involved. That District embraces every acre of salt marsh in the State. It is estimated that Georgia's total tidal marsh area is nearly 500,000 acres of which 71,829 are in Chatham County. Much of it is privately owned or claimed. The impact of recent federal law, as well as old, is therefore important and a better understanding desirable.
In 1966 Raymond R. Lewis purchased a lot in a subdivision on Wilmington Island. It has a width of 100 feet and a length of approximately 500 feet on the highland side. Subsequently, he bought an adjoining 100-foot lot. The lots continue southward from the highland across the marsh to an unnamed tidal creek which forms their southern boundary. From the property looking to the south and west stretch a part of the vast sea-marshes of Georgia and the fantastic lacework of sounds, rivers and creeks that nature has woven along this coast.
One reason people buy property fronting on marshland is that a river or a creek is usually not far. Some of Mr. Lewis' neighbors built wooden docks over the marsh to the creek. Such meet the criteria of the Corps of Engineers. But thousand-foot docks are costly to erect and expensive to maintain. The defendant decided to construct a causeway to the creek. He was in the contracting business and had access to materials that could be used for land-fill.
In March, 1969, Mr. Lewis obtained a Chatham County building permit to construct a causeway.1 Apparently he was told that he should talk to the Corps of Engineers which he did. He testified that he was informed that there was no federal jurisdiction unless the crossing of a navigable stream was involved and that he then proceeded with the project.
By June, 1970, the causeway, about 100 feet wide, extended some 700-800 feet or more across the marsh. Defendant's trucks and those of other persons dumped their cargoes into the marsh— earth, tree stumps, logs, branches, broken concrete, construction materials and other debris.
The first notice of the fill taken by the Corps of Engineers was apparently on June 23, 1970. A report as to "Unauthorized Activity in Navigable Water" on that date noted that "Roadway approx 800 feet completed—needs 100 feet more fill to reach the creek." A week later the District Engineer in writing requested the defendant to take immediate steps to prevent debris from entering the navigable waters of the United States and to stop construction until a Department of Army Approval of Plans has been issued. P. Ex. 22. Construction of the causeway seems to have stopped although there is a dispute as to that fact.
On March 2, 1971, the District Engineer informed defendant that he had had "ample opportunity to comply with the law" and that if he did not submit Plans within fifteen days the matter would be referred to the United States Attorney for action. P. Ex. 21.
This action is brought by the United States, through the Corps of Engineers, to permanently enjoin R. R. Lewis from filling in with refuse and debris certain marshland on Wilmington Island. Further relief is prayed in the form of an order compelling defendant to remove the materials that he placed or caused to be placed in the marsh. In the alternative, the Government asks compensatory damages in the amount of $43,000.
The complaint alleges that the fill is within the navigable waters of the United States since the affected marshland is adjacent to a navigable creek which is tributary to Half Moon River. The filling operation is alleged to have commenced prior to July 28, 1970, and to have continued up to the time of the filing of the complaint in November, 1971.
Plaintiff alleges that the above described acts of defendant are violative of 33 U.S.C. § 403 and § 407.2
The answer of defendant contains a number of defenses:
(a) The tributary creek is not a navigable water.
(b) The marshland adjacent is the private property of defendant originating in a royal grant and the United States has no jurisdiction over it.
(c) The estuarine marshland is not a navigable water.
(d) By its environmental legislation the Government is attempting to require defendant to use his property as a sanctuary for wildlife and marine life which constitutes the taking of property without due process of law.
(e) Before beginning the fill project defendant talked to an official of the Corps of Engineers and was informed that it had no jurisdiction if the causeway was not going to cross a navigable stream or if nothing was to be thrown in such waters.
(f) The action by the Government constitutes invidious discrimination against the defendant in that numerous similar causeways have been constructed in Chatham County without the United States taking action against the individuals and corporations that have done so.
(g) The Government cannot be heard to complain because of its knowledge of defendant's intentions and its permitting him to complete the causeway at large expense.
(1) The Commerce Clause and Federal Power Over Our Tidal Areas.
The power of the United States over its waters capable of use as interstate highways stems from the authority to regulate commerce among the several states delegated to Congress under Art. I, Sec. 8, par. 3. In determining the navigability of a stream, the true criterion is capability rather than the manner and extent of the use. The Montello, 20 Wall. 430, 87 U.S. 430, 22 L.Ed. 391. Lack of commercial traffic is no bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation. United States v. Appalachian Electric Power Co., 311 U.S. 377, 416, 61 S.Ct. 291, 85 L.Ed. 243. See also United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 31-33 (N.D., Ga.), dismissed on appeal, 474 F. 2d 200 (5th Cir.); United States v. Underwood, 344 F.Supp. 486, 490 (M.D., Fla.).
The power to regulate extends to the entire bed of the stream and includes lands below the ordinary high water mark. United States v. Chicago, Milwaukee, St. Paul and Pacific Railroad Company, 312 U.S. 592, 597, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064. Jurisdiction embraces the whole surface of bodies of water subject to tidal action no matter how shallow or obstructed. A common sense view "permits no distinction upon the ground of navigability between the shallows and depths of navigable waters. . . ." United States v. Turner, 175 F.2d 644, 647 (5th Cir.), cert. denied, 338 U.S. 851, 70 S.Ct. 92, 94 L.Ed. 521.
In defining "navigable waters" for regulatory purposes the Corps of Engineers has stated that its jurisdiction extends "laterally to the entire water surface and bed of a navigable water body" and has declared that it "includes all the land and waters below the original high water mark." Jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water. Where precise determination of that line is necessary it should be established by survey based on tidal averages over a period of 18.6 years.3 Marshlands are "navigable in law" only so far as the area is "subject to inundation by the mean high waters." See 37 Federal Register, No. 176, Part 209.260.
Navigability for federal regulatory purposes is governed by federal law and state law is not authoritative in such cases.4 See Wisconsin v. Federal Power Commission, 214 F.2d...
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